National Health Service (Scotland) Act 1978

Part I U.K. Organisation

Secretary of State S

1 General duty of Secretary of State. S

(1) It shall continue to be the duty of the Secretary of State to promote in Scotland a comprehensive and integrated health service designed to secure—

(a) improvement in the physical and mental health of the people of Scotland, and,

(b) the prevention, diagnosis and treatment of illness,

and for that purpose to provide or secure the effective provision of services in accordance with the provisions of this Act.

(2) The services so provided shall be free of charge, except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

Yn ddilys o 01/01/2005

[F1 1A Duty of the Scottish Ministers to promote health improvement S

(1) It is the duty of the Scottish Ministers to promote the improvement of the physical and mental health of the people of Scotland.

(2) The Scottish Ministers may do anything which they consider is likely to assist in discharging that duty including, in particular—

(a) giving financial assistance to any person,

(b) entering into arrangements or agreements with any person,

(c) co-operating with, or facilitating or co-ordinating the activities of, any person.

(3) Subsections (1) and (2) are without prejudice to section 1 and any other provision of this Act conferring or imposing functions on the Scottish Ministers.]

Textual Amendments

F1 S. 1A inserted (1.1.2005) by National Health Service Reform (Scotland) Act 2004 (asp 7), ss. 9(1), 12(1); S.S.I. 2004/361, art. 2(c)

Administrative bodies S

2 Health Boards. S

(1) The Secretary of State

[F2 (a)] shall by order constitute in accordance with Part I of Schedule 1 boards for such areas as he may by order determine, for the purpose of exercising [F3 such of his functions under this Act as he may so determine], and for the purpose of making arrangements on his behalf for the provision of the services mentioned in Part II; and those boards shall be called Health Boards [F4 and]

[F4 (b) subject to subsections (1A) and (1C), may by order constitute boards, either for the whole of Scotland or for such parts of Scotland as he may so determine, for the purpose of exercising such of his functions under this Act as he may so determine; and those boards shall, without prejudice to subsection (1B), be called Special Health Boards.]

[F5 (1A) An order made under subsection (1)(b) may determine an area for a Special Health Board constituted under that subsection which is the same as the areas determined—

(a) for any other Special Health Board; or

(b) for any Health Board or Health Boards constituted by an order or orders made under subsection (1)(a).

(1B) An order under subsection (1)(b) may specify the name by which a board constituted by the order shall be known.

(1C) The Secretary of State may by order provide that such of the provisions of this Act or of any other enactment, or of any orders, regulations, schemes or directions made under or by virtue of this Act or of any other enactment, as apply in relation to Health Boards shall, subject to such modifications and limitations as may be specified in the order, so apply in relation to any Special Health Board so specified.]

(2) The order or orders made under subsection [F6 (1)(a)] determining the areas for which the Health Boards are to be constituted shall be separate from the order or orders constituting those Boards; and, before making any order determining such an area, the Secretary of State shall consult with such bodies and organisations as appear to him to be concerned.

(3) The Secretary of State may by order vary the area of any Health Board, whether or not the variation involves the constitution of a new Board, or the termination of the functions of an existing Board; and, before making such an order, the Secretary of State shall consult with such bodies and organisations as appear to him to be concerned.

(4) Any order under subsection (3) may make provision for any supplementary and incidental matters for which it appears to the Secretary of State to be necessary or expedient to provide, in particular for the transfer of officers and of property and liabilities.

(5) In carrying out the purposes mentioned in subsection (1) [F7 and in exercising any function otherwise conferred on them by or under this Act] each Health Board shall act subject to, and in accordance with, such regulations as may be made, and such directions as may be given, by the Secretary of State; and such regulations and directions may be made or given generally or to meet the circumstances of a particular area or matter.

(6) Regulations under subsection (5) shall make provision requiring each Health Board to submit to the Secretary of State a scheme for the exercise of their functions, and enabling the Secretary of State to approve any such scheme with or without modifications, and to make such a scheme in the event of the failure of any Health Board to do so.

(7) A Health Board may at any time, and if directed by the Secretary of State shall, within such period as he may specify, submit a new scheme for the exercise of their functions, and regulations making the provision mentioned in subsection (6) shall, with any necessary modifications, apply to any such scheme.

(8) A Health Board shall, notwithstanding that it is exercising functions on behalf of the Secretary of State, be entitled to enforce any rights acquired, and shall be liable in respect of any liabilities incurred (including liability in damages for wrongful or negligent acts or omissions), in the exercise of those functions in all respects as if the Health Boared were acting as a principal; and all proceedings for the enforcement of such rights or liabilities shall be brought by or against the Health Board in its own name.

