Health and Social Care Act 2012

PART 1 — The health service in England

The health service: overview

Sections 174 to 177: supplementary

1

For section 1 of the National Health Service Act 2006 (Secretary of State's duty to promote health service) substitute—

(1) (1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement— (a) in the physical and mental health of the people of England, and (b) in the prevention, diagnosis and treatment of physical and mental illness. (2) For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act. (3) The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England. (4) The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

Financial provision

2

After section 1 of the National Health Service Act 2006 insert—

(1A) (1) The Secretary of State must exercise the functions of the Secretary of State in relation to the health service with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with— (a) the prevention, diagnosis or treatment of illness, or (b) the protection or improvement of public health. (2) In discharging the duty under subsection (1) the Secretary of State must, in particular, act with a view to securing continuous improvement in the outcomes that are achieved from the provision of the services. (3) The outcomes relevant for the purposes of subsection (2) include, in particular, outcomes which show— (a) the effectiveness of the services, (b) the safety of the services, and (c) the quality of the experience undergone by patients. (4) In discharging the duty under subsection (1), the Secretary of State must have regard to the quality standards prepared by NICE under section 234 of the Health and Social Care Act 2012.

The Secretary of State’s duty as to the NHS Constitution

3

After section 1A of the National Health Service Act 2006 insert—

(1B) (1) In exercising functions in relation to the health service, the Secretary of State must have regard to the NHS Constitution. (2) In this Act, “NHS Constitution” has the same meaning as in Chapter 1 of Part 1 of the Health Act 2009 (see section 1 of that Act).

The Secretary of State’s duty as to reducing inequalities

4

After section 1B of the National Health Service Act 2006 insert—

(1C) In exercising functions in relation to the health service, the Secretary of State must have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service.

The Secretary of State’s duty as to promoting autonomy

5

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The Secretary of State’s duty as to research

6

After section 1D of the National Health Service Act 2006 insert—

(1E) In exercising functions in relation to the health service, the Secretary of State must promote— (a) research on matters relevant to the health service, and (b) the use in the health service of evidence obtained from research.

The Secretary of State’s duty as to education and training

7

After section 1E of the National Health Service Act 2006 insert—

(1F) (1) The Secretary of State must exercise the functions of the Secretary of State under any relevant enactment so as to secure that there is an effective system for the planning and delivery of education and training to persons who are employed, or who are considering becoming employed, in an activity which involves or is connected with the provision of services as part of the health service in England. (2) Any arrangements made with a person under this Act for the provision of services as part of that health service must include arrangements for securing that the person co-operates with the Secretary of State in the discharge of the duty under subsection (1) (or, where a Special Health Authority is discharging that duty by virtue of a direction under section 7, with the Special Health Authority). (3) In subsection (1), “relevant enactment” means— (a) section 63 of the Health Services and Public Health Act 1968, (b) this Act, (c) the Health and Social Care Act 2008, (d) the Health Act 2009, and (e) the Health and Social Care Act 2012.

Secretary of State’s duty as to reporting on and reviewing treatment of providers

8

After section 1F of the National Health Service Act 2006 insert—

(1G) (1) The Secretary of State must, within one year of the passing of the Health and Social Care Act 2012, lay a report before Parliament on the treatment of NHS health care providers as respects any matter, including taxation, which might affect their ability to provide health care services for the purposes of the NHS or the reward available to them for doing so. (2) The report must include recommendations as to how any differences in the treatment of NHS health care providers identified in the report could be addressed. (3) The Secretary of State must keep under review the treatment of NHS health care providers as respects any such matter as is mentioned in subsection (1). (4) In this section— (a) “NHS health care providers” means persons providing or intending to provide health care services for the purposes of the NHS, and (b) “health care services for the purposes of the NHS” has the same meaning as in Part 3 of the Health and Social Care Act 2012.

The NHS Commissioning Board

9

• (1) After section 1G of the National Health Service Act 2006 insert—

(1H) (1) There is to be a body corporate known as the National Health Service Commissioning Board (“the Board”). (2) The Board is subject to the duty under section 1(1) concurrently with the Secretary of State except in relation to the part of the health service that is provided in pursuance of the public health functions of the Secretary of State or local authorities. (3) For the purpose of discharging that duty, the Board— (a) has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act, and (b) must exercise the functions conferred on it by this Act in relation to clinical commissioning groups so as to secure that services are provided for those purposes in accordance with this Act. (4) Schedule A1 makes further provision about the Board. (5) In this Act— (a) any reference to the public health functions of the Secretary of State is a reference to the functions of the Secretary of State under sections 2A and 2B and paragraphs 7C, 8 and 12 of Schedule 1, and (b) any reference to the public health functions of local authorities is a reference to the functions of local authorities under sections 2B and 111 and paragraphs 1 to 7B and 13 of Schedule 1.

• (2) Before Schedule 1 to that Act, insert the Schedule set out in Schedule 1 to this Act.

Clinical commissioning groups

10

After section 1H of the National Health Service Act 2006 insert—

(1I) (1) There are to be bodies corporate known as clinical commissioning groups established in accordance with Chapter A2 of Part 2. (2) Each clinical commissioning group has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act.

Arrangements for provision of health services

The Secretary of State’s duty as to protection of public health

11

After section 2 of the National Health Service Act 2006 insert—

(2A) (1) The Secretary of State must take such steps as the Secretary of State considers appropriate for the purpose of protecting the public in England from disease or other dangers to health. (2) The steps that may be taken under subsection (1) include— (a) the conduct of research or such other steps as the Secretary of State considers appropriate for advancing knowledge and understanding; (b) providing microbiological or other technical services (whether in laboratories or otherwise); (c) providing vaccination, immunisation or screening services; (d) providing other services or facilities for the prevention, diagnosis or treatment of illness; (e) providing training; (f) providing information and advice; (g) making available the services of any person or any facilities. (3) Subsection (4) applies in relation to any function under this section which relates to— (a) the protection of the public from ionising or non-ionising radiation, and (b) a matter in respect of which the Health and Safety Executive has a function. (4) In exercising the function, the Secretary of State must— (a) consult the Health and Safety Executive, and (b) have regard to its policies.

Duties as to improvement of public health

12

After section 2A of the National Health Service Act 2006 insert—

(2B) (1) Each local authority must take such steps as it considers appropriate for improving the health of the people in its area. (2) The Secretary of State may take such steps as the Secretary of State considers appropriate for improving the health of the people of England. (3) The steps that may be taken under subsection (1) or (2) include— (a) providing information and advice; (b) providing services or facilities designed to promote healthy living (whether by helping individuals to address behaviour that is detrimental to health or in any other way); (c) providing services or facilities for the prevention, diagnosis or treatment of illness; (d) providing financial incentives to encourage individuals to adopt healthier lifestyles; (e) providing assistance (including financial assistance) to help individuals to minimise any risks to health arising from their accommodation or environment; (f) providing or participating in the provision of training for persons working or seeking to work in the field of health improvement; (g) making available the services of any person or any facilities. (4) The steps that may be taken under subsection (1) also include providing grants or loans (on such terms as the local authority considers appropriate). (5) In this section, “local authority” means— (a) a county council in England; (b) a district council in England, other than a council for a district in a county for which there is a county council; (c) a London borough council; (d) the Council of the Isles of Scilly; (e) the Common Council of the City of London.

