Health and Social Care Act 2012

• (i) pursuant to arrangements made with a public body exercising functions in connection with the provision of the services or care, and

• (ii) otherwise than as a member or officer of a body or an employee of a person,

but this is subject to subsection (3).

• (3) The Secretary of State may by regulations provide for a person to be excluded from the definition of “relevant health or adult social care commissioner or provider”, whether generally or in particular cases.

• (4) Regulations under subsection (3) may, in particular, provide for a person to be excluded in relation to the exercise of particular functions or the exercise of functions in relation to particular descriptions of person, premises or institution.

• (5) A reference to an inclusion or a disclosure being likely to facilitate the provision to an individual of health services or adult social care in England is to its being likely to facilitate that provision directly (rather than by means of a clinical trial, a study, an audit, or any other indirect means).

• (6) “Anonymous access provider” means a relevant health or adult social care commissioner or provider (whether “the relevant person” under section 251A(3)(a) or 251B(1) or another person) whose services or care are, or may be, received by individuals anonymously due to the nature of the services or care.

• (6A) “Health services” means services which must or may be provided as part of the health service in England; and for that purpose “the health service” has the same meaning as in the National Health Service Act 2006 (see section 275(1) of that Act).

• (7) “Adult social care” and “public body” have the same meaning as in section 250; and “processes” and “processed” are to be read in accordance with the meaning of “processing” in that section.

Regulations, orders and directions

Power to make consequential provision

251B

• (1) This section applies in relation to information about an individual that is held by a relevant health or adult social care commissioner or provider (“the relevant person”).

• (2) The relevant person must ensure that the information is disclosed to—

• (a) persons working for the relevant person, and

• (b) any other relevant health or adult social care commissioner or provider with whom the relevant person communicates about the individual,

but this is subject to subsections (3) to (6).

• (3) Subsection (2) applies only so far as the relevant person considers that the disclosure is—

• (a) likely to facilitate the provision to the individual of health services or adult social care in England, and

• (b) in the individual's best interests.

• (4) The relevant person need not comply with subsection (2) if the relevant person reasonably considers that one or more of the following apply—

• (a) the individual objects, or would be likely to object, to the disclosure of the information;

• (b) the information concerns, or is connected with, the provision of health services or adult social care by an anonymous access provider;

• (c) for any other reason the relevant person is not reasonably able, or should not be required, to comply with subsection (2).

• (5) This section does not permit the relevant person to do anything which, but for this section, would be inconsistent with—

• (a) any provision of the data protection legislation, or

• (b) a common law duty of care or confidence.

• (6) This section does not require the relevant person to do anything which the relevant person is required to do under a common law duty of care (and, accordingly, any such requirement is to be treated as arising under that common law duty and not under this section).

• (7) In this section, “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).

The Alcohol Education and Research Council

Financial provision

Commencement: consultation with Scottish Ministers

Short title

The NHS payment scheme

114A

• (1) NHS England must publish a document, to be known as “the NHS payment scheme”, containing rules for determining the price that is to be payable by a commissioner—

• (a) for the provision of health care services for the purposes of the NHS;

• (b) for the provision of services in pursuance of arrangements made by NHS England or an integrated care board in the exercise of any public health functions of the Secretary of State, within the meaning of the National Health Service Act 2006, by virtue of any provision of that Act.

• (2) The commissioner and the provider of services mentioned in subsection (1) must comply with rules under that subsection.

• (3) Rules under subsection (1) may, in particular—

• (a) specify prices;

• (b) specify amounts, formulae or other matters on the basis of which prices are to be determined;

• (c) provide for prices to be determined for, or by reference to, components of services or groups of services;

• (d) make different provision for different services or provision for some services but not others;

• (e) make different provision for the same service by reference to different circumstances or areas, different descriptions of provider, or other factors relevant to the provision of the service or the arrangements for its provision;

• (f) confer a discretion on the commissioner of a service or on NHS England.

• (4) Rules under subsection (1) may allow or require a price to be agreed between the commissioner and the provider of a service.

• (5) Rules made by virtue of subsection (4) may—

• (a) make provision about how the price is to be agreed;

• (b) allow the agreement to make any provision that could be made by rules by virtue of subsection (3);

• (c) provide for the publication by the commissioner, the provider or NHS England of information relevant to the agreement.

• (6) For the purpose of securing that the prices payable for the provision of services mentioned in subsection (1)(a) or (b) result in a fair level of pay for providers of those services, NHS England must, in exercising functions under subsection (1), have regard to—

• (a) differences in the costs incurred in providing those services to persons of different descriptions, and

• (b) differences between providers with respect to the range of those services that they provide.

