Section 6:     No-smoking signs

49.     Section 6(1) imposes a duty on any person who occupies or is concerned with the management of smoke-free premises to display no-smoking signs which comply with the requirements of regulations to be made by the appropriate national authority under this section. Subsection (2) provides that regulations may also provide for a similar duty, imposed on such people as may be specified in the regulations, to display signs in relation to any premises designated smoke-free under regulations made under section 4 or in relation to any vehicle designated smoke-free under regulations made under section 5.

50.     Subsection (5) provides that anyone who fails to comply with such a duty commits an offence. Subsection (6) sets out the defences that may be relied upon by a person charged with such an offence. Subsection (7) provides that if a person charged with an offence relies on a defence in subsection (6), and presents evidence that is sufficient to raise an issue in respect of such a defence, then the court must assume that the defence is satisfied unless the prosecution can show beyond a reasonable doubt that it is not so satisfied.

51.     Subsection (8) provides that a person who is found guilty of an offence under section 6 will be liable to a fine up to a level on the standard scale specified in regulations. It is intended that the regulations will prescribe a fine on summary conviction not exceeding level 3 on the standard scale, which is currently up to £1,000.

Section 7:     Offence of smoking in smoke-free place

52.     Section 7 sets out the offence of smoking in a smoke-free place. Smoke-free places comprise enclosed or substantially enclosed premises as defined in section 2, additional smoke-free places as set out in section 4, and vehicles required to be smoke-free as set out in section 5 of the Act. By subsection (2), a person who smokes in any of these places commits an offence. However, by subsection (3), a performer who smokes during a performance, where the premises have been exempted from the smoke-free requirement in relation to such performance by virtue of regulations under section 3(1) and (5) of the Act does not commit an offence.

53.     Subsection (4) provides that it is a defence for a person charged with smoking in a smoke-free place to show that he/she did not know, and could not reasonably have been expected to know, that the premises, place or vehicle was smoke-free.

54.     By subsection (5), where a defendant wishes to rely on this defence, he/she must provide evidence that supports the defence. Where a defendant does provide evidence, the defence must be taken to be satisfied unless the prosecution proves beyond reasonable doubt that the evidence provided does not satisfy the defence.

55.     Subsection (6) provides that a person who is found guilty of an offence under this section will be liable to a fine up to a level on the standard scale specified in regulations. It is intended that the regulations will prescribe a fine on summary conviction not exceeding level 1 on the standard scale, which is currently up to £100.

Section 8:     Offence of failing to prevent smoking in smoke-free place

56.     Section 8 imposes a duty on any person who controls or is concerned in the management of smoke-free premises to prevent smoking from taking place within the smoke-free premises. Subsection (3) provides that regulations may also provide for a similar duty, imposed on such people as may be specified in the regulations, to prevent smoking in relation to premises designated smoke-free under regulations made under section 4 or in relation to vehicles designated smoke-free under regulations made under section 5. However, subsection (2) provides that the duty to stop people smoking does not extend to stopping a person smoking where that person is a performer who smokes during a performance and the premises have been exempted from the smoke-free requirement, in relation to such performance, by virtue of regulations under section 3(1) and (5) of the Act.

57.     By subsection (4), anyone who fails to comply with such a duty commits an offence. Subsection (5) sets out the defences for a person charged with an offence under subsection (4), namely that:

a.     He/she took reasonable steps to stop the person smoking, such as requesting a person to stop smoking or taking steps to have the smoker evicted.

b.     He/she did not know, and could not reasonably be expected to know that the person was smoking, for example if the manager was not present at the time the smoking occurred.

c.     He/she has other grounds that show it was reasonable for him/her not to comply with the duty, for example during a period when priority had to be given to another duty, such as preventing other illegal activity or dealing with disorderly conduct.

58.     Subsection (6) provides that if a person charged with an offence under this section relies on a defence in subsection (5), and presents evidence that is sufficient to raise an issue in respect of such a defence, then the court must assume that the defence is satisfied unless the prosecution can show beyond a reasonable doubt that it is not so satisfied.

59.     Subsection (7) provides that a person who is found guilty of an offence under this Section will be liable to a fine up to a level on the standard scale specified in regulations. It is intended that the regulations will prescribe a fine on summary conviction not exceeding level 4 on the standard scale, which is currently up to £2,500.