[F8 (9) A Health Board shall not be entitled to claim in any proceedings any privilege of the Crown in respect of the recovery or production of documents; but this subsection shall be without prejudice to any right of the Crown to withhold, or procure the withholding from production of, any document on the ground that its disclosure would be contrary to the public interest.]

(10) Schedule 1 shall have effect in relation to the Boards constituted under this section.

(11) Where it appears to the Secretary of State to be expedient in the interests of efficiency that a joint committee should be established for the areas of two or more Health Boards for the purpose of exercising some but not all of their functions, the Secretary of State may by order constitute such a joint committee and provide for the exercise by that committee or such of those functions as may be specified in the order, and for the application, with such modifications as may be so specified, to that committee of any provisions of this Act relating to those functions, and for any of the matters for which, in relation to a Health Board, provision is or may be made by or under Part II of Schedule 1.

Textual Amendments

F2 “(a)" inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 28(a)(i)

F3 Words substituted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 14(2), Sch. 7 para. 1

F4 S. 2(1)(b) and word “and" preceding it inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 28(a)(ii)

F5 S. 2(1A)–(1C) inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 28(b)

F6 “1(a)" substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 28(c)

F7 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(1)

F8 S. 2(9) repealed (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(2), Sch. 10

Modifications etc. (not altering text)

C1 S. 2(3)–(5), (8) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C2 S. 2(5) amended by Hospital Complaints Procedure Act 1985 (c. 42, SIF 113:2), s. 1(1)

Yn ddilys o 01/01/2005

[F9 2A Duty of Health Board, Special Health Board and the Agency to promote health improvement S

(1) It is the duty of every Health Board and Special Health Board and of the Agency to promote the improvement of the physical and mental health of the people of Scotland.

(2) A Health Board, a Special Health Board or the Agency may do anything which they consider is likely to assist in discharging that duty including, in particular—

(a) giving financial assistance to any person,

(b) entering into arrangements or agreements with any person,

(c) co-operating with, or facilitating or co-ordinating the activities of, any person.

(3) Subsections (1) and (2) are without prejudice to any other provision of this Act conferring or imposing functions on a Health Board, a Special Health Board or the Agency.

(4) Anything done by a Health Board or Special Health Board in pursuance of subsection (1) or (2) is to be regarded as done in exercise of functions of the Scottish Ministers conferred on—

(a) the Health Board by the order under section 2(1)(a) which constituted the Board, or

(b) the Special Health Board by the order under section 2(1)(b) which constituted the Board,

as the case may be.]

Textual Amendments

F9 S. 2A inserted (1.1.2005) by National Health Service Reform (Scotland) Act 2004 (asp 7), ss. 9(2), 12(1); S.S.I. 2004/361, art. 2(c)

Yn ddilys o 30/09/2004

[F10 2B Duty to encourage public involvement S

(1) It is the duty of every body to which this section applies to take action with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are involved in, and consulted on—

(a) the planning and development, and

(b) decisions to be made by the body significantly affecting the operation,

of those services.

(2) This section applies to—

(a) Health Boards,

(b) Special Health Boards, and

(c) the Agency.

(3) For the purposes of subsection (1) a body is responsible for health services if they are health services—

(a) which it is the function of the body to provide, or secure the provision of, and

(b) which are provided, or to be provided, to individuals by—

(i) the body, or

(ii) another person on the body's behalf, at the body's direction or in accordance with an agreement made by the body with that other person.]

Textual Amendments

F10 S. 2B inserted after s. 2A (30.9.2004) by National Health Service Reform (Scotland) Act 2004 (asp 7), ss. 7, 12(1); S.S.I. 2004/361, art. 2(b)(i)

Yn ddilys o 13/02/2004

[F11 2C Functions of Health Boards: primary medical services S

(1) Every Health Board—

(a) must, to the extent that they consider necessary to meet all reasonable requirements, provide or secure the provision of primary medical services as respects their area; and

(b) may, to such extent, provide or secure the provision of primary medical services as respects the area of another Health Board,

and primary medical services provided, or the provision of which is secured, by a Health Board under or by virtue of this subsection may be performed outside their area.

(2) For the purpose of securing the provision of primary medical services under subsection (1), a Health Board may make such arrangements for the provision of the services as they think fit (and may in particular make contractual arrangements with any person).

