Health and Social Care Bill

House of Lords

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
33

(c)
a study promoted, or undertaken, by the Commission under section 50,

so far as the material relates to the provision of health care by an NHS
foundation trust.
67
Provision of information by Auditor General for Wales
(1)
The Auditor General for Wales must, on request, provide the Commission with
5
any information it may reasonably require for the purpose of making
comparisons, in the exercise of its functions under section 50 so far as relating
to health care or English NHS bodies, between English NHS bodies and Welsh
NHS bodies.
(2)
In this section “Welsh NHS body” has the same meaning as in Part 3 of the
10
Public Audit (Wales) Act 2004 (c. 23).
68
Provision of material to the Comptroller and Auditor General
The Commission must, on request, provide the Comptroller and Auditor
General with any material relevant to—
(a)
a review under section 42 or 45 in respect of an English NHS body,
15
(b)
a review or investigation under section 44 in respect of such a body, or
(c)
a study promoted, or undertaken, by the Commission under section 50.
69
Arrangements with Ministers
(1)
The Commission and a Minister of the Crown may make arrangements for the
Commission to—
20
(a)
perform any of its functions in relation to a prescribed health scheme,
or a prescribed social care scheme, for which the Minister has
responsibility;
(b)
provide services or facilities insofar as they are required by the Minister
in connection with such a scheme.
25
(2)
Arrangements under this section may be made on such terms and conditions
as may be agreed between the parties to the arrangements.
(3)
Those terms and conditions may include provision with respect to the making
of payments to the Commission in respect of the cost to it of giving effect to the
arrangements.
30
(4)
In this section—
“health scheme” means a scheme which appears to the Secretary of State
to be a health or medical scheme paid for out of public funds;
“social care scheme” means a scheme which appears to the Secretary of
State to be a social care scheme paid for out of public funds.
35
70
Arrangements with Northern Ireland Ministers
(1)
The Commission and a Northern Ireland Minister may make arrangements for
the Commission to—
(a)
exercise on behalf of the Minister any function of the Minister which
corresponds to a function of the Commission and relates to the
40
Northern Ireland health service;

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
34

(b)
provide services or facilities insofar as they are required by the Minister
in connection with the exercise by the Minister of any such functions.
(2)
Arrangements under this section may be made on such terms and conditions
as may be agreed between the parties to the arrangements.
(3)
Those terms and conditions may include provision with respect to the making
5
of payments to the Commission in respect of the cost to it of giving effect to the
arrangements.
(4)
Any arrangements under subsection (1)(a) are not to affect the responsibility of
the Minister on whose behalf the function is exercised.
(5)
In this section—
10
“Northern Ireland Minister” includes the First Minister, the deputy First
Minister and a Northern Ireland department;
“Northern Ireland health service” means any of the health services under
any enactment which extends to Northern Ireland and which
corresponds to section 1(1) of the National Health Service Act 2006
15
(c. 41).
Inquiries
71
Inquiries
(1)
The Secretary of State may cause an inquiry to be held into any matter
connected with the exercise by the Commission of any of its functions.
20
(2)
Before an inquiry is begun, the Secretary of State may give a direction that it be
held in private.
(3)
Where no such direction has been given, the person holding the inquiry may
decide to hold it, or any part of it, in private.
(4)
Subsections (2) to (5) of section 250 of the Local Government Act 1972 (c. 70)
25
(powers in relation to local inquiries) apply in relation to an inquiry under this
section as they apply in relation to a local inquiry under that section.
(5)
The report of the person holding the inquiry is to be published, unless the
Secretary of State considers that there are exceptional circumstances which
make publication inappropriate.
30
(6)
Publication is to be in such manner as the Secretary of State considers
appropriate.
Information
72
Disclosure of confidential personal information: offence
(1)
This section applies to information which—
35
(a)
has been obtained by the Commission on terms or in circumstances
requiring it to be held in confidence, and
(b)
relates to and identifies an individual.
(2)
A person is guilty of an offence if the person knowingly or recklessly discloses
information to which this section applies during the lifetime of the individual.
40

