Health and Social Care Bill—
Amendments to be debated in the House of Lordscontinued

House of Lords

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Clause 45

 

BARONESS BARKER
BARONESS TONGE

91APage 22, line 24, at end insert—
"(   )  After conducting a periodic review of regulated activities by regulated social care providers, the Commission must award and publish a performance rating."
 

After Clause 45

 

EARL HOWE
BARONESS CUMBERLEGE

92Insert the following new Clause—
  "Failings by English NHS providers
(1)  This section applies where the Commission conducts a review under section 42 or 45, or a review or investigation under section 44, in respect of an English NHS provider.
(2)  If the Commission considers that the English NHS provider is failing to discharge any of its functions to an acceptable standard, then subject to subsection (3) the Commission must—
(a)  inform the Secretary of State of the fact, and
(b)  recommend any special measures which it considers the Secretary of State should take.
(3)  If the Commission considers that the failure is not substantial, it may instead—
(a)  give the English NHS provider a notice under subsection (4), and
(b)  inform the Secretary of State that it has done so.
(4)  A notice under this subsection is a notice which specifies—
(a)  the respects in which the Commission considers that the English NHS provider is failing,
(b)  the action which the Commission considers the English NHS provider should take to remedy the failure, and
(c)  the time by which the Commission considers the action should be taken.
(5)  If the Commission recommends that the Secretary of State should take special measures in relation to the English NHS provider, the Commission must, if the Secretary of State so requests—
(a)  conduct a further review under section 44 in relation to the English NHS provider, and
(b)  include in its report under subsection (4) of that section a report on such matters as the Secretary of State may specify."
 

Clause 48

 

BARONESS MEACHER

93Page 24, line 31, at end insert—
"(   )  The Care Quality Commission shall establish a sub-committee to be known as the mental health sub-committee to advise the Commission about the exercise of the Commission's functions in so far as they affect users of mental health services.
(   )  The Commission shall ensure that—
(a)  there are not less than seven or more than nine members of the mental health sub-committee;
(b)  at least one quarter of the members have used, or have cared for people who have used mental health services;
(c)  at least one quarter of the members are clinicians with expertise in mental health;
(d)  the mental health sub-committee shall determine its own procedures."
 

BARONESS MURPHY
LORD PATEL OF BRADFORD

94Page 24, line 31, at end insert—
"(   )  The Commission shall in its annual report demonstrate that visits to relevant patients under section 120 of the MHA are sufficiently regular to fulfil the Commission's duty to ensure that the rights and welfare of those patients are safeguarded and promoted."
 

Schedule 3

 

BARONESS MURPHY
LORD PATEL OF BRADFORD

95Page 116, line 30, at end insert—
"(d)  patients deprived of liberty under the Mental Capacity Act 2005."
96Page 116, line 42, at end insert—
    "(4A)      The arrangements made under subsection (3) must ensure that visits are sufficiently regular to ensure that the rights and welfare of the patients are safeguarded and promoted."
97Page 117, line 22, at end insert—
    "(7A)      The regulatory authority shall ensure that persons exercising functions under subsection (3) have relevant expertise to ensure the protection of the civil, legal and human rights of patients detained or treated under this Act and patients deprived of their liberty under the Mental Capacity Act 2005."
 

Clause 49

 

LORD WARNER
BARONESS MURPHY

98Page 24, line 37, after "the" insert "commissioning and"
 

BARONESS BARKER
BARONESS TONGE

99Page 24, line 37, after "provision" insert "and improvement"
100Page 24, line 38, after "provision" insert "and improvement"
 

BARONESS BARKER
BARONESS TONGE
BARONESS HOWARTH OF BRECKLAND
EARL HOWE

101Page 24, line 39, at end insert—
"(   )  the objectives of the Commission in relation to the achievement of the regulatory objectives;
(   )  the extent to which, in the Commission's opinion, the Commission has taken into account the views and experiences of people who use health care and adult social care services and their families and carers in exercising its functions;
(   )  the efficient, economic and effective use of resources in the carrying on of such activities and services."
 

Clause 50

 

BARONESS BARKER
BARONESS TONGE

101APage 25, line 21, leave out "may undertake or promote" and insert "has the function of undertaking or promoting"
 

EARL HOWE
BARONESS CUMBERLEGE

101B*Page 25, line 46, at end insert—
"(6)  The reference in subection (1) to improving economy, efficiency and effectiveness shall include in particular—
(a)  financial savings likely to be generated as a result of the recommendations,
(b)  economic gains likely to arise as a result of the recommendations, and
(c)  improvements in the effectiveness of patient care likely to arise as a result of the recommendations, in so far as such improvements take advantage of medical technology."
 

After Clause 51

 

EARL HOWE
BARONESS CUMBERLEGE

102Insert the following new Clause—
  "Competition between commissioners or providers of health care
(1)  Regulations may make provision for the Commission to undertake or promote comparative or other studies designed to enable it to make recommendations—
(a)  for establishing principles and rules relating to competition between different commissioners or providers of health care; or
(b)  for promoting transparency and fairness in such competition.
(2)  Any such regulations may provide for the publication of studies undertaken by the Commission and of recommendations arising from them.
(3)  Any such regulations must provide for the Secretary of State to have regard to the recommendations of the Commission under this section."
 

Clause 56

 

LORD WARNER
BARONESS MURPHY
EARL HOWE

103Page 27, line 36, after "the" insert "commissioning and"
 

Clause 57

 

EARL HOWE
BARONESS CUMBERLEGE

103ZAPage 28, leave out line 8 and insert—
"(1)  The Commission shall determine—"
 

BARONESS JONES OF WHITCHURCH

103APage 28, line 26, at end insert—
"(   )  The Secretary of State may, after consulting the Commission, by regulations make provision specifying conditions which would result in additional inspections for the purposes of the Commission's functions under Chapter 2."
 

