Health and Social Care Act 2008

(4A) An instrument of appointment— (a) must be contained in regulations if it provides for the appointment of a Primary Care Trust or other person as a determining authority in relation to the remuneration to be paid to persons who provide services under section 126, and (b) if paragraph (a) does not apply, may be contained in regulations.

, and

• (b) in subsection (5), omit paragraph (b) and the word “and” immediately preceding it.

• (2) In section 88 of the National Health Service (Wales) Act 2006 (c. 42) (remuneration for persons providing pharmaceutical services)—

• (a) after subsection (4) insert—

(4A) An instrument of appointment— (a) must be contained in regulations if it provides for the appointment of a Local Health Board or other person as a determining authority in relation to the remuneration to be paid to persons who provide services under section 80, and (b) if paragraph (a) does not apply, may be contained in regulations.

, and

• (b) in subsection (5), omit paragraph (b) and the word “and” immediately preceding it.

Indemnity schemes in connection with provision of health services

142

• (1) Section 71 of the National Health Service Act 2006 (c. 41) (schemes for meeting losses and liabilities of health service bodies) is amended as follows.

• (2) In subsection (1), after “the bodies” (in each place) insert “ or other persons ”.

• (3) In subsection (2)—

• (a) after “The bodies” insert “ and other persons ”,

• (b) after paragraph (g) insert—

(h) the Secretary of State, and (i) a body or other person (other than a body or other person within any of paragraphs (a) to (h)) providing, or arranging the provision of, health services whose provision is the subject of arrangements with a body or other person within any of paragraphs (a) to (h),

, and

• (c) after “bodies which” insert “ , or other persons who, ”.

• (4) After subsection (2) insert—

(2A) In subsection (1)(b) “functions”— (a) in relation to the Secretary of State, means the Secretary of State's functions in connection with the health service; (b) in relation to a body or other person within paragraph (i) of subsection (2), means the body's or person's functions of providing, or arranging the provision of, health services whose provision is the subject of arrangements with a body or other person within any of paragraphs (a) to (h) of that subsection.

• (5) In subsection (3)—

• (a) in paragraph (b), after “body which” insert “ , or other person who, ”, and

• (b) in paragraph (c), after “Secretary of State” insert “ (whether or not a participator in the scheme and, if a participator, whether or not required to make payments as a participator) ”.

• (6) For subsection (5) substitute—

(5) The Secretary of State may make a direction under subsection (4) in respect of a body only if the body is within any of paragraphs (a) to (d), (f) and (g) of subsection (2).

• (7) After subsection (8) insert—

(9) In subsection (2)(i), the reference to a person providing health services does not include a person providing health services under a contract of employment. (10) In this section “health services” means services provided as part of the health service.

Weighing and measuring of children

Weighing and measuring of children: England

143

• (1) In Schedule 1 to the National Health Service Act 2006 (c. 41) (further provision about the Secretary of State and services under that Act) after paragraph 7 insert—

(7A) (1) The Secretary of State may, by arrangement with any local education authority, provide for the weighing and measuring of junior pupils in attendance at any school which is maintained by the authority. (2) The Secretary of State may, by arrangement with the proprietor of any school which is not maintained by a local education authority, provide for the weighing and measuring of junior pupils in attendance at that school. (3) The Secretary of State may, by arrangement with any person who is registered under Chapter 2 of Part 3 of the Childcare Act 2006 in respect of early years provision, provide for the weighing and measuring of young children for whom childcare is provided by that person. (4) In sub-paragraphs (1) and (2) any expression to which a meaning is given for the purposes of the Education Act 1996 or the School Standards and Framework Act 1998 has the same meaning as in that Act; and in sub-paragraph (3) any expression to which a meaning is given for the purposes of Part 3 of the Childcare Act 2006 has the same meaning as in that Part. (7B) (1) The Secretary of State may by regulations— (a) authorise the disclosure by any person with whom arrangements under paragraph 7A are made, to any person carrying out the weighing or measuring, of prescribed information relating to the children concerned, (b) require any weighing and measuring provided for by the Secretary of State under paragraph 7A to be carried out in a prescribed manner and after compliance with any prescribed requirements, (c) make provision authorising any resulting information relating to a child, together with any advisory material authorised by or under the regulations, to be communicated in a prescribed manner to a person who is, or is treated by the regulations as being, a parent of the child, and (d) make other provision regulating the processing of information resulting from any weighing or measuring provided for by the Secretary of State under paragraph 7A. (2) Regulations made under sub-paragraph (1) may require any person exercising functions in relation to any weighing or measuring to which the regulations apply or in relation to information resulting from such weighing or measuring to have regard to any guidance given from time to time by the Secretary of State. (3) In sub-paragraph (1)(d), “processing”, in relation to information, has the same meaning as in the Data Protection Act 1998. (4) Regulations under this paragraph cannot include provision by virtue of section 272(8)(a) amending or repealing an Act.

• (2) Until the commencement of Chapter 2 of Part 3 of the Childcare Act 2006 (c. 21), the reference in paragraph 7A(3) of Schedule 1 to the National Health Service Act 2006 (c. 41) (as inserted by subsection (1) of this section) to a person registered under Chapter 2 of Part 3 of the Childcare Act 2006 in respect of early years provision is to be read as a reference to a person registered under Part 10A of the Children Act 1989 (c. 41) in respect of child minding or the provision of day care (within the meaning of that Part).

Weighing and measuring of children: Wales

144

In Schedule 1 to the National Health Service (Wales) Act 2006 (c. 42) (further provision about the Welsh Ministers and services under that Act) after paragraph 7 insert—

(7A) (1) The Welsh Ministers may, by arrangement with any local authority, provide for the weighing and measuring of junior pupils in attendance at any school which is maintained by the authority. (2) The Welsh Ministers may, by arrangement with the proprietor of any school which is not maintained by a local authority, provide for the weighing and measuring of junior pupils in attendance at that school. (3) The Welsh Ministers may, by arrangement with any person who is registered under Part 10A of the Children Act 1989 (child minding and day care for children in Wales) in respect of child minding or the provision of day care, provide for the weighing and measuring of children looked after by that person. (4) In sub-paragraphs (1) and (2) any expression to which a meaning is given for the purposes of the Education Act 1996 or the School Standards and Framework Act 1998 has the same meaning as in that Act; and in sub-paragraph (3) any expression to which a meaning is given for the purposes of Part 10A of the Children Act 1989 has the same meaning as in that Part. (7B) (1) The Welsh Ministers may by regulations— (a) authorise the disclosure by any person with whom arrangements under paragraph 7A are made, to any person carrying out the weighing or measuring, of prescribed information relating to the children concerned, (b) require any weighing and measuring provided for by the Welsh Ministers under paragraph 7A to be carried out in a prescribed manner and after compliance with any prescribed requirements, (c) make provision authorising any resulting information relating to a child, together with any advisory material authorised by or under the regulations, to be communicated in a prescribed manner to a person who is, or is treated by the regulations as being, a parent of the child, and (d) make other provision regulating the processing of information resulting from any weighing or measuring provided for by the Welsh Ministers under paragraph 7A. (2) Regulations made under sub-paragraph (1) may require any person exercising functions in relation to any weighing or measuring to which the regulations apply or in relation to information resulting from such weighing or measuring to have regard to any guidance given from time to time by the Welsh Ministers. (3) In sub-paragraph (1)(d), “processing”, in relation to information, has the same meaning as in the Data Protection Act 1998. (4) Regulations under this paragraph cannot include provision by virtue of section 203(10)(a) amending or repealing an Act.

