Office of Public Sector Information

488.Section 143 inserts new paragraphs into Schedule 1 to the NHS Act 2006. New paragraph 7A of Schedule 1 enables the Secretary of State to make arrangements in relation to England for the weighing and measuring of children under 12 who attend school. Similar arrangements can also be made in relation to young children who attend early years settings. New paragraph 7A(1) and (2) refer to “junior pupils”. The effect of paragraph 7A(4) is to apply relevant definitions under the Education Act 1996 or the School Standards and Framework Act 1998. “Junior pupil” is defined under the 1996 Act as a child who has not attained the age of 12. Similar definitions are applied by virtue of section 144 in relation to the provisions for Wales.

489.New paragraph 7B(1)(a) of Schedule 1 enables the Secretary of State to make regulations to authorise information to be provided by local education authorities, private school proprietors and persons registered under the relevant provisions of the Childcare Act 2006, to the PCT staff who it is intended will conduct a weighing and measuring exercise.

490.New paragraph 7B(1)(b) of that Schedule enables the Secretary of State to make provision about the requirements which must be satisfied before weighing and measuring can take place and the way in which the weighing and measuring is to be carried out.

491.New paragraph 7B(1)(c) of that Schedule enables the Secretary of State to make regulations providing for a child's height and weight data, or any assessment or analysis of the child's height and weight data, to be fed back routinely to the parents of that child. It is intended that the regulations will provide for other carers, such as grandparents, to be treated as parents for the purposes of being able to withdraw a child in their care from a weighing and measuring programme, or receiving information provided by that programme.

492.New paragraph 7B(1)(d) of that Schedule enables the Secretary of State to make regulations providing for the processing of information gathered during weighing and measuring. The power will be exercised in line with data protection requirements.

493.New paragraph 7B(2) of that Schedule enables regulations to be made which will require those undertaking the weighing and measuring programme to have regard to any guidance issued by the Secretary of State.

494.Section 144 inserts new paragraphs into Schedule 1 to the NHS (Wales) Act 2006. New paragraph 7A allows the Welsh Ministers to make arrangements in relation to Wales for the weighing and measuring of children under 12 who attend school. Similar arrangements can also be made in relation to children who attend early years settings.

495.In particular, the Welsh Ministers will be able to enter into arrangements with local education authorities or proprietors of any school which is not maintained by a local education authority to provide for the weighing and measuring of junior pupils in such schools. In addition, they may enter into arrangements with persons registered under the Children Act 1989, for the purpose of providing childcare or day care for children, to weigh and measure children in their care.

496.New paragraph 7B of Schedule 1 to the NHS (Wales) Act 2006 mirrors the equivalent provision in the NHS Act 2006 (see above). In particular, the regulations made by the Welsh Ministers can make provision about the requirements which must be satisfied before weighing and measuring can take place and the way in which the weighing and measuring is to be carried out.

Social care

Section 145: Human Rights Act 1998: provision of certain social care to be public function

497.Section 145 provides that where a private or voluntary sector care home provider provides accommodation together with nursing or personal care to a person under arrangements made with a local authority or, in Northern Ireland, DHSSPSNI, under certain statutory provisions the provider is taken to be exercising a function of a public nature under section 6(3)(b) of the Human Rights Act 1998. This means that such providers are required not to act incompatibly with rights under the Convention in providing these services. It also means that the person receiving such accommodation and care can take proceedings against the provider under the Human Rights Act 1998 if the provider breaches his or her rights under the Convention. Section 145 does not affect the question of whether persons in the private or voluntary sector who provide other forms of publicly-funded social care or health care are to be regarded as exercising a public function.

Section 146: Direct payments in lieu of provision of care services

498.Subsection (2) of section 146 inserts new subsections (1A) to (1C) into section 57 of the Health and Social Care Act 2001.

499.New subsection (1A) enables regulations to be made which allow a designated person (a “suitable person”) to receive a direct payment on behalf of another person (“P”). In order for the suitable person to receive a payment, P must be assessed as needing community care services and must lack the capacity to consent to the making of direct payments, within the meaning of the Mental Capacity Act 2005. This subsection also enables regulations to be made that set out the conditions that must be satisfied by local authorities in determining who is a suitable person.

