The Health and Care Act 2022 (Commencement No. 8 and Transitional and Saving Provision) Regulations 2023

Explanatory Note

(This note is not part of the Regulations)

These Regulations bring into force specified provisions of the Health and Care Act 2022 (c. 31) (“the 2022 Act”) on 1st January 2024 (regulation 3) and 31st January 2024 (regulation 4). They are the eighth set of commencement regulations to be made under the 2022 Act. These Regulations also make transitional and saving provision in connection with the coming into force of provisions brought into force by these Regulations.

Regulation 3 brings into force sections 78 (regulations as to patient choice), 79 (procurement regulations) and 80 (procurement and patient choice: consequential amendments etc) of, and Schedule 11 (patient choice: undertakings by integrated care boards) to, the 2022 Act. Section 78 of, and Schedule 11 to, the 2022 Act make amendments to the National Health Service Act 2006 (c. 41) (“the 2006 Act”) in relation to patient choice, and section 79 makes amendments to the 2006 Act in relation to the procurement of health care services for the purposes of the health service. Section 80 of the 2022 Act makes amendments which are consequential on sections 78 and 79.

Regulation 4 brings into force section 46(1) (reconfiguration of NHS services: intervention powers) of the 2022 Act, and partially brings into force section 46(2) of, and Schedule 6 (intervention powers over the reconfiguration of NHS services) to, the 2022 Act. These provisions are commenced except in so far as they relate to a power of the Secretary of State to direct NHS commissioning bodies to consider a reconfiguration of NHS services.

Regulation 5 makes transitional and saving provision in connection with the provisions commenced by regulation 3. Regulation 5(1) saves any provision of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (S.I. 2012/2996) which was made under section 6E(2)(c) of the 2006 Act or section 75 of the Health and Social Care Act 2012 (c. 7) (repealed by sections 78(2)(c) and 80(2) of the 2022 Act respectively). Such provisions are treated from 1st January 2024 as made under section 6E(1A) or (1B) of the 2006 Act (inserted by section 78(2)(b) of the 2022 Act).

Transitional and saving provision is also made in relation to the procurement of health care services for the purposes of the NHS where a procurement process has started, but has not ended, before 1st January 2024, under the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (S.I. 2013/500) (“the 2013 Regulations”) (revoked by section 80(4) of the 2022 Act). The 2013 Regulations are saved with modifications with the result that the requirements in regulations 2 to 10 of the 2013 Regulations continue to apply to such processes, and investigations and enforcement action can continue to be carried out in relation to them under regulations 13 to 17 of the 2013 Regulations.

Regulation 5(4) enables NHS England to carry out investigations in relation to determinations of a kind referred to in regulation 7(2)(a) or (2)(b) of the 2013 Regulations (which relate to patient choice) under the new patient choice enforcement powers in section 6F of the 2006 Act, as inserted by section 78 of the 2022 Act, instead of the investigation powers in the 2013 Regulations.

Regulation 5(6) ensures that information held by NHS England in connection with its investigation and enforcement functions relating to procurement saved by these Regulations continues to be “regulatory information” for the purposes of section 13SC of the 2006 Act (such information was previously “regulatory information” by virtue of regulation 20 of the Health and Care Act 2022 (Commencement No. 2 and Transitional and Saving Provision) Regulations 2022 (S.I. 2022/734)).

A full impact assessment has been prepared in relation to the 2022 Act, and a copy is available at https://www.gov.uk/government/publications/health-and-care-bill-combined-impact-assessments. A hard copy can be obtained by writing to the Department of Health and Social Care, 39 Victoria Street, London, SW1H 0EU.