PART 1 continued CHAPTER 3 continued
(1) The Commission may conduct any special review or investigation, and must do so if the Secretary of State so requests.
(2) A special review or investigation is a review (other than a periodic review) of or an investigation into—
(a) the provision of NHS care,
(b) the provision of adult social services, or
(c) the exercise of functions by English Health Authorities.
(3) Such a review or investigation may relate—
(a) to the overall provision of NHS care or adult social services or to the provision of NHS care or adult social services of a particular description;
(b) to the overall exercise of functions or to the exercise of functions of a particular description;
(c) to the provision of care or services or the exercise of functions by bodies or persons generally or by particular bodies or persons.
(4) Where the Commission conducts a review or investigation under this section, it must publish a report.
(5) The Commission must consider whether the report raises anything on which it ought to give advice to the Secretary of State under section 53(2).
(6) If the review or investigation gives rise to a duty to act under section 50(2) or (3) in respect of an English local authority, subsection (5) does not apply in relation to so much of the report as relates to that local authority.
(7) The Secretary of State may, after consulting the Commission, by regulations make provision as to the procedure to be followed in respect of the making of representations to the Commission before the publication of a report under subsection (4).
(8) In this section “English Health Authority” means—
(a) a Strategic Health Authority, or
(b) a Special Health Authority performing functions only or mainly in respect of England.
(1) The Secretary of State may by regulations require the Commission to—
(a) conduct periodic reviews of the carrying on of regulated activities by registered service providers, and
(b) either—
(i) publish reports of such reviews, or
(ii) assess the performance of registered service providers following such reviews and publish reports of its assessment.
(2) Regulations under subsection (1) may require the Commission to conduct periodic reviews in relation to—
(a) all regulated activities or regulated activities of a particular description;
(b) all registered service providers or particular registered service providers;
(c) the whole of a regulated activity or a particular aspect of it.
(3) In the case of a regulated activity carried on by a Primary Care Trust, another English NHS provider or an English local authority—
(a) subsection (1) does not apply to the carrying on of that activity by that body to the extent that the carrying on of that activity by that body is already subject to periodic review under section 46, but
(b) this does not prevent the Secretary of State from requiring the Commission to conduct periodic reviews of a particular aspect of the activity as carried on by that body.
(4) If regulations under subsection (1) require the Commission to conduct periodic reviews, the following provisions have effect in relation to the reviews as they have effect in relation to reviews under section 46—
(a) section 46(4) to (9), and
(b) section 47.
(5) In this section “registered service provider” means a person registered under Chapter 2 as a service provider.
(1) This section applies where the Commission conducts a review under section 46 or 49, or a review or investigation under section 48, in respect of an English local authority.
(2) If the Commission considers that the local authority is failing to discharge any of its adult social services functions to an acceptable standard, then subject to subsection (3) the Commission must—
(a) inform the Secretary of State of that fact, and
(b) recommend any special measures which it considers the Secretary of State should take.
(3) If the Commission considers that the failure is not substantial, it may instead—
(a) give the local authority a notice under subsection (4), and
(b) inform the Secretary of State that it has done so.
(4) A notice under this subsection is a notice which specifies—
(a) the respects in which the Commission considers that the local authority is failing,
(b) the action which the Commission considers the local authority should take to remedy the failure, and
(c) the time by which the Commission considers the action should be taken.
(5) If the Commission recommends that the Secretary of State should take special measures in relation to the local authority, the Commission must, if the Secretary of State so requests—
(a) conduct a further review under section 48 in relation to the authority, and
(b) include in its report under subsection (4) of that section a report on such matters as the Secretary of State may specify.
(1) Following a review under section 46 or 49, or a review or investigation under section 48, the Commission must inform the Welsh Ministers if it considers that—
(a) there are significant failings in relation to the provision of health care by or pursuant to arrangements made by a Welsh NHS body,
(b) there are significant failings in the running of a Welsh NHS body, or
(c) there are significant failings in the running of a body, or the practice of an individual, providing health care pursuant to arrangements made by a Welsh NHS body.
(2) The Commission may also recommend to the Welsh Ministers that, with a view to remedying those failings, the Welsh Ministers take special measures—
(a) in a case falling within subsection (1)(a) or (b), in relation to the Welsh NHS body concerned;
(b) in a case falling within subsection (1)(c), in relation to the body or individual concerned (except an English NHS body or a cross-border Special Health Authority).