(3) A Health Board must publish information about such matters as may be prescribed in relation to the primary medical services provided under this Part.

(4) Without prejudice to section 13, Health Boards must co-operate with one another in discharging their respective functions relating to the provision of primary medical services under this Part.

(5) Regulations may provide that services of a prescribed description are, or are not, to be regarded as primary medical services for the purposes of this Act.

(6) Such regulations may in particular describe services by reference to the manner or the circumstances in which they are provided.

(7) Arrangements made under this Part by a Health Board for the provision of primary medical services may provide for such services to be performed outside Scotland.

(8) Anything done by a Health Board in pursuance of subsection (1) or (2) is to be regarded as done in exercise of functions of the Scottish Ministers conferred on the Health Board by an order under section 2(1)(a).]

Textual Amendments

F11 S. 2C inserted (13.2.2004 for certain purposes otherwise 1.4.2004) by Primary Medical Services (Scotland) Act 2004 (asp 1), ss. 1(2), 9(1); S.S.I. 2004/58, art. 2(1)(3), Sch.

Yn ddilys o 07/07/2010

[F12 2CA

Functions of Health Boards outside Scotland

(1) Where it is the function of a Health Board to provide or to secure the provision of a service, the Health Board may secure the provision of that service outside Scotland.

(2) For the purposes of securing the provision of any service referred to in subsection (1), a Health Board may make such arrangements for the provision of the service as they think fit (and may in particular make contractual arrangements with any person).

(3) Anything done by a Health Board in pursuance of subsection (1) or (2) is to be regarded as done in exercise of functions of the Scottish Ministers conferred on the Health Board by an order under section 2(1)(a).]

Textual Amendments

F12 S. 2CA inserted (7.7.2010) by The National Health Service (Reimbursement of the Cost of EEA Treatment) (Scotland) Regulations 2010 (S.S.I. 2010/283), reg. 3(2)

Prospective

[F13 2CB Functions of Health Boards: planning of pharmaceutical care services S

(1) Regulations may make provision requiring every Health Board, in accordance with the regulations, to—

(a) prepare a plan for the discharge of their duty under section 2CA(1);

(b) keep a plan prepared under paragraph (a) under review;

(c) prepare a revised plan; and

(d) without prejudice to section 2CA(3), publish a plan so prepared or revised.

(2) Regulations under subsection (1) may in particular make provision as to—

(a) identification by a Health Board in any such plan prepared by them of—

(i) what pharmaceutical care services they consider are necessary in order to discharge their duty under section 2CA(1);

(ii) whether as respects their area there is convenient access (as regards location and opening hours) to pharmaceutical care services; and

(iii) any under-provision of pharmaceutical care services as respects their area;

(b) the period within which a plan is to be prepared and published;

(c) consultation which a Health Board must undertake in relation to the preparation of a plan;

(d) the duration of a plan;

(e) the frequency with which a plan must be reviewed and revised by a Health Board;

(f) the availability and accessibility of a plan to persons who are resident in a Health Board's area; and

(g) such other matters as the Scottish Ministers consider appropriate.

(3) Regulations making provision as to a matter referred to in subsection (2)(a) may provide that the matter is to be identified in accordance with such criteria as may be specified in directions given by the Scottish Ministers.]

Textual Amendments

F13 Ss. 2CA, 2CB inserted (prosp.) by virtue of Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), ss. 20(2), 43(3)

Yn ddilys o 30/09/2004

[F14 2D Equal opportunities S

(1) Health Boards, Special Health Boards and the Agency must discharge their functions in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements.

(2) In this section “equal opportunities” and “equal opportunity requirements” have the same meaning as in Section L2 (equal opportunities) of Part II of Schedule 5 to the Scotland Act 1998 (c. 46).]

Textual Amendments

F14 S. 2D inserted (30.9.2004) by National Health Service Reform (Scotland) Act 2004 (asp 7), ss. 4, 12(1); S.S.I. 2004/361, art. 2(b)(i)

3 Scottish Medical Practices Committee. S

(1) With a view to securing that the number of medical practitioners undertaking to provide general medical services in the areas of different Health Boards, or in different parts of those areas, is adequate, the Secretary of State shall constitute a committee to be called the Scottish Medical Practices Committee (hereafter in this Act referred to as “the Medical Practices Committee”), for the purpose of considering and determining applications made for inclusion in any list kept by a Health Board of medical practitioners undertaking to provide such services for persons in the Board’s area.