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
35

(3)
A person guilty of an offence under this section is liable—
(a)
on summary conviction, to imprisonment for a term not exceeding 12
months, or to a fine not exceeding the statutory maximum, or to both;
(b)
on conviction on indictment, to imprisonment for a term not exceeding
two years, or to a fine, or to both.
5
(4)
In relation to an offence committed before the commencement of section 154(1)
of the Criminal Justice Act 2003 (c. 44), the reference in subsection (3)(a) to 12
months is to be read as a reference to 6 months.
(5)
For the purposes of subsection (1)(b), information obtained by the Commission
is to be treated as identifying an individual if the individual can be identified
10
from a combination of—
(a)
that information, and
(b)
other information obtained by the Commission.
(6)
Reference in this section and in sections 73 to 76 to information obtained or
disclosed by the Commission includes information obtained or disclosed by a
15
person authorised by the Commission.
73
Defence
(1)
It is a defence for a person charged with an offence under section 72 to prove
that at the time of the alleged offence—
(a)
any of the circumstances in subsection (2) applied in relation to the
20
disclosure, or
(b)
the person reasonably believed that any of them so applied.
(2)
The circumstances are—
(a)
that the disclosure was made in a form in which the individual to
whom the information relates is not identified;
25
(b)
that the disclosure was made with the consent of that individual;
(c)
that the information disclosed had previously been lawfully disclosed
to the public;
(d)
that the disclosure was made under or pursuant to regulations under
section 113 or 114 of the Health and Social Care (Community Health
30
and Standards) Act 2003 (c. 43) (complaints about health care or social
services);
(e)
that the disclosure was made in accordance with any enactment or
court order;
(f)
that the disclosure was necessary or expedient for the purposes of
35
protecting the welfare of any individual;
(g)
that the disclosure was made to any person or body in circumstances
where it was necessary or expedient for the person or body to have the
information for the purpose of exercising functions of that person or
body under any enactment.
40
(3)
It is also a defence for a person charged with an offence under section 72 to
prove that the disclosure was made—
(a)
for the purpose of facilitating the exercise of any of the Commission’s
functions,
(b)
in connection with the investigation of a criminal offence (whether or
45
not in the United Kingdom), or

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
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(c)
for the purpose of criminal proceedings (whether or not in the United
Kingdom).
(4)
If a person charged with an offence under section 72 relies on a defence in
subsection (1) or (3), and evidence is adduced which is sufficient to raise an
issue with respect to that defence, the court must assume that the defence is
5
satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(5)
For the purposes of subsection (2)(a), information disclosed by a person is to be
treated as being in a form in which an individual is identified if the individual
can be identified from a combination of—
(a)
the information, and
10
(b)
other information disclosed by the person or by the Commission.
74
Use of information etc.
Information obtained by, or documents or records produced to, the
Commission in connection with any of its functions may be used by the
Commission in connection with any of its other functions.
15
75
Permitted disclosures
(1)
Subsections (2) and (3) apply to any information obtained by the Commission
in the course of exercising any of its functions.
(2)
In the case of information relating to an individual, the Commission may
disclose the information if—
20
(a)
the disclosure is made in a form in which the individual is not
identified, or
(b)
the disclosure is made with the consent of the individual.
(3)
In all cases (whether or not relating to an individual), the Commission may
disclose the information if—
25
(a)
the information has previously been lawfully disclosed to the public,
(b)
the disclosure is made under or pursuant to regulations under section
113 or 114 of the Health and Social Care (Community Health and
Standards) Act 2003 (c. 43) (complaints about health care or social
services),
30
(c)
the disclosure is made in accordance with any enactment or court
order,
(d)
the disclosure is necessary or expedient for the purposes of protecting
the welfare of any individual,
(e)
the disclosure is made to any person or body in circumstances where it
35
is necessary or expedient for the person or body to have the information
for the purpose of exercising functions of that person or body under
any enactment,
(f)
the disclosure is made for the purpose of facilitating the exercise of any
of the Commission’s functions,
40
(g)
the disclosure is made in connection with the investigation of a criminal
offence (whether or not in the United Kingdom), or
(h)
the disclosure is made for the purpose of criminal proceedings
(whether or not in the United Kingdom).

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Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
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(4)
Subsections (2) and (3) have effect notwithstanding any rule of common law
which would otherwise prohibit or restrict the disclosure.
(5)
For the purposes of subsection (2)(a), information disclosed by the
Commission is to be treated as being in a form in which an individual is
identified if the individual can be identified from a combination of—
5
(a)
the information, and
(b)
other information disclosed by the Commission.
76
Code of practice on confidential personal information
(1)
The Commission must prepare and publish a code in respect of the practice it
proposes to follow in relation to confidential personal information.
10
(2)
The code must in particular make provision—
(a)
about the obtaining by the Commission of information which, once
obtained, will be confidential personal information, and
(b)
about the handling, use and disclosure by the Commission of
confidential personal information.
15
(3)
Before publishing the code, the Commission must consult—
(a)
the National Information Governance Board for Health and Social
Care, and
(b)
such other persons as it considers appropriate.
(4)
The Commission must keep the code under review and, if it considers it
20
appropriate, from time to time publish a revised code (and references in this
section to the code include any revised code).
(5)
In this section “confidential personal information” means information which—
(a)
is obtained by the Commission on terms or in circumstances requiring
it to be held in confidence, and
25
(b)
relates to and identifies an individual.
(6)
For the purposes of subsection (5)(b), information obtained by the Commission
is to be treated as identifying an individual if the individual can be identified
from a combination of—
(a)
the information, and
30
(b)
other information obtained by the Commission.
Further provisions about functions of Commission
77
Publication of programme of reviews etc.
(1)
The Commission must from time to time, or at such times as the Secretary of
State may specify by order, prepare and publish a document setting out—
35
(a)
the special reviews and investigations that it proposes to conduct under
section 44,
(b)
the studies that it proposes to undertake under section 50, and
(c)
the reviews that it proposes to conduct under section 53.
(2)
Before preparing a document under subsection (1) the Commission must
40
consult—
(a)
the Secretary of State, and

