Citation and interpretation

1. —(1) This Order may be cited as the Health and Social Care Act 2012 (Commencement No.2 and Transitional, Savings and Transitory Provisions) Order 2012.

(2) In this Order—

“the Act” means the Health and Social Care Act 2012;

“the 2006 Act” means the National Health Service Act 2006( 2 );

“the Board” means the National Health Service Commissioning Board established under section 1H of the 2006 Act( 3 );

“the Board Authority” means the Special Health Authority established under the NHS Commissioning Board Authority (Establishment and Constitution) Order 2011( 4 );

“financial year” means the period which begins on 1st April and ends on the following 31st March;

“initial period” has the meaning given in paragraph 1(2) of Schedule 6 to the Act.

Commencement of provisions

2. —(1) Insofar as they are not already in force( 5 ), the following provisions of the Act shall come into force in accordance with this Order.

(2) 1st October 2012 is the day appointed for the coming into force of the following provisions of the Act—

section 1 (Secretary of State’s duty to promote the comprehensive health service) only insofar as it—

(a) substitutes section 1(1) of the 2006 Act, and

(b) relates to the Board’s duty under section 1H(2) and (3)(b) of the 2006 Act;

section 9(1) (the National Health Service Commissioning Board) only insofar as it inserts section 1H(1), (2), (3)(b) and (4) into the 2006 Act (the NHS Commissioning Board and its general functions);

• section 9(2) and Schedule 1 (the National Health Service Commissioning Board), except insofar as it inserts paragraph 17 of Schedule A1 into the 2006 Act (interim accounts);

• section 10 (clinical commissioning groups) only insofar as it inserts section 1I(1) into the 2006 Act;

• section 17(13) (powers in relation to research) only insofar as it confers powers on the Board;

• section 21 (functions of Special Health Authorities);

• section 22 (exercise of public health functions of the Secretary of State) for the purpose only of enabling—

  (a)

  the Secretary of State to arrange for the Board or a clinical commissioning group to exercise public health functions of the Secretary of State on or after the date on which section 22 comes fully into force, and

  (b)

  the Board to arrange for a clinical commissioning group to exercise public health functions under section 7A(4) of the 2006 Act on or after the date on which section 22 comes fully into force;

• section 23 (the National Health Service Commissioning Board: further provision) only insofar as it inserts into the 2006 Act—

  (a)

  sections 13A to 13D,

  (b)

  section 13E(1) to (3) and (4)(a),

  (c)

  sections 13F to 13J,

  (d)

  sections 13K(1) and 13L,

  (e)

  section 13N,

  (f)

  section 13P,

  (g)

  section 13R,

  (h)

  section 13T for the purpose only of the first business plan of the Board for the financial year ending 31st March 2014 and subsequent financial years;

  (i)

  section 13U, except for section 13U(2)(c),

  (j)

  section 13W,

  (k)

  section 13Y,

  (l)

  sections 13Z to 13Z3, and

  (m)

  section 13Z4(1), except insofar as the definition of “health services” relates to section 13Q;

• section 24 (financial arrangements for the Board) only insofar as it inserts section 223B(2) and (3) into the 2006 Act;

• section 25(1) (clinical commissioning groups: establishment etc. ), except insofar as it inserts section 14I into the 2006 Act;

• Schedule 2 only insofar as it inserts the following paragraphs of Schedule 1A into the 2006 Act—

  (a)

  paragraphs 1 to 10,

  (b)

  paragraph 12(1) to (3) and (4)(a),

  (c)

  paragraph 12(4)(b) except insofar as it relates to employees of the group or groups,

  (d)

  paragraph 12(9)(a)(i) and (iv) and (b),

  (e)

  paragraph 12(9)(a)(iii) only insofar as it relates to paragraphs 17(1), (2) and (9) and 19,

  (f)

  paragraphs 17(1), (2) and (9), and

  (g)

  paragraph 19,

  and section 25(2) insofar as it relates to those paragraphs;

• section 26 (clinical commissioning groups: general duties etc.) only insofar as it inserts into the 2006 Act—

  (a)

  sections 14P to 14R,

  (b)

  sections 14T to 14Y,

  (c)

  section 14Z1,

  (d)

  section 14Z3(1), (2), (6) and (7), except insofar as section 14Z3(7) relates to section 14Z9,

  (e)

  section 14Z8, and section 14Z7(7) insofar as it relates to section 14Z8,

  (f)

  section 14Z10,

  (g)

  sections 14Z11 and 14Z12 for the purpose only of a clinical commissioning group preparing a plan for the financial year ending 31st March 2014, and subsequent financial years,