• (7) The NHS payment scheme may contain rules relating to the making of payments to the provider of a service for the provision of that service.

• (8) The NHS payment scheme may contain guidance as to the application of rules under subsection (1).

• (9) A commissioner of a service mentioned in subsection (1) must have regard to any such guidance.

• (10) The NHS payment scheme has effect for the period specified in the NHS payment scheme or, where a new edition of the NHS payment scheme takes effect before the end of that period, until that new edition takes effect.

The NHS payment scheme: enforcement

114B

Where the commissioner of a service fails to comply with rules contained in the NHS payment scheme, NHS England may direct the commissioner to take steps specified in the direction, within a period specified in the direction—

• (a) to secure that the failure does not continue or recur, or

• (b) to secure that the position is (so far as practicable) restored to what it would have been if the failure was not occurring or had not occurred.

The NHS payment scheme: impact assessment and consultation

114C

• (1) Before publishing the NHS payment scheme, NHS England must—

• (a) carry out an assessment of the likely impact of the proposed scheme, or

• (b) publish a statement setting out its reasons for concluding that such assessment is not needed.

• (2) Before publishing the NHS payment scheme, NHS England must consult the following—

• (a) each integrated care board;

• (b) each relevant provider;

• (c) such other persons as NHS England considers appropriate.

• (3) NHS England must give those persons a notice—

• (a) describing the proposed NHS payment scheme,

• (b) setting out any impact assessment carried out under subsection (1)(a), and

• (c) specifying when the period within which representations may be made about the proposed NHS payment scheme (“the consultation period”) will come to an end.

• (4) The consultation period is the period of 28 days beginning with the day after that on which the notice is published.

• (5) NHS England must publish the notice given under subsection (3).

• (6) If, having consulted under this section—

• (a) NHS England decides to make amendments of the proposed NHS payment scheme that are, in its opinion, significant, and

• (b) it would, in NHS England’s opinion, be unfair to make the amendments without further consultation,

NHS England must consult again under this section.

• (7) Subsection (6) does not apply where section 114D applies.

• (8) In this section “relevant provider” means—

• (a) a licence holder, or

• (b) another person, of a prescribed description, that provides—

• (i) health care services for the purposes of the NHS, or

• (ii) services in pursuance of arrangements made by NHS England or an integrated care board by virtue of section 7A or 7B of the National Health Service Act 2006 (Secretary of State’s public health functions).

Objections to proposed NHS payment scheme

114D

• (1) This section applies where—

• (a) within the consultation period under section 114C, NHS England receives objections to the proposed NHS payment scheme from one or more integrated care boards or relevant providers, and

• (b) either or both of the following apply—

• (i) the objection percentage for integrated care boards exceeds the prescribed percentage;

• (ii) the objection percentage for relevant providers exceeds the prescribed percentage.

• (2) In subsection (1)(b) the “objection percentage” is the proportion (expressed as a percentage) of integrated care boards or (as the case may be) relevant providers that objected.

• (3) NHS England must consult such persons as appear to NHS England to be representative of the integrated care boards or relevant providers from whom objections were received.

• (4) If, having complied with subsection (3)—

• (a) NHS England decides to make amendments of the proposed NHS payment scheme that are, in its opinion, significant, and

• (b) it would, in NHS England’s opinion, be unfair to make the amendments without further consultation,

NHS England must consult again under section 114C.

• (5) If, having complied with subsection (3), NHS England decides not to amend the proposed NHS payment scheme, it may publish the scheme but, before doing so, must—

• (a) publish a notice stating that decision and setting out the reasons for it, and

• (b) send a copy of the notice to—

• (i) the persons consulted under subsection (3), and

• (ii) the integrated care boards or relevant providers from whom objections were received.

114E

• (1) NHS England may amend the NHS payment scheme during the period for which it has effect, provided that, in the opinion of NHS England, the amendments are not so significant as to require publication of a new edition of the NHS payment scheme.

• (2) In deciding whether the amendments are so significant as to require the publication of a new edition of the NHS payment scheme, NHS England must have regard to—

• (a) the proportion of integrated care boards that would be affected by the proposed amendments;

• (b) the proportion of relevant providers that would be affected by the proposed amendments;

• (c) the impact that the proposed amendments would have on integrated care boards and relevant providers that would be affected by them;

• (d) whether any integrated care boards or relevant providers would be disproportionately affected by the proposed amendments;

• (e) the amount of any increase or decrease in prices that would result from the proposed amendments.