Social care

Human Rights Act 1998: provision of certain social care to be public function

145

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Direct payments in lieu of provision of care services

146

• (1) Section 57 of the Health and Social Care Act 2001 (c. 15) (regulations may require or authorise direct payments to a person, with the person's consent, in respect of the person securing the provision to the person of certain care services) is amended as follows.

• (2) After subsection (1) insert—

(1A) Regulations may make provision for and in connection with requiring or authorising the responsible authority in the case of a person (“P”) of a prescribed description— (a) who falls within subsection (2)(a), and (b) who falls within subsection (5A) or is reasonably believed by the authority to fall within that subsection, to make, with the requisite consent, such payments as the authority may determine in accordance with the regulations to a suitable person other than P in respect of the other person's securing the provision for P of the service mentioned in subsection (2)(a). (1B) In subsection (1A) “the requisite consent” means— (a) the consent of the other person; and (b) where the other person is not a surrogate of P but there is at least one person who is a surrogate of P, the consent also of a surrogate of P. (1C) For the purposes of subsection (1A), a person (whether or not an individual) is “suitable” if— (a) that person is a representative of P; (b) that person is not a representative of P (or there is no-one who is a representative of P), but— (i) a surrogate of P, and (ii) the responsible authority, consider that person to be a suitable person to receive the payments for the purpose of securing provision for P of the service concerned; or (c) that person is not a representative of P (or there is no-one who is a representative of P), and there is no-one who is a surrogate of P, but the responsible authority considers that person to be a suitable person to receive the payments for that purpose.

• (3) In subsection (3) (provision which may be included in regulations under the section)—

• (a) in paragraph (a) (provision as to circumstances in which payments not to be made), after “to a person” insert “ or in respect of a person ”,

• (b) in paragraph (c)(i) (provision about determination of payee's means), after “the payee's means” insert “ in the case of direct payments under subsection (1) or, in the case of direct payments under subsection (1A), the means of the person (“the beneficiary”) in respect of whom the payments are required or authorised to be made ”,

• (c) in each of paragraphs (d) and (e)(ii) (provision as to conditions to be complied with by payee, and provision as to repayments by payee or otherwise), after “payee” insert “ in the case of direct payments under subsection (1), or by the payee or by the beneficiary in the case of direct payments under subsection (1A), ” and

• (d) after paragraph (h) insert—

(j) as to matters to which the responsible authority must, or may, have regard when making a decision for the purposes of a provision of the regulations; (k) as to steps which the responsible authority must, or may, take before, or after, the authority makes a decision for the purposes of a provision of the regulations; (l) specifying circumstances in which a person who has fallen within subsection (5A) but no longer does so (whether because of fluctuating capacity, or regaining or gaining of capacity) is to be treated, or may be treated, as falling within subsection (5A) for purposes of this section or for purposes of regulations under this section.

• (4) In subsection (4)(b) (gross payments: condition that payee pays amounts by way of reimbursement), after “payee” insert “ in the case of direct payments under subsection (1), or the beneficiary in the case of direct payments under subsection (1A), ”.

• (5) In subsection (5) (payments made net on basis that payee will contribute to cost of service)—

• (a) in paragraph (a), after “the payee will himself” insert “ in the case of direct payments under subsection (1), or the beneficiary will in the case of direct payments under subsection (1A), ” and

• (b) in paragraph (b), after “payee” insert “ or (as the case may be) the beneficiary ”.

• (6) After subsection (5) insert—

(5A) A person falls within this subsection if the person lacks capacity, within the meaning of the Mental Capacity Act 2005, to consent to the making of direct payments. (5B) In this section “representative”, in relation to a person, means such other person (whether or not an individual) as may be prescribed. (5C) In this section “surrogate”, in relation to a person, means— (a) a deputy appointed for the person by the Court of Protection under section 16(2)(b) of the Mental Capacity Act 2005, or (b) a donee of a lasting power of attorney created by the person, whose powers, as deputy or donee, consist of or include such powers as may be prescribed.

• (7) After subsection (7) insert—

(7A) For the purposes of subsection (3)(d), the conditions that are to be taken to be conditions in relation to direct payments include, in particular, conditions in relation to— (a) the securing of the provision of the service concerned, (b) the provider of the service, (c) the person to whom payments are made in respect of the provision of the service, or (d) the provision of the service.

• (8) In section 64 of the Health and Social Care Act 2001 (c. 15) (regulations and orders), after subsection (4) insert—

(4A) A statutory instrument containing— (a) regulations made by the Welsh Ministers under section 57, or (b) regulations made by the Welsh Ministers under section 65 that make provision for the purposes of, in consequence of or for giving full effect to section 57, is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

Abolition of maintenance liability of relatives

147

• (1) The following provisions cease to have effect—

• (a) section 43 of the National Assistance Act 1948 (c. 29) (recovery from liable relative of local authority's costs of assistance),

• (b) in section 47(9) of that Act (liability of maintained person, or person's relatives, for expenditure incurred under section 47(8)), the words “or from any person who for the purposes of this Act is liable to maintain that person”,

• (c) in section 48(3) of that Act (liability of person in hospital etc., or person's relatives, for costs of protecting person's property), the words “, or from any person who for the purposes of this Act is liable to maintain him,”,

• (d) in section 51(1) of that Act (offence where person fails to maintain himself or any person he is liable to maintain), the words “or any person whom he is liable to maintain for the purposes of this Act”,

• (e) in paragraph 19(1) of Schedule 6 to that Act (which ended a saved liability to maintain a person where there was no liability to maintain that person for the purposes of that Act), the words “whom he is not liable to maintain for the purposes of this Act”,

• (f) paragraph 19(2) of that Schedule (which gave continuing effect to certain saved liabilities not ended by paragraph 19(1)), and

• (g) in section 46(5) of the Public Health (Control of Disease) Act 1984 (c. 22) (liability of person's estate, or person's relatives, for cost of burial or cremation under the section), the words “or from any person who for the purposes of the National Assistance Act 1948 was liable to maintain the deceased person immediately before his death”.