Section 9:     Fixed penalties

60.     An authorised officer (as defined in section 10(5)) who has reason to believe a person has committed an offence under section 6(5) (not displaying no-smoking signage that complies with regulations in smoke-free premises, places or vehicles) or 7(2) (smoking in smoke-free premises, or in a smoke-free place or vehicle) may issue a penalty notice in respect of the offence. If the person pays the penalty in accordance with the Act, he/she will be discharged of all liability for the offence and will not be able to be prosecuted for the offence for which the penalty notice was issued.

61.     Schedule 1 contains provisions on fixed penalties.

Schedule 1 This Schedule contains provisions relating to fixed penalties. Provision is made for the contents of the penalty notice, the amount of the penalty, the discounted amount and the period for payment, as well as the time given to make payment. Paragraphs 14 and 15 of the Schedule enable a person to request to be tried for the offence in court instead of paying a fixed penalty. Paragraph 16 of the Schedule makes provision in relation to withdrawal of notices.

For the offence of smoking in a smoke-free place it is intended that regulations will prescribe a fixed penalty of £50. If the person pays the penalty, he will be discharged of any liability to conviction for the offence. A discounted amount can be paid if the fixed penalty notice (FPN) is settled within 15 days. The discounted amount will be set out in regulations, but is expected to be £30.

For the offence of failing to comply with signage requirements, it is intended that regulations will prescribe a fixed penalty of £200. If the person pays the penalty, he will be discharged of any liability to conviction for the offence, and will not be taken to court. A discounted amount can be paid if the FPN is settled within 15 days. The discounted amount will be set out in regulations, but is expected to be £150.

Section 10:     Enforcement

62.     The appropriate national authority may make regulations to designate the bodies which are to be enforcement authorities for the purposes of smoke-free legislation. Subsection (3) places a duty on bodies specified as enforcement authorities to enforce the smoke-free requirements of the Act in those premises, places or vehicles where the enforcement authority has functions (which will also be specified in regulations).

63.     Provision may also be made for the transfer of enforcement cases between designated enforcement authorities. Subsection (4) provides that the appropriate national authority may exercise enforcement functions itself in particular cases or types of case.

64.     Subsection (5) provides that within Chapter 1 of Part 1 of the Act, "authorised officer" in relation to an enforcement authority means any person whom the enforcement authority authorises in writing to enforce smoke-free legislation. Such written authorisation can be either general or specific. Regulations may be made under subsection (6) to specify any qualifications required to be held by an authorised officer of an enforcement authority.

65.     Schedule 2 makes provision about powers of entry, etc.

Schedule 2

This Schedule contains provisions relating to powers of entry for enforcement. The Schedule sets out the powers of an officer who is an authorised officer of an enforcement authority for the purposes of Chapter 1 of Part 1 of the Act. He/she may enter premises (other than premises used only as a private dwelling which is not open to the public), require and take possession of samples and substances, and request information. Provision is also made for a justice of the peace to issue warrants where admission is likely to be refused and in certain other cases. In enforcement cases where the appropriate national authority acts as the enforcement authority, the same provisions apply to persons discharging enforcement authority functions on behalf of the appropriate national authority.

Section 11:     Obstruction etc. of officers

66.     Section 11 provides that any person who intentionally obstructs an authorised officer of an enforcement authority, enforcing smoke-free provisions of this Act, commits an offence. By subsection (2), a person who fails to give to an authorised officer any facilities, assistance or information which the authorised officer reasonably requires for the purposes of enforcement commits an offence. By subsection (3), a person commits an offence if he/she makes a statement which is false or misleading, and he/she either knows that is false or misleading or is reckless as to whether it is false or misleading. For the purposes of this section, "false or misleading" means false or misleading in a material particular. In enforcement cases where the appropriate national authority acts as the enforcement authority, the same provisions apply to persons discharging enforcement authority on behalf of the appropriate national authority.

67.      Subsection (4) provides that a person who obstructs an authorised officer as specified in section 11 is liable on summary conviction to a fine not exceeding level 3 on the standard scale, which is currently up to £1,000.

Section 12:     Interpretation and territorial sea

68.     Subsection (1) contains definitions that apply to Chapter 1 of Part 1 of the Act, apart from the definition of "smoking" which is in section 1. Subsection (2) enables the definition of premises in subsection (1), which currently includes a reference to regulation 3 of the Offshore Installations and Pipeline Works (Management and Administration) Regulations 1995, to be amended by order so as to substitute reference to another enactment for the current reference to the 1995 Regulations, should those Regulations, for example, be amended or revoked. Subsections (3) and (4) provide that Part 1 has effect in relation to the territorial sea which is adjacent to England and Wales as it has effect in relation to England and Wales.

