Care Act s91-95

Section 91 – Reviews and performance assessments

(1)  Chapter 3 of Part 1 of the Health and Social Care Act 2008 (the Care Quality Commission: quality of health and social care) is amended as follows.

(2)  For section 46 (periodic reviews of health and social care provision) substitute—

“46 – Reviews and performance assessments

(1)  The Commission must, in respect of such regulated activities and such registered service providers as may be prescribed—

(a)  conduct reviews of the carrying on of the regulated activities by the service providers,
(b)  assess the performance of the service providers following each such review, and
(c)  publish a report of its assessment.

(2)  Regulations under subsection (1) may prescribe—

(a)  all regulated activities or regulated activities of a particular description;
(b)  all registered service providers or particular registered service providers;
(c)  the whole of a regulated activity or a particular aspect of it.

(3)  The assessment of the performance of a registered service provider is to be by reference to whatever indicators of quality the Commission
devises.

(4)  The Commission must prepare a statement—

(a)  setting out the frequency with which reviews under this section are to be conducted and the period to which they are to relate, and
(b)  describing the method that it proposes to use in assessing and evaluating the performance of a registered service provider under this section.

(5)  The Commission may—

(a)  use different indicators for different cases,
(b)  make different provision about frequency and period of reviews for different cases, and
(c)  describe different methods for different cases.

(6)  The Commission must publish—

(a)  any indicators it devises for the purpose of subsection (3), and
(b)  the statement it prepares for the purpose of subsection (4).

(7)  Before doing so, the Commission—

(a)  must consult the Secretary of State and such other persons, or other persons of such a description, as may be prescribed, and
(b)  may also consult any other persons it considers appropriate.

(8)  The Commission may from time to time revise—

(a)  any indicators it devises for the purpose of subsection (3), and
(b)  the statement it prepares for the purpose of subsection (4); and, if it does so, it must publish the indicators and statement as revised.

(9)  Subsection (7) applies to revised indicators and a revised statement, so far as the Commission considers the revisions in question to be
significant.

(10)  In this section “registered service provider” means a person registered under Chapter 2 as a service provider.

(11)  Consultation undertaken before the commencement of this section is as effective for the purposes of subsection (7) as consultation undertaken
after that commencement.”

(3)  Sections 47 (frequency and period of reviews under section 46) and 49 (power to extend periodic review function) are repealed.

(4)  In section 48 (special reviews and investigations), in subsection (1)—

(a)  omit “, with the approval of the Secretary of State,”, and
(b)  at the end insert “; but the Commission may not conduct a review or investigation under subsection (2)(ba) or (bb) without the approval of
the Secretary of State.”

(5)  Omit subsection (1A) of that section.

(6)  In subsection (2) of that section, for “a periodic review” substitute “a review under section 46”.

(7)  In that subsection, after paragraph (ba) (but before the following “or”) insert—

“(bb)  the exercise of the functions of English local authorities in arranging for the provision of adult social services,”.

(8) After subsection (3) of that section insert—

“(3A)  A review or investigation under subsection (2)(b), in so far as it involves a review or investigation into the arrangements made for the provision of the adult social services in question, is to be treated as a review under subsection (2)(bb) (and the requirement for approval under subsection (1) is accordingly to apply).”

(9)  In consequence of the preceding provisions of this section—

(a)  in section 50(1) of the Health and Social Care Act 2008 (failings by English local authorities), omit “or 49”;
(b)  in section 51(1) of that Act (failings by Welsh NHS bodies), omit “or 49”;
(c)  in section 70(3)(a) of that Act (provision by Commission to Monitor of material relevant to review under section 46 or 49), omit “or 49”;
(d)  in section 72(a) of that Act (provision by Commission to Comptroller and Auditor General of material relevant to review under section 46 or 49), omit “or 49”;
(e)  in section 293 of the Health and Social Care Act 2012, omit subsections (1) and (2);
(f)  in Schedule 5 to that Act (amendments in consequence of Part 1 of that Act), omit paragraphs 157, 159, 163 and 164.

 

The Government’s Explanatory Notes to the Bill for this Act say as follows:

“Section 91 substitutes section 46 (periodic reviews) and amends section 48 (special reviews and investigations) of the 2008 Act.  The CQC’s duty to conduct periodic reviews, assess performance and publish reports of such assessments (henceforth known as ratings) is to apply in respect of any regulated activities and any registered service providers as may be prescribed in regulations.

The substituted section 46 replaces and consolidates the CQC’s existing periodic review duty in respect of the provision of healthcare by English NHS providers, the provision of adult social services by English local authorities and the Secretary of State’s power to extend the scope of periodic reviews by way of regulations in section 49 of the 2008 Act, which is to be repealed by section 89(3).  The new powers in section 46 will allow the Secretary of State to prescribe the particular types of services or providers in relation to whom the CQC should publish performance information so as to enable the public to make informed choices about the quality of services being provided.