• (2) In section 29(4A)(c) of the National Assistance Act 1948 (c. 29) (which provides for section 43 to apply where accommodation in a hostel is provided under section 29(4)(c)), for “sections 32 and 43 of this Act shall apply as they apply” substitute “ section 32 shall apply as it applies ”.

• (3) In section 51(1) of that Act, for “, himself or any other person” substitute “ him ”.

• (4) In section 87(3) of the Social Work (Scotland) Act 1968 (c. 49) (provision of accommodation treated as being under Part 3 of the National Assistance Act 1948), for the words from “(as amended”, where first occurring, to “etc.)” substitute “ (as amended by any enactment within the meaning of the Scotland Act 1998 (c. 46)) of the said Act of 1948 ”.

• (5) In Schedule 1 to the Local Authority Social Services Act 1970 (c. 42) (definition of “social services functions” for purposes of the 1970 Act), in the entry relating to sections 43 to 45 of the National Assistance Act 1948, for “Sections 43 to” substitute “ Section ”.

• (6) The provisions of this section have effect subject to, and in accordance with, Schedule 13.

Ordinary residence for certain purposes of National Assistance Act 1948 etc.

148

• (1) In section 24 of the National Assistance Act 1948 (authority liable for provision of accommodation) for subsections (6) and (7) substitute—

(6) For the purposes of the provision of residential accommodation under this Part, a patient (“P”) for whom NHS accommodation is provided shall be deemed to be ordinarily resident in the area, if any, in which P was resident before the NHS accommodation was provided for P, whether or not P in fact continues to be ordinarily resident in that area. (6A) In subsection (6) “NHS accommodation” means— (a) accommodation (at a hospital or elsewhere) provided under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006, or (b) accommodation provided under section 117 of the Mental Health Act 1983 by a Primary Care Trust or Local Health Board, other than accommodation so provided jointly with a local authority.

• (2) In section 32 of that Act (adjustments between authority providing accommodation, etc., and authority of area of residence) for subsection (3) substitute—

(3) Any question arising under this Part as to a person's ordinary residence shall be determined by the Secretary of State or by the Welsh Ministers. (4) The Secretary of State and the Welsh Ministers shall make and publish arrangements for determining which cases are to be dealt with by the Secretary of State and which are to be dealt with by the Welsh Ministers. (5) Those arrangements may include provision for the Secretary of State and the Welsh Ministers to agree, in relation to any question that has arisen, which of them is to deal with the case.

• (3) In section 2 of the Chronically Sick and Disabled Persons Act 1970 (c. 44) (provision of welfare services) after subsection (1) insert—

(1A) Subsections (3) to (5) of section 32 of the National Assistance Act 1948 (which relate to the determination of any question arising under Part 3 of that Act as to a person's ordinary residence) apply in relation to any question arising under this section as to a person's ordinary residence as they apply in relation to such a question arising under Part 3 of that Act.

Financial assistance related to provision of health or social care services

Power of Secretary of State to give financial assistance

149

• (1) The Secretary of State may give financial assistance to qualifying bodies which are engaged in—

• (a) the provision in England of health services ..., or

• (b) the provision to other persons of services that are connected with the provision in England by those other persons of health services ...

• (1A) The Secretary of State may give financial assistance to bodies which are engaged in—

• (a) the provision in England of social care services, or

• (b) the provision to other persons of services that are connected with the provision in England by those other persons of social care services.

• (1B) Assistance may be given to a body under subsection (1A) for the purposes of the provision of social care services only if those services are provided in England.

• (2) The Secretary of State may also give financial assistance to persons for the purposes of the establishment by them of qualifying bodies which satisfy any conditions prescribed for the purposes of this subsection and which are to be engaged in—

• (a) the provision in England of health services or of social care services, or

• (b) the provision to other persons of services that will be connected with the provision in England by those other persons of health services or of social care services.

Qualifying bodies

150

• (1) A body is a qualifying body for the purposes of this group of sections if—

• (a) a reasonable person might consider that its activities are being carried on for the benefit of the community in England,

• (b) except in the case of a body of a prescribed kind, it satisfies prescribed conditions relating to the distribution of its profits,

• (c) it is carrying on a business, and

• (d) it satisfies such other conditions as may be prescribed.

• (2) Regulations may provide that—

• (a) a body may only be a qualifying body if it is of a prescribed kind;

• (b) activities of a prescribed description are to be treated as being, or as not being, activities which a reasonable person might consider are activities carried on for the benefit of the community in England.

• (3) “Community” includes a section of the community; and regulations may make provision about what does, does not or may constitute a section of the community.

Forms of assistance under s. 149

151

• (1) Subject to subsection (3), financial assistance under section 149 may be given in any form.

• (2) Assistance may, in particular, be given by way of—

• (a) grants,

• (b) loans,

• (c) guarantees, or

• (d) in the case of assistance under section 149(1) or (1A) given to a company, purchasing share capital of the company.

• (3) Financial assistance under section 149(2) given to a company may not be given by way of purchasing share capital of the company.

Terms on which assistance under s. 149 is given

152

• (1) Financial assistance under section 149 may be given on such terms as the Secretary of State considers appropriate.

• (2) The terms may, in particular, include provisions as to—

• (a) circumstances in which the assistance is to be repaid, or otherwise made good, to the Secretary of State, and the manner in which that is to be done;

• (b) the keeping, and making available for inspection, of accounts and other records.

• (3) The person receiving assistance under section 149 must comply with the terms on which it is given, and compliance may be enforced by the Secretary of State.

Directions to certain NHS bodies

153

• (1) The Secretary of State may direct the following to exercise any functions of the Secretary of State in relation to financial assistance under section 149(1)—

• (a) a National Health Service trust all or most of whose hospitals, establishments and facilities are situated in England, or

• (b) a Special Health Authority performing functions only or mainly in respect of England.

• (2) The Secretary of State may direct any Special Health Authority to exercise any functions of the Secretary of State in relation to financial assistance under section 149(1A).

• (3) The Secretary of State may direct the following to exercise any functions of the Secretary of State in relation to financial assistance under section 149(2) so far as those functions relate to the establishment of bodies which are to be wholly or mainly engaged in the provision of health services or services connected to health services—

• (a) a National Health Service trust all or most of whose hospitals, establishments and facilities are situated in England, or

• (b) a Special Health Authority performing functions only or mainly in respect of England.

• (4) The Secretary of State may direct any Special Health Authority to exercise any functions of the Secretary of State in relation to financial assistance under section 149(2) so far as they are not functions to which subsection (3) above applies.

• (5) The Secretary of State may give directions to a body about the exercise of any functions that it is directed to exercise under any of subsections (1) to (4).

Arrangements with other third parties

154

• (1) The Secretary of State may make arrangements for—

• (a) financial assistance under section 149 (1) to be given, or

• (b) other functions relating to such assistance to be exercised,

by a person other than a body mentioned in section 153(1) or an English local authority.