500.New subsection (1B) describes the consent that is necessary in order for such payments to be made. The suitable person must give his or her consent. If P has either a deputy appointed by the Court of Protection under the Mental Capacity Act 2005, or a donee of a lasting power of attorney (‘LPA’) created by P, and the deputy or donee qualifies as a surrogate of P but the suitable person does not qualify as a surrogate of P, then the deputy or donee must also give his or her consent. Regulations under new subsection (5C) will set out the authority that a person must have as a deputy or donee in order to qualify as a surrogate of P for the purposes of section 57 of the Health and Social Care Act 2001.

501.New subsection (1C) sets out what is meant by a “suitable person”: a person is suitable if he or she fulfils one of the following criteria:

• he or she is a representative of P. The term ‘representative’ will be defined in regulations made under section 57 as amended by subsection (6) of this section. It is envisaged that the regulations will initially apply this term to at least some of the people who are donees of LPAs or deputies appointed by the Court of Protection. Additionally, these powers would allow the category of ‘representatives’ to be extended more widely in the future, for example to include donees of Enduring Powers of Attorney;

• he or she is not a representative of P, but there is a donee or deputy in place who qualifies as a surrogate of P and who, along with the local authority, considers this person suitable to receive and manage the direct payment on P’s behalf;

• he or she is not a representative of P, and there is no donee or deputy in place who qualifies as a surrogate of P, but the local authority considers this person suitable to receive and manage the direct payment.

502.However, simply being considered to be a suitable person who could potentially manage a direct payment on behalf of someone else, does not automatically mean that a direct payment will be made to that person. Powers taken in subsection (1A) and amended subsection (3) of section 57 of the Health and Social Care Act 2001, enable regulations to impose conditions that must be met: for example the local authority must, where appropriate, consult with family members or friends already involved in the care of the person who lacks capacity, before a payment is made to the suitable person.

503.Subsection (3)(a) to (c) and subsections (4) and (5) amend the regulation-making powers that already exist under section 57 of the Health and Social Care Act 2001 to ensure that they can cover direct payments made to a suitable person in respect of P, as well as covering direct payments made directly to P.

504.Subsection (3)(d) amends section 57 of the Health and Social Care Act 2001 to enable regulations to be made that specify matters that the local authority must or may have regard to when taking any decision about who will administer the direct payment. Regulations under that section will be able to specify the steps that local authorities must or may take before or after making such a decision. For example, regulations might specify that a local authority must consult certain family members of P before making a direct payment. They might also specify that the local authority must keep these family members informed of how P’s needs are being met once the payment has been made.

505.Subsection (3)(d) also amends section 57 of the Health and Social Care Act 2001 to enable regulations to specify that where a person has fluctuating capacity (e.g., in the early stages of dementia or when the use of medication affects the person’s capacity), arrangements for managing their direct payment do not have to be continually revisited. For example, should P, who is receiving direct payments via a suitable person, temporarily gain capacity, then these regulations may provide for mechanisms to allow the suitable person to continue managing the processes around the payment but in accordance with P themself deciding how those payments are spent for the period of time for which they have capacity. Without the ability to make such provision, arrangements for the suitable person to manage the payment would immediately cease and payments would have to be made under the legislation governing payments directly to individuals rather than that governing payments to third parties. This would mean that the individual would continually fluctuate between two different regimes in section 57 of the Health and Social Care Act 2001 under which direct payments may be provided. This would have the potential to cause difficulties for P, the suitable person and the local authority involved.

506.Section 57(3)(d) of the Health and Social Care Act 2001 currently allows regulations to set out conditions to be complied with by the recipient of a direct payment which may or must be imposed by local authorities in relation to the direct payment. Subsection (7) of section 146 amends section 57 of the Health and Social Care Act 2001 so that these can include conditions relating to securing the provision of the service concerned, the provider of the service, the person to whom payments are made in respect of the provision of the service or the provision of the service itself. Such conditions could be imposed to ensure that ‘suitable persons’ act in the best interests of the person whose direct payment they are receiving and managing when making decisions about their care.