After Clause 58

 

BARONESS MEACHER

104Insert the following new Clause—
  "Entry and inspection: lay inspectors
(1)  Persons authorised by the Commission to enter and inspect any premises shall include lay inspectors.
(2)  In this section "lay inspectors" means persons not trained in the profession or employed in the service being inspected."
 

Clause 65

 

LORD DARZI OF DENHAM

105Page 32, line 26, at end insert—
"(   )  The Commission and the Welsh Ministers may share information with each other for the purposes of subsection (1)."
 

Clause 66

 

BARONESS MURPHY
BARONESS MEACHER
EARL HOWE

106Page 32, line 45, at end insert—
"(4)  Where the Commission serves a warning notice on a registered service provider that is an NHS foundation trust or on a registered manager of an NHS foundation trust, it must, as soon as practicable afterwards, provide a copy of the warning notice to the Independent Regulator together with its recommendations, if any, for the appropriate action to be taken by the NHS foundation trust to rectify the failures.
(5)  Where the Commission has provided a copy of a warning notice to the Independent Regulator pursuant to subsection (4)—
(a)  the Independent Regulator shall take all necessary and reasonable steps to ensure that the NHS foundation trust rectifies the failures set out in the warning notice in accordance with any requirements set out in the warning notice, including if necessary by using its statutory powers of intervention; and
(b)  where the NHS foundation trust fails to comply with the requirements, if any, of the warning notice (whether or not the Independent Regulator has used its statutory powers of intervention) the Commission shall only be entitled to—
(i)  exercise its powers under section 13 (cancellation of registration) or 14 (suspension of registration),
(ii)  take proceedings under section 29 (failure to comply with conditions), or
(iii)  take any other action against the NHS foundation trust in respect of the failure,
  with the prior approval of the Independent Regulator.
(6)  The Commission shall not serve a notice under section 27 (urgent procedure for variation, suspension etc.) on a registered service provider that is an NHS foundation trust or on a registered manager of an NHS foundation trust without the prior approval of the Independent Regulator.
(7)  Where the Commission serves a notice under section 27, it will as soon as practicable afterwards provide a copy of the notice to the Independent Regulator.
(8)  For the avoidance of doubt, nothing in this section shall affect the powers of the Commission under section 26 (urgent procedure for cancellation)."
 

Clause 77

 

EARL HOWE
BARONESS CUMBERLEGE

107Page 37, line 33, leave out subsection (2)
 

Clause 79

 

BARONESS BARKER
BARONESS TONGE
BARONESS HOWARTH OF BRECKLAND

108Page 38, line 23, at end insert—
"(   )  the extent to which, in the Commission's opinion, the Commission has taken into account the views and experiences of people who use healthcare and adult social care services and their families and carers, in exercising its functions,
(   )  the extent to which, in the Commission's opinion, it has acted upon the advice of the Children and Adult Rights Director given to it under paragraph 5(2) of Schedule 1,"
 

BARONESS BARKER
BARONESS TONGE
EARL HOWE

109Page 38, line 26, at end insert—
"(   )  the extent to which, in the Commission's opinion, the Commission has met the regulatory objectives."
 

After Clause 83

 

EARL HOWE
BARONESS CUMBERLEGE

109AInsert the following new Clause—
  "Monetary penalties: procedure
(1)  Provision under section 82 must secure the results in subsection (2).
(2)  Those results are that—
(a)  where the Commission proposes to impose a monetary penalty on a person ("P"), the Commission must serve on that person a notice of what is proposed (a "notice of intent") which complies with subsection (3).
(b)  the notice of intent must offer P the opportunity to discharge P's liability for the monetary penalty by payment of a prescribed sum (which must be less than or equal to the amount of the penalty),
(c)  if P does not so discharge liability—
(i)  P may make written representations and objections to the Commission in relation to the proposed imposition of the monetary penalty, and
(ii)  the Commission must at the end of the period for making representations and objections decide whether to impose the monetary penalty,
(d)  where the Commission decides to impose the monetary penalty, the notice imposing it ("the final notice") must comply with subsection (5), and
(e)  P may appeal against the decision to impose the monetary penalty.
(3)  To comply with this subsection the notice of intent must include information as to—
(a)  the grounds for the proposal to impose the monetary penalty,
(b)  the effect of payment of the sum referred to in subsection (2)(b),
(c)  the right to make representations and objections,
(d)  the circumstances in which the Commission may not impose the monetary penalty,
(e)  the period within which liability to the monetary penalty may be discharged, which shall not exceed the period of 28 days beginning with the day on which the notice of intent was received, and
(f)  the period within which representations and objections may be made, which shall not exceed the period of 28 days beginning with the day on which the notice of intent was received.
(4)  Provision pursuant to subsection (2)(c)(ii)—
(a)  must secure that the Commission may not decide to impose a monetary penalty on a person where the Commission is satisfied that the person would not, by reason of any defence, be liable to be convicted of the relevant offence, and
(b)  may include provision for other circumstances in which the Commission may not decide to impose a monetary penalty.
(5)  To comply with this subsection the final notice referred to in subsection (2)(d) must include information as to—
(a)  the grounds for imposing the penalty,
(b)  how payment may be made,
(c)  the period within which payment must be made,
(d)  any early payment discounts or late payment penalties,
(e)  rights of appeal, and
(f)  the consequences of non-payment.
(6)  Provision pursuant to subsection (2)(e) must secure that the grounds on which a person may appeal against a decision of the Commission include the following—
(a)  that the decision was based on an error of fact,
(b)  that the decision was wrong in law,
(c)  that the decision was unreasonable."

 
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©Parliamentary copyright 2008
9 May 2008