5.This section amends section 20 of the Health and Social Care Act 2008 (regulation of regulated activities). It provides that the Secretary of State must make regulations imposing requirements on health and social care service providers required to register with the Care Quality Commission (‘CQC’) to help secure that health and adult social care services in England are provided in a way that causes no avoidable harm.
6.The amendment has the effect of removing the Secretary of State’s discretion around whether the requirements for registration with CQC should cover safety of care. This duty will not require the Secretary of State to secure that care or treatment is risk free, but that requirements are imposed to secure that services are provided in as safe a way as is reasonably possible. A test of reasonableness applies in assessing whether or not harm is avoidable, to acknowledge the risk intrinsic in many clinical treatments.
7.This section amends Part 9 of the Health and Social Care Act 2012 (‘HSCA 2012’) which enables the Secretary of State or the NHS Commissioning Board to set information standards for health and adult social care services in England; and which establishes the Health and Social Care Information Centre. This section inserts new section 251A (consistent identifiers) into Part 9 of the HSCA 2012.
8.Subsection (1) of section 251A imposes a duty on the Secretary of State to make regulations specifying a description of consistent identifier.
9.Subsection (2) defines a consistent identifier as any identifier such as, for example, a number or code used for identification purposes, that relates to an individual and forms part of a set of similar identifiers that is of general application. An example of a consistent identifier that meets these criteria which the Secretary of State may specify in regulations is the NHS number.
10.Subsection (3) sets out the conditions which must be met before the duty in subsection (4) applies. There are two conditions: (a) a ‘relevant person’ (i.e. a ‘relevant health or adult social care commissioner or provider’ as defined in new section 251C(2) of the HSCA 2012, inserted by section 4) processes information about that individual; and (b) a consistent identifier of the description specified under subsection (1) relates to a particular individual. An effect of condition (b) is that if a description of consistent identifier, for example the NHS number, has been specified in regulations but there is no such identifier in respect of a particular individual, for example that individual does not have a NHS number, then the duty in subsection (4) will not apply.
11.Subsection (4) sets out the new duty in respect of a consistent identifier specified in regulations. The duty is imposed on the relevant person, who must include the consistent identifier when processing the information. The duty applies whether the processing is internal record keeping, disclosure to another relevant health or social care commissioner or provider, or anything else recognised as ‘processing’ under the Data Protection Act 1998 (‘DPA’).
12.Subsections (5) to (8) set out qualifications to the duty in subsection (4) above.
13.Subsection (5) provides that the duty only applies so far as the relevant person considers that the inclusion is (a) likely to facilitate the provision to the individual of health services or adult social care in England, and (b) in the individual’s best interests. New section 251C(5) expands upon the provision in (a). The term ‘best interests’ in subsection (5)(b) bears its ordinary meaning, and is not to be construed in accordance with section 4 of the Mental Capacity Act 2005, which provides for what is in a person’s best interests for the purposes of that Act.
14.Subsection (6) provides for certain criteria which, if any apply, mean the relevant person need not comply with the new duty. The criteria are: (a) the relevant person does not know the consistent identifier and is not reasonably able to learn it; (b) the individual objects, or would be likely to object, to the inclusion of the consistent identifier in the information; (c) the information concerns, or is connected with, the provision of health services or adult social care by an ‘anonymous access provider’ (as defined in new section 251C(6)); (d) for any other reason the relevant person is not reasonably able, or should not be required, to comply with the new duty. The effect of criterion (a) is that where the relevant person does not know the individual’s consistent identifier (as specified in regulations) and has taken reasonable steps to find it out, such that the relevant person is not reasonably able to learn it, then the duty will not apply. Criterion (c) , interpreted in light of section 251C(6), will apply where the individual is receiving health or adult social care services anonymously, whether from the ‘relevant person’ or another commissioner or provider, for example services relating to sexual health or any other sensitive services. The effect of criterion (d) is that if, for any other reason, the relevant person is not reasonably able, or should not be required, to comply with the duty, then the duty will not apply. Other reasons may include where the cost of compliance for the relevant person would be too burdensome or disproportionately high. For example, some small or voluntary organisations may not have the capacity or infrastructure to comply with this duty, in which case they should not be required to comply with it.