507.Subsection (8) amends section 64 of the Health and Social Care Act 2001 to provide that any regulations made under section 57 of that Act by the Welsh Ministers will be subject to annulment by a resolution of the National Assembly for Wales.

508.Paragraphs 1 and 8 of Schedule 14 make amendments to other legislation in consequence of the extension of the direct payments scheme by section 146. Paragraph 1 provides that the existing legislation relating to direct payments for disabled children or parents under section 17A of the Children Act 1989 is not affected by section 146 (as explained in the Background and Summary section). Paragraph 8 amends section 6 of the Safeguarding Vulnerable Groups Act 2006. A person for whom a direct payment is received under the new section 57(1A) of the Health and Social Care Act 2001 is a vulnerable adult for the purposes of the 2006 Act. This paragraph excludes local authorities when exercising functions under section 57 of the 2001 Act, and surrogates when acting under new section 57(1B)(b) or (1C)(b) of the 2001 Act, from being a regulated activity provider and therefore required to undertake the vetting and barring checks required by virtue of the 2006 Act. Regulations made under new section 57(3)(k) of the 2001 Act could however require local authorities to carry out vetting and barring checks before making direct payments to a person on behalf of a vulnerable adult.

Section 147 and Schedule 13: Abolition of maintenance liability of relatives

509.This section removes local authorities’ powers to seek liable relatives payments under the National Assistance Act 1948. This will bring the operating principles for the charging policy for social care in line with those that are used in the rest of the health and social care system. The ‘liable relatives rule’ will come to an end in particular cases in accordance with Schedule 13.

Section 148: Ordinary residence for certain purposes of National Assistance Act 1948 etc.

510.Section 24 of the National Assistance Act 1948 provides that a patient in an NHS hospital is to be treated for the purposes of the provision of residential accommodation under Part 3 of that Act as being ordinarily resident in the area where he was ordinarily resident before he was admitted to hospital. Subsection (1) extends this rule to apply also to accommodation provided by the NHS in places other than NHS hospitals.

511.Subsection (2) requires the Secretary of State and the Welsh Ministers to make and publish arrangements for determining which ordinary residence disputes arising under part 3 of the National Assistance Act 1948 are to be dealt with by the Secretary of State and which are to be dealt with by the Welsh Ministers. The arrangements can include provision for the determination of cross-border ordinary residence disputes between English and Welsh local authorities.

512.The Chronically Sick and Disabled Persons Act 1970 gives local authorities a statutory duty to make arrangements for individuals who are ordinarily resident in their area, if the local authority considers the arrangements necessary to meet certain specified needs of that person, as listed in section 2 of that Act. These needs might include, for example, the provision of assistance to participate in recreational or learning activities, the provision of meals at home or elsewhere, or the provision of assistance in obtaining telephone or any other special equipment. The Chronically Sick and Disabled Persons Act 1970 does not state explicitly whom local authorities should approach to resolve ordinary residence disputes under section 2. Subsection (3) brings provisions relating to determinations of ordinary residence disputes under section 2 of the Chronically Sick and Disabled Persons Act 1970 in line with the National Assistance Act 1948 by providing that any ordinary residence disputes are referred to the Secretary of State or the Welsh Ministers for a determination (in accordance with the arrangements made and published under the National Assistance Act 1948).

Financial assistance related to provision of health or social care services

Sections 149 and 150: Power of Secretary of State to give financial assistance; Qualifying bodies

513.Section 149(1) allows the Secretary of State to provide financial support to qualifying bodies who are delivering health and social care services. It also allows the Secretary of State to fund qualifying bodies delivering related services to providers of health and social care services. Section 149(2) allows the Secretary of State to give financial support to people to set up such bodies.

