190.This section, and sections 21 and 22, set out the Commission’s functions. It will have four core functions, as set out in subsection (1) of section 20:
	providing advice and information on arrangements for the monitoring and improvement of health care provided by NHS trusts and Primary Care Trusts (including “clinical governance” arrangements);
	conducting reviews of the implementation and adequacy of such arrangements;
	investigating, advising and reporting on specific matters relating to the delivery and management of health care provided by NHS bodies;
	conducting national reviews on particular types of health care provided by the NHS;
and will perform such other functions in relation to health care provided by the NHS as are set out in regulations.
191.The Commission for Health Improvement will cover England and Wales, and will exercise the same functions in each country. The National Assembly for Wales will be able to determine how the Commission exercises its functions in Wales, by exercising the regulation and direction making powers in sections 20(2), 20(3) and 23. These powers are conferred on the Assembly by the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672) as amended by section 66(5) of the Act. In addition the Secretary of State will only be able to confer new functions on the Commission (under section 20(1)(e)) in relation to Wales if this is first agreed with the Assembly (see section 66(6)).
192.The Secretary of State may draw any advice given by the Commission under subsection (1)(a) to the attention of health service bodies. If necessary, he may also require them to act on that advice, using his powers of direction under new section 17 of the 1977 Act (inserted by section 12 of the Act).
193.Subsection (1)(b) provides for the Commission to conduct reviews of the implementation and adequacy of arrangements to monitor and improve the quality of health care which is the responsibility of NHS trusts and Primary Care Trusts. It is intended that the Commission should review every NHS trust and Primary Care Trust once every 3 to 4 years. During these reviews, the Commission will be expected to look for evidence that the arrangements are working and that they are consistent with established standards. Regulations under subsection (2) will set out how these reviews are to be conducted. The Commission will also be able to look at the actions of Health Authorities (and their Primary Care Groups or Local Health Groups) in the course of a review if it considers that their actions (for example, as commissioners of the services under review) are related to the issues it is examining. It is intended that the Commission’s findings will identify both areas of good practice and areas for improvement. The findings will be reported to the bodies concerned and the Government intends to make appropriate provision as to their publication.
194.Subsection (1)(c) provides for the Commission to investigate, advise and report on specific matters relating to the delivery and management of health care. Regulations will provide that this may be at the invitation of health service bodies such as Health Authorities, NHS Trusts or Primary Care Trusts, or at the direction of the Secretary of State, when concerns have been raised about the quality of the health care they provide. It is anticipated that the Commission’s investigation will focus on clinical issues but it may also have regard to management and other issues if it considers that problems in these areas lie behind the matter under investigation. During an investigation the Secretary of State would be able to request that the Commission consider such matters as he thinks appropriate.
195.When the Commission has conducted an investigation, or a local review, follow-up action will be the responsibility of the NHS organisation in question, overseen in England by the NHS Executive Regional Office (for NHS trusts) or the Health Authority (for Primary Care Trusts), and in Wales by the Assembly and Health Authorities respectively. It is intended that the bodies concerned will share their action plans for addressing the Commission’s recommendations with the Commission, and the Commission might be involved in follow-up action at local request. The expectation is that the body concerned would act on the Commission’s recommendations, but if necessary the Secretary of State will be able to direct the body concerned to do so (using his powers of direction under section 17 of the 1977 Act as inserted by section 12 of the Act).
196.Subsection (1)(d) provides for the Commission to conduct national reviews on topics relating to health care provided by the NHS as requested by the Secretary of State. These topics will include the implementation of National Service Frameworks and of guidance issued by the National Institute for Clinical Excellence (set out in more detail in A First Class Service). Similar reviews are currently conducted by the Clinical Standards Advisory Group, which is to be abolished (see section 25).
197.The National Institute for Clinical Excellence (NICE) was established on 26 February 1999 as a Special Health Authority under section 11 of the 1977 Act (see the National Institute for Clinical Excellence (Establishment and Constitution) Order 1999 SI 1999/220). NICE will appraise, and disseminate guidance on, the clinical and cost-effectiveness of new and existing health technologies (including drugs) and other interventions in England and Wales. It is intended that the Commission will look at how this guidance is being implemented in the NHS.
198.Subsection (1)(e) provides for the Commission to have such additional functions in relation to the matters set out in the subsection as the Secretary of State may prescribe by regulations. In particular it is envisaged that regulations may provide for the Commission to advise, review and investigate persons and bodies other than those listed in subsections (1)(a) to (c). For example, this will allow the Commission’s role to be extended to the Special Health Authorities which manage the special hospitals that provide high security psychiatric services, or to the limited range of health care services provided by Health Authorities.
199.At present, the Secretary of State can institute informal inquiries in the exercise of his powers under section 2(b) of the 1977 Act, and institute formal inquiries under section 84 of the 1977 Act. The Commission will be able to provide advice and assistance to those carrying out such inquiries.
200.Subsection (2) enables the Secretary of State to make regulations which will set out how the Commission performs its functions. For example they may provide for the frequency of the Commission’s reviews (subsection (2)(a)), arrangements for working in conjunction with other statutory bodies (subsection (2)(f)), or the publication of reports (subsection (2)(d)).
201.Regulations under subsection (2) will provide that when the Commission has undertaken a local or national review or an investigation, reports will be made to the bodies involved and to the Secretary of State. The regulations will also make provision for their publication. For example, where in a local review visit or investigation, the Commission’s findings show clear evidence of very serious and continuing concerns about the performance of a clinical department and/or there has been failure by the NHS organisation to act, it is proposed that regulations will provide that the Commission may issue an immediate report rather than wait until the conclusion of its review or investigation. Regulations will provide that the Commission will bring these findings to the attention of the organisation concerned, the appropriate Health Authority or the Secretary of State. The Commission may also decide to make its findings public if it would be in the public interest to do so.
202.Subsection (2)(e) provides for the Secretary of State to make regulations as to the recovery by the Commission of some of the expenditure it incurs in exercising its functions. It is not intended that the Commission will charge individual health service bodies directly for its work from the outset. However in the longer term, the Government envisages that some of the Commission’s work may be funded locally.
203.Subsection (2)(f) provides for regulations to be made regarding joint working between the Commission and other bodies. As well as working closely with health service bodies, the Commission may work in conjunction with organisations such as the Audit Commission, the Social Services Inspectorate, the Health and Safety Executive, the Health Service Commissioner, regulatory bodies and professional bodies such as the Royal Colleges. Particular arrangements for working with the Audit Commission are dealt with in section 21.
204.Subsections (3) and (4) provide that the Secretary of State may issue directions to the Commission as to the exercise of its functions. The Commission will have a work programme agreed with the Secretary of State. The Secretary of State will be able to specify in directions, for example, specific clinical quality issues where it wishes the Commission to have a particular focus.
Commentary on Sections Schedule 2 Section 20: Functions of the Commission