[F15 (1A) After consulting the Medical Practices Committee, the Secretary of State may give the Committee directions with respect to the exercise of its functions; and it shall be the duty of the Committee to comply with any such directions.]

(2) Schedule 2 shall have effect in relation to the Medical Practices Committee.

Textual Amendments

F15 S. 3(1A) inserted (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 38(1); S.I. 1991/607, art.2(a)

4 Scottish Dental Estimates Board. S

(1) For the purpose of carrying out such duties as may be prescribed with respect to . . . F16 dental treatment and appliances, regulations shall make provision for constituting a board, to be called the Scottish Dental Estimates Board, (hereafter in this Act referred to as “the Dental Estimates Board”), of whom the chairman and a majority of members shall be dental practitioners.

[F17 (1A) Regulations may empower the Dental Practice Board—

(a) to direct a dental practitioner to submit to the Board, in relation to treatment which he has carried out or contemplates carrying out or to a description of such treatment specified in the direction, such estimates and information and such radiographs, models or other items as may be prescribed; and

(b) to direct a dental practitioner not to carry out treatment, or a description of treatment specified in the direction, without first obtaining approval of an estimate from the Board.

(1B) If regulations include any such provision as is mentioned in subsection (1A)(b) above, regulations shall confer on a dental practitioner in whose case a direction such as is mentioned in that paragraph has been given a right of appeal against the direction to a prescribed person or body, but before making regulations conferring such a right the Secretary of State shall consult such organisations as appear to him to be representative of persons providing general dental services.

(1C) Regulations may be made authorising or requiring the Dental Practice Board to carry on any such additional activity relating to the provision of general dental services as may be prescribed and, without prejudice to the generality of this subsection, to conduct or commission surveys or other research relating to the provision of such services.]

(2) Regulations made in pursuance of this section shall include provision, in relation to the Dental Estimates Board, for any of the matters for which, in relation to a Health Board, provision is or may be made by or under Part II of Schedule 1.

Textual Amendments

F16 Words repealed by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 25(2), Sch. 3

F17 S. 4(1A)–(1C) inserted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 12(3)

Yn ddilys o 01/09/2004

[F18 Community health partnerships U.K.

Textual Amendments

F18 Ss. 4A, 4B inserted (1.9.2004 for certain purposes otherwise 30.9.2004) by National Health Service Reform (Scotland) Act 2004 (asp 7), ss. 2, 12(1); S.S.I. 2004/361, art. 2(a)(ii)(b)(ii)

4A Community health partnerships U.K.

(1) Every Health Board shall establish, in accordance with a scheme under section 4B approved by the Scottish Ministers (an “approved scheme”)—

(a) a community health partnership for the area of the Board, or

(b) two or more community health partnerships for districts which, taken together, include the whole area of the Board.

(2) Community health partnerships shall be established as committees or sub-committees of a Health Board.

(3) Where the area or district of a community health partnership includes all or part of the areas of two or more Health Boards, the community health partnership (a “joint community health partnership”) shall be established jointly by those Boards in accordance with their approved schemes.

(4) Joint community health partnerships shall be established as joint committees of the Health Boards by which they are established.

(5) The functions of a community health partnership are—

(a) to co-ordinate, for its area or district, the planning, development and provision of—

(i) such of the services which it is the function of its Health Board to provide, or secure the provision of, as may be prescribed by regulations under section 4B(6) or specified in the approved scheme, and

(ii) such other of those services as its Health Board may specify,

with a view to improving those services,

(b) to provide, or secure the provision of—

(i) such of the services which it is the function of its Health Board to provide, or secure the provision of, as may be prescribed by regulations under section 4B(6) or specified in the approved scheme, and

(ii) such other of those services as its Health Board may specify, and

(c) to exercise such other functions of its Health Board—

(i) as may be prescribed by regulations under section 4B(6),

(ii) as may be specified in the approved scheme,

(iii) as the Health Board may delegate to it.

(6) In this section, references to the Health Board of a joint community health partnership are to each of the Health Boards by which it was established.

4B Community health partnerships: further provision U.K.

(1) Every Health Board shall, within such period as the Scottish Ministers may specify, prepare and submit to them a scheme for the establishment of one or more community health partnerships in pursuance of section 4A(1).

(2) In preparing a scheme under subsection (1) or (5) a Health Board shall—

(a) have regard to—

(i) any guidance issued under subsection (7),

(ii) community planning under section 15(1) of the Local Government in Scotland Act 2003 (asp 1) so far as relating to the area of the Board,

(b) consult—

(i) each local authority whose area includes all or part of the area or district of a community health partnership proposed by the scheme, and

(ii) any other person whom the Health Board think fit, and

(c) encourage the involvement of local authorities and other persons consulted under paragraph (b) in the preparation of the scheme.

