Health and Social Care Act 2012

CHAPTER 2 E+W Competition

F1 72 Functions under the Competition Act 1998 E+W

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Textual Amendments

F1 S. 72 omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), ss. 84(1), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F2 73 Functions under Part 4 of the Enterprise Act 2002 E+W

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Textual Amendments

F2 S. 73 omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), ss. 84(1), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

74 Competition functions: supplementary E+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

F3 S. 74(1)-(6) omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), s. 186(6), Sch. 12 para. 5; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

Commencement Information

I1 S. 74(7) in force at 1.4.2013 by S.I. 2013/671, art. 2(3)

75 Requirements as to procurement, patient choice and competition E+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)

C1 Ss. 75-78 modified (temp.) (1.7.2022) by The Health and Care Act 2022 (Commencement No. 2 and Transitional and Saving Provision) Regulations 2022 (S.I. 2022/734), reg. 21(1)-(3) (with regs. 13, 29, 30)

Commencement Information

I2 S. 75 partly in force; s. 75 in force for specified purposes at Royal Assent, see s. 306(1)(d)

I3 S. 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)

76 Requirements under section 75: investigations, declarations and directions E+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 [F4 the Public Contracts Regulations 2015 (S.I. 2015/102)] [F5 or 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

F4 Words 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

F5 Words in s. 76(8)(b) inserted (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 1 para. 9 (with reg. 5)

Modifications etc. (not altering text)

C1 Ss. 75-78 modified (temp.) (1.7.2022) by The Health and Care Act 2022 (Commencement No. 2 and Transitional and Saving Provision) Regulations 2022 (S.I. 2022/734), reg. 21(1)-(3) (with regs. 13, 29, 30)

C2 S. 76(7) excluded (1.4.2013) by The National Health Service (Procurement, Patient Choice and Competition) Regulations 2013 (S.I. 2013/257), regs. 1(1), 17 (with reg. 1(4))

C3 S. 76(7) excluded (1.4.2013) by The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (S.I. 2013/500), regs. 1(1), 17 (with reg. 1(4))

Commencement Information

I4 S. 76 partly in force; s. 76 in force for specified purposes at Royal Assent, see s. 306(1)(d)

I5 S. 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)

77 Requirements under section 75: undertakings E+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)

C1 Ss. 75-78 modified (temp.) (1.7.2022) by The Health and Care Act 2022 (Commencement No. 2 and Transitional and Saving Provision) Regulations 2022 (S.I. 2022/734), reg. 21(1)-(3) (with regs. 13, 29, 30)

Commencement Information

I6 S. 77 partly in force; s. 77 in force for specified purposes at Royal Assent, see s. 306(1)(d)

I7 S. 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)

78 Guidance E+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)

C1 Ss. 75-78 modified (temp.) (1.7.2022) by The Health and Care Act 2022 (Commencement No. 2 and Transitional and Saving Provision) Regulations 2022 (S.I. 2022/734), reg. 21(1)-(3) (with regs. 13, 29, 30)

Commencement Information

I8 S. 78 in force at 1.2.2013 by S.I. 2012/2657, art. 2(4) (with art. 6)

F6 79 Mergers involving NHS foundation trusts E+W

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Textual Amendments

F6 S. 79 omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), ss. 83(2), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F8 80 Co-operation with the [F7 CMA] E+W

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Textual Amendments

F7 Word in s. 80 heading substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 192(4) (with art. 3)

F8 S. 80 omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), ss. 82(2), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)