PART 1 continued CHAPTER 6 continued
(1) The Secretary of State may publish guidance about steps which regulatory authorities may take in exercising relevant powers with a view to avoiding the imposition of unreasonable burdens on those in respect of whom the powers are exercisable.
(2) “Regulatory authorities” means—
(a) the Commission, and
(b) such other bodies as may be prescribed.
(3) A body may not be prescribed under subsection (2)(b) unless it has functions relating to the provision of health or social care.
(4) “Relevant powers” means powers conferred by or under an enactment to—
(a) carry out inspections, or
(b) require the provision of information,
but, in relation to a body prescribed under subsection (2)(b), such powers are “relevant powers” only so far as they are exercisable in respect of a person in respect of whom the Commission has relevant powers.
(5) The steps mentioned in subsection (1) might include for example—
(a) co-operating with other regulatory authorities and co-ordinating the exercise of relevant powers,
(b) sharing information or the results of inspections, and
(c) seeking to obtain information from other sources before exercising a relevant power to require the provision of that information.
(6) In exercising relevant powers, regulatory authorities must have regard to any guidance published under subsection (1).
(7) Nothing in this section is intended to limit the scope of a relevant power or affect a person’s obligation to comply with a requirement imposed in the exercise of such a power.
(8) In this section—
(a) “inspections” includes inspections of persons, premises or the carrying on of activities,
(b) a reference to a power to carry out inspections includes a reference to any power which is ancillary to that power (such as a power to enter premises or to require assistance), and
(c) a reference to a power to require the provision of information includes a reference to a power to require the production of documents, records or other items, a power to require the making of reports and a power to require explanations.
(1) The Commission and the Welsh Ministers must co-operate with each other for the efficient and effective discharge of their corresponding functions.
(2) Their corresponding functions are—
(a) the Commission’s functions, and
(b) any functions of the Welsh Ministers exercisable in or in relation to Wales which correspond or are similar to any of the Commission’s functions.
(3) The Commission and the Welsh Ministers may share information with each other for the purposes of subsection (1).
(1) The Commission and the Independent Regulator of NHS Foundation Trusts must co-operate with each other in the exercise of their respective functions.
(2) In particular—
(a) the Commission must keep the Independent Regulator informed about the provision of health care by NHS foundation trusts, and
(b) the Independent Regulator must give the Commission any information the Independent Regulator has about the provision of health care by an NHS foundation trust which the Independent Regulator or the Commission considers would assist the Commission in the exercise of the Commission’s functions.
(3) Without prejudice to subsection (2)(a) the Commission must, on request, provide the Independent Regulator with any material relevant to—
(a) a review under section 46 or 49,
(b) a review or investigation under section 48, or
(c) a study promoted, or undertaken, by the Commission under section 54,
so far as the material relates to the provision of health care by an NHS foundation trust.
(1) The Auditor General for Wales must, on request, provide the Commission with any information it may reasonably require for the purpose of making comparisons, in the exercise of its functions under section 54 so far as relating to health care or English NHS bodies, between English NHS bodies and Welsh NHS bodies.
(2) In this section “Welsh NHS body” has the same meaning as in Part 3 of the Public Audit (Wales) Act 2004 (c. 23).
The Commission must, on request, provide the Comptroller and Auditor General with any material relevant to—
(a) a review under section 46 or 49 in respect of an English NHS body,
(b) a review or investigation under section 48 in respect of such a body, or
(c) a study promoted, or undertaken, by the Commission under section 54.
(1) The Commission and a Minister of the Crown may make arrangements for the Commission to—
(a) perform any of its functions in relation to a prescribed health scheme, or a prescribed social care scheme, for which the Minister has responsibility;
(b) provide services or facilities insofar as they are required by the Minister in connection with such a scheme.
(2) Arrangements under this section may be made 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 the Commission in respect of the cost to it of giving effect to the arrangements.
(4) In this section—
“health scheme” means a scheme which appears to the Secretary of State to be a health or medical scheme paid for out of public funds;
“social care scheme” means a scheme which appears to the Secretary of State to be a social care scheme paid for out of public funds.
(1) The Commission and a Northern Ireland Minister may make arrangements for the Commission to—
(a) exercise on behalf of the Minister any function of the Minister which corresponds to a function of the Commission and relates to the Northern Ireland health service;
(b) provide services or facilities insofar as they are required by the Minister in connection with the exercise by the Minister of any such functions.
(2) Arrangements under this section may be made 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 the Commission in respect of the cost to it of giving effect to the arrangements.
