DPRR/14-15/91
Health and Social Care (Safety and Quality) Bill 2014
Memorandum for the House of Lords Delegated Powers and Regulatory
Reform Committee
1.
This memorandum describes the purpose and content of the Health
and Social Care (Safety and Quality) Bill, identifies the provisions of the Bill
which confer powers to make delegated legislation, and explains in each case
why the power has been taken and the nature of, and reasons for, the
procedure selected.
Purpose
2.
The Bill contains provisions on a range of policies. It contains 6
clauses and has 1 Schedule. The Bill is intended to make provision about the
safety of health and adult social care services in England; to make provision
about the integration of information relating to users of health and social care
services in England; to make provision about the sharing of information
relating to an individual for the purposes of providing that individual with
health or social care services in England; to make provision about the
objectives of the regulatory bodies for health and social care professions and
the Professional Standards Authority for Health and Social Care; and, to make
provision about the disposal of cases concerning a person’s fitness to practise
a health or social care profession.
Provisions for delegated legislation
3.
The Bill contains three clauses which make provision for delegated
powers. The first, clause 1 (harm-free care), amends an existing power to
make regulations in section 20 of the Health and Social Care Act 2008 (“the
2008 Act”). This will turn a discretion of the Secretary of State to impose
requirements on providers of health care and adult social care services,
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registered with the Care Quality Commission, in relation to the safety of
services into a duty to impose such requirements.
4.
The second, clause 2 (consistent identifiers), will impose a new duty on
the Secretary of State to specify a description of consistent identifier to be
used when health or adult social care commissioners or providers are
processing information about individuals.
5.
The third, clause 4 (Interpretation), confers on the Secretary of State a
power to make regulations which provide for a person to be excluded, either
generally or in particular cases, from the definition of a ‘relevant health or
adult social care commissioner or provider’ for the purposes of the continuity
of information provisions in the Bill.
6.
In deciding whether matters should be specified on the face of the Bill
or dealt with in delegated legislation, the Department has carefully considered
the needs:

to avoid too much technical and administrative detail on the face of
the Bill; and

to provide flexibility for responding to changing circumstances, so
that requirements can be adjusted without the need for further
primary legislation.
7.
In deciding what procedure is appropriate for the exercise of the
powers in the Bill, the Department has carefully considered in particular:

whether the provisions amend primary legislation;