• (1A) The Secretary of State may make arrangements for—

• (a) financial assistance under section 149(1A) to be given, or

• (b) other functions relating to such assistance to be exercised,

by a person other than a Special Health Authority (as to Special Health Authorities, see section 153(2)).

• (2) A person with whom the Secretary of State makes arrangements under subsection (1) or (1A) is referred to in this section as P.

• (3) Arrangements under subsection (1) or (1A) may provide for the functions concerned to be exercised by P—

• (a) either wholly or to such extent as may be specified in the arrangements, and

• (b) either generally or in such cases or circumstances as may be so specified.

• (4) Arrangements under subsection (1) or (1A) may make provision—

• (a) subject to section 151(3), as to the forms of financial assistance which may be given by P, and

• (b) as to the terms on which financial assistance may be given by P.

• (5) Arrangements under subsection (1) or (1A) may—

• (a) provide for the Secretary of State to make payments to P, and

• (b) make provision as to the circumstances in which any such payments are to be repaid to the Secretary of State.

• (6) In subsection (1) “English local authority” includes a non-metropolitan district council for an area for which there is a county council.

Power to form company

155

The Secretary of State may form, or participate in forming, one or more companies with a view to making arrangements under section 154(1) or (1A) with the companies for financial assistance under section 149 to be given, or other functions relating to such assistance to be exercised, by the company.

Interpretation of group of sections

156

• (1) In this section and sections 149 to 155 “this group of sections” means this section and those sections.

• (2) In this group of sections—

• “company” means a company as defined by section 1 of the Companies Act 2006 (c. 46);

• “English local authority” means—a county council in England,a metropolitan district council,a non-metropolitan district council for an area for which there is no county council,a London borough council,the Common Council of the City of London, orthe Council of the Isles of Scilly;

• “health services” means services which must or may be provided for the purposes of the health service continued under section 1(1) of the National Health Service Act 2006 (c. 41) or services which are similar to such services;

• “prescribed” means prescribed by regulations;

• “qualifying body” has the meaning given by section 150;

• “regulations” means regulations made by the Secretary of State;

• “social care services” means services which an English local authority must or may provide or arrange to be provided under any of the following provisions—......section 117 of the Mental Health Act 1983 (c. 20), andPart 1 of the Care Act 2014,...or services which are similar to such services.

National Information Governance Board for Health and Social Care

National Information Governance Board for Health and Social Care

157

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) The Patient Information Advisory Group (as continued by section 252 of the National Health Service Act 2006 (c. 41)) is abolished.

Duty to consult Board in relation to regulations about patient information

158

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Functions of Health Protection Agency in relation to biological substances

Functions of Health Protection Agency in relation to biological substances

159

• (1) The National Biological Standards Board is abolished (and, accordingly, the Biological Standards Act 1975 (c. 4) ceases to have effect).

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Further amendments

Minor and consequential amendments relating to Part 5

160

Schedule 14 (which contains further amendments related to the provisions of this Part) has effect.

Part 6 — General

Orders, regulations and directions: general provisions

161

• (1) Orders and regulations made under this Act by the Secretary of State, the Treasury, the Privy Council or the Welsh Ministers are to be made by statutory instrument.

• (2) Regulations made by the Department of Health, Social Services and Public Safety in Northern Ireland under section 120 and orders made by that Department under section 170(3) are to be made by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

• (3) Any power to make orders or regulations mentioned in subsection (1) or (2) and (subject to section 82(2A)) any power of the Secretary of State to give directions under this Act—

• (a) may be exercised either in relation to all cases to which the power extends, or in relation to all cases subject to specified exceptions, or in relation to any specified cases or classes of case,

• (b) may be exercised so as to make, as respects the cases in relation to which it is exercised—

• (i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise),

• (ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case, or different provision as respects the same case or class of case for different purposes of this Act,

• (iii) any such provision either unconditionally or subject to any specified condition, and

• (c) may, in particular, be exercised so as to make different provision for different areas.

• (4) Any such power includes power—

• (a) to make such supplementary, incidental, consequential or transitional provision or savings as the person exercising the power considers to be appropriate, and

• (b) to provide for a person to exercise a discretion in dealing with any matter.

Orders and regulations: Parliamentary control

162

• (1) Subject to subsection (2), a statutory instrument containing—

• (a) an order or regulations made by the Secretary of State under this Act,

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

is subject to annulment in pursuance of a resolution of either House of Parliament.

• (2) Subsection (1) does not apply to—

• (a) a statutory instrument to which subsection (3) or (4) applies, or

• (b) a statutory instrument containing an order made only under section 170(3) (commencement).

• (3) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision)—

• (a) regulations under section 8(1) (regulated activities),

• (b) regulations under section 20 (regulation of regulated activities) which provide that a contravention of or failure to comply with a specified provision of the regulations is an offence punishable with a maximum fine exceeding level 4 on the standard scale,

• (c) regulations under section 43 (power to modify Chapter 2 of Part 1 in relation to newly regulated activities),

• (d) regulations under section 87(1)(b) (penalty notices: monetary amount of the penalty) which make provision for a penalty payable under a penalty notice to be of an amount which exceeds that equal to level 4 on the standard scale,

• (e) the first regulations made by the Secretary of State under section 120 (additional responsibilities of responsible officers),

• (f) regulations under section 124 (regulation of social care workers) or section 126 (education and training of approved mental health professionals), or

• (g) an order under section 167 which amends or repeals any provision of an Act of Parliament,

unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Orders and regulations: control by National Assembly for Wales

163

• (1) Subject to subsection (2), a statutory instrument containing—

• (a) regulations made under this Act by the Welsh Ministers, or

• (b) an order under section 167(2) (transitional provision etc.) made by the Welsh Ministers,

is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

• (2) Subsection (1) does not apply to a statutory instrument to which subsection (3) applies.

• (3) The Welsh Ministers may not make a statutory instrument containing (whether alone or with other provision)—

• (a) the first regulations made by the Welsh Ministers under section 120 (additional responsibilities of responsible officers), ...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

unless a draft of the instrument has been laid before, and approved by a resolution of, the National Assembly for Wales.

Regulations: control by Northern Ireland Assembly

164

• (1) A statutory rule containing regulations made by the Department of Health, Social Services and Public Safety in Northern Ireland under section 120 (additional responsibilities of responsible officers), other than a statutory rule to which subsection (2) applies, is subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

• (2) The Department of Health, Social Services and Public Safety in Northern Ireland may not make a statutory rule containing (whether alone or with other provision) the first regulations made by the Department under section 120 unless a draft of the statutory rule has been laid before, and approved by a resolution of, the Northern Ireland Assembly.

Directions

165

• (1) Any power of the Secretary of State or the Privy Council to give directions under this Act includes power to vary or revoke the directions by subsequent directions.