(3) In this section “Welsh NHS body” has the same meaning as in Part 2 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43).
(1) The functions of the Secretary of State under the following provisions of the Mental Health Act 1983 (c. 20) (“the MHA”) are transferred to the Commission—
(a) section 57(2)(a) (appointment of registered medical practitioners and other persons),
(b) section 58(3)(a) (appointment of registered medical practitioners),
(c) section 61(1) (receipt of reports on treatment),
(d) section 61(3) (power to disapply Part 4 certificates),
(e) section 64H(4) (receipt of reports on treatment),
(f) section 64H(5) (power to disapply Part 4A certificates),
(g) section 118(2) (code of practice) so far as it relates to the appointment of registered medical practitioners,
(h) section 119(1) (power to make provision for payment to practitioners etc.), and
(i) section 120 (duty to keep matters under review etc.).
(2) Registered medical practitioners, and other persons, appointed or authorised by the Commission in the exercise of a function under the MHA may include members or employees of the Commission.
(3) The functions of the Mental Health Act Commission under the MHA are transferred—
(a) in relation to England, to the Care Quality Commission;
(b) in relation to Wales, to the Welsh Ministers.
(4) Section 121 of the MHA (which makes provision about the Mental Health Act Commission and requires the Secretary of State and the Welsh Ministers to delegate some of their functions to it) ceases to have effect.
(5) Schedule 3 (which makes amendments to the MHA consequential on the provisions of this section, and other amendments to the MHA relating to the functions of the Commission and the Welsh Ministers) has effect.
(1) The Commission must keep the Secretary of State informed about the following matters—
(a) the provision of NHS care;
(b) the provision of adult social services;
(c) the carrying on of regulated activities.
(2) The Commission may at any time give the Secretary of State advice on anything connected with those matters.
(3) Advice under subsection (2) may in particular include advice on any changes that the Commission thinks should be made to—
(a) regulations under section 20 (regulation of regulated activities),
(b) a code of practice under section 21 (code of practice relating to health care associated infections), or
(c) a statement of standards under section 45 (health care standards set by the Secretary of State).
(4) When requested to do so by the Secretary of State, the Commission must give the Secretary of State such advice or information in connection with a matter mentioned in subsection (1) as may be specified in the request.
(5) The Commission may give advice—
(a) to the Secretary of State or an English NHS body about the establishment or conduct of any inquiry held, or to be held, by the Secretary of State or NHS body in relation to the provision of health care by or pursuant to arrangements made by that body;
(b) to the Secretary of State or an English local authority about the establishment or conduct of any inquiry held, or to be held, by the Secretary of State or local authority in relation to the provision of adult social services by or pursuant to arrangements made by that authority.
(1) The Commission may undertake or promote comparative or other studies designed to enable it to make recommendations—
(a) for improving economy, efficiency and effectiveness in any activity mentioned in subsection (2),
(b) for improving the management, other than the financial management, of an English NHS body, or
(c) for improving the management of an English local authority in its provision of adult social services.
(2) Those activities are—
(a) the provision of health care by an English NHS provider,
(b) the making of arrangements by a Primary Care Trust for the provision of health care,
(c) the provision of adult social services by an English local authority, and
(d) the making of arrangements by an English local authority for the provision of adult social services.
(3) The Commission may also undertake or promote studies designed to enable it to prepare reports as to the impact of—
(a) the operation of any particular statutory provisions, or
(b) any directions or guidance given by a Minister of the Crown (whether pursuant to any such provisions or otherwise),
on economy, efficiency and effectiveness in an activity mentioned in subsection (2)(c) or (d).
(4) The Commission must undertake or promote a study falling within subsection (1) or (3) if the Secretary of State so requests.
(5) The reference in subsection (1) to an English NHS body does not include a reference to a Special Health Authority.
(1) The Commission must publish—
(a) any recommendations made by it under subsection (1) of section 54, and
(b) the result of any studies undertaken or promoted under that section.
(2) The Secretary of State may, after consulting the Commission, by regulations make provision as to the procedure to be followed in respect of the making of representations to the Commission before the publication under subsection (1) of any recommendations or the result of any studies.
(1) Subsection (2) applies to any function of the Commission under section 54 or 55 so far as relating to health care or English NHS bodies, except the function of being consulted under section 55(2).