Duties of clinical commissioning groups as to commissioning certain health services

13

• (1) Section 3 of the National Health Service Act 2006 is amended as follows.

• (2) In subsection (1)—

• (a) for the words from the beginning to “reasonable requirements” substitute “A clinical commissioning group must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility”, and

• (b) in each of paragraphs (d) and (e) for the words “as he considers” substitute “as the group considers”.

• (3) After that subsection insert—

(1A) For the purposes of this section, a clinical commissioning group has responsibility for— (a) persons who are provided with primary medical services by a member of the group, and (b) persons who usually reside in the group's area and are not provided with primary medical services by a member of any clinical commissioning group. (1B) Regulations may provide that for the purposes of this section a clinical commissioning group also has responsibility (whether generally or in relation to a prescribed service or facility) for persons who— (a) were provided with primary medical services by a person who is or was a member of the group, or (b) have a prescribed connection with the group's area. (1C) The power conferred by subsection (1B)(b) must be exercised so as to provide that, in relation to the provision of services or facilities for emergency care, a clinical commissioning group has responsibility for every person present in its area. (1D) Regulations may provide that subsection (1A) does not apply— (a) in relation to persons of a prescribed description (which may include a description framed by reference to the primary medical services with which the persons are provided); (b) in prescribed circumstances. (1E) The duty in subsection (1) does not apply in relation to a service or facility if the Board has a duty to arrange for its provision.

• (4) After subsection (1E) insert—

(1F) In exercising its functions under this section and section 3A, a clinical commissioning group must act consistently with— (a) the discharge by the Secretary of State and the Board of their duty under section 1(1) (duty to promote a comprehensive health service), and (b) the objectives and requirements for the time being specified in the mandate published under section 13A.

• (5) Omit subsections (2) and (3).

• (6) For the heading to section 3 substitute “Duties of clinical commissioning groups as to commissioning certain health services”.

• (7) For the cross-heading preceding section 3 substitute “Arrangements for the provision of certain health services”.

• (8) In section 272 of that Act (orders, regulations, rules and directions), in subsection (6) before paragraph (za) insert—

(zza) regulations under section 3(1D),

.

Power of clinical commissioning groups as to commissioning certain health services

14

After section 3 of the National Health Service Act 2006 insert—

(3A) (1) Each clinical commissioning group may arrange for the provision of such services or facilities as it considers appropriate for the purposes of the health service that relate to securing improvement— (a) in the physical and mental health of the persons for whom it has responsibility, or (b) in the prevention, diagnosis and treatment of illness in those persons. (2) A clinical commissioning group may not arrange for the provision of a service or facility under subsection (1) if the Board has a duty to arrange for its provision by virtue of section 3B or 4. (3) Subsections (1A), (1B) and (1D) of section 3 apply for the purposes of this section as they apply for the purposes of that section.

Power to require Board to commission certain health services

15

After section 3A of the National Health Service Act 2006 insert—

(3B) (1) Regulations may require the Board to arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision as part of the health service of— (a) dental services of a prescribed description; (b) services or facilities for members of the armed forces or their families; (c) services or facilities for persons who are detained in a prison or in other accommodation of a prescribed description; (d) such other services or facilities as may be prescribed. (2) A service or facility may be prescribed under subsection (1)(d) only if the Secretary of State considers that it would be appropriate for the Board (rather than clinical commissioning groups) to arrange for its provision as part of the health service. (3) In deciding whether it would be so appropriate, the Secretary of State must have regard to— (a) the number of individuals who require the provision of the service or facility; (b) the cost of providing the service or facility; (c) the number of persons able to provide the service or facility; (d) the financial implications for clinical commissioning groups if they were required to arrange for the provision of the service or facility. (4) Before deciding whether to make regulations under this section, the Secretary of State must— (a) obtain advice appropriate for that purpose, and (b) consult the Board. (5) The reference in subsection (1)(b) to members of the armed forces is a reference to persons who are members of— (a) the regular forces within the meaning of the Armed Forces Act 2006, or (b) the reserve forces within the meaning of that Act.

Secure psychiatric services

16

• (1) Section 4 of the National Health Service Act 2006 (high security psychiatric services) is amended as follows.

• (2) In subsection (1) for the words from the beginning to “duty to provide” substitute “The Board must arrange for the provision of”.

• (3) In subsection (3)—

• (a) after “may be provided” insert

— (a)

, and

• (b) after paragraph (a) insert

, and (b) only by a person approved by the Secretary of State for the purposes of this subsection.

• (4) After subsection (3) insert—

(3A) The Secretary of State may— (a) give directions to a person who provides high security psychiatric services about the provision by that person of those services; (b) give directions to the Board about the exercise of its functions in relation to high security psychiatric services.

Other services etc. provided as part of the health service

17

• (1) In section 5 of the National Health Service Act 2006 (other services) for “about the Secretary of State and services under this Act” substitute “about the provision of services for the purposes of the health service in England”.

• (2) Schedule 1 to that Act is amended as follows.

• (3) In paragraph 1 (medical inspection of pupils)—

• (a) for “The Secretary of State” substitute “A local authority”, and

• (b) for “local authorities” substitute “the local authority”.

• (4) In paragraph 2—

• (a) in sub-paragraph (1)—

• (i) for “The Secretary of State” substitute “A local authority”, and

• (ii) omit “, by arrangement with any local authority,”,

• (b) in sub-paragraph (2)—

• (i) for “The Secretary of State” substitute “A local authority”,

• (ii) after “educational establishment” insert “in its area”, and

• (iii) for “a local authority” substitute “the local authority”, and

• (c) omit sub-paragraph (3).

• (5) In paragraph 4—

• (a) for “A local authority may not make an arrangement” substitute “A local authority may not provide for any medical inspection or treatment”, and

• (b) for “the arrangement” substitute “the inspection or (as the case may be) treatment”.

• (6) In paragraph 5—

• (a) omit sub-paragraph (1)(a) and the word “and” immediately following it,

• (b) in sub-paragraph (2)—

• (i) omit “local authority or”,

• (ii) for “the Secretary of State” substitute “a local authority”, and

• (iii) for “him” substitute “it”.

• (7) In paragraph 7A (weighing and measuring of children)—

• (a) for “The Secretary of State” (in each place it occurs) substitute “A local authority”,

• (b) in sub-paragraph (1) omit “, by arrangement with any local authority,”, and

• (c) in sub-paragraph (2) —

• (i) after “any school” insert “in its area”, and

• (ii) for “a local authority” substitute “the local authority”.

• (8) In paragraph 7B (regulations as to weighing and measuring of children)—

• (a) in sub-paragraph (1)(b) for “by the Secretary of State” substitute “by a local authority”, and

• (b) in sub-paragraph (1)(d)—

• (i) for “by the Secretary of State” substitute “by a local authority”, and

• (ii) after “paragraph 7A” insert “and of any other prescribed information relating to the children concerned”, and

• (c) in sub-paragraph (2) after “such weighing or measuring” insert “or in relation to information prescribed under sub-paragraph (1)”.