• (2) Subject to subsection (3), a direction under this Act by the Secretary of State or the Privy Council must be given by an instrument in writing.

• (3) A direction under section 82 must be given by regulations or by an instrument in writing.

Repeals

166

The enactments mentioned in Schedule 15 are repealed to the extent specified.

Power to make transitional and consequential provision etc.

167

• (1) The Secretary of State may by order make—

• (a) such transitional or transitory provisions or savings as the Secretary of State considers appropriate in connection with the coming into force of any provision of this Act in relation to which the Secretary of State is the appropriate authority for the purposes of section 170(3), and

• (b) such supplementary, incidental or consequential provision as the Secretary of State considers appropriate for the purposes of, in consequence of, or for giving full effect to, any provision of this Act.

• (2) The Welsh Ministers may by order make such transitional or transitory provisions or savings as the Welsh Ministers consider appropriate in connection with the coming into force of any provision of this Act in relation to which the Welsh Ministers are the appropriate authority for the purposes of section 170(3).

• (3) An order under this section may amend, repeal, revoke or otherwise modify any enactment.

• (4) An order under this section may, in particular, provide for any provision of this Act which comes into force before another such provision has come into force to have effect, until that other provision has come into force, with such modifications as are specified in the order.

• (5) Before making an order under this section containing provision which would, if included in an Act of the Scottish Parliament, fall within the legislative competence of that Parliament, the Secretary of State must consult the Scottish Ministers.

• (6) The power under this section is not restricted by any other provision of this Act.

• (7) In this section “enactment” means an enactment contained in, or in an instrument made under—

• (a) an Act of Parliament,

• (b) an Act of the Scottish Parliament,

• (c) a Measure or Act of the National Assembly for Wales, or

• (d) Northern Ireland legislation.

Financial provisions

168

• (1) There is to be paid out of money provided by Parliament—

• (a) any expenditure incurred by virtue of this Act by a Minister of the Crown or government department, and

• (b) any increase attributable to this Act in the sums payable under any other Act out of money so provided.

• (2) There are to be paid into the Consolidated Fund sums received by a Minister of the Crown or government department by virtue of this Act.

Extent

169

• (1) Subject to the following provisions of this section, this Act extends to England and Wales only.

• (2) The following provisions extend to England and Wales, Scotland and Northern Ireland—

• (a) section 73 (arrangements between Care Quality Commission and Ministers),

• (b) section 97 (general interpretation of Part 1),

• (c) sections 98 to 119, 123, 127 and 128 and Schedules 6, 7, 8 and 10 (regulation of the health professions),

• (d) sections 137 and 138 (health in pregnancy grant),

• (e) section 145 (Human Rights Act 1998: provision of certain social care to be public function),

• (f) section 159 (functions of Health Protection Agency in relation to biological substances), and

• (g) sections 161, 162, 165, 167, 168, this section and sections 170 to 173 (general provisions).

• (3) The following provisions extend to England and Wales and Scotland only—

• (a) sections 131 to 133 (health in pregnancy grant: Great Britain),

• (b) the repeal effected by this Act in section 16(2)(a)(v) of the Maintenance Orders Act 1950 (c. 37), and

• (c) section 147(6), and Schedule 13, so far as relating to that repeal.

• (4) The following provisions extend to England and Wales and Northern Ireland only—

• (a) section 74 (arrangements between Care Quality Commission and Northern Ireland Ministers), and

• (b) section 120 (additional responsibilities of responsible officers: England and Wales and Northern Ireland) and section 122 (Crown application) so far as relating to that section.

• (5) The following provisions extend to Northern Ireland only—

• (a) sections 134 to 136 (health in pregnancy grant: Northern Ireland), and

• (b) section 164 (regulations: control by Northern Ireland Assembly).

• (6) The amendment, repeal or revocation by this Act of any enactment has the same extent as the enactment amended, revoked or repealed, but subject to subsection (7).

• (7) Subsection (6) does not apply to the repeals in Part 5 of Schedule 15; and accordingly those repeals, apart from the repeal mentioned in subsection (3)(b), extend to England and Wales only.

Commencement

170

• (1) The following provisions come into force on the day on which this Act is passed—

• (a) the provisions of this Part, except section 166 and Schedule 15 (repeals), and

• (b) any other provision of this Act—

• (i) so far as is necessary for enabling the exercise on or after the day on which this Act is passed of any power to make orders or regulations that is conferred by the provision or by any amendment made by the provision, or

• (ii) so far as the provision, or any amendment made by the provision, defines any expression relevant to the exercise of any such power.

• (2) Subsection (1)(b) does not apply to section 111 or Schedule 8 (extension of powers under s. 60 of Health Act 1999).

• (3) Except as provided by subsection (1), the provisions of this Act come into force on such day as the appropriate authority (as determined by section 171) may by order appoint.

• (4) Different days may be appointed under subsection (3) for different purposes.

The appropriate authority by whom commencement order is made

171

• (1) This section has effect to determine who is the appropriate authority for the purposes of section 170(3).

• (2) Except as provided by subsections (3) to (5), the appropriate authority is the Secretary of State.

• (3) In relation to sections 119, 120 and 122 (responsible officers), so far as they relate to Northern Ireland, the appropriate authority is the Department of Health, Social Services and Public Safety in Northern Ireland.

• (4) In relation to the following provisions—

• (za) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (a) Part 3 (public health protection), including Schedule 11, and Part 3 of Schedule 15 so far as they relate to Wales (and section 166 so far as it relates to that Part of Schedule 15 in its application to Wales),

• (b) section 140 (pharmaceutical services), so far as relating to Part 2 of Schedule 12, together with that Part of that Schedule,

• (c) section 141(2) (remuneration for persons providing pharmaceutical services: appointment of determining authorities in relation to Wales),

• (d) section 144 (weighing and measuring of children: Wales),

• (e) subsections (1) to (7) of section 146 (direct payments in lieu of provision of care services), so far as they relate to Wales,

• (f) subsection (8) of that section,

• (g) section 147 (abolition of maintenance liability of relatives), Schedule 13 and Part 5 of Schedule 15, so far as they relate to local authorities in Wales (and section 166 so far as relating to Part 5 of Schedule 15 in its application to local authorities in Wales),

• (h) section 148 (ordinary residence for certain purposes of National Assistance Act 1948 (c. 29) etc.), so far as relating to Wales, and

• (i) the repeals in the National Health Service (Wales) Act 2006 (c. 42) in Part 4 of Schedule 15 (and section 166 so far as relating to those repeals),

the appropriate authority is the Welsh Ministers.

• (5) In relation to Part 4 (health in pregnancy grant), the appropriate authority is the Treasury.