The CQC is given the responsibility for determining the quality indicators against which services and providers will be assessed (section 46(5)).  This may include measures of financial performance and governance in its assessments if the CQC deem this appropriate.  The CQC will also prepare a statement setting out the method it will use to assess and evaluate performance and the frequency and period of any reviews (section 46(6)). Different quality indicators, methods and frequency and periods may be used for different types of cases.  The CQC may also review the indicators of quality and method statement from time to time as it sees fit (section 46(7) and (8)).

The CQC will be required to consult the Secretary of State and any other persons as may be prescribed or CQC considers appropriate before publishing the indicators of quality and the statement on method and frequency and before publishing any subsequent revisions to them which are significant (section 46(9)).  Consultation undertaken by CQC on the development of its new performance methodologies before Section 89 comes into force is to be as effective as consultation carried out after it comes into force (section 46(11)).

The changes to section 48 (special reviews and investigations) make clear that CQC can, subject to the approval of the relevant Secretary of State, undertake special reviews and investigations of the commissioning of adult social services by local authorities as well as the commissioning of NHS services by clinical commissioning groups or the NHS Commissioning Board.  The effect is to retain the requirement to gain relevant Secretary of State approval before CQC undertakes a special review or investigation into the commissioning of services.  The intention is that CQC will only carry out such inspections in exceptional cases of systemic failure.  In practice, CQC will need to seek the approval of both the Secretaries of State with responsibility for Health and Communities and Local Government for any special review or investigation that looks into the commissioning of adult social services.

In parallel, the requirement for CQC to obtain Secretary of State’s approval before conducting special reviews or investigations relating to the direct provision of NHS care and adult social services is being repealed.  The regulation of provision is part of CQC’s core business and therefore does not need to be subject to ministerial approval.”

 

Section 92 – Offence

(1)  A care provider of a specified description commits an offence if—

(a) it supplies, publishes or otherwise makes available information of a specified description,
(b)  the supply, publication or making available by other means of information of that description is required under an enactment or other legal obligation, and
(c) the information is false or misleading in a material respect.

(2)  But it is a defence for a care provider to prove that it took all reasonable steps and exercised all due diligence to prevent the provision of false or misleading information as mentioned in subsection (1).

(3)  “Care provider” means—

(a)  a public body which provides health services or adult social care in England,
(b)  a person who provides health services or adult social care in England pursuant to arrangements made with a public body exercising functions in connection with the provision of such services or care, or
(c)  a person who provides health services or adult social care in England all or part of the cost of which is paid for by means of a direct payment
under section 12A of the National Health Service Act 2006 or under Part 1 of this Act.

(4)  “Health services” means services which must or may be provided as part of the health service.

(5)  “Adult social care”—

(a)  includes all forms of personal care and other practical assistance for individuals who, by reason of age, illness, disability, pregnancy,
childbirth, dependence on alcohol or drugs, or any other similar circumstances, are in need of such care or other assistance, but
(b)  does not include anything provided by an establishment or agency for which Her Majesty’s Chief Inspector of Education, Children’s Services
and Skills is the registration authority under section 5 of the Care Standards Act 2000.

(6)  “Specified” means specified in regulations.

(7)  If a care provider commits an offence under either of the provisions mentioned in subsection (8) in respect of the provision of information, the provision of that information by that provider does not also constitute an offence under subsection (1).

(8)  The provisions referred to in subsection (7) are—

(a)  section 44 of the Competition Act 1998 (provision of false or misleading information) as applied by section 72 of the Health and Social Care Act 2012 (functions of the OFT under Part 1 of the Competition Act 1998 to be concurrent functions of Monitor), and
(b)  section 117 of the Enterprise Act 2002 (provision of false or misleading information) as applied by section 73 of the Health and Social Care Act 2012 (functions of the OFT under Part 4 of the Enterprise Act 2002 to be concurrent functions of Monitor).

(9)  If a care provider commits an offence under subsection (1) in respect of the provision of information, the provision of that information by that provider
does not also constitute an offence under section 64 of the Health and Social Care Act 2008 (failure to comply with request to provide information).

 

The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section creates a new offence so that providers of health services and adult social care in England, which supply, publish or otherwise make available information that is false or misleading, could be subject to criminal sanctions.  The offence applies to a care provider as a corporate body. Section 94 sets out the circumstances in which a director, manager, secretary or similar officer of a care provider is also liable to be prosecuted for the offence.