514.Section 150 sets out the conditions for being a qualifying body. The first of these is that the body must pass the community benefit test. This is satisfied if a reasonable person might consider that the activities of a body are carried on for the benefit of a section of the community in England. The regulation-making power in section 150(2) will allow provision to be made about the sort of activities that can be treated as meeting this condition and the activities that can be treated as not meeting it, in cases where there may be some doubt. For example, it is intended to make regulations setting out that political activities are not to be treated as activities that are carried on for the benefit of the community.

515.The second condition is that the body satisfies any conditions relating to the distribution of profits as are set out in regulations. The Department proposes to make regulations which ensure that the profits of a qualifying body are principally invested for social objectives; either in the body itself or in the community. Section 150(1)(b) allows for prescribed bodies to be excepted from the requirement to meet such conditions.

516.The third condition under section 150(1)(c) is that the body must be carrying on a business. The intention is to distinguish these bodies from purely public sector organisations and those carrying on activities on a purely voluntary basis. Voluntary bodies who are “carrying on a business” and meet the other conditions would qualify.

517.Section 150(1)(d) allows regulations to be made setting out other conditions that a body must meet in order to be a qualifying body. If a person is given financial support to set up a qualifying body, additional conditions that such a qualifying body must satisfy may be prescribed in regulations under section 149(2). Under section 150(2), regulations may provide that only certain kinds of body can be a qualifying body.

Sections 151 and 152: Forms of assistance under s.149; Terms on which assistance under s.149 is given

518.Sections 151 and 152 concern the forms of financial assistance (e.g. grants, loans, guarantees, share capital) the Secretary of State can give to social enterprises and allow the Secretary of State to specify the terms on which it is provided. The sections allow some flexibility, so that:

• the Secretary of State can provide finance packages tailored for the particular needs of social enterprises;

• the Secretary of State can set appropriate terms and conditions which will protect these investments.

519.Section 151 allows the financial support that the Secretary of State can provide to take any form (with one exception), as well as setting out examples of the types of financial support that may be given. Subsection (3) ensures that the Secretary of State cannot give financial support to a company to set up a qualifying body by purchasing share capital in that company. This is because a longer term investment, such as purchasing share capital, would not be appropriate if the company itself is not a qualifying body.

520.Section 152 enables the Secretary of State to impose terms and conditions on the financial support given to qualifying bodies and people setting up qualifying bodies. This includes terms as to when the financial assistance must be repaid. Subsection (3) requires the people or bodies receiving this kind of financial support from the Secretary of State to comply with the terms on which the support is provided.

Section 153: Directions to certain NHS bodies

521.Subsection (1) enables the Secretary of State to direct certain NHS bodies in England to exercise his power to give financial support under section 149. This will mean that, to the extent permitted by the Secretary of State’s directions, NHS trusts, PCTs and Strategic Health Authorities in England and Special Health Authorities performing functions only or mainly in relation to England would be able to give financial support to qualifying bodies; or people who want to set up such bodies.

Section 154: Arrangements with other third parties

522.Section 154 allows the Secretary of State to make arrangements for a third party, other than those NHS bodies set out in section 153(1) or an English local authority, to give financial support to a qualifying body or a person wanting to set up such a body, or to carry on functions relating to such support. These functions can be completely carried out by a qualifying third party, or to the extent set out in the arrangements, and can be carried out generally, or in specific cases. These arrangements made between the Secretary of State and the third party may set out the terms on which the third party can give financial support, including the types of support that can be given. The section also provides for the Secretary of State to provide the necessary funding to the third party and for provision to be made as to repayment (for example if the arrangements came to an end.)

523.The reason for excluding local authorities is because they have sufficient powers to fund social enterprises and have their own legislative structure. The reason for excluding NHS bodies set out in section 153(1) is that separate arrangements for these bodies are already set out in that section. The provisions in the Act are designed to give the Secretary of State and NHS bodies the necessary wider powers to fund social enterprises.

Section 155: Power to form a company

524.Section 155 allows the Secretary of State to set up a company to fund qualifying bodies and people wanting to set up such bodies. Under section 154 the Secretary of State could make arrangements with such a company to exercise the Secretary of State’s powers to fund such qualifying bodies and people wanting to set up such qualifying bodies. Under the arrangements with such a company, it is envisaged that the Secretary of State would transfer money to the company to enable the company to provide such financial support.