PART 1 CHAPTER 2

AGE FOR SALE OF TOBACCO ETC.

Section 13: Power to amend age for sale of tobacco etc

69.     Chapter 2 of Part 1 of the Act enables an order to be made by the Secretary of State to change the minimum age for sale of tobacco products. Section 13 provides that the Secretary of State may change the minimum age of sale of tobacco products by amending by order any age specified in section 7 of the Children and Young Persons Act 1933 (sale of tobacco etc. to persons under 16) and any age specified in section 4 of the Children and Young Persons (Protection from Tobacco) Act 1991 (display of warning statement in retail premises and on vending machines). However, by virtue of subsection (2), any new age specified in such an order may not be lower than 16 years or higher than 18 years. The age specified in the provisions mentioned is currently 16.

PART 2

PREVENTION AND CONTROL OF HEALTH CARE ASSOCIATED INFECTIONS

Section 14: Code of practice relating to health care associated infections

70.     This section inserts three new sections into Part 2 of the Health and Social Care (Community Health and Standards) Act 2003 (the "2003 Act").

71.     The first is new section 47A (code of practice relating to health care associated infections). This gives the Secretary of State the power to issue a code of practice ("the code") on the prevention and control of health care associated infections. The code will set out the measures which he considers are an important part of best practice in reducing those infections which are related to health care that is provided by, or commissioned for, the NHS bodies to which the code applies.

72.     Health care associated infections are defined in subsection (8). A health care associated infection is any infection to which an individual may be exposed or made susceptible or more susceptible where the risk of exposure or susceptibility is directly or indirectly attributable to the provision of the health care. The individual who may be at risk does not have to be the individual receiving the health care.

73.     "Health care" has the same meaning as in section 45(2) of the 2003 Act. It means services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness and the promotion and protection of public health.

74.     The code may be applied to all English NHS bodies (other than Strategic Health Authorities) and to cross-border SHAs (subsection (2)). These bodies are defined in section 148 of the 2003 Act. English NHS bodies include an NHS trust all or most of whose hospitals, establishments and facilities are situated in England, an NHS foundation trust and a Primary Care Trust ("PCT"). The code may specify which of its provisions apply to which bodies, and it may do so by description or by naming them (subsection (3)).

75.     Subsection (4)(a) makes it clear that the code may include measures designed to protect people who are not themselves receiving health care, but who may nonetheless be at risk from health care associated infections, such as staff and visitors. Subsection (4)(b) makes it clear that the code may place obligations on those NHS bodies to which the code applies in connection with the health care that they commission.

76.     It is envisaged that the provisions of the code will need to operate by reference to the content of other documents, whether published by the Secretary of State or other relevant sources. Subsection (5) allows the code to incorporate other documents (in whole or part), and to take effect by reference to a document as revised from time to time. Where the code refers to a document in this way, the code will be automatically changed each time the document that it refers to is revised.

77.     The code may make different provision for different cases or circumstances (subsection (5)(c)). This allows the code to reflect the fact that NHS bodies have different functions.

78.     The Secretary of State must keep the code under review, and may revise all or any part of it (subsection (7)).

79.     Section 14 also inserts new section 47B (consultation etc.) into the 2003 Act.

80.     Subsections (1) and (2) of the new section 47B provide that where the Secretary of State proposes to issue a code or to issue a revised code which he thinks would result in a substantial change in the code, he must prepare a draft of it and consult such persons as he thinks appropriate about the draft.

81.     Subsections (4) and (5) are concerned with a situation where any provision of the code operates by reference to another document as revised from time to time. Before the Secretary of State revises any document published by him in relation to his health functions, he must consult appropriate persons about any change which would, in his view, lead to a substantial change in the code (subsection (4)). In the case of revisions to other such documents, where the Secretary of State thinks that the code has been substantially altered as a consequence, subsection (5) places a duty on him to consult appropriate persons about whether the code should be revised.

82.     Subsection (6) allows consultation for the purposes of this section to have taken place before the commencement of the section.