• (9) After paragraph 7B insert—

(7C) The Secretary of State must for the purposes of the health service make arrangements for— (a) collecting, screening, analysing, processing and supplying blood or other tissues, (b) preparing blood components and reagents, and (c) facilitating tissue and organ transplantation.

• (10) In paragraph 9 (provision of vehicles for disabled persons)—

• (a) the existing text becomes sub-paragraph (1),

• (b) in that sub-paragraph—

• (i) for “The Secretary of State may provide” substitute “A clinical commissioning group may make arrangements for the provision of”, and

• (ii) for “persons appearing to him to be persons who have a physical impairment” substitute “persons for whom the group has responsibility and who appear to it to have a physical impairment”, and

• (c) after that sub-paragraph insert—

(2) Subsections (1A), (1B) and (1D) of section 3 apply for the purposes of sub-paragraph (1) as they apply for the purposes of that section.

• (11) In paragraph 10—

• (a) in sub-paragraph (1)(a) after “provided” insert “in pursuance of arrangements made”,

• (b) in sub-paragraph (2) —

• (i) for “The Secretary of State may” substitute “The clinical commissioning group may make arrangements for”,

• (ii) in paragraph (a) for “adapt” substitute “the adaptation of”,

• (iii) in paragraph (b) for “maintain and repair” substitute “the maintenance and repair of”,

• (iv) in paragraph (c) for “take out” substitute “the taking out of”,

• (v) in that paragraph for “pay” substitute “the payment of”,

• (vi) in paragraph (d) for “provide” (in each place it occurs) substitute “the provision of”, and

• (vii) in that paragraph for “execute” substitute “the execution of”,

• (c) in sub-paragraph (3) for “The Secretary of State” substitute “A clinical commissioning group”, and

• (d) in sub-paragraph (5) for “the Secretary of State” substitute “the clinical commissioning group”.

• (12) In paragraph 12 (provision of a microbiological service)—

• (a) in sub-paragraph (1)—

• (i) omit paragraph (a) and the word “and” immediately following it,

• (ii) in paragraph (b) omit “other”, and

• (iii) in that paragraph for “that service” substitute “a microbiological service provided under section 2A”, and

• (b) omit sub-paragraph (2).

• (13) For paragraph 13 and the cross-heading preceding it substitute—

(13) (1) The Secretary of State, the Board or a clinical commissioning group may conduct, commission or assist the conduct of research into— (a) any matters relating to the causation, prevention, diagnosis or treatment of illness, and (b) any such other matters connected with any service provided under this Act as the Secretary of State, the Board or the clinical commissioning group (as the case may be) considers appropriate. (2) A local authority may conduct, commission or assist the conduct of research for any purpose connected with the exercise of its functions in relation to the health service. (3) The Secretary of State, the Board, a clinical commissioning group or a local authority may for any purpose connected with the exercise of its functions in relation to the health service— (a) obtain and analyse data or other information; (b) obtain advice from persons with appropriate professional expertise. (4) The power under sub-paragraph (1) or (2) to assist any person to conduct research includes power to do so by providing financial assistance or making the services of any person or other resources available. (5) In this paragraph, “local authority” has the same meaning as in section 2B.

Regulations as to the exercise by local authorities of certain public health functions

18

• (1) After section 6B of the National Health Service Act 2006 insert—

(6C) (1) Regulations may require a local authority to exercise any of the public health functions of the Secretary of State (so far as relating to the health of the public in the authority's area) by taking such steps as may be prescribed. (2) Regulations may require a local authority to exercise its public health functions by taking such steps as may be prescribed. (3) Where regulations under subsection (1) require a local authority to exercise any of the public health functions of the Secretary of State, the regulations may also authorise or require the local authority to exercise any prescribed functions of the Secretary of State that are exercisable in connection with those functions (including the powers conferred by section 12). (4) The making of regulations under subsection (1) does not prevent the Secretary of State from taking any step that a local authority is required to take under the regulations. (5) Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a local authority of any of its functions under regulations under subsection (1) are enforceable by or against the local authority (and no other person). (6) In this section, “local authority” has the same meaning as in section 2B.

• (2) In section 272 of that Act (orders, regulations, rules and directions), in subsection (6) after paragraph (zza) insert—

(zzb) regulations under section 6C(1) or (2),

.

Regulations relating to EU obligations

19

After section 6C of the National Health Service Act 2006 insert—

(6D) (1) Regulations may require the Board or a clinical commissioning group to exercise a specified EU health function. (2) In subsection (1)— (a) “EU health function” means any function exercisable by the Secretary of State for the purpose of implementing EU obligations that concern, or are connected to, the health service, other than a function of making subordinate legislation (within the meaning of the Interpretation Act 1978), and (b) “specified” means specified in the regulations. (3) The Secretary of State may give directions to the Board or a clinical commissioning group about its exercise of any of its functions under regulations under subsection (1). (4) The making of regulations under subsection (1) does not prevent the Secretary of State from exercising the specified EU health function. (5) Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by the Board or a clinical commissioning group of any of its functions under regulations under subsection (1) are enforceable by or against the Board or (as the case may be) the group (and no other person). (6) The Secretary of State may, for the purpose of securing compliance by the United Kingdom with EU obligations, give directions to the Board or a clinical commissioning group about the exercise of any of its functions.

Regulations as to the exercise of functions by the Board or clinical commissioning groups

20

• (1) After section 6D of the National Health Service Act 2006 insert—

(6E) (1) Regulations may impose requirements (to be known as “standing rules”) in accordance with this section on the Board or on clinical commissioning groups. (2) The regulations may, in relation to the commissioning functions of the Board or clinical commissioning groups, make provision— (a) requiring the Board or clinical commissioning groups to arrange for specified treatments or other specified services to be provided or to be provided in a specified manner or within a specified period; (b) as to the arrangements that the Board or clinical commissioning groups must make for the purpose of making decisions as to— (i) the treatments or other services that are to be provided; (ii) the manner in which or period within which specified treatments or other specified services are to be provided; (iii) the persons to whom specified treatments or other specified services are to be provided; (c) as to the arrangements that the Board or clinical commissioning groups must make for enabling persons to whom specified treatments or other specified services are to be provided to make choices with respect to specified aspects of them. (3) Regulations by virtue of paragraph (b) of subsection (2) may, in particular, make provision— (a) requiring the Board or a clinical commissioning group to take specified steps before making decisions as to the matters mentioned in that paragraph; (b) as to reviews of, or appeals from, such decisions. (4) The regulations may— (a) specify matters for which provision must be made in commissioning contracts entered into by the Board or clinical commissioning groups; (b) require the Board to draft terms and conditions making provision for those matters; (c) require the Board or clinical commissioning groups to incorporate the terms and conditions drafted by virtue of paragraph (b) in commissioning contracts entered into by the Board or (as the case may be) clinical commissioning groups. (5) The regulations must— (a) require the Board to draft such terms and conditions as the Board considers are, or might be, appropriate for inclusion in commissioning contracts entered into by the Board or clinical commissioning groups (other than terms and conditions that the Board is required to draft by virtue of subsection (4)(a)); (b) authorise the Board to require clinical commissioning groups to incorporate terms and conditions prepared by virtue of paragraph (a) in their commissioning contracts; (c) authorise the Board to draft model commissioning contracts. (6) The regulations may require the Board to consult prescribed persons before exercising any of its functions by virtue of subsection (4)(b) or (5). (7) The regulations may require the Board or clinical commissioning groups in the exercise of any of its or their functions— (a) to provide information of a specified description to specified persons in a specified manner; (b) to act in a specified manner for the purpose of securing compliance with EU obligations; (c) to do such other things as the Secretary of State considers necessary for the purposes of the health service. (8) The regulations may not impose a requirement on only one clinical commissioning group. (9) If regulations under this section are made so as to come into force on a day other than 1 April, the Secretary of State must— (a) publish a statement explaining the reasons for making the regulations so as to come into force on such a day, and (b) lay the statement before Parliament. (10) In this section— (a) “commissioning contracts”, in relation to the Board or clinical commissioning groups, means contracts entered into by the Board or (as the case may be) clinical commissioning groups in the exercise of its or their commissioning functions; (b) “commissioning functions”, in relation to the Board or clinical commissioning groups, means the functions of the Board or (as the case may be) clinical commissioning groups in arranging for the provision of services as part of the health service; (c) “specified” means specified in the regulations.