(4) Any arrangements under subsection (1)(a) are not to affect the responsibility of the Minister on whose behalf the function is exercised.
(5) In this section—
“Northern Ireland Minister” includes the First Minister, the deputy First Minister and a Northern Ireland department;
“Northern Ireland health service” means any of the health services under any enactment which extends to Northern Ireland and which corresponds to section 1(1) of the National Health Service Act 2006 (c. 41).
(1) The Secretary of State may cause an inquiry to be held into any matter connected with the exercise by the Commission of any of its functions.
(2) Before an inquiry is begun, the Secretary of State may give a direction that it be held in private.
(3) Where no such direction has been given, the person holding the inquiry may decide to hold it, or any part of it, in private.
(4) Subsections (2) to (5) of section 250 of the Local Government Act 1972 (c. 70) (powers in relation to local inquiries) apply in relation to an inquiry under this section as they apply in relation to a local inquiry under that section.
(5) The report of the person holding the inquiry is to be published, unless the Secretary of State considers that there are exceptional circumstances which make publication inappropriate.
(6) Publication is to be in such manner as the Secretary of State considers appropriate.
(1) This section applies to information which—
(a) has been obtained by the Commission on terms or in circumstances requiring it to be held in confidence, and
(b) relates to and identifies an individual.
(2) A person is guilty of an offence if the person knowingly or recklessly discloses information to which this section applies during the lifetime of the individual.
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or to both.
(4) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (3)(a) to 12 months is to be read as a reference to 6 months.
(5) For the purposes of subsection (1)(b), information obtained by the Commission is to be treated as identifying an individual if the individual can be identified from a combination of—
(a) that information, and
(b) other information obtained by the Commission.
(6) Reference in this section and in sections 77 to 80 to information obtained or disclosed by the Commission includes information obtained or disclosed by a person authorised by the Commission.
(1) It is a defence for a person charged with an offence under section 76 to prove that at the time of the alleged offence—
(a) any of the circumstances in subsection (2) applied in relation to the disclosure, or
(b) the person reasonably believed that any of them so applied.
(2) The circumstances are—
(a) that the disclosure was made in a form in which the individual to whom the information relates is not identified;
(b) that the disclosure was made with the consent of that individual;
(c) that the information disclosed had previously been lawfully disclosed to the public;
(d) that the disclosure was made under or pursuant to regulations under section 113 or 114 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43) (complaints about health care or social services);
(e) that the disclosure was made in accordance with any enactment or court order;
(f) that the disclosure was necessary or expedient for the purposes of protecting the welfare of any individual;
(g) that the disclosure was made to any person or body in circumstances where it was necessary or expedient for the person or body to have the information for the purpose of exercising functions of that person or body under any enactment.
(3) It is also a defence for a person charged with an offence under section 76 to prove that the disclosure was made—
(a) for the purpose of facilitating the exercise of any of the Commission’s functions,
(b) in connection with the investigation of a criminal offence (whether or not in the United Kingdom), or
(c) for the purpose of criminal proceedings (whether or not in the United Kingdom).
(4) If a person charged with an offence under section 76 relies on a defence in subsection (1) or (3), and evidence is adduced which is sufficient to raise an issue with respect to that defence, the court must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(5) For the purposes of subsection (2)(a), information disclosed by a person is to be treated as being in a form in which an individual is identified if the individual can be identified from a combination of—
(a) the information, and
(b) other information disclosed by the person or by the Commission.
Information obtained by, or documents or records produced to, the Commission in connection with any of its functions may be used by the Commission in connection with any of its other functions.
(1) Subsections (2) and (3) apply to any information obtained by the Commission in the course of exercising any of its functions.
(2) In the case of information relating to an individual, the Commission may disclose the information if—
(a) the disclosure is made in a form in which the individual is not identified, or
(b) the disclosure is made with the consent of the individual.
(3) In all cases (whether or not relating to an individual), the Commission may disclose the information if—
(a) the information has previously been lawfully disclosed to the public,
(b) the disclosure is made under or pursuant to regulations under section 113 or 114 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43) (complaints about health care or social services),
(c) the disclosure is made in accordance with any enactment or 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 or body in circumstances where it is necessary or expedient for the person or body to have the information for the purpose of exercising functions of that person or body under any enactment,
(f) the disclosure is made for the purpose of facilitating the exercise of any of the Commission’s functions,
(g) the disclosure is made in connection with the investigation of a criminal offence (whether or not in the United Kingdom), or
(h) the disclosure is made for the purpose of criminal proceedings (whether or not in the United Kingdom).