(2) A function to which this subsection applies may be exercised on the Commission’s behalf by the Audit Commission, if the Audit Commission and the Commission so agree.
(3) Where the Audit Commission exercises functions under subsection (2), it must do so on such terms, including terms as to payment, as the Commission and the Audit Commission may agree.
(4) The Commission and the Audit Commission may exercise jointly their respective functions under—
(a) section 54 (and section 60 in its application to functions under that section) so far as relating to English local authorities, and
(b) sections 33 and 34 of the Audit Commission Act 1998 (c. 18).
(5) The Commission and the Audit Commission must have regard to any guidance issued by the Secretary of State as to which of the Commission and the Audit Commission should promote or undertake studies which could be promoted or undertaken by either of them.
(6) Subsection (4) is not to be taken to prejudice any other power of the Commission and the Audit Commission to act jointly.
(7) In this section “the Audit Commission” means the Audit Commission for Local Authorities and the National Health Service in England.
(1) The Commission may review—
(a) studies and research undertaken by others, or the quality of data obtained by others, in relation to the provision of NHS care or adult social services or the carrying on of regulated activities,
(b) the methods used in undertaking such studies and research or in collecting and analysing such data, and
(c) the validity of conclusions drawn from such studies and research or from such data.
(2) The Commission must conduct a review under subsection (1) if the Secretary of State so requests.
(3) If the Commission conducts a review under this section it must publish a report.
(1) The Commission may make available to the public information relating to—
(a) the provision of NHS care;
(b) the provision of adult social services;
(c) the carrying on of regulated activities.
(2) Subsection (1) is subject to sections 76 and 79(2).
(1) The Secretary of State may by regulations provide that the Commission is to have such additional functions as may be specified in the regulations in relation to any of the following—
(a) the provision of NHS care;
(b) the exercise in respect of England of functions by cross-border Special Health Authorities;
(c) the improvement of—
(i) economy, efficiency and effectiveness in the exercise of the functions of English NHS bodies, and
(ii) the financial or other management, or operations, of English NHS bodies;
(d) the provision of adult social services;
(e) the carrying on of regulated activities;
(f) the exercise of powers or the discharge of duties conferred or imposed by the Mental Health Act 1983 (c. 20) as mentioned in section 120(1) of that Act.
(2) The Secretary of State must consult the Independent Regulator of NHS Foundation Trusts before making provision under subsection (1) in relation to NHS foundation trusts.
(1) The Commission may for the purposes of its regulatory functions carry out inspections of—
(a) the carrying on of a regulated activity,
(b) the provision of NHS care,
(c) the provision of adult social services, or
(d) the exercise of functions by an English NHS body.
(2) For the purposes of this Part, the “regulatory functions” of the Commission are its functions under Chapters 2, 3 and 5 except—
(a) its functions under section 53 (information and advice),
(b) its functions under section 57 (reviews of data, studies and research), and
(c) its functions under regulations under section 59 (additional functions) to the extent that the regulations provide that they are not to be treated as regulatory functions for the purposes of this Part.
(1) Regulations may prescribe—
(a) the frequency with which inspections are to be carried out under section 60 for the purposes of the Commission’s functions under Chapter 2,
(b) the manner in which they are to be carried out, and
(c) the type of person who may be authorised by the Commission to conduct them on its behalf.
(2) Where an inspection is carried out under section 60 for the purposes of the Commission’s functions under Chapter 2, the Commission must—
(a) prepare a report on the matters inspected, and
(b) without delay send a copy of the report to—
(i) the person who carries on the regulated activity in question, and
(ii) if a person is registered under that Chapter as a manager in respect of the activity, that person.
(3) The Commission must publish a report prepared under subsection (2).
(4) The Secretary of State may, after consulting the Commission, by regulations make provision as to the procedure to be followed in respect of the making of representations to the Commission before the publication of such a report.
(1) The power in subsection (2) is exercisable if the Commission considers it necessary or expedient for the purposes of any of its regulatory functions.
(2) A person authorised by the Commission may enter and inspect any premises which are, or which the person reasonably believes to be, regulated premises.
(3) Premises are “regulated premises” if they fall within one or more of the following descriptions—
(a) they are used for the carrying on of a regulated activity,
(b) they are owned or controlled by an English NHS body or English local authority, or
(c) they are used or proposed to be used for or in connection with—
(i) the provision of NHS care,
(ii) the exercise of any functions of an English NHS body, or
(iii) the provision of adult social services.
