A G E N D A 1. APOLOGIES FOR ABSENCE Ian Metcalfe 2 ...
A G E N D A 1. APOLOGIES FOR ABSENCE Ian Metcalfe 2 ... A G E N D A 1. APOLOGIES FOR ABSENCE Ian Metcalfe 2 ...
3 Imposing discretionary requirements and accepting enforcementundertakings3.1 IntroductionMonitor may impose discretionary requirements where we are satisfied that a provider is, or was,in breach of a licence condition, or the requirement to hold a licence, or a requirement to supplyMonitor with information. A provider subject to a formal investigation may offer Monitor anenforcement undertaking which Monitor may accept instead of investigating further and,potentially, imposing discretionary requirements. Monitor may also accept enforcementundertakings from, others in breach of a requirement to provide us with information.This chapter outlines:the nature of the discretionary requirements that Monitor may impose;the factors that Monitor may consider in determining what requirements are needed;issues relevant to each requirement and how they may be implemented, including thefactors that Monitor may take into account when setting a variable monetary penalty; andwhen Monitor may accept enforcement undertakings.3.2 Discretionary requirementsDiscretionary requirements are formally specified in the Act and may be a:Compliance requirement: A compliance requirement is an instruction from Monitor to theprovider to take specified steps within a set period to secure that the breach not continueor recur. The principal focus of a compliance requirement is to secure compliance;Restoration requirement: A restoration requirement obliges the provider to take suchsteps within such period as Monitor may specify to secure that the position is, so far aspossible, restored to what it would have been, absent the breach. Restorationrequirements may also be used to compensate any affected party, including health careservice users and other providers. Such a requirement could require, for example, that theprovider gives up any gains it has made from the breach and restores the position of thosewho have suffered harm as a result; andPage 17 of 50
Variable monetary penalty: Variable monetary penalties require a provider to pay afinancial penalty of such amount as Monitor may specify. The variable monetary penaltymust not exceed 10% of the provider’s turnover in England.Discretionary requirements may be used in combination in relation to the same breach, whereappropriate. However, Monitor must not impose discretionary requirements on more than oneoccasion in relation to the same breach.3.3 Deciding what kind of discretionary requirements to imposeIn considering what, if any, discretionary requirements to impose, Monitor’s aim is to ensure thatany action we take promotes compliance and fulfils Monitor’s main duty to protect and promotethe interests of people who use health care services, by promoting the provision of health careservices which is economic, efficient and effective, and maintains or improves the quality of theservices. We will ensure also that we take into account all our other duties as appropriate inexercising our enforcement functions.In deciding what action is most appropriate in the circumstances of the individual case and whichrequirements, if any, to impose, we intend to consider, amongst other relevant considerations:the seriousness of the breach;ensuring provider compliance;deterring similar breaches;restoring the position to what it would have been without the breach; andthe proportionality of the remedy to the nature of the breach.Monitor may decide not to impose a discretionary requirement if we conclude that:the breach caused (or was capable of causing) no harm or harm that is not material;a discretionary requirement is not required to ensure provider compliance;a discretionary requirement is not required to restore the position to what it would havebeen without the breach; anda discretionary requirement is not required to deter similar breaches.Monitor may also decide not to impose a discretionary requirement if we conclude that the onlysuitable discretionary requirement would be disproportionate to the nature of the breach.Page 18 of 50
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- Page 82 and 83: EnforcementGuidance28 March 2013Mon
- Page 84 and 85: ForewordThe Health and Social Care
- Page 86 and 87: 1 IntroductionThe Health and Social
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3 Imposing discretionary requirements and accepting enforcementundertakings3.1 IntroductionMonitor may impose discretionary requirements where we are satisfied that a provider is, or was,in breach of a licence condition, or the requirement to hold a licence, or a requirement to supplyMonitor with information. A provider subject to a formal investigation may offer Monitor anenforcement undertaking which Monitor may accept instead of investigating further and,potentially, imposing discretionary requirements. Monitor may also accept enforcementundertakings from, others in breach of a requirement to provide us with information.This chapter outlines:the nature of the discretionary requirements that Monitor may impose;the factors that Monitor may consider in determining what requirements are needed;issues relevant to each requirement and how they may be implemented, including thefactors that Monitor may take into account when setting a variable monetary penalty; andwhen Monitor may accept enforcement undertakings.3.2 Discretionary requirementsDiscretionary requirements are formally specified in the Act and may be a:Compliance requirement: A compliance requirement is an instruction from Monitor to theprovider to take specified steps within a set period to secure that the breach not continueor recur. The principal focus of a compliance requirement is to secure compliance;Restoration requirement: A restoration requirement obliges the provider to take suchsteps within such period as Monitor may specify to secure that the position is, so far aspossible, restored to what it would have been, absent the breach. Restorationrequirements may also be used to compensate any affected party, including health careservice users and other providers. Such a requirement could require, for example, that theprovider gives up any gains it has made from the breach and restores the position of thosewho have suffered harm as a result; andPage 17 of 50
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