(4) Subsections (2) and (3) have effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure.
(5) For the purposes of subsection (2)(a), information disclosed by the Commission is to be treated as being in a form in which an individual is identified if the individual can be identified from a combination of—
(a) the information, and
(b) other information disclosed by the Commission.
(1) The Commission must prepare and publish a code in respect of the practice it proposes to follow in relation to confidential personal information.
(2) The code must in particular make provision—
(a) about the obtaining by the Commission of information which, once obtained, will be confidential personal information, and
(b) about the handling, use and disclosure by the Commission of confidential personal information.
(3) Before publishing the code, the Commission must consult—
(a) the National Information Governance Board for Health and Social Care, and
(b) such other persons as it considers appropriate.
(4) The Commission must keep the code under review and, if it considers it appropriate, from time to time publish a revised code (and references in this section to the code include any revised code).
(5) In this section “confidential personal information” means information which—
(a) is obtained by the Commission on terms or in circumstances requiring it to be held in confidence, and
(b) relates to and identifies an individual.
(6) For the purposes of subsection (5)(b), information obtained by the Commission is to be treated as identifying an individual if the individual can be identified from a combination of—
(a) the information, and
(b) other information obtained by the Commission.
(1) The Commission must from time to time prepare and publish a document setting out—
(a) the special reviews and investigations that it proposes to conduct under section 48,
(b) the studies that it proposes to undertake under section 54, and
(c) the reviews that it proposes to conduct under section 57.
(2) Before preparing a document under subsection (1) the Commission must consult—
(a) the Secretary of State, and
(b) any other person or body specified by an order made by the Secretary of State,
and it must send each of those persons or bodies a copy of the document once it is prepared.
(3) The Commission may determine that any document or combination of documents prepared for the purposes of any other enactment or enactments is to be treated as a document prepared for the purposes of subsection (1) (so long as the requirements of subsection (2) are complied with in relation to the document or documents concerned).
(4) Nothing in a document published under subsection (1) is to be regarded—
(a) as affecting any power of the Secretary of State to require a review or investigation to be conducted or a study to be undertaken, or
(b) as preventing the Commission from conducting an investigation under section 48 where the Commission considers there to be a risk to the health, safety or welfare of persons receiving health or social care.
(1) The Secretary of State may give a direction to the Commission if the Secretary of State considers that the Commission—
(a) is failing or has failed to discharge any of its functions, or
(b) is failing or has failed properly to discharge any of its functions.
(2) A direction under subsection (1) may direct the Commission to discharge such of those functions, and in such manner and within such period or periods, as may be specified in the direction.
(3) If the Commission fails to comply with a direction under subsection (1), the Secretary of State may—
(a) discharge the functions to which the direction relates, or
(b) make arrangements for any other person to discharge them on the Secretary of State’s behalf.
(1) As soon as possible after the end of each financial year, the Commission must make a report on each of the following matters—
(a) the way in which it has exercised its functions during the year,
(b) the provision of NHS care during the year,
(c) the provision of adult social services during the year,
(d) the carrying on of regulated activities during the year, and
(e) the steps taken by it during the year to implement the proposals in its statement under section 5 (statement on user involvement).
(2) The Commission may comply with subsection (1) by preparing a single document or separate documents on each of the matters mentioned there.
(3) If the Secretary of State so directs, a report under subsection (1) must include separate reports on such aspects of the matters mentioned in that subsection as may be specified in the direction.
(4) The Commission must—
(a) lay before Parliament a copy of each report made under subsection (1), and
(b) send a copy of each such report to the Secretary of State.
(5) The Commission must also provide the Secretary of State with such reports and information relating to the exercise of its functions as the Secretary of State may from time to time request.
(6) Subsection (1)(a) does not apply to the Commission’s functions under the Mental Health Act 1983 (c. 20).
(7) In this section, “financial year” means—
(a) the period beginning with the date on which the Commission is established and ending with the next 31 March following that date, and
(b) each successive period of 12 months ending with 31 March.
(1) Subsections (2) and (3) apply to a report published by the Commission under any provision of this Part or of the Mental Health Act 1983.
(2) The Commission must make copies of the report available for inspection at its offices by any person at any reasonable time.
(3) Any person who requests a copy of the report is entitled to have one on payment of such reasonable fee (if any) as the Commission considers appropriate.
(4) The Commission may charge a person such reasonable fee as it considers appropriate where it provides the person, on request, with any other information relevant to the exercise of the Commission’s functions under this Part.