• (3) If NHS England amends the NHS payment scheme, it must publish the NHS payment scheme as amended.

• (4) Before amending the NHS payment scheme, NHS England must, in accordance with subsections (5) to (7), consult the following about the proposed amendments—

• (a) any integrated care boards that would be affected by the proposed amendments;

• (b) any relevant providers that would be affected by the proposed amendments;

• (c) such other persons as NHS England considers appropriate.

• (5) NHS England must publish a notice specifying—

• (a) the proposed amendments, and

• (b) when the period within which representations may be made about the proposed amendments (“the consultation period”) will come to an end.

• (6) The consultation period is the period of 28 days beginning with the day after that on which the notice is published.

• (7) NHS England must send a copy of the notice to each of the persons to be consulted under subsection (4).

Interpretation

114F

In this Chapter—

• “commissioner”, in relation to a service, means the person who arranges for the provision of the service;

• “the NHS payment scheme” means the document published under section 114A(1);

• “relevant provider” has the meaning given by section 114C(8).

Scrutiny functions of local authorities

Payments in respect of costs of sight tests

Lists of performers of pharmaceutical services and assistants etc.

Power to advise regulatory bodies, investigate complaints, etc.

Information standards: compliance

Commencement: consultation with Scottish Ministers

Short title

Short title

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274A

• (1) The Secretary of State must publish guidance for NHS England about the exercise of—

• (a) its relevant data functions, and

• (b) its other functions in connection with its relevant data functions.

• (2) Before publishing guidance under this section the Secretary of State must consult NHS England and any other persons that the Secretary of State considers appropriate in relation to the guidance.

• (3) NHS England must have regard to guidance published under this section.

CHAPTER 3 — Information about adult social care

Provision of adult social care information to Secretary of State

277A

• (1) The Secretary of State may require a relevant provider of adult social care services to provide the Secretary of State with information that relates to—

• (a) the person on whom the requirement is imposed,

• (b) their activities in connection with the provision of adult social care in England, or

• (c) any person to whom they have provided —

• (i) adult social care in England, or

• (ii) adult social care, outside England, in pursuance of arrangements made by an English local authority.

• (2) The Secretary of State may impose a requirement under subsection (1) only if the information is sought for purposes connected with the health care system, or adult social care system, in England.

• (3) A requirement under subsection (1) may specify—

• (a) the form and manner in which information is to be provided, and

• (b) when information is to be provided.

• (4) A requirement under subsection (1) must be in writing.

• (5) The provision of information under this section—

• (a) does not breach any obligation of confidence owed by the person providing it, but

• (b) is subject to any express restriction on disclosure imposed by any enactment (other than a restriction which allows disclosure if authorised by an enactment).

• (6) For enforcement of requirements under subsection (1), see section 277E.

• (7) In this section—

• “adult social care”—includes all forms of personal care and other practical assistance provided for individuals who, by reason of age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs, or any other similar circumstances, are in need of such care or other assistance, butdoes not include anything provided by an establishment or agency for which Her Majesty’s Chief Inspector of Education, Children’s Services and Skills is the registration authority under section 5 of the Care Standards Act 2000;

• “English local authority” means—a county council in England;a district council for an area in England for which there is no county council;a London borough council;the Common Council of the City of London (in its capacity as a local authority);

• “relevant provider of adult social care services” means a person who is required to be registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of the carrying on of a regulated activity (within the meaning of Part 1 of that Act) involving or connected with the provision of adult social care.

Restrictions on onward disclosure of information

277B

• (1) Information provided under section 277A may not be disclosed by the Secretary of State except for purposes connected with the health care system, or adult social care system, in England.

• (2) Commercially sensitive information provided under section 277A may not be disclosed by the Secretary of State (even for the purposes mentioned in subsection (1)) unless the Secretary of State considers that the disclosure is appropriate, having taken into account the public interest as well as the interests of the person to whom the commercially sensitive information relates.

• (3) Subsections (1) and (2) do not restrict the disclosure of information where—

• (a) the person to whom the information relates has consented to the disclosure,

• (b) the information has previously been lawfully disclosed to the public,

• (c) the disclosure is in accordance with any 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 in circumstances where it is necessary or expedient for the person to have the information for the purpose of exercising functions of that person conferred under or by virtue of any provision of this or any other Act,

• (f) the disclosure is in connection with the investigation of a criminal offence (whether or not in the United Kingdom), or

• (g) the disclosure is for the purpose of criminal proceedings (whether or not in the United Kingdom).

