Naughty, naughty – breaching orders in the Court of Protection
Jun 6 2024
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Monitor has published a consultation on the proposed NHS provider licence which all NHS services providers will be required to hold, save for any applicable exemptions. The exemptions are currently subject to a separate consultation process (published 15 August 2012) for which responses are required by 22 October 2012. The new licensing regime will be Monitor’s key mechanism for regulating both NHS and private providers of NHS services.
The Health and Social Care Act 2012 (the "2012 Act") changes the way in which NHS service providers are to be regulated. Monitor has been given new duties and powers, and regulation will take the form of a licence for all NHS service providers. When the 2012 Act was a Bill, Monitor published pre-consultation papers on the proposed licence which set out tough conditions particularly with regards to continuity of service.
Secondary legislation will set out more detail – for example, Monitor will be able to make changes to a provider's licence and regulations should add clarity as to how a provider could challenge this. Watch this space.
Monitor’s primary duty will be to protect and promote the interests of patients by promoting health services that are economic, efficient and effective. The licence should reflect this. Monitor will perform its duties through three key functions:
These functions are to be underpinned by the licensing regime, which will enable Monitor to set and enforce licence conditions irrespective of who provides NHS services.
The 2012 Act sets out that any person who provides an NHS care service will need to hold a licence unless they are exempt under regulations which will be made by the Secretary of Health. The Department of Health is undergoing its own consultation in relation to this so presently no NHS service provider can assume they will not need to be concerned. The proposals around the exemptions are:
The consultation sets out that the intention is that prior to the grant of a licence a provider must have CQC registration and be able to confirm their governors and directors, or equivalents, are “fit and proper” – this means they must not have any recent convictions, be disqualified from being a director or be an undischarged bankrupt. This should not be problematic for most providers.
The licence will set out conditions with which the provider must comply.
Monitor will, for a transitional period, be able to place a governance-related condition on a Foundation Trust's licence to reduce the risk of it failing to comply with its licence conditions as a result of its governance inadequacies. If these additional conditions have been breached, Monitor may require remedial action including the removal, suspension or disqualification of directors or governors. This provision will remain in place until at least 2016.
The 2012 Act sets out the enforcement powers which Monitor will have to ensure compliance with the licence. Monitor has stressed it may not always tackle a breach using its formal powers in a bid to focus its resources appropriately. The discretionary requirements that Monitor could impose are an obligation on the provider to:
Monitor could of course, where required, revoke the provider's licence.
Another option is for Monitor to accept an enforcement undertaking where the provider agrees with Monitor what action it will take. Where this is the case and the provider complies with it Monitor cannot impose discretionary requirements or revoke the licence.
Monitor’s licence consultation was published on 31 July 2012 and closes on 23 October so there is plenty of time to mull it over and consider how this will affect you going forward and provide them with any comments you have using the response form.
Click on the following link to view the consultation document .
Monitor will also hold stakeholder feedback events on its licensing proposals in September and October 2012. Further information can be found on the Monitor website .
In terms of applying for a licence FTs will go first in early 2013, with other providers likely to be phased in over subsequent months/years.
We have looked beyond the 2012 Act to the post-reform landscape, which is indeed a changing one, where providers want to exploit commercial freedoms, but are equally aware of their need to protect and develop brand reputation whilst managing risk and developing business potential.
Our commercial team has extensive experience in advising FTs on constitutional and governance issues as well as commercial and corporate matters. We would be happy to assist you with understanding the 2012 Act reforms and the implications it will have for your organisation.