• (2) In section 272 of that Act (orders, regulations, rules and directions), in subsection (6) after paragraph (zzb) insert—

(zzc) regulations under section 6E, except where they do not include provision by virtue of subsection (7)(c) of that section,

.

Functions of Special Health Authorities

21

• (1) Section 7 of the National Health Service Act 2006 (distribution of health service functions) is amended as follows.

• (2) For subsection (1) substitute—

(1) The Secretary of State may direct a Special Health Authority to exercise any functions of the Secretary of State or any other person which relate to the health service in England and are specified in the direction. (1A) Subsection (1) does not apply to any function of the Secretary of State of making an order or regulations. (1B) Before exercising the power in subsection (1) in relation to a function of a person other than the Secretary of State, the Secretary of State must consult that person. (1C) Regulations may provide that a Special Health Authority specified in the regulations is to have such additional functions in relation to the health service in England as may be so specified.

• (3) Omit subsections (2) and (3).

• (4) For the heading to that section, and for the cross-heading preceding it, substitute “Functions of Special Health Authorities”.

• (5) In section 272 of that Act (orders, regulations, rules and directions), in subsection (6) after paragraph (zzc) insert—

(zzd) regulations under section 7(1C),

.

• (6) In section 273 of that Act (further provision about orders and directions), in subsection (4)(b)—

• (a) before paragraph (i) insert—

(zi) section 7 about a function of a person other than the Secretary of State,

and

• (b) in paragraph (i) after “a function” insert “of the Secretary of State”.

Exercise of public health functions of the Secretary of State

22

After section 7 of the National Health Service Act 2006 insert—

(7A) (1) The Secretary of State may arrange for a body mentioned in subsection (2) to exercise any of the public health functions of the Secretary of State. (2) Those bodies are— (a) the Board; (b) a clinical commissioning group; (c) a local authority (within the meaning of section 2B). (3) The power conferred by subsection (1) includes power to arrange for such a body to exercise any functions of the Secretary of State that are exercisable in connection with those functions (including the powers conferred by section 12). (4) Where the Secretary of State arranges (under subsection (1)) for the Board to exercise a function, the Board may arrange for a clinical commissioning group to exercise that function. (5) Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a body mentioned in subsection (2) of any function exercisable by it by virtue of this section are enforceable by or against that body (and no other person). (6) Powers under this section may be exercised on such terms as may be agreed, including terms as to payment.

Further provision about the Board

The NHS Commissioning Board: further provision

23

• (1) In Part 2 of the National Health Service Act 2006 (health service bodies), before Chapter 1 insert—