15.Subsection (7) means that the relevant person must still comply with any applicable provisions of the DPA and with any common law duty of care or confidence, and that this section does not permit doing anything inconsistent with the DPA or those common law duties.
16.Subsection (8) means that if the relevant person would be required to do anything under subsection (4) which they are already required to do under a contract by virtue of any provision of the National Health Service Act 2006, then the requirement under subsection (4) does not arise. This is for clarity and certainty as to the legal basis of certain obligations and to avoid any unnecessary duplication of obligations. For example, paragraph 74B of Schedule 6 to the National Health Service (General Medical Services Contracts) Regulations 2004 (S.I. 2004/291), as amended by the National Health Service (General Medical Services Contracts and Personal Medical Services Agreements) Amendment Regulations 2014 (S.I. 2014/ 465), inserts contractual terms which require general practitioners to use NHS numbers in clinical correspondence relating to patients. The effect of subsection (8) is that the requirement on GPs to use the NHS number in clinical correspondences arises out of their contracts, not the new duty in subsection (4).
17.This section inserts new section 251B (duty to share information) into Part 9 of the HSCA 2012.
18.Subsection (1) of section 251B sets out the scope of the duty under subsection (2), namely that it applies in relation to information about an individual that is held by the ‘relevant person’ (that is, a ‘relevant health or adult social care commissioner or provider’ as defined in new section 251C(2)).
19.Subsection (2) imposes a duty on the relevant person to ensure that the information is disclosed to (a) persons working for the relevant person, and (b) any other relevant health or adult social care commissioner or provider with whom the relevant person communicates about the individual.
20.Subsections (3) to (6) provide qualifications to the duty in subsection (2).
21.Subsection (3) provides that the duty only applies so far as the relevant person considers that the disclosure is (a) likely to facilitate the provision to the individual of health services or adult social care in England, and (b) in the individual’s best interests. New section 251C(5) expands upon the provision in (a). The term ‘best interests’ in subsection (3)(b) bears its ordinary meaning, and is not to be construed in accordance with section 4 of the Mental Capacity Act 2005, which provides for what is in a person’s best interests for the purposes of that Act.
22.Subsection (4) provides for certain criteria which, if the relevant person reasonably considers one or more apply, mean the relevant person need not comply with the new duty. The criteria are: (a) the individual objects, or would be likely to object, to the disclosure of the information; (b) the information concerns, or is connected with, the provision of health services or adult social care by an ‘anonymous access provider’ (as defined in new section 251C(6)); (c) for any other reason the relevant person is not reasonably able, or should not be required, to comply with the new duty. Criterion (b), interpreted in light of section 251C(6), will apply where the individual is receiving health or adult social care services anonymously, whether from the ‘relevant person’ or another commissioner or provider, for example services relating to sexual health or any other sensitive services. The effect of criterion (c) is that if, for any other reason, the relevant person is not reasonably able, or should not be required, to comply with the duty, then the duty will not apply. Other reasons may include where the cost of compliance for the body would be too burdensome or disproportionately high. For example, some small or voluntary organisations may not have the capacity or infrastructure to comply with this duty, in which case they should not be required to do so.
23.Subsection (5) means that the relevant person must still comply with any applicable provisions of the DPA and any common law duty of care or confidence, and that this section does not permit doing anything inconsistent with the DPA or those common law duties.
24.Subsection (6) means that if the relevant person would be required to do anything under subsection (4) which is already required under a common law duty of care, then the requirement under subsection (4) does not arise. This is for clarity and certainty as to the legal basis of certain obligations and to avoid any unnecessary duplication of obligations. Therefore, if disclosure of the information is already required under a common law duty of care then the effect of subsection (6) is that the legal basis of the requirement will arise from the common law duty of care, not the new duty in subsection (4). Any enforcement and remedies would therefore be in common law.
25.This section inserts into Part 9 of the HSCA 2012 new section 251C (continuity of information: interpretation), which makes provision for the interpretation of terms used in new sections 251A (consistent identifiers) and 251B (duty to share information).
26.Subsection (1) of section 251C provides that the section applies for the purposes of sections 251A to 251C.