Section 92 outlines the scope of the offence, including which care providers are potentially subject to it and the type of information to which it relates (further detail will be specified in regulations as appropriate). It provides that the information must be required under a statutory provision or other legal obligation.

Subsection (1) enables the offence to apply to information that is supplied, published or otherwise made available by a care provider, and which is materially false or misleading.  The offence will only be applicable, in practice, to those care providers set out in regulations, and in relation to such information as is described in regulations. Section 122(4)(k) states that such regulations will be subject to the scrutiny of both Houses of Parliament under the affirmative procedure.

Subsection (1)(b) states that this offence will relate only to information that care providers are legally obliged to supply, either by a statutory provision or by another legal requirement such as a contractual requirement. An example of information required by a contract, rather than by a statutory provision, might be information required to be supplied by the provider of health services in accordance with a term in its “commissioning contract” with a clinical commissioning group.  Subsections (1) and (6) provide that, in practice, the offence will only be applicable to information of a type that is described in regulations.  It is envisaged that the offence will typically apply in cases involving the supply of information to the Secretary of State, the Health and Social Care Information Centre, regulators and commissioners, in accordance with those persons’ and bodies’ statutory powers to require information.

Subsection (2) provides a defence for care providers that can demonstrate that they “took all reasonable steps and exercised all due diligence”.  This defence will be available to those care providers that have made a genuine mistake or administrative error, provided that they can demonstrate that they had adequate procedures in place to ensure that false and misleading information was not provided.

The care providers that fall within the scope of the offence are described generically at subsection (3). The offence thus applies to public bodies that provide health services or adult social care in England, such as NHS Trusts, NHS Foundation Trusts and local authorities; and to all types of GP practice, whether sole practitioners or partnerships (and whether they have entered into personal medical service or general medical service contracts with NHS England). It also applies to providers who are not public bodies, but who provide health services or adult social care on behalf of a public body, such as independent providers of hospital services and independent care homes, in relation to the publicly-funded care that they provide.  Further, it applies to those who provide health services or adult social care for which they are paid, in full or in part, by a direct payment made to a patient or service user to procure services directly. “Adult social care” is further defined at subsection (5) and covers all necessary forms of personal care and other practical assistance. Subsection (5)(b) introduces a caveat in that any social care provided by an establishment or agency registered with Her Majesty’s Chief Inspector of Education, Children’s Services and Skills will not be subject to this offence. Subsections (1) and (6) provide that, in practice, the offence will only apply to care providers that are specified in regulations.
Subsections (7) to (9) ensure that that there is no overlap or duplication between this false or misleading information offence and certain offences under the Competition Act 1998, the Enterprise Act 2002 and the Health and Social Care Act 2008.”

 

Section 93 – Penalties

(1)  A person who is guilty of an offence under section 92 is liable—

(a)  on summary conviction, to a fine;
(b)  on conviction on indictment, to imprisonment for not more than two years or a fine (or both).

(2)  A court before which a care provider is convicted of an offence under section 92 may (whether instead of or as well as imposing a fine under subsection (1)) make either or both of the following orders—

(a)  a remedial order,
(b)  a publicity order.

(3)  A “remedial order” is an order requiring the care provider to take specified steps to remedy one or more of the following—

(a)  the conduct specified in section 92(1),
(b)  any matter that appears to the court to have resulted from the conduct,
(c)  any deficiency, as regards the management of information, in the care provider’s policies, systems or practices of which the conduct appears to the court to be an indication.

(4)  A “publicity order” is an order requiring the care provider to publicise in a specified manner—

(a)  the fact that it has been convicted of an offence under section 92,
(b)  specified particulars of the offence,
(c)  the amount of any fine imposed, and
(d)  the terms of any remedial order made.

(5)  A remedial order may be made only on an application by the prosecution specifying the terms of the proposed order; and any such order must be on such terms (whether those proposed or others) as the court considers appropriate having regard to any representations made, and any evidence adduced, in relation to that matter by the prosecution or on behalf of the care provider.

(6)  A remedial order must specify a period within which the steps referred to in subsection (3) are to be taken.

(7)  A publicity order must specify a period within which the requirements referred to in subsection (4) are to be complied with.

(8)  A care provider that fails to comply with a remedial order or a publicity order commits an offence and is liable on conviction on indictment to a fine.

 

 

The Government’s explanatory notes to the Bill for this Act say as follows:

“This section provides for the penalties applicable when a court decides that a care provider, or subject to section 94, a director, manager, secretary or similar officer of a care provider, has committed the offence of providing false or misleading information.  When the care provider is a local authority, the penalties are applicable to a member of the authority (see section 94).