  (h)

  section 14Z13(1), (2) and (8)(a) and (b),

  (i)

  sections 14Z17 to 14Z20,

  (j)

  section 14Z21(1) to (10) and (14),

  (k)

  section 14Z22 to 14Z24(1), except insofar as the definition of “health services” relates to section 14Z2;

• section 27 (financial arrangements for clinical commissioning groups) only insofar as it inserts into the 2006 Act—

  (a)

  section 223G(3) for the purpose only of notifying a clinical commissioning group of its allotment for the financial year ending 31st March 2014 and subsequent financial years, and section 223G(4) and (5) in relation to any such allotment, and

  (b)

  section 223I(2), (3) and (6), and section 223I(1) insofar as it relates to those paragraphs;

• section 147 (Secretary of State’s duty as respects variation in provision of health services), only insofar as the provisions in sections 6E and 13A of the 2006 Act, and section 75 of the Act, are in force( 6 );

• section 151(1) and (9) (governors);

• section 154 (accounts: initial arrangements);

• section 158 (voting);

• section 164(1) to (3) and (6) (goods and services);

• section 165 (private health care);

• section 181 (Healthwatch England), except for subsection (4) insofar as it inserts the following provisions into the Health and Social Care Act 2008( 7 )—

  (a)

  section 45A(2) and (4),

  (b)

  section 45A(1) insofar as it relates to section 45A(2) or (4),

  (c)

  section 45C(2)(b), and

  (d)

  section 45C(4),

  and except for subsection (5) insofar as it relates to a function under the provisions inserted by subsection (4);

• section 212(1) (abolition of the General Social Care Council);

• section 223(3) and (6) (functions of the Professional Standards Authority);

• section 281 (abolition of the National Patient Safety Agency);

• section 290(1), (2), (3)(a) and (d) and (4) to (8) and 291 (duties to co-operate and breach of such duties);

• section 294 (failure to discharge functions by the Care Quality Commission);

• sections 295 and 296 (arrangements between the Board and Northern Ireland Ministers and Scottish Ministers) only insofar as it is necessary to enable the Board to prepare itself to exercise functions under those subsections on or after the date on which section 9(1) comes fully into force;

• section 298 (advice or assistance to public authorities in the Isle of Man or Channel Islands);

• sections 300 to 302 and Schedules 22 and 23 (transfer schemes) insofar as they relate to the Board and a clinical commissioning group;

• in Schedule 4 (amendments of the 2006 Act)—

  (a)

  paragraph 1 insofar as it relates to the Board and clinical commissioning groups,

  (b)

  paragraphs 6(2)(a) and 7(a),

  (c)

  paragraph 13,

  (d)

  paragraph 18(2)(a), (d) and (e), (3), (4)(a) and (6)(a), and paragraph 18(1) insofar as it relates to those provisions,

  (e)

  paragraph 104(2) and (3)(a), and paragraph 104(1) insofar as it relates to those provisions,

  (f)

  paragraph 109(a),

  (g)

  paragraph 110(2)(a) and (3)(a) and paragraph 110(1) insofar as it relates to those provisions,

  (h)

  paragraph 111(3)(a), (4)(a) and (c) and paragraph 111(1) insofar as it relates to those provisions,

  (i)

  paragraph 112,

  (j)

  paragraph 113(a) insofar as it inserts section 217(1)(ea) into the 2006 Act (trusts: supplementary provisions),

  (k)

  paragraph 115,

  (l)

  paragraph 117(1),

  (m)

  paragraph 125(4) to (6),

  (n)

  paragraph 137,

  (o)

  paragraph 138(2)(a) and (c), (4) and (5),

  (p)

  paragraph 139(2), and paragraph 139(1) insofar as it relates to that provision,

  and section 55(1) only insofar as it relates to those paragraphs;

• in Schedule 5 (amendment of other enactments)—

  (a)

  paragraph 5(a) and (c),

  (b)

  paragraph 6,

  (c)

  paragraph 7(b),

  (d)

  paragraph 8(a)(i) and (b)(i), except insofar as the amendments insert reference to “a local authority”,

  (e)

  paragraph 10(a)(i) and (b)(i),

  (f)

  paragraph 12(2)(a), and paragraphs 11 and 12(1) insofar as they relate to that paragraph,

  (g)

  paragraph 14(a),

  (h)

  paragraph 20(c),

  (i)

  paragraph 22(a) and 23(b), and paragraph 21 insofar as it relates to those paragraphs,

  (j)

  paragraph 44(a),

  (k)

  paragraph 68(c), and paragraph 67 insofar as it relates to that paragraph,

  (l)

  paragraph 74(a) and 75(a), and paragraph 72 insofar as it relates to those paragraphs,

