Health and Care Act 2022

45General power to direct NHS England

(1)The National Health Service Act 2006 is amended as follows.

(2)Before section 13Z1 (and the italic heading before it) insert—

“Powers of direction

13ZCSecretary of State directions as to exercise of NHS England functions

(1)The Secretary of State may give NHS England directions as to the exercise of any of its functions.

(2)The directions that may be given include a direction as to whether a power is to be exercised or not.

(3)The directions that may be given include a direction as to—

(a)when or how a function is, or is not, to be exercised;

(b)conditions that must be met before a function is exercised (for example, conditions relating to the provision of information, consultation or approval);

(c)matters to be taken into account in exercising a function.

(4)For exceptions to the power to give directions under subsection (1), see section 13ZD.

(5)A direction under subsection (1) must include a statement that the Secretary of State considers the direction to be in the public interest.

(6)As soon as reasonably practicable after giving a direction under subsection (1), the Secretary of State must publish it.

(7)The fact that the Secretary of State has a function under any other enactment in relation to NHS England’s exercise of functions is not to be read as limiting the power conferred by subsection (1).

(8)The reference in subsection (7) to a function of the Secretary of State does not include a function of making subordinate legislation.

13ZDPower to give directions: exceptions

(1)A direction under section 13ZC may not be given in relation to a function relating to the appointment or employment of a person.

(2)A direction under section 13ZC may not be given in relation to a decision about the services to be provided to a particular individual for or in connection with the prevention, diagnosis or treatment of illness.

(3)A direction under section 13ZC may not be given in relation to the provision of any drug, medicine or other treatment, or the use of any diagnostic technique, unless NICE has made a recommendation or issued guidance as to its clinical and cost effectiveness and the direction is not inconsistent with that recommendation or guidance.

13ZECompliance with directions: significant failure

(1)This section applies where—

(a)NHS England is given a direction under section 13ZC,

(b)the direction —

(i)states that the Secretary of State considers that NHS England is failing or has failed to discharge any of its functions, and

(ii)states that the Secretary of State considers that the failure is significant and explains why,

(c)the direction states that it is given for the purposes of addressing that failure, and

(d)NHS England fails to comply with the direction.

(2)The Secretary of State may—

(a)discharge the functions to which the direction relates, or

(b)make arrangements for any other person to discharge them on the Secretary of State’s behalf.

(3)Where the Secretary of State exercises the power under subsection (2), the Secretary of State must publish the reasons for doing so.

(4)For the purpose of this section—

(a)a failure to discharge a function includes a failure to discharge it properly, and

(b)a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service.

13ZFSecretary of State directions to provide information

(1)The Secretary of State may direct NHS England to provide the Secretary of State with any documents or other information that may be specified in the direction.

(2)The directions that may be given include a direction to provide documents or other information that NHS England would need to obtain from others in the exercise of some other power.

(3)The directions may include provision as to—

(a)the form or manner in which the documents or information must be provided;

(b)the time at which or period within which the documents or information must be provided.”

(3)Omit section 13Z2 (failure to discharge functions) and the italic heading before it.

(4)In Schedule A1 (constitution of NHS England), omit paragraph 14 and the italic heading before it.