• (4) In this section “commercially sensitive information” means commercial information whose disclosure the Secretary of State thinks might significantly harm the legitimate business interests of the person to whom it relates.

Directions to certain bodies to exercise functions under this Chapter

277C

• (1) The Secretary of State may direct NHS England to exercise the functions of the Secretary of State under section 277A (and where a direction is given, section 277B applies accordingly).

• (2) The Secretary of State may direct a Special Health Authority performing functions only or mainly in respect of England to exercise the functions of the Secretary of State under section 277A (and where a direction is given, section 277B applies accordingly).

• (3) The Secretary of State may give directions to a Special Health Authority about the exercise of any functions that it is directed to exercise under subsection (2) (including directions as to the processing of information that the Authority obtains in exercising those functions).

• (4) For power to give directions to NHS England as to the exercise of functions, see section 13ZC of the National Health Service Act 2006.

Arrangements with third parties

277D

• (1) The Secretary of State may make arrangements for any person prescribed by regulations under this subsection to exercise the functions of the Secretary of State under section 277A (and where arrangements are made, section 277B applies accordingly).

• (2) Arrangements under subsection (1) may—

• (a) provide for the Secretary of State to make payments to the person;

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

• (3) Section 304(9) (differential provision) applies in relation to the power to make arrangements under subsection (1) as it applies to a power of the Secretary of State to give directions under this Act.

CHAPTER 4 — Enforcement

Enforcement of provisions under this Part

277E

• (1) Regulations may make provision conferring on the Secretary of State the power to impose a financial penalty on a person, other than a public body, who without reasonable excuse—

• (a) fails to comply with an information standard (unless the requirement for the person to comply has been waived by virtue of regulations under section 250(6B));

• (b) fails to comply with a requirement to provide information imposed under section 251ZA(1), 251D(1)(b), 259(1)(a) or (aa) or 277A(1);

• (c) provides information in response to such a requirement that is false or misleading to a material extent.

• (2) The amount of the financial penalty is to be specified in, or determined in accordance with, the regulations.

• (3) The regulations must include provision—

• (a) requiring the Secretary of State, before imposing a financial penalty on a person, to give the person written notice (a “notice of intent”) of the proposed financial penalty;

• (b) ensuring that the person is given an opportunity to make representations about the proposed financial penalty;

• (c) requiring the Secretary of State, after the period for making representations, to decide whether to impose the financial penalty;

• (d) requiring the Secretary of State, if the Secretary of State decides to impose the financial penalty, to give the person notice in writing (a “final notice”) imposing the penalty;

• (e) enabling a person on whom a financial penalty is imposed to appeal to the First-tier Tribunal in accordance with the regulations;

• (f) as to the powers of the Tribunal on such an appeal.

• (4) The provision that may be made by the regulations includes provision—

• (a) enabling a notice of intent or final notice to be withdrawn or amended;

• (b) requiring the Secretary of State to withdraw a final notice in circumstances specified in the regulations;

• (c) for a financial penalty to be increased by an amount specified in or determined in accordance with the regulations in the event of late payment;

• (d) for the recovery of financial penalties in the county court.

• (5) In this section “public body” has the meaning given by section 250(7).

277F

The Secretary of State may—

• (a) direct a Special Health Authority performing functions only or mainly in respect of England to exercise the functions of the Secretary of State under regulations made under section 277E;

• (b) give the Special Health Authority directions about the exercise of those functions (including directions as to the processing of information that the body obtains in exercising those functions).

Short title

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87A

• (1) An NHS trust established under section 25 of the National Health Service Act 2006 is to be treated, on its establishment, as—

• (a) having made an application for a licence under section 85, and

• (b) having met the criteria for holding a licence for the time being published under section 86.

• (2) An NHS trust established under section 25 of the National Health Service Act 2006 before the day on which section 51(1) of the Health and Care Act 2022 comes into force is to be treated, for the purposes of subsection (1), as having been established on that day.

Directors

Arrangements between NHS England and Northern Ireland Ministers

296A

• (1) NHS England may make arrangements with a devolved authority for NHS England—

• (a) to exercise on behalf of the devolved authority any function of that authority that corresponds to a function of NHS England that is conferred by or under Chapter 1 of Part 3 of the Care Act 2014;

• (b) to provide services or facilities in so far as the devolved authority requires them in connection with the exercise of such a function.