27.Subsection (2) sets out the definition of ‘relevant health or adult social care commissioner or provider’ and thereby who the new duties are imposed on. The definition covers two categories of persons: (a) any public body so far as it exercises functions in connection with the provision of health services, or of adult social care in England; and (b) any person (other than a public body) so far as the person provides health services, or adult social care in England – (i) pursuant to arrangements made with a public body exercising functions in connection with the provision of such services, and (ii) otherwise than as a member or officer of a body or an employee of a person. Subject to regulations which may be made under subsection (3), if a person falls within either of those categories, then the person is subject to the new duties. The first category covers all public bodies which provide or commission health services or adult social care in England. The second category covers all private persons (in their capacity as contractors, not as employees or members or officers of a body) who have contracted with public body commissioners to provide health services or adult social care in England.
28.Subsection (3) 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 ‘relevant health or adult social care commissioner or provider’.
29.Subsection (4) clarifies that regulations made under subsection (3) may in particular provide for a person to be excluded in relation to the exercise of particular functions, or the exercise of functions in relation to particular descriptions of person, premises or institution.
30.Subsection (5) expands upon the reference in new sections 251A(5)(a) and 251B(3)(a) to a disclosure being likely to facilitate the provision of services or care to an individual. It provides that the disclosure will be treated as likely to facilitate the provision of services or care to the individual only if it does so directly, rather than by means of a clinical trial, a study or an audit or any other indirect means. This makes clear that the condition in new sections 251A(5)(a) and 251B(3)(a) limits the duties to use the consistent identifier and share information to the cases involving the direct care and treatment of an individual, and that they do not apply for any wider purpose. The duties would not, for example, require that the individual’s data be shared for the purposes of research for the benefit of all individuals in a particular category or group, even though the individual may benefit from research into particular types of treatment.
31.Subsection (6) defines an ‘anonymous access provider’ for the purposes of new sections 251A(6)(c) and 251B(4)(b) in relation to services or care which are, or may be, received by individuals anonymously. The definition applies both in relation to services or care provided by the relevant provider or commissioner concerned and in relation to services or care provided to the individual by another commissioner or provider, such as a specialist to whom the provider or commissioner concerned refers the individual.
32.Subsection (7) provides that other terms used in new sections 251A to 251C have the same meaning as in section 250 HSCA 2012, subsection (7) of which provides definitions for the following terms: ‘adult social care’; ‘health services’; ‘processing’; and ‘public body’.
33.This section relates to the regulation of health and social care professionals.
34.Subsection (1) amends section 25 of the National Health Service Reform and Health Care Professions Act 2002 (‘2002 Act’). It substitutes a new overarching objective for the existing objective of the PSA. The new objective applies only when the PSA is carrying out the functions set out in section 25(2)(b) to (d) of the 2002 Act, which are broadly:
to promote best practice by regulators of health and care professionals in the performance of their functions;
to formulate principles of good professional self-regulation and encourage health and care professional regulators to conform to them;
to promote co-operation between health and care professional regulators and between them and other bodies that exercise corresponding functions.
35.This new objective, like the existing objective, does not apply to the functions of the PSA under section 25(2)(a) of the 2002 Act, to promote the interests of users of health care, social care in England, users of social work services in England and other members of the public in relation to the performance by the health and care professional regulators and any of their committees and officers of their functions.
36.The overarching objective is public protection, which involves the following:
protecting, promoting and maintaining the health, safety and well-being of the public;
promoting and maintaining public confidence in the professions that the regulators regulate;
promoting and maintaining proper professional standards and conduct for members of those professions;
promoting and maintaining proper standards in relation to the carrying on of retail pharmacy businesses at a registered pharmacy, and corporate bodies registered with the General Optical Council.
37.This section also gives effect to the Schedule, which makes provision about the objectives of regulators of health and care professionals, and about when committees or panels of those regulators should have regard to those objectives.