  (m)

  paragraph 76(a),

  (n)

  paragraph 96,

  (o)

  paragraph 99(b),

  (p)

  paragraph 100(a),

  (q)

  paragraph 147(a) and (b)(i),

  (r)

  paragraph 175(3)(c) only insofar as it inserts subsection (2)(ca) and (cb) into section 2 of the Health Act 2009( 8 ), and paragraphs 173 and 175(1) only insofar as they relate to that paragraph,

  (s)

  paragraph 182(a), and paragraph 180 insofar as it relates to that paragraph, and

  (t)

  paragraph 184(c),

  and section 55(2) only insofar as it relates to those paragraphs;

• in Schedule 6—

  (a)

  paragraph 1,

  (b)

  paragraph 2(2),

  (c)

  paragraphs 3 to 13, and section 26 insofar as it inserts section 14Z4(1), 14Z5(2) and 14Z7(7) into the 2006 Act for the purpose of paragraph 11(2) of Schedule 6 only,

  and section 55(3) insofar as it relates to those paragraphs.

(3) 31st October 2012 is the day appointed for the coming into force of section 279 of, and Part 2 of Schedule 20 to, the Act.

Transitory modifications in respect of the commencement of section 9 of the Act (the National Health Service Commissioning Board)

3. —(1) Until sections 11, 12, 17(2) to (9), (12) and (13) and section 29(2) of the Act come into force, in section 1H(2) of the 2006 Act the words “except in relation to that part of the health service that is provided in pursuance of the public health functions of the Secretary of State or local authorities” are to be read as “except in relation to that part of the health service which is provided for the purpose of protecting the public in England from disease or other dangers to health, or which is provided for the purpose of improving public health.”

(2) Until the end of the initial period, paragraph 16(2)(b) of Schedule A1 to the 2006 Act (annual accounts)( 9 ) is to be read as if the words “and the annual accounts of each clinical commissioning group” were omitted.

(3) Until section 9(2) of, and Schedule 1 to, the Act come fully into force, paragraph 15(3) of Schedule A1 to the 2006 Act (accounts) is to be read as if the words “and any interim accounts prepared by virtue of paragraph 17” were omitted.

Transitory modifications in respect of the commencement of section 23 of the Act (the National Health Service Commissioning Board: further provision)

4. —(1) For the purpose only of the mandate to the Board for the financial year ending 31st March 2014, the requirement in section 13A(8)(b) of the 2006 Act to consult Healthwatch England does not apply.

(2) For the purpose only of the annual report of the Board for the financial year ending 31st March 2013, the requirements in section 13U(2) and (5) do not apply.

Transitional provision in respect of the commencement of section 25 of the Act (clinical commissioning groups: establishment etc.)

5. Where an application has been made to the Board Authority before 1st October 2012 for establishment as a clinical commissioning group, that application must, from that date, be treated as an application to the Board under section 14B of the 2006 Act (applications for the establishment of clinical commissioning groups) if that application meets the requirements of that section.

Transitory modifications in respect of the commencement of section 26 of the Act (clinical commissioning groups: general duties etc.)

6. —(1) Until section 194(1) of the Act (establishment of Health and Wellbeing Boards) comes into force—

(a) section 14Z11(6) and (9),

(b) section 14Z12(2)(b) insofar as it applies section 14Z11(6), and

(c) section 14Z12(3)(b),

of the 2006 Act do not apply.

(2) Until section 13 of the Act (duties of clinical commissioning groups as to commissioning certain health services) comes into force, section 14Z13(2) is to be read as if the reference to “individuals for whom it has responsibility for the purposes of section 3” is a reference to—

“ (a) individuals who are provided with primary medical services by a member of the group; and

(b) individuals who usually reside in the group’s area and are not provided with primary medical services by a member of any clinical commissioning group. ”

Transitory modification in respect of the commencement of section 181 of the Act (Healthwatch England)

7. Until section 183 of the Act (local authority arrangements) comes into force, in section 45A(5)(b) of the Health and Social Care Act 2008( 10 ), the reference to “the views of Local Healthwatch organisations and of other persons” is to be read as a reference to “the views of persons”.

Transitory modification in respect of the commencement of section 223 of the Act (functions of the Professional Standards Authority)

8. From 1st October 2012 until section 222 of the Act (the Professional Standards Authority for Health and Social Care) comes into force, the references to the Professional Standards Authority for Health and Social Care in section 26A(1A) of the National Health Service Reform and Health Care Professions Act 2002 (powers of the Secretary of State etc. to request the Authority for advice)( 11 ) are to be read as references to the Council for Healthcare Regulatory Excellence.

Transitory provision in respect of the commencement of Schedule 2 to the Act (clinical commissioning groups)

9. Notwithstanding the commencement of Schedule 2 to the Act in article 2(2) , paragraph 17(1) and (2) of Schedule 1A to the 2006 Act (accounts and audits) do not apply to a clinical commissioning group in the initial period.