Consultation in relation to commencement

172

• (1) Before making a commencement order relating to—

• (a) section 111 and Schedule 8 (extension of powers under section 60 of the Health Act 1999 (c. 8)) so far as relating to—

• (i) subsection (2A) of section 60 of the Health Act 1999,

• (ii) the repeal of paragraph 7(3) of Schedule 3 to that Act,

• (iii) the amendments of paragraphs 8 and 9 of Schedule 3 to that Act, so far as relating to a profession that is not a reserved profession for Scotland, or

• (iv) the meaning of “enactment” for the purposes of Schedule 3 to that Act,

• (b) section 112 (standard of proof in fitness to practise proceedings) so far as relating to a profession that is not a reserved profession for Scotland, or

• (c) section 116 (powers of Secretary of State and devolved administrations), so far as relating to the functions of the Scottish Ministers,

the Secretary of State must consult the Scottish Ministers.

• (2) For the purposes of subsection (1)(a)(iii) and (b), a profession is a reserved profession for Scotland if it falls within Section G2 (health professions) of Part 2 of Schedule 5 to the Scotland Act 1998 (c. 46).

• (3) Before making a commencement order relating to—

• (a) paragraph 13, 14(a), (b)(i) or (c), 16, 17, 18, 19, 20, 22, 23, 24(b) or (c), 25, 26, 32 or 33 of Schedule 5,

• (b) section 95 so far as relating to those paragraphs, or

• (c) Part 1 of Schedule 15 so far as relating to those paragraphs (or section 166 so far as relating to that Part of that Schedule),

the Secretary of State must consult the Welsh Ministers.

• (4) Before making a commencement order relating to section 148 (ordinary residence for certain purposes of National Assistance Act 1948 etc.) in relation to England, the Secretary of State must consult the Welsh Ministers; and, before making a commencement order relating to that section in relation to Wales, the Welsh Ministers must consult the Secretary of State.

• (5) Before making a commencement order relating to—

• (a) section 159 (functions of Health Protection Agency in relation to biological substances), or

• (b) Part 7 of Schedule 15 (or section 166 so far as relating to that Part of that Schedule),

the Secretary of State must consult the Department of Health, Social Services and Public Safety in Northern Ireland.

• (6) In this section “commencement order” means an order under section 170(3).

Short title

173

This Act may be cited as the Health and Social Care Act 2008.

SCHEDULE 1

Status

1

• (1) The Commission is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown.

• (2) The Commission's property is not to be regarded as property of, or property held on behalf of, the Crown.

General powers and duties

2

• (1) The Commission may do anything which appears to it to be necessary or expedient for the purposes of, or in connection with, the exercise of its functions.

• (2) This includes, in particular—

• (a) co-operating with other public authorities in the United Kingdom,

• (b) acquiring and disposing of land and other property,

• (c) entering into contracts,

• (d) providing training, and

• (e) doing things outside (as well as within) the United Kingdom.

• (3) It is the duty of the Commission to carry out its functions effectively, efficiently and economically.

Membership

3

• (1) The Commission is to consist of—

• (a) a chair appointed by the Secretary of State, ...

• (b) other members so appointed.

• (1A) The members appointed under sub-paragraph (1)(a) and (b)—

• (a) are not employees of the Commission, and

• (b) are referred to in this Schedule as the “non-executive members”.

• (c) a chief executive appointed by the members appointed under paragraphs (a) and (b), and

• (d) other members appointed by the members appointed under paragraphs (a) and (b).

• (1B) The members appointed under sub-paragraph (1)(c) and (d)—

• (a) are employees of the Commission, and

• (b) are referred to in this Schedule as the “executive members”.

• (1C) The number of non-executive members must exceed the number of executive members.

• (2) The Secretary of State must exercise the powers insub-paragraph (1)(a) and (b) so as to secure that the knowledge and experience of the non-executive members of the Commission (taken together) includes knowledge and experience relating to health care, social care and the Mental Health Act 1983 (c. 20).

• (3) The Secretary of State may, in the prescribed manner, remove the chair or any other non-executive member from office if (but only if) the Secretary of State is satisfied that the person—

• (a) is unable or unfit to carry out the duties of that office,

• (b) is failing to carry out those duties, or

• (c) is disqualified from holding office (or was disqualified at the time of appointment).

• (4) The Secretary of State may by regulations make provision as to—

• (a) the appointment of the chair and other non-executive members (including the number, or limits on the number, of such members who may be appointed be appointed and any conditions to be fulfilled for appointment), ...

• (b) subject to this paragraph of this Schedule, the tenure of office of the chair and other non-executive members (including the circumstances in which they are to cease to hold office, are disqualified from holding office or may be suspended from office).

• (c) the limits on the total number of members who may be appointed, and

• (d) the minimum total number of members who must be appointed.

• (5) Regulations under sub-paragraph (4)(b) relating to the suspension of a person from office may only provide for suspension where it appears to the Secretary of State that one of the conditions in sub-paragraph (3) is or may be satisfied in relation to that person.

Remuneration and allowances

4

• (1) The Commission must pay to its chair, or to any other non-executive member , such remuneration and allowances as the Secretary of State may determine.

• (2) If the Secretary of State so determines, the Commission must pay or make provision for the payment of such pension, allowances or gratuities as the Secretary of State may determine to or in respect of a person who is or has been the chair or any other non-executive member of the Commission.

• (3) If the Secretary of State determines that there are special circumstances that make it right for a person ceasing to hold office as chair of the Commission to receive compensation, the Commission must—

• (a) pay to that person, or

• (b) make provision for the payment to that person of,

such compensation as the Secretary of State may determine.

Employees

5

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) The Commission may appoint such employees (in addition to the executive members appointed by the non-executive members) as it considers appropriate.

• (3) Employees of the Commission are to be appointed on such terms and conditions as the Commission may determine.

• (4) Without prejudice to its other powers, the Commission may pay, or make provision for the payment of—

• (a) pensions, allowances and gratuities, or

• (b) compensation for loss of employment or reduction of remuneration,

to or in respect of its employees.

• (5) Before making a determination as to remuneration, pensions, allowances or gratuities for the purposes of sub-paragraph (3) or (4), the Commission must obtain the approval of the Secretary of State to its policy on that matter.

Procedure

6

• (1) The Commission must appoint an advisory committee (“the advisory committee”) for the purpose of giving advice or information to it about matters connected with its functions.

• (1A) A committee of the Commission known as “the Healthwatch England committee” is to be appointed in accordance with regulations.

• (1B) The purpose of the Healthwatch England committee is to provide the Commission or other persons with advice, information or other assistance in accordance with provision made by or under this or any other Act.

• (2) In considering how to exercise its functions, the Commission must have regard to relevant advice and information given to it by the advisory committee (whether or not given at its request).

• (3) The Commission may appoint such other committees and sub-committees as it thinks fit.

• (4) The advisory committee and any committee or sub-committee appointed under sub-paragraph (3) may consist of or include persons who are not members of the Commission.

• (5) The advisory committee must include persons of a prescribed description.

