PART 3 U.K.Regulation of health and adult social care services

CHAPTER 2E+WCompetition

F172Functions under the Competition Act 1998E+W

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Textual Amendments

F273Functions under Part 4 of the Enterprise Act 2002E+W

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Textual Amendments

74Competition functions: supplementaryE+W

F3(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)In section 168 of that Act (regulated markets)—

(a)in subsection (3) (meaning of “relevant action”), after paragraph (o) insert—

“(p)modifying the conditions of a licence issued under section 87 of the Health and Social Care Act 2012.”,

(b)in subsection (4) (meaning of “relevant statutory functions”), after paragraph (q) insert—

“(r)in relation to any licence issued under section 87 of the Health and Social Care Act 2012, the duties of Monitor under sections 62 and 66 of that Act.”, and

(c)in subsection (5) (meaning of “sectoral regulator”), after paragraph (i) insert—

“(ia)Monitor;”.

Textual Amendments

Commencement Information

I1S. 74(7) in force at 1.4.2013 by S.I. 2013/671, art. 2(3)

75Requirements as to procurement, patient choice and competitionE+W

(1)Regulations may impose requirements on the National Health Service Commissioning Board and clinical commissioning groups for the purpose of securing that, in commissioning health care services for the purposes of the NHS, they—

(a)adhere to good practice in relation to procurement;

(b)protect and promote the right of patients to make choices with respect to treatment or other health care services provided for the purposes of the NHS;

(c)do not engage in anti-competitive behaviour which is against the interests of people who use such services.

(2)Requirements imposed by regulations under this section apply to an arrangement for the provision of goods and services only if the value of the consideration attributable to the services is greater than that attributable to the goods.

(3)Regulations under this section may, in particular, impose requirements relating to—

(a)competitive tendering for the provision of services;

(b)the management of conflicts between the interests involved in commissioning services and the interests involved in providing them.

(4)The regulations may provide for the requirements imposed, or such of them as are prescribed, not to apply in relation to arrangements of a prescribed description.

Modifications etc. (not altering text)

Commencement Information

I2S. 75 partly in force; s. 75 in force for specified purposes at Royal Assent, see s. 306(1)(d)

I3S. 75 in force at 1.4.2013 in so far as not already in force by S.I. 2013/160, art. 2(2) (with arts. 7-9)

76Requirements under section 75: investigations, declarations and directionsE+W

(1)Regulations under section 75 may confer on Monitor—

(a)a power to investigate a complaint that the National Health Service Commissioning Board or a clinical commissioning group has failed to comply with a requirement imposed by the regulations;

(b)a power to investigate on its own initiative whether the Board or a clinical commissioning group has failed to comply with a requirement imposed by virtue of section 75(1)(c);

(c)a power to require the Board or a clinical commissioning group to provide it with such information as Monitor may specify for the purposes of an investigation it carries out by virtue of paragraph (a) or (b);

(d)a power to require the Board or a clinical commissioning group to provide an explanation of such information as it provides by virtue of paragraph (c).

(2)A power conferred by virtue of subsection (1)(a) is exercisable only where Monitor considers that the person making the complaint has sufficient interest in the arrangement to which the complaint relates.

(3)Regulations under section 75 may confer on Monitor a power to declare that an arrangement for the provision of health care services for the purposes of the NHS is ineffective.

(4)A power conferred by virtue of subsection (3) is exercisable only in prescribed circumstances and subject to prescribed restrictions and only where Monitor is satisfied that—

(a)the National Health Service Commissioning Board or a clinical commissioning group has failed to comply with a requirement of regulations under section 75, and

(b)the failure is sufficiently serious.

(5)On a declaration being made by virtue of subsection (3), the arrangement is void; but that does not affect—

(a)the validity of anything done pursuant to the arrangement,

(b)any right acquired or liability incurred under the arrangement, or

(c)any proceedings or remedy in respect of such a right or liability.