(13A) (1) Before the start of each financial year, the Secretary of State must publish and lay before Parliament a document to be known as “the mandate”. (2) The Secretary of State must specify in the mandate— (a) the objectives that the Secretary of State considers the Board should seek to achieve in the exercise of its functions during that financial year and such subsequent financial years as the Secretary of State considers appropriate, and (b) any requirements that the Secretary of State considers it necessary to impose on the Board for the purpose of ensuring that it achieves those objectives. (3) The Secretary of State must also specify in the mandate the amounts that the Secretary of State has decided to specify in relation to the financial year for the purposes of section 223D(2) and (3) (limits on capital and revenue resource use). (4) The Secretary of State may specify in the mandate any proposals that the Secretary of State has as to the amounts that the Secretary of State will specify in relation to subsequent financial years for the purposes of section 223D(2) and (3). (5) The Secretary of State may also specify in the mandate the matters by reference to which the Secretary of State proposes to assess the Board's performance in relation to the first financial year to which the mandate relates. (6) The Secretary of State may not specify in the mandate an objective or requirement about the exercise of the Board's functions in relation to only one clinical commissioning group. (7) The Board must— (a) seek to achieve the objectives specified in the mandate, and (b) comply with any requirements so specified. (8) Before specifying any objectives or requirements in the mandate, the Secretary of State must consult— (a) the Board, (b) the Healthwatch England committee of the Care Quality Commission, and (c) such other persons as the Secretary of State considers appropriate. (9) Requirements included in the mandate have effect only if regulations so provide. (13B) (1) The Secretary of State must keep the Board's performance in achieving any objectives or requirements specified in the mandate under review. (2) If the Secretary of State varies the amount specified for the purposes of section 223D(2) or (3), the Secretary of State must revise the mandate accordingly. (3) The Secretary of State may make any other revision to the mandate only if— (a) the Board agrees to the revision, (b) a parliamentary general election takes place, or (c) the Secretary of State considers that there are exceptional circumstances that make the revision necessary. (4) Revisions to the mandate which consist of adding, omitting or modifying requirements have effect only if regulations so provide. (5) If the Secretary of State revises the mandate, the Secretary of State must— (a) publish the mandate (as so revised), and (b) lay it before Parliament, together with an explanation of the reasons for making the revision. (13C) (1) The Board must, in the exercise of its functions— (a) act with a view to securing that health services are provided in a way which promotes the NHS Constitution, and (b) promote awareness of the NHS Constitution among patients, staff and members of the public. (2) In this section, “patients” and “staff” have the same meaning as in Chapter 1 of Part 1 of the Health Act 2009 (see section 3(7) of that Act). (13D) The Board must exercise its functions effectively, efficiently and economically. (13E) (1) The Board must exercise its functions with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with— (a) the prevention, diagnosis or treatment of illness, or (b) the protection or improvement of public health. (2) In discharging its duty under subsection (1), the Board must, in particular, act with a view to securing continuous improvement in the outcomes that are achieved from the provision of the services. (3) The outcomes relevant for the purposes of subsection (2) include, in particular, outcomes which show— (a) the effectiveness of the services, (b) the safety of the services, and (c) the quality of the experience undergone by patients. (4) In discharging its duty under subsection (1), the Board must have regard to— (a) any document published by the Secretary of State for the purposes of this section, and (b) the quality standards prepared by NICE under section 234 of the Health and Social Care Act 2012. (13F) (1) In exercising its functions, the Board must have regard to the desirability of securing, so far as consistent with the interests of the health service— (a) that any other person exercising functions in relation to the health service or providing services for its purposes is free to exercise those functions or provide those services in the manner it considers most appropriate, and (b) that unnecessary burdens are not imposed on any such person. (2) If, in the case of any exercise of functions, the Board considers that there is a conflict between the matters mentioned in subsection (1) and the discharge by the Board of its duties under sections 1(1) and 1H(3)(b), the Board must give priority to those duties. (13G) The Board must, in the exercise of its functions, have regard to the need to— (a) reduce inequalities between patients with respect to their ability to access health services, and (b) reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services. (13H) The Board must, in the exercise of its functions, promote the involvement of patients, and their carers and representatives (if any), in decisions which relate to— (a) the prevention or diagnosis of illness in the patients, or (b) their care or treatment. (13I) The Board must, in the exercise of its functions, act with a view to enabling patients to make choices with respect to aspects of health services provided to them. (13J) The Board must obtain advice appropriate for enabling it effectively to discharge its functions from persons who (taken together) have a broad range of professional expertise in— (a) the prevention, diagnosis or treatment of illness, and (b) the protection or improvement of public health. (13K) (1) The Board must, in the exercise of its functions, promote innovation in the provision of health services (including innovation in the arrangements made for their provision). (2) The Board may make payments as prizes to promote innovation in the provision of health services. (3) A prize may relate to— (a) work at any stage of innovation (including research); (b) work done at any time (including work before the commencement of section 23 of the Health and Social Care Act 2012). (13L) The Board must, in the exercise of its functions, promote— (a) research on matters relevant to the health service, and (b) the use in the health service of evidence obtained from research. (13M) The Board must, in exercising its functions, have regard to the need to promote education and training for the persons mentioned in section 1F(1) so as to assist the Secretary of State in the discharge of the duty under that section. (13N) (1) The Board must exercise its functions with a view to securing that health services are provided in an integrated way where it considers that this would— (a) improve the quality of those services (including the outcomes that are achieved from their provision), (b) reduce inequalities between persons with respect to their ability to access those services, or (c) reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services. (2) The Board must exercise its functions with a view to securing that the provision of health services is integrated with the provision of health-related services or social care services where it considers that this would— (a) improve the quality of the health services (including the outcomes that are achieved from the provision of those services), (b) reduce inequalities between persons with respect to their ability to access those services, or (c) reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services. (3) The Board must encourage clinical commissioning groups to enter into arrangements with local authorities in pursuance of regulations under section 75 where it considers that this would secure— (a) that health services are provided in an integrated way and that this would have any of the effects mentioned in subsection (1)(a) to (c), or (b) that the provision of health services is integrated with the provision of health-related services or social care services and that this would have any of the effects mentioned in subsection (2)(a) to (c). (4) In this section— - “health-related services” means services that may have an effect on the health of individuals but are not health services or social care services; - “social care services” means services that are provided in pursuance of the social services functions of local authorities (within the meaning of the Local Authority Social Services Act 1970). (13O) (1) In making commissioning decisions, the Board must have regard to the likely impact of those decisions on the provision of health services to persons who reside in an area of Wales or Scotland that is close to the border with England. (2) In this section, “commissioning decisions”, in relation to the Board, means decisions about the carrying out of its functions in arranging for the provision of health services. (13P) The Board must not exercise its functions for the purpose of causing a variation in the proportion of services provided as part of the health service that is provided by persons of a particular description if that description is by reference to— (a) whether the persons in question are in the public or (as the case may be) private sector, or (b) some other aspect of their status. (13Q) (1) This section applies in relation to any health services which are, or are to be, provided pursuant to arrangements made by the Board in the exercise of its functions (“commissioning arrangements”). (2) The Board must make arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways)— (a) in the planning of the commissioning arrangements by the Board, (b) in the development and