83.     Lastly, section 14 also inserts new section 47C (effect of code under section 47A) into the 2003 Act. It places a duty on those NHS bodies to which provisions of the code apply to observe them in discharging their duty of quality under section 45 of the 2003 Act (subsection (1)). Section 45 places a duty on each NHS body to ensure that appropriate arrangements are in place with a view to monitoring and improving the quality of health care that they provide or commission.

84.     A failure to observe any provision of the code does not, of itself, make a person liable to criminal or civil proceedings, but the code is admissible in evidence in such proceedings, for example in a negligence action (subsections (2) and (3)).

Section 15: Code of practice: effects on existing functions of Commission for Healthcare Audit and Inspection

85.     This section amends the 2003 Act to provide for new functions of the Healthcare Commission in relation to the code.

86.     Subsection (2) amends section 50 of the 2003 Act (annual reviews) so that the Healthcare Commission must take the code into account when it conducts an annual review of health care under this section. It places a duty on the Healthcare Commission to consider the extent (if any) to which a body is observing any provisions of the code that apply to it.

87.     The Healthcare Commission also has the function of conducting reviews of NHS health care across England and Wales under section 51 of the 2003 Act (reviews: England and Wales). Subsection (3) amends section 51(4)(a) so that the Healthcare Commission must also take account of the code when reviewing health care provided by or for an English NHS body or cross-border SHA in the context of a review under this section.

88.     This section also amends section 52 of the 2003 Act (reviews and investigations: England) so that the Healthcare Commission must take the code into account when conducting a review or investigation under section 52 (subsection (5)). Subsection (5A) provides that when the Healthcare Commission undertakes a review of the arrangements made by a particular English NHS body or cross-border SHA for the purpose of discharging their duty of quality in health care, the Healthcare Commission must consider the extent (if any) to which the body in question is observing any applicable provisions of the code (see section 52(3) of the 2003 Act (as amended by subsection (4)).

89.     Subsection (6) amends section 54(2) of the 2003 Act so that it refers to the code and allows the Healthcare Commission to give advice to the Secretary of State on changes that it thinks should be made to the code in order to secure improvements in the quality of NHS health care.

Section 16: Code of practice: improvement notices

90.     This section inserts two further new sections, sections 53A (failings in connection with code under section 47A: improvement notices) and 53B (code of practice: action by the Healthcare Commission following service of an improvement notice), into the 2003 Act.

91.     New section 53A(1) gives the Healthcare Commission the power to serve an improvement notice in relation to the code. The power applies where, following a review or investigation (as the case may be) under sections 50, 51 or 52 of the 2003 Act, the Healthcare Commission is of the view that any provisions of the code applying to an English NHS body or a cross-border SHA are not being observed in any material respect in relation to the provision of health care by or for that body.

92.     The Healthcare Commission may issue an improvement notice where it considers that this is the most appropriate course for it to take with a view to securing that the failure in question is remedied (subsection (2)).

93.     It is considered that a failure to observe the code in any material respect would include any failure to observe the code that, in the Healthcare Commission's view, could compromise the body's ability to ensure health care associated infections are appropriately tackled.

94.     However, the Healthcare Commission may only issue a notice if, having regard to all the circumstances, it is not required to make a report to the Secretary of State under section 53(2) of the 2003 Act and to the regulator under section 53(6), where the body in question is an NHS foundation trust (subsection (1)(b)).

95.     Section 53 of the 2003 Act (failings) requires the Healthcare Commission to make such a report where it is of the view that there are significant failings in relation to the provision of health care by or for an English NHS body or cross-border SHA, in the running of such a body, or in the running of any body or the practice of any individual providing health care for an English NHS body or cross-border SHA. Such a report may include a recommendation that the recipient take special measures with a view to remedying the failing in question (see below). It is considered that significant failings related to the code could be the subject of reporting under this section.

96.     A significant failing is not defined in the 2003 Act. It is considered that a significant failing is one that, in the view of the Healthcare Commission, is serious enough to be drawn to the immediate attention of the Secretary of State or the regulator with a view to a decision being taken about whether special measures are required. Whether the failing is significant is a mixed question of fact and law. It is considered that the Healthcare Commission's decision would be informed by its overall conclusions following the review or investigation. This could include an assessment of (amongst other things) any action that the NHS body is taking to resolve the issue, the nature of, and reason for the failure, and any impact on the health care provided by or for the body. It is considered that significant failings could, therefore, include (but are not limited to) a failure related to the provision of health care or the running of the body that endangers the lives of patients or the viability of the body.

