Section 108 Guidance as to use of enforcement powers

I1 I2(1)

F1NHS England must publish guidance about how it intends to exercise its functions under sections 105 and 106 and Schedule 11.

(2)

NHS England may revise the guidance and, if it does so, must publish the guidance as revised.

(3)

NHS England must consult such persons as it considers appropriate before publishing or revising the guidance.

(4)

Guidance relating to F2NHS England’s functions under section 105 must include information about—

(a)

the circumstances in which F3NHS England is likely to impose a discretionary requirement,

(b)

the circumstances in which F4NHS England may not impose a discretionary requirement,

(c)

the matters likely to be taken into account by F5NHS England in determining the amount of any variable monetary penalty to be imposed (including, where relevant, any discounts for voluntary reporting of breaches in respect of which a penalty may be imposed), and

(d)

rights to make representations and rights of appeal.

I3(5)

F6NHS England must have regard to the guidance or (as the case may be) revised guidance in exercising its functions under sections 105 and 106 and Schedule 11.

Annotations

Textual amendments

F1: Words in s. 108(1)-(3) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 69(2); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
F2: Words in s. 108(4) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 69(3)(a); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
F3: Words in s. 108(4)(a) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 69(3)(b); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
F4: Words in s. 108(4)(b) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 69(3)(b); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
F5: Words in s. 108(4)(c) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 69(3)(b); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
F6: Words in s. 108(5) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 69(4); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

Commencement

I1: S. 108(1)-(4) in force at 1.11.2012 for specified purposes by S.I. 2012/2657, art. 2(2)
I2: S. 108(1)-(4) in force at 1.4.2013 in so far as not already in force by S.I. 2013/671, art. 2(3)
I3: S. 108(5) in force at 1.4.2013 by S.I. 2013/671, art. 2(3)