UK: CCGs: Complying With Your Legal Duties

CCGs have a number of legal duties, those which apply specifically to CCGs and those which apply to all public bodies.

The list provided below is intended to be an indicative list of those duties, not an exhaustive one.

The appendix provides you with a very simple list, in categories that CCGs have specifically requested of us: Jail / Lose authorisation / Cause harm

Circumstances in which a CCG can be dissolved

Section 14Z21 of the Health and Social Care Act 2012 – the NHS Commissioning Board may dissolve a CCG where it is satisfied that a CCG is failing or has failed to discharge any of its functions, or there is a significant risk that a CCG will fail to do so. Consequently, breach of any of the duties listed may lead to dissolution of a CCG, subject to the NHS Commissioning Board complying with certain procedural requirements.

Statutory duties of a CCG under the NHS Act 2006 and the Health and Social Care Act 2012

• To promote the NHS Constitution.
• To exercise functions effectively, efficiently and economically.
• To exercise functions with a view to securing continuous improvement in the quality of services provided.
• To assist and support the NHS Commissioning Board in discharging its duty to a secure continuous improvement in the quality of primary medical services.
• To reduce inequalities.
• To promote involvement of each patient.
• To exercise functions with a view to enabling patients to make choices with respect to aspects of health services provided.
• To obtain appropriate advice from persons who have a broad range of professional expertise.
• To promote innovation.
• To promote research on matters relevant to the health service and to use evidence from such research.
• To promote integration of health services where this would improve the quality of those services and reduce inequalities.

The NHS Commissioning Board is responsible for enforcing the duties imposed on CCGs by the NHS Act 2006 and the Health and Social Care Act 2012. The Board has the following powers of intervention (subject to it complying with procedural requirements as set out in the Act) where it has reason to believe a CCG might have failed, might be failing or might fail to discharge any of its functions properly:

• To require documents, information and explanations.
• To require a CCG to discharge its functions.
• To cease to perform any of its functions for such period as specified in the direction.
• To vary the constitution of the commission.
• To terminate the appointment of the CCG's accountable officer and appoint another person in their place.

Duties with criminal sanctions

• Health and Safety at Work Act 1974:
  • Sections 7 and 37(1) provide that employees and employers will be vulnerable to criminal prosecution for offences committed under the Act.
  • Those found guilty are liable for fines and in some cases, imprisonment.
• Data Protection Act 1998 – criminal offences created by the Act include:
  • unlawfully obtaining, disclosing, or procuring the disclosure of personal data;
  • selling, or offering to sell, personal data which has been unlawfully obtained;
  • processing personal data without notifying the Information Commissioner (and other offences related to notification);
  • failing to comply with an enforcement notice or an information notice, or knowingly or recklessly making a false statement in compliance with an information notice;
  • obstructing, or failing to give reasonable assistance in, the execution of a search warrant;
  • requiring someone, for example during the recruitment process, to exercise their subject access rights to supply certain information (such as records of their criminal convictions), which the person wanting it would not otherwise be entitled to. This offence, known as "enforced subject access", is not yet in force; and
  • the unlawful disclosure of certain information by the Information Commissioner, his staff or agents.
• DPA penalties:
  • Fines of up to £500,000 for serious Contravention
  • Imprisonment for deliberate or negligent customer data leaks by individuals within an organisation may also become available.
• Freedom of Information Act 2000:
  • Section 77 states that it is a criminal offence to alter, block, destroy or conceal information. Depending on the nature of the incident, an authority or its individual members of staff could be charged with this offence.
  • The criminal offence is punishable by a fine of up to £5000.
• Corporate Manslaughter Act 2007:
  • An offence is committed where serious management failures constitute a gross breach of duty of care resulting in the death of a person.
  • The maximum penalty is an unlimited fine; and
  • The court can additionally make a publicity order requiring the organisation to publish details of its conviction and fine.
• Bribery Act 2010:
  • General offences contained in sections 1-5 of the Act.
  • Section 7 provides that an offence is committed by a 'relevant commercial organisation' where it fails to prevent bribery. A CCG is a corporate body carrying on a business.
  • If an individual is found guilty of a bribery offence, tried as a summary offence, they may be imprisoned for up to 12 months and fined up to £5,000. An individual found guilty on indictment, however, faces up to 10 years' imprisonment and an unlimited fine.
  • The crime of a commercial organisation failing to prevent bribery is punishable by an unlimited fine.
  • In addition, a convicted individual or organisation may be subject to a confiscation order under the Proceeds of Crime Act 2002.