97.     Special measures are not defined in the 2003 Act, but they may include practical assistance or organisational support. For example, the Secretary of State could invite a Director of Infection Prevention and Control from another NHS Trust to act as an advisor to an NHS Trust who require advice on how to implement the code.

98.     A report under section 53 may lead to intervention in relation to the NHS body by the Secretary of State using his direction-making or intervention powers under the NHS Act 1977 or by the regulator under section 23 of the 2003 Act (significant failings) in the case of an NHS foundation trust. For example, if an NHS foundation trust or an NHS trust proved unable to provide adequate training on infection control for its staff, it could be required to take particular measures to put adequate training in place.

99.     Subsection (3) sets out what the Healthcare Commission must include in an improvement notice. In particular, the notice must specify the period by which the body in question must remedy the failure. The notice may also (but need not) include a recommendation by the Healthcare Commission about how the failure should be remedied (subsection (4)). This would be advisory only, but the body would be expected to take the Healthcare Commission's views into account. More than one failure to observe the code may be included in a single notice, in which case the Healthcare Commission may specify different periods for compliance for different failures (subsection (5)), and may make several recommendations in a single notice.

100.     Where the Healthcare Commission serves an improvement notice, it must notify the Secretary of State, the regulator, in the case of a NHS foundation trust, and any relevant Strategic Health Authority, in the case of a NHS trust or PCT (subsection (6)). The "relevant Strategic Health Authority" is defined in subsection (7).

101.     Subsections (8) and (9) prohibit the Healthcare Commission from responding to any failure by the body to comply with an improvement notice served on it by serving another improvement notice concerning the same failure, but allow the Healthcare Commission to serve another notice where, on reviewing compliance with the notice, it identifies a different failure to observe the code.

102.     New section 53B is concerned with action by the Healthcare Commission after it has served an improvement notice on an NHS body.

103.     Subsection (2) provides that the Healthcare Commission may, at the request of the body in question and by notice, extend the length of time that the body has been given to rectify the non-observance of the code specified in the improvement notice. Time can only be extended where the Healthcare Commission believes that this is justified by exceptional circumstances. The length of time may be extended more than once as long as the conditions in subsection (2) are met on each occasion.

104.     Subsection (4) places a duty on the Healthcare Commission to undertake a review into whether the body has complied with the improvement notice. That review will be carried out under section 52(3)(b) of the 2003 Act. The review will take place at the end of the period specified in the improvement notice unless the body informs the Healthcare Commission that it has complied with the improvement notice before this time, in which case it can take place sooner.

105.     Having conducted the review, the Healthcare Commission must then report to the Secretary of State, and to the regulator if the body is a NHS foundation trust, in accordance with subsection (5) or (6).

106.     If the Healthcare Commission remains of the view that the body is not observing the code in material respects and, having regard to all the circumstances, considers that it must report to the Secretary of State or the regulator under section 53 of the 2003 Act at this stage, then subsection (5) makes it clear that the Commission must make such a report. In deciding whether to make such a report, the Healthcare Commission must take the overall situation into account. This would include the fact of, and the reasons for, the body's failure to comply with the improvement notice, and any effect on the quality and effectiveness of the health care.

107.     Where the Healthcare Commission does not report significant failings as described above, then it must report to the Secretary of State and to the regulator (as the case may be) setting out particular matters. Those matters are specified in subsections (7) and (8).

108.     If the Healthcare Commission considers that the body has complied with the improvement notice and is observing the provisions of the code which resulted in the notice being served, then the Healthcare Commission must state this fact and give its reasons for this view (subsection (7)). If, however, the Healthcare Commission continues to believe that the body is not observing those provisions, subsection (8) provides that the Healthcare Commission's report must set out:-

•      that it is of that view and the reasons for that view;

•      its reasons for not reporting significant failings to the Secretary of State or the regulator under section 53 where the body is failing to observe the code in any material respect; and

•      in any case, details of any action that the Healthcare Commission intend to take in relation to the body concerned in relation to the body's failure to observe those provisions. For example, the Healthcare Commission could request that the body supply regular information that would allow the Healthcare Commission to see whether the body was continuing to make progress towards full observance of the relevant provisions of the code.

109.     Subsection (9) provides that the Healthcare Commission must send a copy of any report to the relevant Strategic Health Authority, as defined in new section 53A(7) where the body in question is a PCT or a NHS Trust.