(6)Regulations under section 75 may confer on Monitor a power to direct the National Health Service Commissioning Board or a clinical commissioning group—

(a)to put in place measures for the purpose of preventing failures to comply with requirements imposed by the regulations or mitigating the effect of such failures;

(b)to remedy a failure to comply with such a requirement;

(c)not to exercise in a prescribed manner prescribed functions in relation to arrangements for the provision of health care services;

(d)to vary or withdraw an invitation to tender for the provision of health care services;

(e)to vary an arrangement for the provision of health care services made in consequence of putting the provision of the services out to tender.

(7)A failure to comply with a requirement imposed by regulations under section 75 which causes loss or damage is actionable, except in so far as the regulations restrict the right to bring such an action.

(8)Regulations under section 75 may—

(a)provide for a specified defence to such an action;

(b)prevent a person who has brought such an action under [F4the Public Contracts Regulations 2015 (S.I. 2015/102)] [F5or the Concession Contracts Regulations 2016 (S.I. 2016/273)] from bringing such an action under the regulations under section 75 in respect of the whole or part of the same loss or damage.

Textual Amendments

F4Words in s. 76(8)(b) substituted (26.2.2015) by The Public Contracts Regulations 2015 (S.I. 2015/102), reg. 1(2), Sch. 6 para. 9

Modifications etc. (not altering text)

Commencement Information

I4S. 76 partly in force; s. 76 in force for specified purposes at Royal Assent, see s. 306(1)(d)

I5S. 76 in force at 1.4.2013 in so far as not already in force by S.I. 2013/160, art. 2(2) (with arts. 7-9)

77Requirements under section 75: undertakingsE+W

(1)Regulations under section 75 may confer on Monitor a power to accept an undertaking (referred to in this Chapter as a “section 77 undertaking”) from the National Health Service Commissioning Board or a clinical commissioning group to take such action of a kind mentioned in subsection (2) as is specified in the undertaking within such period as is so specified.

(2)The specified action must be—

(a)action of a description given in paragraphs (a) to (e) of section 76(6), or

(b)action of such a description as may be prescribed.

(3)Where Monitor accepts a section 77 undertaking then, unless the Board, or (as the case may be) the clinical commissioning group from whom the undertaking is accepted, has failed to comply with the undertaking or any part of it, Monitor may not—

(a)continue to carry out the investigation in question,

(b)make a declaration by virtue of subsection (3) of section 76 in relation to the arrangement in question, or

(c)give a direction by virtue of subsection (6) of that section in relation to the failure in question.

(4)Where the Board, or (as the case may be) the clinical commissioning group from whom Monitor has accepted a section 77 undertaking, has failed to comply fully with the undertaking but has complied with part of it, Monitor must take the partial compliance into account in deciding whether to do something mentioned in paragraphs (a) to (c) of subsection (3).

(5)Schedule 9 (which makes further provision about section 77 undertakings) has effect.

Modifications etc. (not altering text)

Commencement Information

I6S. 77 partly in force; s. 77 in force for specified purposes at Royal Assent, see s. 306(1)(d)

I7S. 77 in force at 1.4.2013 in so far as not already in force by S.I. 2013/160, art. 2(2) (with arts. 7-9)

78GuidanceE+W

(1)Monitor must publish guidance about—

(a)compliance with requirements imposed by regulations under section 75;

(b)how it intends to exercise powers conferred on it by regulations under that section.

(2)Before publishing guidance under subsection (1)(a) or (b), Monitor must consult—

(a)the National Health Service Commissioning Board, and

(b)such other persons as Monitor considers appropriate.

(3)Before publishing guidance under subsection (1)(a) or (b), Monitor must obtain the approval of the Secretary of State.

(4)Monitor may revise guidance under this section and, if it does so, must publish the guidance as revised.

(5)Before publishing guidance revised under subsection (4), Monitor must consult the persons mentioned in subsection (2).

Modifications etc. (not altering text)

Commencement Information

I8S. 78 in force at 1.2.2013 by S.I. 2012/2657, art. 2(4) (with art. 6)

F679Mergers involving NHS foundation trustsE+W

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Textual Amendments

F880Co-operation with the [F7CMA]E+W

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Textual Amendments