consideration of proposals by the Board for changes in the commissioning arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and (c) in decisions of the Board affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact. (3) The reference in subsection (2)(b) to the delivery of services is a reference to their delivery at the point when they are received by users. (13R) (1) The Board must establish and operate systems for collecting and analysing information relating to the safety of the services provided by the health service. (2) The Board must make information collected by virtue of subsection (1), and any other information obtained by analysing it, available to such persons as the Board considers appropriate. (3) The Board may impose charges, calculated on such basis as it considers appropriate, in respect of information made available by it under subsection (2). (4) The Board must give advice and guidance, to such persons as it considers appropriate, for the purpose of maintaining and improving the safety of the services provided by the health service. (5) The Board must monitor the effectiveness of the advice and guidance given by it under subsection (4). (6) A clinical commissioning group must have regard to any advice or guidance given to it under subsection (4). (7) The Board may arrange for any other person (including another NHS body) to exercise any of the Board's functions under this section. (8) Arrangements made under subsection (7) do not affect the liability of the Board for the exercise of any of its functions. (13S) (1) The Board must publish guidance for registered persons on the practice to be followed by them in relation to the processing of— (a) patient information, and (b) any other information obtained or generated in the course of the provision of the health service. (2) Registered persons who carry on an activity which involves, or is connected with, the provision of health care must have regard to any guidance published under this section. (3) In this section, “patient information”, “processing” and “registered person” have the same meaning as in section 20A of the Health and Social Care Act 2008. (13T) (1) Before the start of each financial year, the Board must publish a business plan setting out how it proposes to exercise its functions in that year and each of the next two financial years. (2) The business plan must, in particular, explain how the Board proposes to discharge its duties under— (a) sections 13E, 13G and 13Q, and (b) sections 223C to 223E. (3) The business plan must, in particular, explain how the Board proposes to achieve the objectives, and comply with the requirements, specified in the mandate for the first financial year to which the plan relates. (4) The Board may revise the plan. (5) The Board must publish any revised plan. (13U) (1) As soon as practicable after the end of each financial year, the Board must publish an annual report on how it has exercised its functions during the year. (2) The annual report must, in particular, contain an assessment of— (a) the extent to which it met any objectives or requirements specified in the mandate for that year, (b) the extent to which it gave effect to the proposals for that year in its business plan, and (c) how effectively it discharged its duties under sections 13E, 13G and 13Q. (3) The Board must— (a) lay the annual report before Parliament, and (b) once it has done so, send a copy of it to the Secretary of State. (4) The Secretary of State must, having considered the annual report, set out in a letter to the Board the Secretary of State's assessment of the Board's performance of its functions in the financial year in question. (5) The letter must, in particular, contain the Secretary of State's assessment of the matters mentioned in subsection (2)(a) to (c). (6) The Secretary of State must— (a) publish the letter to the Board, and (b) lay it before Parliament. (13V) (1) The Board and one or more clinical commissioning groups may establish and maintain a pooled fund. (2) A pooled fund is a fund— (a) which is made up of contributions by the bodies which established it, and (b) out of which payments may be made, with the agreement of those bodies, towards expenditure incurred in the discharge of any of their commissioning functions. (3) In this section, “commissioning functions” means functions in arranging for the provision of services as part of the health service. (13W) (1) The Board has power to do anything specified in section 7(2) of the Health and Medicines Act 1988 (provision of goods, services, etc.) for the purpose of making additional income available for improving the health service. (2) The Board may exercise a power conferred by subsection (1) only to the extent that its exercise does not to any significant extent interfere with the performance by the Board of its functions. (13X) (1) The Board may make payments by way of grant or loan to a voluntary organisation which provides or arranges for the provision of services which are similar to the services in respect of which the Board has functions. (2) The payments may be made subject to such terms and conditions as the Board considers appropriate. (13Y) The power conferred on the Board by section 2 includes, in particular, power to— (a) enter into agreements, (b) acquire and dispose of property, and (c) accept gifts (including property to be held on trust for the purposes of the Board). (13Z) (1) This section applies to functions exercisable by the Board under or by virtue of this Act or any prescribed provision of any other Act. (2) The Board may arrange for any such function to be exercised by or jointly with— (a) a Special Health Authority, (b) a clinical commissioning group, or (c) such other body as may be prescribed. (3) Regulations may provide that the power in subsection (2) does not apply in relation to a function of a prescribed description. (4) Where any functions are (by virtue of subsection (2)) exercisable jointly by the Board and another body, they may be exercised by a joint committee of the Board and the other body. (5) Arrangements under this section may be on such terms and conditions (including terms as to payment) as may be agreed between the Board and the other party to the arrangements. (6) Arrangements made under this section do not affect the liability of the Board for the exercise of any of its functions. (13Z1) (1) Regulations may provide that the Board is to have such additional functions in relation to the health service as may be specified in the regulations. (2) A function may be specified in regulations under subsection (1) only if the function is connected to another function of the Board. (13Z2) (1) The Secretary of State may give a direction to the Board if the Secretary of State considers that— (a) the Board— (i) is failing or has failed to discharge any of its functions, or (ii) is failing or has failed properly to discharge any of its functions, and (b) the failure is significant. (2) A direction under subsection (1) may direct the Board 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 Board fails to comply with a direction under subsection (1), the Secretary of State may— (a) discharge the functions to which it relates, or (b) make arrangements for any other person to discharge them on the Secretary of State's behalf. (4) Where the Secretary of State exercises a power under subsection (1) or (3), the Secretary of State must publish the reasons for doing so. (5) For the purposes of this section a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service. (13Z3) (1) The Board may disclose information obtained by it in the exercise of its functions 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 (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 in circumstances where it is necessary or expedient for the person to have the information for the purpose of exercising functions of that person under any enactment, (f) the disclosure is made for the purpose of facilitating the exercise of any of the Board'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). (2) Paragraphs (a) to (c) and (h) of subsection (1) have effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure. (13Z4) (1) In this Chapter— - “the health service” means the health service in England; - “health services” means services provided as part of the health service and, in sections 13O and 13Q, also includes services that are to be provided as part of the health service. (2) Any reference (however expressed) in the following provisions of this Act to the functions of the Board includes a reference to the functions of the Secretary of State that are exercisable by the Board by virtue of arrangements under section 7A— - section 6E(7) and (10)(b), - section 13A(2), - section 13C(1), - section 13D, - section 13E(1), - section 13F, - section 13G, - section 13H, - section 13I, - section 13J, - section 13K(1), - section 13L, - section 13M, - section 13N(1) and (2), - section 13O(2), - section 13Q(1), - section 13T(1), - section 13U(1) and (4), - section 13W(2), - section 13X(1), - section 13Z2(1), - section 13Z3(1), - section 72(1), - section 75(1)(a) and (2), - section 82, - section 223C(2)(a), - in Schedule A1, paragraph 13. (3) Any reference (however expressed) in the following provisions of other Acts to the functions of the Board includes a reference to the functions of the Secretary of State that are exercisable by the Board by virtue of arrangements under section 7A— - sections 116 to 116B of the Local Government and Public Involvement in Health Act 2007 (joint strategic needs assessments etc.), - section 197(6) of the Health and Social Care Act 2012 (participation of the Board in work of Health and Wellbeing Boards), - section 199(4) of that Act (supply of information to Health and Wellbeing Boards), - section 290(1) and (2) of that Act (duties to co-operate), - section 291(2)(d) of that Act (breaches of duties to co-operate). (4) The Secretary of State may by order amend the list of provisions specified in subsection (2) or (3).