Saving provision and transitory modification in relation to the commencement of paragraph 1 of Schedule 4 to the Act (amendments of the 2006 Act)

10. —(1) Notwithstanding the commencement in part of paragraph 1 of Schedule 4 to the Act (amendments of the 2006 Act) by article 2(2) the power of the Secretary of State under section 2 of the 2006 Act (Secretary of State’s general power) prior to any amendment made by that paragraph, is to continue until paragraph 1 of Schedule 4 comes fully into force.

(2) Until the commencement of section 34 of the Act (abolition of Primary Care Trusts)—

(a) the power of a clinical commissioning group under section 2 of the 2006 Act (general power) does not include the power to—

(i) enter into a commissioning contract, or any other contract,

(ii) acquire and dispose of property, or

(iii) accept gifts (including property to be held on trust for the purposes of the clinical commissioning group); and

(b) the power of the Board under section 2 of the 2006 Act does not include the power to enter into a commissioning contract.

(3) In this article “commissioning contract” means a contract entered into by the Board or (as the case may be) clinical commissioning groups in arranging for the provision of services as part of the health service.

Saving provisions in respect of the commencement of paragraph 125 of Schedule 4 to the Act and paragraph 96 of Schedule 5 to the Act (amendment of the Government Resources and Accounts Act 2000)

11. —(1) Notwithstanding the commencement of paragraph 125(4) to (6) of Schedule 4 to the Act by article 2(2) , paragraphs 7 to 9 of Schedule 15 to the 2006 Act apply to the accounts of the bodies specified in those paragraphs in respect of any financial year up to and including the financial year ending 31st March 2012 as if the amendments made by paragraph 125(4) to (6) of Schedule 4 to the Act were not in force.

(2) Notwithstanding the commencement of paragraph 96 of Schedule 5 to the Act by article 2(2), section 14 of the Government Resources and Accounts Act 2000 (summarised accounts)( 12 ) applies in respect of accounts relating to any financial year up to and including the financial year ending 31st March 2012 as if the amendments made by paragraph 96 of Schedule 5 to the Act were not in force.

Transitory modification in respect of the commencement of paragraph 137 of Schedule 4 to the Act (amendments of the 2006 Act)

12. Until the commencement of section 33 of the Act (abolition of Strategic Health Authorities), section 273 of the 2006 Act (further provision about orders and directions under the Act) must be read as if—

(a) in subsection (3), “by a Strategic Health Authority or” were inserted after “this Act”; and

(b) in subsection (4)(c)(ii), “15,” were inserted after “13Z1,”.

Transitory modifications in respect of the commencement of paragraph 138(2)(c) of Schedule 4 to the Act

13. —(1) Until the commencement of section 33 of the Act (abolition of Strategic Health Authorities) the definition of “NHS body” in section 275(1) of the 2006 Act (interpretation) is to be read as if it included a reference to a Strategic Health Authority.

(2) Until the commencement of section 34 of the Act (abolition of Primary Care Trusts) the definition of “NHS body” in section 275(1) of the 2006 Act is to be read as if it included a reference to a Primary Care Trust.

(3) Until section 9(1) of the Act (the NHS Commissioning Board) comes fully into force, a reference to “NHS body” or “NHS bodies” in the provisions of the 2006 Act specified in paragraph (5) is to be read as if it does not include a reference to the Board.

(4) Until section 10 of the Act (clinical commissioning groups) comes fully into force, a reference to “NHS body” or “NHS bodies” in the provisions of the 2006 Act specified in paragraph (5) is to be read as if it does not include a reference to a clinical commissioning group.

(5) The provisions specified for the purposes of paragraphs (3) and (4) are—

(a) section 66;

(b) section 68;

(c) section 244;

(d) section 249;

(e) section 256;

(f) section 258; and

(g) paragraph 29 of Schedule 4.

Transitory modifications in respect of the commencement of paragraph 6 of Schedule 5 to the Act (Public Records Act 1958 (c. 51) )

14. —(1) Until section 23 of the Act (the NHS Commissioning Board: further provision) is commenced in full, Schedule 1 to the Public Records Act 1958( 13 ) is to be read as if the reference to “and section 13X” in the second column of the first entry to the Department of Health in paragraph 3(2) in the Table is omitted.

(2) Until section 25(2) of, and Schedule 2, to the Act (clinical commissioning groups) are commenced in full, Schedule 1 to the Public Records Act 1958 is to be read as if the reference to “, or paragraph 20 of Schedule 1A to” in the second column of the first entry to the Department of Health in paragraph 3(2) in the Table is omitted.