38.This Schedule makes provision for a consistent overarching objective of public protection for the following regulators of health and social care professionals, by means of the following legislative amendments:
the General Dental Council (‘GDC’) by amending section 1 of the Dentists Act 1984 to insert a new overarching objective;
the General Optical Council (‘GOC’) by amending section 1 of the Opticians Act 1989 to replace the existing main objective with a new overarching objective;
the General Osteopathic Council (‘GOsC’) by amending section 1 of the Osteopaths Act 1993 to insert a new overarching objective;
the General Chiropractic Council (‘GCC’) by amending section 1 of the Chiropractors Act 1994 to insert a new overarching objective;
the Nursing and Midwifery Council (‘NMC’) by amending Article 3 of the Nursing and Midwifery Order 2001 (S.I. 2002/253) to replace the existing main objective with a new overarching objective;
the Health and Care Professions Council (‘HCPC’) by amending Article 3 of the Health and Social Work Professions Order 2001 (S.I. 2002/254) to replace the existing main objective with a new overarching objective;
the General Pharmaceutical Council (‘GPhC’) by amending Article 6 of the Pharmacy Order 2010 (S.I. 2010/231) to replace the existing main objective with a new overarching objective.
39.Like the PSA’s overarching objective, the overarching objective of the health and social care professional regulators involves the pursuit of the following objectives, which are consistent with those that apply in the case of the PSA:
to protect, promote and maintain the health, safety and well-being of the public;
to promote and maintain public confidence in the relevant profession;
to promote and maintain proper professional standards and conduct for members of the relevant profession.
40.For the GOC and GPhC, which also have functions in relation to business regulation, the overarching objective also involves promoting and maintaining proper standards and conduct for business registrants (GOC), and proper standards for the safe and effective practise of pharmacy at registered pharmacies (GPhC).
41.The Schedule also requires committees and panels to have regard to the overarching objective when determining if a practitioner is fit to practise or when considering appropriate sanctions. The committees and panels concerned are:
for the GDC, an Investigating Committee or panel when considering whether to issue a warning or advice, or direct a warning to be entered in the register, under sections 27A(2) and (3) and 36O(2) and (3) of the Dentists Act 1984, and a Practice Committee or panel when exercising functions in relation to determining fitness to practise and restoration to the register under sections 27B, 27C, 28, 36P, 36Q and 36R of the Dentists Act 1984;
for the GOC, the Registration Appeals Committee when exercising functions under section 13K of the Opticians Act 1989 in relation to restoration to the register, the Fitness to Practise Committee when exercising functions under sections 13F and 13H of the Opticians Act 1989, and the Investigation Committee when deciding whether to give a warning under section 13D(7) of the Opticians Act 1989;
for the GOsC, a Professional Conduct Committee or panel when exercising functions in relation to restoration to the register under section 8 of the Osteopaths Act 1993 or fitness to practise under section 22, and a Health Committee or panel when exercising functions in relation to fitness to practise under section 23 of the Osteopaths Act 1993;
for the GCC, a Professional Conduct Committee or panel when exercising functions in relation to restoration to the register under section 8 of the Chiropractors Act 1994 or fitness to practise under section 22, and a Health Committee or panel when exercising functions in relation to fitness to practise under section 23 of the Chiropractors Act 1994;
for the NMC, an Investigating Committee or panel in relation to the exercise of some of its functions under article 26 of the Nursing and Midwifery Order 2001 (S.I. 2002/253) in respect of allegations referred to it, and a Conduct and Competence Committee, Health Committee or panel in the exercise of their functions in relation to fitness to practise and restoration to the register under articles 27 to 30 and 33 of that Order;
for the HCPC, an Investigating Committee or panel in relation to the exercise of some of its functions under article 26 of the Health and Social Work Professions Order 2001 (S.I. 2002/254) in respect of allegations referred to it, and a Conduct and Competence Committee, Health Committee or panel in the exercise of their functions in relation to fitness to practise and restoration to the register under articles 27 to 30 and 33 of that Order;
for the GPhC, the Investigating Committee when deciding whether to give a warning or advice under article 53 of the Pharmacy Order 2010 (S.I. 2010/231) and the Fitness to Practise Committee in the exercise of their functions under articles 54 and 57 of that Order in relation to fitness to practise and restoration to the register.
42.The Schedule does not make provision for the General Medical Council (‘GMC’) as similar provision was made for the GMC in the General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015 (S.I. 2015/794). It also does not make similar provision for the Pharmaceutical Society for Northern Ireland, whose remit is different from that of the other regulators.