• (2) In section 272 of that Act (orders, regulations, rules and directions), in subsection (6) after paragraph (za) insert—

(zb) regulations under section 13Z1,

.

Financial arrangements for the Board

24

Before the cross-heading preceding section 224 of the National Health Service Act 2006 insert—

(223B) (1) The Secretary of State must pay to the Board in respect of each financial year sums not exceeding the amount allotted for that year by the Secretary of State towards meeting the expenditure of the Board which is attributable to the performance by it of its functions in that year. (2) An amount is allotted to the Board for a financial year under this section when the Board is notified in writing by the Secretary of State that the amount is allotted to it for that year. (3) The Secretary of State may make a new allotment under this section increasing or reducing the allotment previously so made only if— (a) the Board agrees to the change, (b) a parliamentary general election takes place, or (c) the Secretary of State considers that there are exceptional circumstances that make a new allotment necessary. (4) The Secretary of State may give directions to the Board with respect to the payment of sums by it to the Secretary of State in respect of charges or other sums referable to the valuation or disposal of assets. (5) Sums falling to be paid to the Board under this section are payable subject to such conditions as to records, certificates or otherwise as the Secretary of State may determine. (223C) (1) The Board must ensure that total health expenditure in respect of each financial year does not exceed the aggregate of— (a) the amount allotted to the Board for that year under section 223B, (b) any sums received by the Board or clinical commissioning groups in that year under any provision of this Act (other than sums received by the Board under section 223B or by clinical commissioning groups under section 223G), and (c) any sums received by the Board or clinical commissioning groups in that year otherwise than under this Act for the purpose of enabling it or them to defray such expenditure. (2) In this section, “total health expenditure”, in relation to a financial year, means— (a) expenditure which is attributable to the performance by the Board of its functions in that year, other than sums paid by it under section 223G, and (b) expenditure which is attributable to the performance by clinical commissioning groups of their functions in that year. (3) The Secretary of State may by directions determine whether expenditure by the Board or a clinical commissioning group which is of a description specified in the directions must, or must not, be treated for the purposes of this section as part of total health expenditure. (4) The Secretary of State may by directions determine the extent to which, and the circumstances in which, sums received by the Board or a clinical commissioning group under section 223B or (as the case may be) 223G but not yet spent must be treated for the purposes of this section as part of total health expenditure, and to which financial year's expenditure they must be attributed. (5) The Secretary of State may by directions require the Board to use banking facilities specified in the directions for any purposes so specified. (223D) (1) In this Chapter— - “total capital resource use”, in relation to a financial year, means the use of capital resources in that year by the Board and clinical commissioning groups (taken together); - “total revenue resource use”, in relation to a financial year, means the use of revenue resources in that year by the Board and clinical commissioning groups (taken together). (2) The Board must ensure that total capital resource use in a financial year does not exceed the amount specified by the Secretary of State. (3) The Board must ensure that total revenue resource use in a financial year does not exceed the amount specified by the Secretary of State. (4) The Secretary of State may give directions, in relation to a financial year, specifying descriptions of resources which must, or must not, be treated as capital resources or revenue resources for the purposes of this Chapter. (5) The Secretary of State may give directions, in relation to a financial year, specifying uses of capital resources or revenue resources which must not be taken into account for the purposes of this Chapter. (6) The Secretary of State may give directions, in relation to a financial year, specifying uses of capital resources or revenue resources which must be taken into account for the purposes of this section. (7) The amount specified for the purposes of subsection (2) or (3) may be varied only if— (a) the Board agrees to the change, (b) a parliamentary general election takes place, or (c) the Secretary of State considers that there are exceptional circumstances which make the variation necessary. (8) Any reference in this Chapter to the use of capital resources or revenue resources is a reference to their expenditure, consumption or reduction in value. (223E) (1) The Secretary of State may direct the Board to ensure that total capital resource use in a financial year which is attributable to matters specified in the direction does not exceed an amount so specified. (2) The Secretary of State may direct the Board to ensure that total revenue resource use in a financial year which is attributable to matters specified in the direction does not exceed an amount so specified. (3) The Secretary of State may direct the Board to ensure — (a) that total revenue resource use in a financial year which is attributable to such prescribed matters relating to administration as are specified in the direction does not exceed an amount so specified; (b) that the Board's use of revenue resources in a financial year which is attributable to such prescribed matters relating to administration as are specified in the direction does not exceed an amount so specified. (4) The Secretary of State may give directions, in relation to a financial year, specifying uses of capital resources or revenue resources which must, or must not, be taken into account for the purposes of subsection (1) or (as the case may be) subsection (2) or (3). (5) The Secretary of State may not give a direction under subsection (1) or (2) unless the direction is for the purpose of complying with a limit imposed by the Treasury. (223F) (1) The Board may use a proportion of the sums paid to it under section 223B to establish a contingency fund. (2) The Board may make a payment out of the fund where the payment is necessary in order to enable— (a) the Board to discharge any of its commissioning functions, or (b) a clinical commissioning group to discharge any of its functions. (3) The Board must publish guidance as to how it proposes to exercise its powers to make payments out of the contingency fund. (4) In this section, “commissioning functions” means functions in arranging for the provision of services as part of the health service.