(4) If NHS care or an adult social service is provided to a person in premises used wholly or mainly as a private dwelling, the premises are not to be regarded as used for or in connection with the provision of that care or service.
(5) A person who proposes to exercise the power conferred by subsection (2) must if so required produce some duly authenticated document showing the person’s authority to exercise the power.
(6) “Premises” includes a vehicle.
(1) This section applies where a person (“A”) is authorised by virtue of section 62 to enter and inspect premises.
(2) If A considers it necessary or expedient for relevant purposes, A may—
(a) make any examination into the state and management of the premises or the treatment of persons receiving care there,
(b) inspect and take copies of any documents or records,
(c) have access to, and check the operation of, any computer, and any associated apparatus or material, which is or has been in use in connection with any documents or records,
(d) inspect any other item,
(e) seize and remove from the premises any documents, records or other items,
(f) interview in private—
(i) any person who carries on or manages a regulated activity, or who manages the provision of NHS care or adult social services, at the premises,
(ii) any person working at the premises, and
(iii) any person receiving care at the premises who consents to be interviewed, and
(g) if the conditions in subsection (3) are met, examine in private any person receiving care at the premises.
(3) The conditions are—
(a) A is a registered medical practitioner or registered nurse,
(b) A has reason to believe that the person to be examined is not receiving proper care at the premises, and
(c) the person to be examined—
(i) is capable of giving consent to the examination and does so, or
(ii) is incapable of giving consent to the examination.
(4) The power under subsection (2)(b) includes power—
(a) to require any person holding or accountable for documents or records (whether or not kept at the premises) to produce them for inspection at the premises, and
(b) to require any records which are kept by means of a computer to be produced in a form in which they are legible and can be taken away.
(5) The power under subsection (2)(f)(i) to interview a person in private includes power, in the case of a body corporate, to interview in private—
(a) any director, manager, secretary or other similar officer of the body corporate, and
(b) where the body is an English NHS body or English local authority, any officer or member of the NHS body or local authority.
(6) A may—
(a) require any person to afford A such facilities and assistance with respect to matters within the person’s control as are necessary to enable A to exercise powers under section 62 and this section, and
(b) take such measurements and photographs, and make such recordings, as A considers necessary to enable A to exercise those powers.
(7) A person who without reasonable excuse—
(a) obstructs the exercise of a power conferred by section 62 or this section, or
(b) fails to comply with a requirement imposed under this section,
is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(8) In this section—
(a) “relevant purposes” means the purposes of any of the Commission’s regulatory functions,
(b) any reference to documents or records includes a reference to personal and medical records, and
(c) any reference to a person receiving care at premises includes a reference to a person who is accommodated there.
(1) The Commission may require any person mentioned in subsection (2) to provide it with any information, documents, records (including personal and medical records) or other items which the Commission considers it necessary or expedient to have for the purposes of any of its regulatory functions.
(2) The persons are—
(a) an English NHS body,
(b) a person providing health care commissioned by a Primary Care Trust,
(c) an English local authority,
(d) a person providing adult social services commissioned by an English local authority, or
(e) a person who carries on or manages a regulated activity.
(3) The power in subsection (1) to require the provision of information, documents or records includes, in relation to information, documents or records kept by means of a computer, power to require the provision of the information, documents or records in legible form.
(4) A person who without reasonable excuse fails to comply with a requirement imposed under this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(1) The Secretary of State may by regulations make provision requiring prescribed persons to provide an explanation of any relevant matter to the Commission, or to persons authorised by the Commission, in circumstances where the Commission considers the explanation necessary or expedient for the purposes of any of its regulatory functions.
(2) “Relevant matter” means—
(a) any documents, records or other items inspected, copied or provided under sections 62 to 64,
(b) any information provided under those sections,
(c) any documents, records, other items or information otherwise provided to the Commission by any person for the purposes of the Commission’s regulatory functions, or
(d) any matters which are the subject of the exercise of any such functions.
(3) Regulations under subsection (1) may require explanations to be provided at such times and places as may be specified by the Commission.
(4) A person who without reasonable excuse fails to comply with a requirement imposed by virtue of this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Schedule 4 (interaction with other authorities) has effect.
The Commission must promote the effective co-ordination of reviews or assessments carried out by public bodies or other persons in relation to the carrying on of regulated activities.