Section 156: Interpretation of group of sections

525.Section 156 sets out the meaning of various terms used in sections 149 to 156.

National Information Governance Board for Health and Social Care

Section 157 and section 158: National Information Governance Board for Health and Social Care

526.Section 157 establishes the National Information Governance Board for Health and Social Care.

527.Section 157 inserts four new sections (250A to 250D) into the NHS Act 2006:

• Section 250A sets out the functions of the National Information Governance Board relating to England and how it will exercise these functions and defines the information that will be within the remit of the Board. It provides that the Board can issue advice without being requested to do so and can request information from organisations which fall within its remit and confirms that organisations have to give due regard to advice supplied by the Board.

• Section 250B has the effect of giving the National Information Governance Board functions in relation to Wales that are narrower than its functions in relation to England. In relation to Wales, its functions will correspond to those currently carried out by PIAG, which in particular has functions in relation to the use of identifiable patient information without the patient’s consent.

• Section 250C details the regulations that the Secretary of State might make in respect of the National Information Governance Board. These may cover such matters as the composition of the Board, the committees or sub-committees that may be necessary, the terms of appointment of Board members, the payment of allowances or expenses, and the delegation of the Board’s functions.

• Section 250D details the annual reporting arrangements for the National Information Governance Board. The Board is to report to the Secretary of State on an annual basis.

528.Section 157 provides that, when the National Information Governance Board is established as a statutory body, PIAG (which is the current statutory body and was continued by section 252 of the NHS Act 2006) will be abolished.

529.Section 158 substitutes a new section for section 252 of the NHS Act 2006. It requires the Secretary of State to consult the National Information Governance Board where he proposes to make patient information regulations under section 251 of that Act.

530.Schedule 14 inserts references to the National Information Governance Board into the Parliamentary Commissioner Act 1967, the House of Commons Disqualification Act 1975 and the Freedom of Information Act 2000. It also inserts references to the National Information Governance Board into section 271 of the NHS Act 2006 to indicate that some of its functions are exercisable in relation to England and Wales.

Functions of Health Protection Agency in relation to biological substances

Section 159: Functions of Health Protection Agency in relation to biological substances

531.Section 159 abolishes the NBSB and gives functions to the Health Protection Agency corresponding to the NBSB’s functions. It also enables the Health Protection Agency to be given any other functions that could have been given to the NBSB.

532.Subsection (1) abolishes the NBSB and repeals the Biological Standards Act 1975. Subsections (2) to (6) amend the Health Protection Agency Act 2004, under which the Health Protection Agency was established and given its functions, to expand the Health Protection Agency’s functions (and possible functions) to include functions in relation to biological substances.

533.Subsection (3) inserts a new section 2A into the Health Protection Agency Act 2004, giving the ‘relevant authority’ (the Secretary of State and DHSSPSNI, acting jointly) power to direct the Health Protection Agency to carry out functions in relation to biological substances. The new section 2A(3) of the Health Protection Agency Act 2004 deems the relevant authority to have directed that initially the Health Protection Agency is to acquire functions that are the same as the NBSB’s: those functions are specified in the National Biological Standards Board (Functions) Order 1976. Subsection (5) amends section 8 (power to make transfer schemes) of the Health Protection Agency Act 2004, to enable the relevant authority to make a scheme for the transfer of the property, rights and liabilities of the NBSB to the Health Protection Agency.

Part 6 – General

Section 161: Orders, regulations and directions: general provisions

534.Section 161 makes provision in relation to powers to make orders and regulations and to give directions under the provisions of the Act. It provides that orders and regulations made by the Secretary of State, the Treasury, the Privy Council or the Welsh Ministers are to be made by statutory instrument and that regulations made by DHSSPSNI are to be made by statutory rule. It also makes provision as to how the powers in question may be exercised.