the importance of the matter to be addressed; and

the procedure for existing, related powers.
Clause 1: harm-free care
Amendments to section 20 of the Health and Social Care Act 2008
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Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Affirmative if regulations provide that breach of a
specified provision is an offence punishable with a maximum fine exceeding
level 4 on the standard scale, otherwise negative
8. This new clause will amend section 20 of the 2008 Act (regulation of
activities regulated by the Care Quality Commission). It will introduce a
new obligation on the Secretary of State (rather than a power as at
present) to make regulations under that section imposing requirements on
providers of health care and adult social care in England relating to the
provision of services in a safe way. This new obligation will mean that
regulations must be made under section 20 to impose such requirements
as the Secretary of State considers necessary to secure that services are
provided in a way that cause no avoidable harm to persons who receive
the services.
Reason for delegating the power
9.
The proposed new requirements are intended to be requirements to be
met, by providers of health care or adult social care, for registration with the
Care Quality Commission. As such, they will be included in regulations made
under section 20 of the 2008 Act.
This will enable the Care Quality
Commission to monitor and enforce compliance with these requirements. It
will also enable the requirements to be adapted over time once the effect they
have in practice has been considered and to respond to changing
circumstances.
10.
New draft Regulations under section 20 of the 2008 Act have recently
been laid before Parliament to introduce new fundamental standards which all
providers of health or adult social care services registered with the Care
Quality Commission will have to meet. These fundamental standards are
being introduced in response to the report of the Mid Staffordshire NHS
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Foundation Trust Public Inquiry, which recommended that there should be
clear standards of minimum safety and quality.
Reason for the selected procedure
11.
The clause expands the powers to make regulations under section 20
of the 2008 Act and the new power is made subject to the same procedure
that currently applies to regulations made under that section. It is considered
that the new power is of the same magnitude as the existing powers and that
therefore the same procedure is appropriate. This means that if any breach of
provisions made under this new subsection is to be an offence punishable
with a maximum fine exceeding level 4 on the standard scale (currently
£2,500), the procedure will be the affirmative resolution procedure.
Otherwise, the procedure will be the negative resolution procedure.
The
current regulations made under section 20 of the 2008 Act (S.I. 2010/781) set
maximum fines at £50,000 and were therefore subject to the affirmative
resolution procedure.
Clause 2: Consistent identifiers
Amendments to Part 9 of the Health and Social Care Act 2012
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
12.
This new clause will amend Part 9 of the Health and Social Care Act
2012 (health and adult social care services: information) by inserting after
section 251 a new section 251A (Consistent identifiers). This new section will
impose a new duty on the Secretary of State to specify a description of
consistent identifier to be used when health or adult social care
commissioners or providers are processing information about individuals, in
particular when disclosing the information to other such commissioners or
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providers. This new obligation will mean that regulations made under new
section 251A will provide for any identifier. The proposed identifier is the NHS
number, although other identifiers may be specified in future.
Reason for delegating the power
13.
The NHS number, or any other similar identifier, is not provided for in
primary legislation. There is a need to maintain flexibility by delegating this
level of detail to secondary legislation. The NHS number itself may change
over time or other (as yet unknown) identifiers may need to be used in future.
Reason for the selected procedure
14.
The regulations will be subject to the negative procedure, which is the
same procedure that currently applies to orders made under paragraph 4
(general identifiers prescribed by order) of Part II of Schedule 1 to the Data
Protection Act 1998.
It is considered that the new provision, which is
essentially administrative in nature, is similar to existing power in the Data
Protection Act 1998 and therefore the same procedure is appropriate and
would ensure consistency.
Clause 4: Interpretation
Amendments to Part 9 of the Health and Social Care Act 2012
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
15.
This new clause will amend Part 9 of the Health and Social Care Act
2012 (health and adult social care services: information) by inserting after
section 251B (as inserted by clause 3) a new section 251C (interpretation).
This new section makes provision for the interpretation of terms for the
purposes of new sections 251A, 251B and 251C. In particular, this section
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defines the term “relevant health or adult social care commissioner or
provider” upon whom the new duties in sections 251A and 251B will be
imposed. The power, provided for under subsection (3), is for regulations to
provide for certain persons to be excluded from the definition of “relevant
health or adult social care commissioner or provider”. Subsection (4) makes
clear that the exclusion provided for in regulations may cover persons in
relation to the exercise of particular functions.
Reason for delegating the power
16.
The policy intention is that the new duties should not be imposed on
persons or bodies which fall, or some of whose functions fall, within the
responsibility of the Secretary of State for Education. The excluded persons
would include local authorities and other persons exercising educational
functions and children’s social service functions; children’s homes and
residential family centres; fostering and adoption support agencies; and
certain schools, nurseries and educational institutions. Originally the intention
was to list all the persons in a schedule of ‘excluded commissioners and
providers’. However, following discussions between Departments, it became
apparent that the large number of persons which needed to be excluded, as
well as the descriptions of person, premises or institution to be covered by the
exclusion meant that it was more appropriate for these details to be provided
for in regulations rather than on the face of the Bill. It was also considered
necessary to retain flexibility as the persons and functions to be covered,
which arise from many different enactments, may be subject to change from
time to time.
Reason for the selected procedure
17.
The regulations will be subject to the negative procedure, which is the
same procedure for regulations under new section 251A and would ensure
consistency.
Further it is considered that the regulations are essentially
administrative in nature, setting out the technical detail of persons and
functions to be excluded from the definition of “relevant health or adult social
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care commissioner or provider”, which is appropriate for regulations subject to
the negative procedure.
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