Subsection (1) states that a person convicted of providing false and misleading information could be subject to an unlimited fine or up to two years imprisonment, or both.  Subsection (2) states that as well as, or instead of, a fine the court may also impose a remedial or publicity order by way of penalty on the care provider. Section 94(2) and (8) respectively provide that remedial or publicity orders are not applicable penalties in relation to a director, manager, secretary or similar officer of a body corporate and in relation to an officer of an incorporated association or a member of its governing body.

Subsection (3) states that a remedial order will permit the court to require the convicted care provider to take certain steps to remedy the breach that led to the conviction; this includes correcting any deficiencies in conduct, management of information, policies, systems or practices. Subsection (5) outlines the procedures to be followed in obtaining a remedial order. The prosecution must apply to the court and suggest the terms of the proposed order, and the court must consider the representations made on behalf of both the prosecution and the convicted care provider and any evidence presented by either party.

Subsection (4) concerns publicity orders, which require a convicted care provider to publicise information about the offence, including the particulars of that offence, and details of any fines or remedial orders made.

For both remedial orders and publicity orders, a time period must be stated within which the required actions must have been completed (subsections (6) and (7)).

Breach of either a remedial order or a publicity order would result in a further offence and further punishment on conviction by an unlimited fine.”

 

Section 94 – Offences by bodies

(1)  Subsection (2) applies where an offence under section 92(1) is committed by a body corporate and it is proved that the offence is committed by, or with the consent or connivance of, or is attributable to neglect on the part of—

(a)  a director, manager or secretary of the body, or
(b)  a person purporting to act in such a capacity.

(2)  The director, manager, secretary or person purporting to act as such (as well as the body) is guilty of the offence and liable to be proceeded against and punished accordingly (but section 93(2) does not apply).

(3)  The reference in subsection (2) to a director, manager or secretary of a body corporate includes a reference—

(a)  to any other similar officer of the body, and
(b)  where the body is a local authority, to a member of the authority.

(4)  Proceedings for an offence under section 92(1) alleged to have been committed by an unincorporated association are to be brought in the name of the association (and not in that of any of the members); and rules of court relating to the service of documents have effect as if the unincorporated association were a body corporate.

(5)  In proceedings for an offence under section 92(1) brought against an unincorporated association, section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates’ Courts Act 1980 apply as they apply in relation to a body corporate.

(6)  A fine imposed on an unincorporated association on its conviction for an offence under section 92(1) is to be paid out of the funds of the association.

(7)  Subsection (8) applies if an offence under section 92(1) is proved—

(a)  to have been committed by, or with the consent or connivance of, an officer of the association or a member of its governing body, or
(b) to be attributable to neglect on the part of such an officer or member.

(8)  The officer or member (as well as the association) is guilty of the offence and
liable to be proceeded against accordingly (but section 93(2) does not apply).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section provides for the offence of providing false or misleading information to apply to directors, managers, secretaries or similar officers of care providers in certain circumstances.

Subsections (1), (2) and (3) state that where the offence is committed by a corporate body and it is committed by, or with the consent and connivance of, or is attributable to neglect on the part of a director, manager, secretary or similar officer (or a member, in the case of a local authority), they too are guilty of the offence and liable to be prosecuted and punished. The court could impose an unlimited fine or custodial sentence of up to two years imprisonment, or both, on such an individual (section 92(1)). A remedial order or publicity order (section 92(2)) could not be made in respect of an individual.

Subsections (4) to (8) make provision where the offence is committed by a care provider that is an unincorporated association. Subsection (4) provides that where proceedings are brought against an unincorporated association they are to be brought in the name of the association not in the name of the members of the association.

Subsections (7) and (8) provide that an officer of an unincorporated association, or a member of its governing body, is also guilty of the offence, where an offence committed by the unincorporated association has been committed by, or with the consent or connivance of, or is attributable to neglect on the part of, an officer or a member of the governing body of the association. Subsection (8) provides that a remedial order or publicity order cannot be made in respect of an officer or member who is convicted of the offence. The maximum penalty available to the court is an unlimited fine or up to two years imprisonment, or both (section 92(1)).”

 

Section 95 – Training for persons working in regulated activity

In section 20 of the Health and Social Care Act 2008 (regulation of regulated activities), after subsection (4) insert—

“(4A)  Regulations made under this section by virtue of subsection (3)(d) may in particular include provision for a specified person to set the
standards which persons undergoing the training in question must attain.”

 

The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section amends section 20 of the 2008 Act in order to enable the Secretary of State through regulations to specify the bodies/persons who can set training standards in respect of a specific group of workers. In this context, this section will allow the Government to specify in regulations, the person who sets the training standards and to whom those standards apply. Groups to whom these standards could apply include healthcare assistants and social care support workers.”

 

 

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