(1) The Commission may with the consent of the Secretary of State from time to time make and publish provision—
(a) requiring a fee to be paid in respect of—
(i) an application for registration as a service provider or manager under Chapter 2,
(ii) the grant or subsistence of any such registration, or
(iii) an application under section 19(1);
(b) requiring English NHS bodies, English local authorities, persons registered under Chapter 2 and such other persons as may be prescribed to pay a fee in respect of the exercise by the Commission of such of its other functions under this Part as may be prescribed.
(2) The amount of a fee payable under provision under subsection (1) is to be such as may be specified in, or calculated or determined under, the provision.
(3) Provision under subsection (1) may include provision—
(a) for different fees to be paid in different cases,
(b) for different fees to be paid by persons of different descriptions,
(c) for the amount of a fee to be determined by the Commission in accordance with specified factors, and
(d) for determining the time by which a fee is to be payable.
(4) Before making provision under subsection (1) the Commission must consult such persons as it thinks appropriate.
(5) If the Secretary of State considers it necessary or desirable to do so, the Secretary of State may by regulations make provision determining the amount of a fee payable to the Commission by virtue of this section, and the time at which it is payable, instead of those matters being determined in accordance with provision made under subsection (1).
(6) Before making any regulations under this section, the Secretary of State must consult the Commission and such other persons as the Secretary of State thinks appropriate.
(7) For the purpose of determining the fee payable by a person by virtue of this section, the person must provide the Commission with such information, in such form, as the Commission may require.
(8) A fee payable by virtue of this section may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.
(1) Where the Commission is satisfied that a person has committed a fixed penalty offence, the Commission may give the person a penalty notice in respect of the offence.
(2) A fixed penalty offence is any Part 1 offence that is prescribed for the purposes of this section.
(3) A penalty notice is a notice offering the person the opportunity of discharging any liability to conviction for the offence to which the notice relates by payment of a penalty in accordance with the notice.
(4) Where a person is given a penalty notice, proceedings for the offence to which the notice relates may not be instituted before the end of such period as may be prescribed.
(5) Where a person is given a penalty notice, the person cannot be convicted of the offence to which the notice relates if the person pays a penalty in accordance with the notice.
(6) Penalties under this section are payable to the Commission.
(7) Penalties received by the Commission under this section must be paid to the Secretary of State.
(1) Regulations may make—
(a) provision as to the form and content of penalty notices,
(b) provision as to the monetary amount of the penalty and the time by which it is to be paid,
(c) provision determining the methods by which penalties may be paid,
(d) provision as to the records to be kept in relation to penalty notices,
(e) provision for or in connection with the withdrawal, in prescribed circumstances, of a penalty notice, including—
(i) repayment of any amount paid by way of penalty under a penalty notice which is withdrawn, and
(ii) prohibition of the institution or continuation of proceedings for the offence to which the withdrawn notice relates,
(f) provision for a certificate—
(i) purporting to be signed by or on behalf of a prescribed person, and
(ii) stating that payment of any amount paid by way of penalty was or, as the case may be, was not received on or before a date specified in the certificate,
to be received in evidence of the matters so stated,
(g) provision as to the action to be taken if a penalty is not paid in accordance with a penalty notice, and
(h) such other provision in relation to penalties or penalty notices as the Secretary of State thinks necessary or expedient.
(2) Regulations under subsection (1)(b)—
(a) may make provision for penalties of different amounts to be payable in different cases, including provision for the penalty payable under a penalty notice to differ according to the time by which it is paid, but
(b) must secure that the amount of any penalty payable in respect of any offence does not exceed one half of the maximum amount of the fine to which a person committing the offence would be liable on summary conviction.
(3) In this section—
“penalty” means a penalty under a penalty notice;
“penalty notice” has the meaning given by section 86(3).
(1) The Commission must issue guidance about how it will exercise its functions under any of the following provisions of this Part—
(a) section 12(5) (variation, removal or imposition of condition in relation to registration as a service provider),
(b) section 15(5) (variation, removal or imposition of condition in relation to registration as a manager),
(c) sections 17 and 18 (cancellation or suspension of registration),
(d) section 29 (warning notice),
(e) section 86 (penalty notices), and
(f) section 89 (publication of information).
(2) The guidance may also include guidance, in relation to any Part 1 offence, as to the circumstances in which the Commission is likely to take criminal proceedings for the offence.
(3) The Commission may from time to time revise guidance published by it under this section and issue the revised guidance.
(4) Before issuing any guidance or revised guidance under this section, the Commission must consult—
(a) such persons as may be prescribed, and
(b) such other persons as the Commission considers appropriate.