• (5A) Regulations under sub-paragraph (1A) must make provision requiring a person who has power to appoint a member of the Healthwatch England committee to secure that a majority of the members of the committee are not members of the Commission.

• (5B) Regulations under sub-paragraph (1A) may specify other results which a person who has power to appoint a member of the committee must secure.

• (5C) Regulations under sub-paragraph (1A) may, in particular, make provision as to—

• (a) eligibility for appointment;

• (b) procedures for selecting or proposing persons for appointment.

• (5D) Regulations under sub-paragraph (1A) may, in particular, make provision as to—

• (a) the removal or suspension of members of the committee;

• (b) the payment of remuneration and allowances to members.

• (6) The Commission may pay such remuneration and allowances as it thinks fit to persons who—

• (a) are members of its committees and sub-committees, but

• (b) are not members of the Commission.

• (7) The Commission may in all other respects regulate its own procedure.

• (8) The validity of proceedings of the Commission is not affected—

• (a) by any vacancy in its membership,

• (b) by any defect in the appointment of a member, or

• (c) by any person—

• (i) acting as a member even though ineligible for appointment when purportedly appointed, or

• (ii) acting as a member after having ceased to be a member.

Exercise of functions

7

• (1) The Commission may arrange for—

• (a) any of its committees, sub-committees, members or employees, or

• (b) any other person,

to exercise any of its functions on its behalf.

• (2) If the Commission arranges for the exercise of any function as mentioned in sub-paragraph (1)(b), the arrangements may include provision with respect to the payment of remuneration and allowances to, or amounts in respect of, any such person.

• (3) The reference in sub-paragraph (1) to any of the Commission's committees does not include the advisory committee.

Assistance

8

• (1) The Commission may arrange for such persons as it thinks fit to assist it in the exercise of any of its functions in relation to—

• (a) a particular case, or

• (b) cases of a particular description.

• (2) Such arrangements may include provision with respect to the payment of remuneration and allowances to, or amounts in respect of, such persons.

Payments and loans to the Commission

9

• (1) The Secretary of State may make payments to the Commission of such amounts, at such times and on such conditions (if any) as the Secretary of State considers appropriate.

• (2) The Secretary of State may, with the approval of the Treasury, lend money to the Commission on such terms (including terms as to repayment and interest) as the Secretary of State may determine.

• (3) Except as provided by sub-paragraph (2), the Commission has no power to borrow money.

Accounts

10

• (1) The Commission must keep accounts in such form as the Secretary of State may determine.

• (2) The Commission must prepare annual accounts in respect of each financial year in such form as the Secretary of State may determine.

• (3) The Commission must send copies of the annual accounts to—

• (a) the Secretary of State, and

• (b) the Comptroller and Auditor General,

within such period after the end of the financial year to which the accounts relate as the Secretary of State may determine.

• (4) The Comptroller and Auditor General must examine, certify and report on the annual accounts and must lay copies of the accounts, and of the report on them, before Parliament.

• (5) In this paragraph “financial year” means—

• (a) the period beginning with the day on which the Commission is established and ending with the next 31 March following that day, and

• (b) each successive period of 12 months ending with 31 March.

Seal and evidence

11

The application of the seal of the Commission must be authenticated by the signature—

• (a) of any member of the Commission, or

• (b) of any other person who has been authorised by the Commission (whether generally or specifically) for that purpose.

12

A document—

• (a) purporting to be duly executed under the seal of the Commission, or

• (b) purporting to be signed on behalf of the Commission,

is to be received in evidence and, unless the contrary is proved, taken to be so executed or signed.

SCHEDULE 2

Transfer schemes

1

• (1) The Secretary of State may make one or more transfer schemes for—

• (a) the transfer of property, rights and liabilities of the Commission for Healthcare Audit and Inspection to the Care Quality Commission or the Crown;

• (b) the transfer of property, rights and liabilities of the Commission for Social Care Inspection to the Care Quality Commission or the Crown;

• (c) the transfer of property, rights and liabilities of the Mental Health Act Commission—

• (i) to the Care Quality Commission or the Welsh Ministers, or

• (ii) to the Crown;

• (d) the transfer of property, rights and liabilities of the Crown to the Care Quality Commission.

• (2) The property, rights and liabilities which may be the subject of a scheme include—

• (a) any that would otherwise be incapable of being transferred or assigned,

• (b) rights and liabilities under a contract of employment, and

• (c) criminal liabilities.

• (3) A scheme under this paragraph may define the property, rights and liabilities to be transferred by specifying or describing them (including describing them by reference to a specified part of the transferor's undertaking).

• (4) A scheme under this paragraph may contain provision for the payment of compensation by the Secretary of State to any person or body (other than one mentioned in sub-paragraph (1)) whose interests are adversely affected by the scheme.

• (5) A scheme under this paragraph may include supplementary, incidental, transitional and consequential provision.

• (6) The Secretary of State may not make a scheme under this paragraph for the transfer of property, rights or liabilities to the Welsh Ministers unless the scheme is made with the consent of the Welsh Ministers.

Transfer

2

The property, rights and liabilities which are the subject of a scheme under paragraph 1 are, by virtue of this paragraph, transferred on the day appointed by the scheme in accordance with the provisions of the scheme.

Employment

3

The transfer by paragraph 2 of the rights and liabilities relating to an individual's contract of employment does not break the continuity of the individual's employment and, accordingly—

• (a) the individual is not to be regarded for the purposes of Part 2 of the Employment Rights Act 1996 (c. 18) as having been dismissed by virtue of the transfer, and

• (b) the individual's period of employment with the transferor counts as a period of employment with the transferee for the purposes of that Act.

4

• (1) Paragraph 2 does not operate to transfer the rights and liabilities under an individual's contract of employment if, before the transfer takes effect, the individual informs the transferor or transferee that the individual objects to the transfer.

• (2) Where an individual does inform the transferor or transferee as specified in sub-paragraph (1), the individual's contract of employment with the transferor is terminated immediately before the date on which the transfer would occur; but the individual is not, for any purpose, to be regarded as having been dismissed by the transferor.

• (3) This paragraph is without prejudice to any right of an individual employed by a transferor to terminate the individual's contract of employment if (apart from the change of employer) a substantial change is made to the individual's detriment in the individual's working conditions.

Transitional

5

• (1) Anything done by or in relation to the transferor for the purposes of or in connection with anything transferred by paragraph 2 which is in effect immediately before it is transferred is to be treated as if done by or in relation to the transferee.

• (2) There may be continued by or in relation to the transferee anything (including legal proceedings) relating to anything so transferred which is in the process of being done by or in relation to the transferor immediately before it is transferred.

• (3) A reference to the transferor in any document relating to anything so transferred is to be taken (so far as necessary for the purposes of or in consequence of the transfer) as a reference to the transferee.