• (2) Arrangements under this section may be 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 NHS England in respect of the cost to it of giving effect to the arrangements.

• (4) In this section—

• “devolved authority” means—the Scottish Ministers,the Welsh Ministers, anda Northern Ireland Minister.

• “Northern Ireland Minister” includes the First Minister, the deputy First Minister and a Northern Ireland department.

Short title

Short title

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Local authority arrangements

Disclosure of reports etc. by the Health Service Commissioner

Compliance with standards

251ZB

• (1) If the Secretary of State has reasonable grounds to suspect that a relevant IT provider is not complying with an information standard which applies to the provider, the Secretary of State may give the provider a written notice which—

• (a) identifies the standard in question,

• (b) sets out the Secretary of State’s grounds for suspecting that the provider is not complying with the standard,

• (c) asks the provider to comply with the standard within a period specified in the notice,

• (d) asks the provider, within a period specified in the notice, to provide evidence to the Secretary of State’s satisfaction that the provider is complying with the standard, and

• (e) if the Secretary of State considers it appropriate, sets out the steps that the Secretary of State considers the provider must take, within a period specified in the notice, in order to comply with the standard.

• (2) A period specified for the purposes of subsection (1)(c), (d) or (e) must be a period of at least 28 days beginning with the day on which the notice is given.

• (3) The Secretary of State may, by giving the relevant IT provider a further written notice, vary or revoke a notice given under subsection (1).

251ZC

• (1) If the Secretary of State has reasonable grounds to suspect that a relevant IT provider is not complying with an information standard which applies to the provider, the Secretary of State may publish a statement to that effect.

• (2) The statement may include the text of a notice given to the provider under section 251ZB.

• (3) Before publishing a statement under this section, the Secretary of State must give the relevant IT provider—

• (a) a copy of the terms of the proposed statement, and

• (b) an opportunity to make representations about the decision to publish a statement and the terms of the statement.

• (4) If, after considering any representations, the Secretary of State decides to publish the statement, the Secretary of State must inform the relevant IT provider before publishing it.

• (5) This section does not authorise the processing of information if the processing would contravene the data protection legislation (but in determining whether it would do so, take into account the power conferred by this section).

• (6) In this section, “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).

251ZD

• (1) The Secretary of State may—

• (a) direct a public body to exercise some or all of the functions listed in subsection (3), and

• (b) give the public body directions about the exercise of those functions, including directions about the processing of information that the body obtains in exercising those functions.

• (2) The Secretary of State may make arrangements for a person prescribed by regulations under this subsection to exercise some or all of the functions listed in subsection (3).

• (3) Those functions are—

• (a) the Secretary of State’s functions under section 251ZA, so far as they relate to relevant IT providers, and

• (b) the Secretary of State’s functions under section 251ZB.

• (4) Arrangements under subsection (2) may—

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

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

• (5) Section 304(9) applies in relation to the power to make arrangements under subsection (2) as it applies to a power of the Secretary of State to give directions under this Act.

Accreditation

251ZE

• (1) Regulations may make provision for the establishment and operation of a scheme for the accreditation of information technology and IT services so far as used, or intended to be used, in connection with the provision in, or in relation to, England of health care or of adult social care.

• (2) The regulations may provide for the scheme to be established and operated by a person specified in the regulations (“the operator”).

• (3) The regulations may, among other things, confer power on the operator—

• (a) to establish the procedure for accreditation under the scheme,

• (b) to set the criteria for accreditation under the scheme (“the accreditation criteria”),

• (c) to keep an accreditation under the scheme under review, and

• (d) to charge a reasonable fee in respect of an application for accreditation.

• (4) The regulations may, among other things, make provision requiring the operator—

• (a) to set some or all of the accreditation criteria by reference to information standards,

• (b) to publish details of the scheme, including the accreditation criteria,

• (c) to provide for the review of a decision to refuse an application for accreditation, and

• (d) to provide advice to applicants for accreditation with a view to ensuring that the accreditation criteria are met.

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251ZA

• (1) The Secretary of State may require a person to provide the Secretary of State with documents, records or other information for the purposes of monitoring the person’s compliance with information standards published under section 250.

• (2) A requirement under subsection (1) may specify—

• (a) the form and manner in which information is to be provided, and

• (b) when information is to be provided.

• (3) A requirement under subsection (1) must be in writing.

• (4) For enforcement of requirements under subsection (1) against persons other than public bodies, see section 277E.

Financial provision

Commencement: consultation with Scottish Ministers

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