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
38

(b)
any other person or body specified by an order made by the Secretary
of State,

and it must send each of those persons or bodies a copy of the document once
it is prepared.
(3)
The Commission may determine that any document or combination of
5
documents prepared for the purposes of any other enactment or enactments is
to be treated as a document prepared for the purposes of subsection (1) (so long
as the requirements of subsection (2) are complied with in relation to the
document or documents concerned).
(4)
Nothing in a document published under subsection (1) is to be regarded—
10
(a)
as affecting any power of the Secretary of State to require a review or
investigation to be conducted or a study to be undertaken, or
(b)
as preventing the Commission from conducting an investigation under
section 44 where the Commission considers there to be a risk to the
health, safety or welfare of persons receiving health or social care.
15
78
Failure by the Commission in discharge of its functions
(1)
The Secretary of State may give a direction to the Commission if the Secretary
of State considers that the Commission—
(a)
is failing or has failed to discharge any of its functions, or
(b)
is failing or has failed properly to discharge any of its functions.
20
(2)
A direction under subsection (1) may direct the Commission to discharge such
of those functions, and in such manner and within such period or periods, as
may be specified in the direction.
(3)
If the Commission fails to comply with a direction under subsection (1), the
Secretary of State may—
25
(a)
discharge the functions to which the direction relates, or
(b)
make arrangements for any other person to discharge them on the
Secretary of State’s behalf.
79
Reports for each financial year etc.
(1)
As soon as possible after the end of each financial year, the Commission must
30
make a report on each of the following matters—
(a)
the way in which it has exercised its functions during the year,
(b)
the provision of NHS care during the year,
(c)
the provision of adult social services during the year, and
(d)
the carrying on of regulated activities during the year.
35
(2)
The Commission may comply with subsection (1) by preparing a single
document or separate documents on each of the matters mentioned there.
(3)
If the Secretary of State so directs, a report under subsection (1) must include
separate reports on such aspects of the matters mentioned in that subsection as
may be specified in the direction.
40
(4)
The Commission must—
(a)
lay before Parliament a copy of each report made under subsection (1),
and
(b)
send a copy of each such report to the Secretary of State.

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General
39

(5)
The Commission must also provide the Secretary of State with such reports
and information relating to the exercise of its functions as the Secretary of State
may from time to time request.
(6)
Subsection (1)(a) does not apply to the Commission’s functions under the
Mental Health Act 1983 (c. 20).
5
(7)
In this section, “financial year” means—
(a)
the period beginning with the date on which the Commission is
established and ending with the next 31 March following that date, and
(b)
each successive period of 12 months ending with 31 March.
80
Reports and information
10
(1)
Subsections (2) and (3) apply to a report published by the Commission under
any provision of this Part or of the Mental Health Act 1983.
(2)
The Commission must make copies of the report available for inspection at its
offices by any person at any reasonable time.
(3)
Any person who requests a copy of the report is entitled to have one on
15
payment of such reasonable fee (if any) as the Commission considers
appropriate.
(4)
The Commission may charge a person such reasonable fee as it considers
appropriate where it provides the person, on request, with any other
information relevant to the exercise of the Commission’s functions under this
20
Part.
Fees
81
Fees
(1)
The Commission may with the consent of the Secretary of State from time to
time make and publish provision—
25
(a)
requiring a fee to be paid in respect of—
(i)
an application for registration as a service provider or manager
under Chapter 2,
(ii)
the grant or subsistence of any such registration, or
(iii)
an application under section 15(1);
30
(b)
requiring English NHS bodies, English local authorities, persons
registered under Chapter 2 and such other persons as may be
prescribed to pay a fee in respect of the exercise by the Commission of
such of its other functions under this Part as may be prescribed.
(2)
The amount of a fee payable under provision under subsection (1) is to be such
35
as may be specified in, or calculated or determined under, the provision.
(3)
Provision under subsection (1) may include provision—
(a)
for different fees to be paid in different cases,
(b)
for different fees to be paid by persons of different descriptions,
(c)
for the amount of a fee to be determined by the Commission in
40
accordance with specified factors, and
(d)
for determining the time by which a fee is to be payable.