• (4) A transfer under paragraph 2 does not affect the validity of anything done by or in relation to the transferor before the transfer takes effect.

SCHEDULE 3

1

In this Schedule “the MHA” means the Mental Health Act 1983 (c. 20).

2

In section 57 of the MHA (treatment requiring consent and a second opinion), in subsection (2)(a), for “the Secretary of State” (in both places) substitute “ the regulatory authority ”.

3

In section 58 of the MHA (treatment requiring consent or a second opinion), in subsection (3)(a), for “the Secretary of State” substitute “ the regulatory authority ”.

4

• (1) Section 61 of the MHA (review of treatment) is amended as follows.

• (2) For “the Secretary of State” (wherever occurring) substitute “ the regulatory authority ”.

• (3) In subsection (3), after “to him” insert “ (whether in England or Wales) ”.

5

In section 64H of the MHA (certificates: supplementary provision), in subsections (4) and (5), for “appropriate national authority” substitute “ regulatory authority ”.

6

• (1) Section 118 of the MHA (code of practice) is amended as follows.

• (2) In subsection (2), for “appointed for the purposes of this section by the Secretary of State” substitute “ appointed for the purposes of this section by the regulatory authority ”.

• (3) After subsection (6) insert—

(7) The Care Quality Commission may at any time make proposals to the Secretary of State as to the content of the code of practice which the Secretary of State must prepare, and from time to time revise, under this section in relation to England.

7

• (1) Section 119 of the MHA (practitioners approved for Part 4 and section 118) is amended as follows.

• (2) In subsection (1)—

• (a) for “The Secretary of State” substitute “ The regulatory authority ”,

• (b) for “he” substitute “ it ”, and

• (c) for “by him” substitute “ by the authority ”.

• (3) In subsection (2), omit “by the Secretary of State”.

8

For section 120 of the MHA substitute—

(120) (1) The regulatory authority must keep under review and, where appropriate, investigate the exercise of the powers and the discharge of the duties conferred or imposed by this Act so far as relating to the detention of patients or their reception into guardianship or to relevant patients. (2) Relevant patients are— (a) patients liable to be detained under this Act, (b) community patients, and (c) patients subject to guardianship. (3) The regulatory authority must make arrangements for persons authorised by it to visit and interview relevant patients in private— (a) in the case of relevant patients detained under this Act, in the place where they are detained, and (b) in the case of other relevant patients, in hospitals and regulated establishments and, if access is granted, other places. (4) The regulatory authority must also make arrangements for persons authorised by it to investigate any complaint as to the exercise of the powers or the discharge of the duties conferred or imposed by this Act in respect of a patient who is or has been detained under this Act or who is or has been a relevant patient. (5) The arrangements made under subsection (4)— (a) may exclude matters from investigation in specified circumstances, and (b) do not require any person exercising functions under the arrangements to undertake or continue with any investigation where the person does not consider it appropriate to do so. (6) Where any such complaint as is mentioned in subsection (4) is made by a Member of Parliament or a member of the National Assembly for Wales, the results of the investigation must be reported to the Member of Parliament or member of the Assembly. (7) For the purposes of a review or investigation under subsection (1) or the exercise of functions under arrangements made under this section, a person authorised by the regulatory authority may at any reasonable time— (a) visit and interview in private any patient in a hospital or regulated establishment, (b) if the authorised person is a registered medical practitioner or approved clinician, examine the patient in private there, and (c) require the production of and inspect any records relating to the detention or treatment of any person who is or has been detained under this Act or who is or has been a community patient or a patient subject to guardianship. (8) The regulatory authority may make provision for the payment of remuneration, allowances, pensions or gratuities to or in respect of persons exercising functions in relation to any review or investigation for which it is responsible under subsection (1) or functions under arrangements made by it under this section. (9) In this section “regulated establishment” means— (a) an establishment in respect of which a person is registered under Part 2 of the Care Standards Act 2000, or (b) premises used for the carrying on of a regulated activity (within the meaning of Part 1 of the Health and Social Care Act 2008) in respect of which a person is registered under Chapter 2 of that Part.

9

After section 120 of the MHA insert—

(120A) (1) The regulatory authority may publish a report of a review or investigation carried out by it under section 120(1). (2) The Secretary of State may by regulations make provision as to the procedure to be followed in respect of the making of representations to the Care Quality Commission before the publication of a report by the Commission under subsection (1). (3) The Secretary of State must consult the Care Quality Commission before making any such regulations. (4) The Welsh Ministers may by regulations make provision as to the procedure to be followed in respect of the making of representations to them before the publication of a report by them under subsection (1). (120B) (1) The regulatory authority may direct a person mentioned in subsection (2) to publish a statement as to the action the person proposes to take as a result of a review or investigation under section 120(1). (2) The persons are— (a) the managers of a hospital within the meaning of Part 2 of this Act; (b) a local social services authority; (c) persons of any other description prescribed in regulations. (3) Regulations may make further provision about the content and publication of statements under this section. (4) “Regulations” means regulations made— (a) by the Secretary of State, in relation to England; (b) by the Welsh Ministers, in relation to Wales. (120C) (1) This section applies to the following persons— (a) the managers of a hospital within the meaning of Part 2 of this Act; (b) a local social services authority; (c) persons of any other description prescribed in regulations. (2) A person to whom this section applies must provide the regulatory authority with such information as the authority may reasonably request for or in connection with the exercise of its functions under section 120. (3) A person to whom this section applies must provide a person authorised under section 120 with such information as the person so authorised may reasonably request for or in connection with the exercise of functions under arrangements made under that section. (4) This section is in addition to the requirements of section 120(7)(c). (5) “Information” includes documents and records. (6) “Regulations” means regulations made— (a) by the Secretary of State, in relation to England; (b) by the Welsh Ministers, in relation to Wales. (120D) (1) The regulatory authority must publish an annual report on its activities in the exercise of its functions under this Act. (2) The report must be published as soon as possible after the end of each financial year. (3) The Care Quality Commission must send a copy of its annual report to the Secretary of State who must lay the copy before Parliament. (4) The Welsh Ministers must lay a copy of their annual report before the National Assembly for Wales. (5) In this section “financial year” means— (a) the period beginning with the date on which section 52 of the Health and Social Care Act 2008 comes into force and ending with the next 31 March following that date, and (b) each successive period of 12 months ending with 31 March.

10

In section 129 of the MHA (obstruction), in subsection (1), after paragraph (c) insert—

(ca) fails to comply with a request made under section 120C; or

.

11

• (1) Section 134 of the MHA (correspondence of patients) is amended as follows.

• (2) In subsection (3), after paragraph (c) insert—

(ca) the Care Quality Commission;

.

• (3) In subsection (6), for “section 121(7) and (8) above” substitute “ section 134A(1) to (4) ”.

• (4) In subsection (9), after “this section” insert “ and section 134A ”.

12

After section 134 of the MHA insert—