Duties enforceable by civil action

• Employment Rights Act 1996 and Transfer of Undertakings (Protection of Employment) Regulations 2006:
  • Employment tribunals may order reinstatement or re-engagement of the dismissed employee if the complaint is upheld, and/or
  • Make an award of compensation. The amount of the compensation will be whatever the Tribunal considers just and equitable in all the circumstances.
• Management of Health and Safety at Work Regulations 1999:
  • An employee can claim damages from an employer where they suffer injury or illness as a result of breach by an employer.
• Negligence:
  • where CCG owes a duty of care,
  • it breaches that duty,
  • thereby causing loss to a person,
  • the CCG will be liable for an award of damages to the injured party which will put them back in the position they were in prior to the breach.
• Occupiers Liability Acts 1957:
  • A CCG will owe a common law duty of care to visitors to premises "occupied" by it.
  • A claim for damages can be made in respect of death, personal injury or damage to personal property.
• Occupiers Liability Act 1984:
  • A CCG will owe a common law duty of care to trespassers to premises "occupied" by it.
  • A claim for damages can be made in respect of death or personal injury only.
• Breach of contract
  • A CCG will need to consider the terms of contracts inherited from a PCT during the transition process as well as any that it enters into itself.
  • Remedies for breach of contract include damages, specific performance and injunction.
• Public procurement legislation:
  • Statutory duties owed under the Public Contracts Regulations 2006, the Public Contracts (Amendment) Regulations 2009 and the Public Procurement (Miscellaneous Amendments) Regulations 2011.
  • An economic operator harmed or who may suffer harm as a result of a breach has a right of action in the High Court.
  • A decision may be set aside in the course of a tender procedure (not once entered into).
  • An award of damages may be made to an operator which has suffered loss or damages as a result of a breach of the statutory duty.
  • A court may declare a contract prospectively ineffective.
  • Financial penalty may be imposed on the CCG.

Duties enforceable by enforcement action

• Public duty under the Equality Act 2010:
  • Enforced by the Equality and Human Rights Commission(EHRC).
  • EHRC can issue compliance notices and apply to the courts for judicial review.
• Data Protection Act 1998 and Freedom of Information Act 2000:
• Enforced by the Information Commissioner (IC).
• As well as the criminal sanctions listed above, the IC has the power to carry out checks to assess whether organisations are complying with the DPA, serve information notices requiring organisations to provide certain information within a prescribed time and serve enforcement notices where there has been a breach of the DPA.
• Health and Safety legislation is enforced by the Health and Safety Executive (HSE).
• As well as the powers to prosecute as detailed above, the HSE can issue informal warnings, improvement notices and enforcement notices.
• Powers of the Care Quality Commission, the independent regulator of registered medical services:
  • To issue warning notices, penalty notices, simple cautions.
  • To prosecute.

Breach of duties constituting grounds for judicial Review

Decisions made by public bodies are capable of challenge by judicial review.

The grounds for judicial review as established by case law (not an exhaustive list) are:

• Illegality
• Irrationality
• Procedural impropriety

The following remedies are available in proceedings for judicial review:

• Quashing order – renders a decision completely invalid;
• Prohibiting order - acts prospectively by telling an authority not to do something in contemplation;
• Mandatory order – addresses wrongful failure to act, rather than a wrongful act. Failure to comply constitutes a contempt of court;
• Declaration - clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order;
• Injunction - order made by the court to stop a public body from acting in an unlawful way;
• Damages will only be awarded where there is a recognised 'private' law cause of action such as negligence or breach of statutory duty or a claim under European law or the Human Rights Act 1998.

Breach of the duties under the following statutes may be grounds for judicial review:

• Public procurement law.
• Equality Act 2010.
• Human Rights Act 1998 and rights under the European Convention on Human Rights.

CCGs' Legal Duties

• Gross breach of care resulting in death of a person (Corporate Manslaughter)
• Serious breaches of Health and Safety legislation
• Failing to prevent bribery
• Deliberate or negligent Data Protection breaches (obtaining or disclosing data)
• Blocking, destroying or concealing information subject to disclosure under the Freedom of Information Act
• Fraud

Failure to:

• Exercise functions effectively, efficiently and economically
• Promote the NHS Constitution
• Promote patient and public involvement
• Promote integration of services where that would improve quality and reduce inequalities
• Assist the NHS Commissioning Board to improve quality of primary medical services
• Act to reduce inequalities
• Deliver Choice appropriately
• Promote innovation and research
• Obtain appropriate professional advice

Key breaches of statutory duty that might result in harm being caused, leading to litigation: Failure to:

• Comply with public procurement law
• Adhere to the Rules for Co-operation and Competition
• Adhere to contractual obligations
• Make lawful, rational and proper decisions
• Have and adhere to a robust conflicts of interests policy
• Comply with Human Rights Act and Equality Act
• Comply with Data Protection Act and Freedom of Information Act
• Acting negligently

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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