Further provision about clinical commissioning groups

Clinical commissioning groups: establishment etc.

25

• (1) After Chapter A1 of Part 2 of the National Health Service Act 2006 insert—

(14A) (1) The Board must exercise its functions under this Chapter so as to ensure that at any time after the day specified by order of the Secretary of State for the purposes of this section each provider of primary medical services is a member of a clinical commissioning group. (2) The Board must exercise its functions under this Chapter so as to ensure that at any time after the day so specified the areas specified in the constitutions of clinical commissioning groups— (a) together cover the whole of England, and (b) do not coincide or overlap. (3) For the purposes of this Chapter, “provider of primary medical services” means a person who is a party to an arrangement mentioned in subsection (4). (4) The arrangements mentioned in this subsection are— (a) a general medical services contract to provide primary medical services of a prescribed description, (b) arrangements under section 83(2) for the provision of primary medical services of a prescribed description, (c) section 92 arrangements for the provision of primary medical services of a prescribed description. (5) Where a person who is a provider of primary medical services is a party to more than one arrangement mentioned in subsection (4), the person is to be treated for the purposes of this Chapter as a separate provider of primary medical services in respect of each of those arrangements. (6) Where two or more individuals practising in partnership are parties to an arrangement mentioned in subsection (4), the partnership is to be treated for the purposes of this Chapter as a provider of primary medical services (and the individuals are not to be so treated). (7) Where two or more individuals are parties to an arrangement mentioned in subsection (4) but are not practising in partnership, those persons collectively are to be treated for the purposes of this Chapter as a provider of primary medical services (and the individuals are not to be so treated). (14B) (1) An application for the establishment of a clinical commissioning group may be made to the Board. (2) The application may be made by any two or more persons each of whom— (a) is or wishes to be a provider of primary medical services, and (b) wishes to be a member of the clinical commissioning group. (3) The application must be accompanied by— (a) a copy of the proposed constitution of the clinical commissioning group, (b) the name of the person whom the group wishes the Board to appoint as its accountable officer (as to which see paragraph 12 of Schedule 1A), and (c) such other information as the Board may specify in a document published for the purposes of this section. (4) At any time before the Board determines the application— (a) a person who is or wishes to be a provider of primary medical services (and wishes to be a member of the clinical commissioning group) may become a party to the application, with the agreement of the Board and the existing applicants; (b) any of the applicants may withdraw. (5) At any time before the Board determines the application, the applicants may modify the proposed constitution with the agreement of the Board. (6) Part 1 of Schedule 1A makes provision about the constitution of a clinical commissioning group. (14C) (1) The Board must grant an application under section 14B if it is satisfied as to the following matters. (2) Those matters are— (a) that the constitution complies with the requirements of Part 1 of Schedule 1A and is otherwise appropriate, (b) that each of the members specified in the constitution will be a provider of primary medical services on the date the clinical commissioning group is established, (c) that the area specified in the constitution is appropriate, (d) that it would be appropriate for the Board to appoint, as the accountable officer of the group, the person named by the group under section 14B(3)(b), (e) that the applicants have made appropriate arrangements to ensure that the clinical commissioning group will be able to discharge its functions, (f) that the applicants have made appropriate arrangements to ensure that the group will have a governing body which satisfies any requirements imposed by or under this Act and is otherwise appropriate, and (g) such other matters as may be prescribed. (3) Regulations may make provision— (a) as to factors which the Board must or may take into account in deciding whether it is satisfied as to the matters mentioned in subsection (2); (b) as to the procedure for the making and determination of applications under section 14B. (14D) (1) If the Board grants an application under section 14B— (a) a clinical commissioning group is established, and (b) the proposed constitution has effect as the clinical commissioning group's constitution. (2) Part 2 of Schedule 1A makes further provision about clinical commissioning groups. (14E) (1) A clinical commissioning group may apply to the Board to vary its constitution (including doing so by varying its area or its list of members). (2) If the Board grants the application, the constitution of the clinical commissioning group has effect subject to the variation. (3) Regulations may make provision— (a) as to the circumstances in which the Board must or may grant, or must or may refuse, applications under this section; (b) as to factors which the Board must or may take into account in determining whether to grant such applications; (c) as to the procedure for the making and determination of such applications. (14F) (1) The Board may vary the area specified in the constitution of a clinical commissioning group. (2) The Board may— (a) add any person who is a provider of primary medical services to the list of members specified in the constitution of a clinical commissioning group; (b) remove any person from such a list. (3) The power conferred by subsection (1) or (2) is exercisable if— (a) the clinical commissioning group consents to the variation, or (b) the Board considers that the variation is necessary for the purpose of discharging any of its duties under section 14A. (4) Before varying the constitution of a clinical commissioning group under subsection (1) or (2), the Board must consult— (a) that group, and (b) any other clinical commissioning group that the Board thinks might be affected by the variation. (5) Regulations may— (a) confer powers on the Board to vary the constitution of a clinical commissioning group; (b) make provision as to the circumstances in which those powers are exercisable and the procedure to be followed before they are exercised. (14G) (1) Two or more clinical commissioning groups may apply to the Board for— (a) those groups to be dissolved, and (b) another clinical commissioning group to be established under this section. (2) An application under this section must be accompanied by— (a) a copy of the proposed constitution of the clinical commissioning group, (b) the name of the person whom the group wishes the Board to appoint as its accountable officer, and (c) such other information as the Board may specify in a document published for the purposes of this section. (3) The applicants may, with the agreement of the Board, modify the application or the proposed constitution at any time before the Board determines the application. (4) Sections 14C and 14D(1) apply in relation to an application under this section as they apply in relation to an application under section 14B. (14H) (1) A clinical commissioning group may apply to the Board for the group to be dissolved. (2) Regulations may make provision— (a) as to the circumstances in which the Board must or may grant, or must or may refuse, applications under this section; (b) as to factors which the Board must or may take into account in determining whether to grant such applications; (c) as to the procedure for the making and determination of such applications. (14I) (1) The Board may make a property transfer scheme or a staff transfer scheme in connection with— (a) the variation of the constitution of a clinical commissioning group under section 14E or 14F, or (b) the dissolution of a clinical commissioning group under section 14G or 14H. (2) A property transfer scheme is a scheme for the transfer from the clinical commissioning group of any property, rights or liabilities, other than rights or liabilities under or in connection with a contract of employment, to the Board or another clinical commissioning group. (3) A staff transfer scheme is a scheme for the transfer from the clinical commissioning group of any rights or liabilities under or in connection with a contract of employment to the Board or another clinical commissioning group. (4) Part 3 of Schedule 1A makes further provision about property transfer schemes and staff transfer schemes. (14J) (1) A clinical commissioning group must publish its constitution. (2) If the constitution of a clinical commissioning group is varied under section 14E or 14F, the group must publish the constitution as so varied. (14K) The Board may publish guidance as to— (a) the making of applications under section 14B for the establishment of a clinical commissioning group, including guidance on the form, content or publication of the proposed constitution; (b) the making of applications under section 14E, 14G or 14H; (c) the publication of the constitutions of clinical commissioning groups under section 14J. (14L) (1) A clinical commissioning group must have a governing body. (2) The main function of the governing body is to ensure that the group has made appropriate arrangements for ensuring that it complies with— (a) its obligations under section 14Q, and (b) such generally accepted principles of good governance as are relevant to it. (3) The governing body also has— (a) the function of determining the remuneration, fees and allowances payable to the employees of the clinical commissioning group or to other persons providing services to it, (b) the function of determining the allowances payable under a pension scheme established under paragraph 11(4) of Schedule 1A, and (c) such other functions connected with the exercise of its main function as may be specified in the group's constitution or by regulations. (4) Only the following may be members of the governing body— (a) a member of the group who is an individual; (b) an individual appointed by virtue of regulations under section 14N(2); (c) an individual of a description specified in the constitution of the group. (5) Regulations may make provision requiring a clinical commissioning group to obtain the approval of its governing body before exercising any functions specified in the regulations. (6) Regulations may make provision requiring governing bodies of clinical commissioning groups to publish, in accordance with the regulations, prescribed information relating to determinations made under subsection (3)(a) or (b). (7) The Board may publish guidance for governing bodies on the exercise of their functions under subsection (3)(a) or (b). (14M) (1) The governing body of a clinical commissioning group must have an audit committee and a remuneration committee. (2) The audit committee has— (a) such functions in relation to the financial duties of the clinical commissioning group as the governing body considers appropriate for the purpose of assisting it in discharging its function under section 14L(2), and (b) such other functions connected with the governing body's function under section 14L(2) as may be specified in the group's constitution or by regulations. (3) The remuneration committee has— (a) the function of making recommendations to the governing body as to the discharge of its functions under section 14L(3)(a) and (b), and (b) such other functions connected with the governing body's function under section 14L(2) as may be specified in the group's constitution or by regulations. (14N) (1) Regulations may make provision specifying the minimum number of members of governing bodies of clinical commissioning groups. (2) Regulations may— (a) provide that the members of governing bodies must include the accountable officer of the clinical commissioning group; (b) provide that the members of governing bodies, or their audit or remuneration committees, must include— (i) individuals who are health care professionals of a prescribed description; (ii) individuals who are lay persons; (iii) individuals of any other description which is prescribed; (c) in relation to any description of individuals mentioned in regulations by virtue of paragraph (b), specify— (i) the minimum number of individuals of that description who must be appointed; (ii) the maximum number of such individuals who may be appointed; (d) provide that the descriptions specified for the purposes of section 14L(4)(c) may not include prescribed descriptions. (3) Regulations may make provision as to— (a) qualification and disqualification for membership of governing bodies or their audit or remuneration committees; (b) how members are to be appointed; (c) the tenure of members (including the circumstances in which a member ceases to hold office or may be removed or suspended from office); (d) eligibility for re-appointment. (4) Regulations may make provision for the appointment of chairs and deputy chairs of governing bodies or their audit or remuneration committees, including provision as to— (a) qualification and disqualification for appointment; (b) tenure of office (including the circumstances in which the chair or deputy chair ceases to hold office or may be removed or suspended from office); (c) eligibility for re-appointment. (5) Regulations may— (a) make provision as to the matters which must be included in the constitutions of clinical commissioning groups under paragraph 8 of Schedule 1A; (b) make such other provision about the procedure of governing bodies or their audit or remuneration committees as the Secretary of State considers appropriate, including provision about the frequency of meetings. (6) In this section— - “health care professional” means an individual who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002; - “lay person” means an individual who is not— 1. a member of the clinical commissioning group, 2. a health care professional, or 3. an individual of a prescribed description. (14O) (1) Each clinical commissioning group must maintain one or more registers of the interests of— (a) the members of the group, (b) the members of its governing body, (c) the members of its committees or sub-committees or of committees or sub-committees of its governing body, and (d) its employees. (2) Each clinical commissioning group must publish the registers maintained under subsection (1) or make arrangements to ensure that members of the public have access to the registers on request. (3) Each clinical commissioning group must make arrangements to ensure— (a) that a person mentioned in subsection (1) declares any conflict or potential conflict of interest that the person has in relation to a decision to be made in the exercise of the commissioning functions of the group, (b) that any such declaration is made as soon as practicable after the person becomes aware of the conflict or potential conflict and, in any event, within 28 days, and (c) that any such declaration is included in the registers maintained under subsection (1). (4) Each clinical commissioning group must make arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the group's decision-making processes. (5) The Board must publish guidance for clinical commissioning groups on the discharge of their functions under this section. (6) Each clinical commissioning group must have regard to guidance published under subsection (5). (7) For the purposes of this section, the commissioning functions of a clinical commissioning group are the functions of the group in arranging for the provision of services as part of the health service.

• (2) After Schedule 1 to the National Health Service Act 2006 insert the Schedule set out in Schedule 2 to this Act.

Clinical commissioning groups: general duties etc.

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After section 14O of the National Health Service Act 2006 insert—