Section 162: Orders and regulations: Parliamentary control

535.Section 162 provides that all regulation and order making powers of the Secretary of State and the powers of the Privy Council to make an order approving rules made by the OHPA (section 109) and to make regulations about the membership of the OHPA (Schedule 6), will be subject to the negative resolution procedure, other than in the following cases:

• where subsection (3) or (4) applies, in which case the instrument must be approved by resolution of each House of Parliament; or

• where the order is a commencement order under section 170, in which case there is no Parliamentary procedure.

536.Subsection (3) lists those orders and regulations of the Secretary of State which will be subject to affirmative resolution procedure. They are as follows:

• regulations defining “regulated activity” (section 8(1)) for the purposes of registration in respect of the provision of health or social care;

• regulations under section 20 which provide for the establishment of a criminal offence carrying a maximum fine in excess of level 4 on the standard scale (currently £2,500);

• regulations under section 43 modifying Chapter 2 of Part 1 (registration in respect of the provision of health or social care) of the Act in relation to newly regulated activities;

• regulations made under section 87(1)(b) which provide for a penalty in excess of level 4 on the standard scale (currently £2,500);

• the first regulations made under section 120 (additional responsibilities of responsible officers);

• regulations making provision modifying the regulation of social care workers (section 124) or making provision modifying the functions of the GSSC in relation to the education and training of AMHPs (section 126); and

• orders containing transitional or consequential provision (section 167) which amend or repeal any provision of an Act of Parliament.

537.Subsection (4) provides that the Privy Council may not, under section 109, make a statutory instrument approving rules of the OHPA that contain (either alone or with other provision) provision for the piloting of legally qualified chairs, made by virtue of section 100(4), unless a draft has been approved by a resolution of each House of Parliament.

Section 163: Orders and regulations: control by National Assembly for Wales

538.Section 163 provides that all regulation-making powers of the Welsh Ministers, other than regulations to which subsection (3) applies, are subject to the negative resolution procedure in the National Assembly for Wales. The negative resolution procedure also applies to orders made by the Welsh Ministers under section 167(2) containing transitional or transitory provisions or savings.

539.Subsection (3) provides that the first regulations made under section 120 (responsible officers) and regulations making provision modifying the regulation of social care workers (section 124), or making provision modifying the functions of the CCW in relation to the education and training of AMHPs (section 126), must be approved by a resolution of the National Assembly for Wales.

Section 164: Regulations: control by Northern Ireland Assembly

540.Section 164 provides that the first regulations made under section 120 (responsible officers) by DHSSPSNI are subject to the affirmative resolution procedure in the Northern Ireland Assembly. Subsequent regulations made under section 120 are subject to the negative resolution procedure.

Section 165: Directions

541.Section 165 provides that any directions given by the Secretary of State or the Privy Council must be in writing and that any directions given may be varied or revoked by subsequent directions.

Section 166: Repeals

542.Section 166 makes provision in respect of repeals. It gives effect to the repeals specified in Schedule 15.

Section 167: Power to make transitional and consequential provision etc.

543.Section 167 confers power to make transitional or transitory provisions and savings and supplementary, incidental or consequential provision. Subsection (1) confers on the Secretary of State power to make by order transitional or transitory provisions and savings in connection with the commencement of any provision of the Act in relation to which the Secretary of State is the appropriate Minister for the purposes of section 170(3) (commencement). It also confers on the Secretary of State the power to make by order such supplementary, incidental or consequential provision as considered appropriate.

544.Subsection (2) confers on the Welsh Ministers power to make by order transitional or transitory provisions and savings in connection with the commencement of any provision of the Act in relation to which the Welsh Ministers are the appropriate Minister for the purposes of section 170(3) (commencement).

545.Subsection (3) provides that an order under this section may amend, repeal, revoke or otherwise modify any enactment. Subsection (7) defines “enactment” as an enactment contained in, or in any instrument made under, an Act of Parliament, an Act of the Scottish Parliament, a Measure or Act of the National Assembly for Wales or Northern Ireland legislation. Subsection (5) provides that before making an order under this section containing provision which would fall within the legislative competence of the Scottish Parliament, the Secretary of State must consult the Scottish Ministers.

