207.This section makes provision for regulations which will set out the Commission’s powers to obtain entry to NHS premises and to access information and documents held by the bodies under review or investigation.
208.Subsection (1)(a) provides that regulations may confer a right on persons authorised by the Commission (e.g. its employees or other members of the review or investigation team) to enter and inspect premises for the purposes of carrying out its functions. They may also provide that such persons are able to inspect and take copies of records held on those premises. Persons authorised by the Commission will only be able to enter and inspect premises owned or controlled by Health Authorities, Special Health Authorities, NHS trusts and Primary Care Trusts.
209.Subsections (1)(b) and (c) allow regulations to be made concerning access to information and documents, and the giving of explanations about matters which are the subject of the Commission’s functions. Regulations will set out the circumstances in which such information or documents may be obtained or explanations required, and the persons who must provide such information, documents or explanations.
210.Subsection (2) ensures that the Commission will be able to obtain confidential information about individuals, in particular information relating to a person’s physical and mental health, only in the limited circumstances set out in paragraphs (a) to (d).
211.Subsection (3) provides that the Commission would not be able to obtain information the disclosure of which is prohibited by another Act, regulations or directions (such as information covered by section 33 of the Human Fertilisation and Embryology Act 1990 (c.37)). If however the prohibition operates because the information would identify an individual, then regulations will provide that the Commission may require that information to be produced in such a way as to prevent the individual being identified.
212.Subsection (4) provides that, where the Commission is exercising its powers conferred by regulations made under this section, it is a criminal offence to obstruct the Commission if it seeks to enter NHS premises. It is also an offence to fail to comply with a request for documents or information or a request to provide an explanation made under the regulations under this section. Proceedings in relation to such an offence would be conducted in the magistrate’s court, and the maximum penalty on conviction would be a fine not exceeding level 3 on the standard scale (currently £1000).
Commentary on Sections Schedule 2 Section 23: Obtaining information etc.