The Health and Social Care Act 2008 (Primary Dental Services, Private Ambulance Services and Primary Medical Services) (Regulated Activities) (Transitory and Transitional Provisions) Order 2010

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes provision in connection with the coming into force of certain provisions of the Health and Social Care Act 2008 (“the 2008 Act”) in respect of certain service providers, when the services which they provide become “regulated activities” for the purposes of the 2008 Act.

Articles 2 to 10 make transitory and transitional provisions to deal with applications to the Care Quality Commission (“the Commission”) to register in relation to carrying on or managing regulated activities, such registration to commence on or after 1st April 2011. Regulated activities are defined by section 8 of the 2008 Act as being “an activity of a prescribed kind” and those activities are prescribed in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 (SI 2010/781). The provision of primary dental services and the provision of private ambulance services will be regulated activities with effect from 1st April 2011. The provision of primary medical services will be regulated with effect from 1st April 2012.

Article 2 provides for the Commission to notify providers of NHS primary dental services of whom they are aware of the need to make a transitional application and, where appropriate, of the need for a transitional application in respect of a registered manager to be made. The article sets out certain matters that must be included in that notification.

Article 3 makes transitional provision to allow the carrying on of a regulated activity to continue without registration for a limited period of time under certain circumstances without an offence being committed.

Article 4 modifies the test to be applied by the Commission to applications for registration in order to allow applications to be granted subject to conditions in cases where the Commission is not satisfied that the requirements imposed by regulations under section 20 of the 2008 Act are being and will continue to be met. Such conditions can relate to the requirements of other enactments which appear to the Commission to be relevant as well as to the registration requirements. If the Commission grants registration, it will have until 30th June 2011 to issue a certificate of registration.

Article 5 varies the procedure which applies in cases where the Commission intends to grant registration subject to conditions which have not been agreed with the applicant or registered manager. It provides that such imposed conditions will take effect from 1st April 2011 or such later date as specified by the Commission. It further provides that, subsequent to being notified of such conditions, the applicant or registered manager may make representations to the Commission about the conditions and, if conditions are still imposed, may appeal to the Tribunal under section 32 of the Act. Paragraph (11) requires the Commission, in deciding the date from which the conditions will take effect, to have regard to the balance between the desirability of preserving service continuity and the exposure of any person to the risk of harm.

Article 6 makes provision for cases where the Commission proposes to refuse an application. It requires the Commission to serve notice of proposal to refuse on the applicant or registered manager on or before 1st April 2011 in certain cases and as soon as reasonably practicable in certain other cases. Where, after having considered any representations, the Commission decides to refuse the application, it provides for the refusal to take effect on 1st April 2011 in the case of a decision made on or before 31st March 2011 or at such later date as the Commission specifies in the notice of refusal. Paragraph (3) requires the Commission, in deciding the date from which the refusal will take effect, to have regard to the balance between the desirability of preserving service continuity and the need to safeguard patients against serious risks to their life, health or well-being.

Article 7 provides for the modification of sections 12 and 15 of the Act to allow the Commission to exercise powers to vary, remove or impose additional conditions, even if the period of registration has not commenced. It also provides that the procedure to be followed in respect of notification, representation and appeal in respect of such varied, removed or additional conditions is to mirror the procedure set out in article 5.

Article 8 provides for the Commission to exercise powers and duties under section 17 of the Act to cancel registration in certain circumstances, even if the period of registration has not already commenced. It requires the Commission to serve notice of proposal to cancel on the applicant or registered manager as soon as reasonably practicable after the decision to cancel is made and in any event before 1st April 2011. Where, after having considered any representations, the Commission decides to cancel the registration, it provides for the cancellation to take effect on 1st April 2011 or at such later date as the Commission specifies in the notice of cancellation. Paragraph (4) requires the Commission, in deciding the date from which the cancellation will take effect, to have regard to the balance between the desirability of preserving service continuity and the need to safeguard patients against serious risks to their life, health or well-being.

Article 9 provides for the modification of section 19 of the Act to allow the Commission to exercise powers to consider applications by registered persons to vary or remove conditions or to cancel registration, even if the period of registration has not yet commenced. It also provides that the procedure to be followed in respect of notification, representation and appeal in such cases is to mirror the procedure set out in article 5.

Article 10 makes provision for cases of supplementary applications during the period between 1st April 2011 and 30th June 2011 by applicants who have previously made an application, prior to 1st April 2011, in respect of a different regulated activity. It provides for the application of the provisions in articles 4 and 5, with certain modifications, to such cases. It also requires the Commission to serve notice of proposal to refuse such an application on the applicant or registered manager as soon as reasonably practicable. Where, after having considered any representations, the Commission decides to refuse the application, it provides for the refusal to take effect immediately or at such later date as the Commission specifies in the notice of refusal. Paragraph (6) requires the Commission, in deciding the date from which the refusal will take effect, to have regard to the balance between the desirability of preserving service continuity and the need to safeguard patients against serious risks to their life, health or well-being.

Articles 11 to 19 make provisions similar to those in articles 2 to 10 but in respect of applications to register in relation to carrying on or managing of regulated activities where such registration is to commence on or after 1st April 2012.