546.Powers of this kind are often included in Acts which make extensive changes to existing statutory regimes. This section will ensure that necessary or expedient transitional arrangements can be made as the Act is commenced without creating any difficulty or unfairness and that there can be a smooth transition from the old law and procedures to the new.

547.A number of transitional provisions will be needed in relation to the establishment of the Commission and the assumption by it of the functions of CHAI, CSCI and MHAC. The Commission will assume the different functions of the three existing regulators over a period of time and will take on some earlier than others. Transitional provision will, for example, be needed in relation to the transition from the registration provisions of Part 2 of the Care Standards Act 2000 to the new regime under Chapter 2 of Part 1 of this Act.

548.Transitional provision will also need to be made in relation to some of the provisions in Part 2 (regulation of health professions and health and social care workforce) of the Act. This will be the case in relation to the transition from adjudication of fitness to practise cases by committees of the GMC and the GOC to their adjudication by the OHPA. Transitional provision will also have to be made in connection with: (a) preserving existing regulations, or parts of them, under the Public Health Act 1984 (Part 3 of this Act); and, (b) the abolition of the NBSB and the assumption of identical functions by the Health Protection Agency (section 159).

549.The power to make consequential amendments will enable changes made to the law by the Act to be reflected in other legislation which refers to or is dependent on provisions repealed or amended by the Act.

Section 168: Financial provisions

550.Section 168 makes provision for expenditure which will be incurred under or be attributable to the provisions of the Act to be paid out of money provided by Parliament.

Section 169: Extent

551.Section 169 makes provision as to the extent of the provisions of the Act.

Section 170: Commencement

552.Section 170 makes provision for the coming into force of the provisions of the Act. This section provides that the Act, with certain exceptions, will come into force on a day appointed by order of the appropriate authority. The exceptions to this provision are Part 6 (general) of the Act (except section 166 and Schedule 15 (repeals)), and any other provision of the Act (except section 111 or Schedule 8) so far as it confers power to make orders and regulations or defines any expression relevant to the exercise of any such power. In these cases the provisions came into force on the day on which the Act received Royal Assent.

Section 171: The appropriate authority by whom commencement order is made

553.Section 171 determines who the appropriate authority is for the purposes of making commencement orders under section 170. Except as provided by subsections (3) to (5), the appropriate authority is the Secretary of State.

554.In relation to sections 119, 120 and 122 (responsible officers), so far as they relate to Northern Ireland, the appropriate authority is DHSSPSNI.

555.In relation to the following provisions, the appropriate authority is the Welsh Ministers:

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

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

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

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

• subsections (1) to (7) of section 146 (direct payments in lieu of provision of care services), so far as they relate to Wales, and subsection (8) of that section,

• 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),

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

• the repeals in the NHS (Wales) Act 2006 in Part 4 of Schedule 15 (and section 166 so far as relating to those repeals).

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

Section 172: Consultation in relation to commencement

557.Section 172 makes provision requiring the appropriate authority for the purposes of making commencement orders under section 170 to consult others before making orders commencing certain provisions of the Act.

558.The Secretary of State must consult the Scottish Ministers before making a commencement order relating to:

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

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

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

  • 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,

  • the meaning of “enactment” for the purposes of Schedule 3 to that Act;

• section 112 (standard of proof in fitness to practise proceedings) in relation to a profession that is not a reserved profession for Scotland; or

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

559.Before making a commencement order relating to section 148 (ordinary residence for the purposes of the 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. The Secretary of State must also consult the Welsh Ministers before making a commencement order in relation to the amendments to the powers of the Welsh Ministers under the Care Standards Act 2000 (see notes on section 95 and Schedule 5 above).

560.Before making a commencement order relating to section 159 (functions of Health Protection Agency in relation to biological substances), or Part 7 (abolition of NBSB) of Schedule 15 (or section 166 so far as relating to that Part of that Schedule), the Secretary of State must consult DHSSPSNI.

Hansard References

The following table sets out the dates and Hansard references for each stage of the Act’s passage through Parliament.