(3) The Scottish Ministers may—

(a) approve (with or without modifications), or

(b) refuse to approve,

a scheme submitted to them under subsection (1) or (5) or in pursuance of subsection (4).

(4) Where the Scottish Ministers refuse to approve a scheme, they must return it to the Health Board and may direct the Board to resubmit the scheme with—

(a) such modifications (if any) as the direction may specify, and

(b) any further modifications which the Board consider appropriate,

by such time as the direction may specify.

(5) A Health Board—

(a) may, at any time,

(b) if so directed by the Scottish Ministers, must, within such period as they may specify,

submit to the Scottish Ministers a new scheme under this section.

(6) Regulations may make provision in relation to—

(a) the membership of a community health partnership,

(b) the form and content of, and the procedure in relation to, schemes under this section,

(c) the functions of a community health partnership and the exercise of those functions,

(d) the application in relation to joint community health partnerships, with such modifications as may be specified, of the provisions of this Act, and any provision made under this Act, so far as applying in relation to community health partnerships,

(e) such other matters with respect to community health partnerships as the Scottish Ministers think fit.

(7) The Scottish Ministers may, after consulting such persons as they think fit, issue guidance about community health partnerships and shall publish such guidance.

(8) For the purposes of establishing a joint community health partnership in pursuance of section 4A(3), any power to appoint committees conferred on Health Boards by virtue of this Act shall include power for two or more Health Boards jointly to appoint joint committees.

(9) Nothing in section 4A or this section affects the extent of any power under this Act so far as relating to committees or sub-committees of Health Boards.]

National advisory bodies U.K.

5—6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F19 U.K.

Textual Amendments

F19 Ss. 5, 6 repealed by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 29(1), 66(2), Sch. 10

Local advisory bodies U.K.

7 Local health councils. S

(1) Every Health Board shall, within such period as the Secretary of State may specify, submit to him a scheme for the establishment of a local health council or councils for their area or for such districts covering their whole area as the Board thinks fit; and it shall be the general function of any such council to represent the interests of the public in the health service in the area or district for which they have been established.

(2) A scheme under subsection (1) shall provide for the appointment . . . F20 by the Health Board, after consultation with such other organisations as may be specified in the scheme, of such number of members as may be so specified.

(3) The Secretary of State may approve, with or without modifications, any scheme submitted to him under subsection (1), or may refuse to approve it.

(4) A Health Board may at any time, and if directed by the Secretary of State shall, within such period as he may specify, submit a new scheme under this section, and subsection (3) shall apply to any such new scheme.

(5) The members of a local health council may appoint one of their own number as the chairman of the council.

(6) The Secretary of State shall pay to the members of a local health council, and of the committees and sub-committees thereof [F21 and of any body established under subsection (9)(g),] such travelling and other allowances, including compensation for loss of remunerative time, as he may with the approval of the Minister for the Civil Service, from time to time determine.

(7) Allowances shall not be paid under subsection (6) except in connection with the performance of such powers or duties, in such circumstances, as the Secretary of State may determine.

(8) Health Boards shall consult with local health councils on such occasions and to such extent as may be prescribed.

(9) Regulations may make provision—

(a) enabling local health councils to consider questions relating to the health service in their area or district, whether at the request of their Health Board or otherwise, and to advise the Health Board thereon;

(b) enabling or requiring local health councils to submit reports to their Health Board on the operation of the health service in their area or district;

(c) requiring local health councils to submit annual reports on their activities to their Health Board and requiring Health Boards to transmit a copy of any such report to the Secretary of State;

(d) enabling local health councils to obtain information from their Health Board [F22 and from any NHS trust in their area or district] on such subjects and subject to such conditions as may be prescribed;

(e) enabling or requiring members of a local health council to visit establishments administered by their Health Board [F23 and establishments in their area or district administered by NHS trusts], subject to such conditions as may be prescribed;

(f) relating to the submission of schemes under subsection (1) and to the functions, procedures, staffing and expenses of local health councils;

[F24 (g) for the establishment of a body—

(i) to advise local health councils with respect to the performance of their functions, and to assist those councils in the performance of their functions; and

(ii) to perform such other functions as may be prescribed;

(h) relating to the membership, proceedings, staff, premises and expenses of any body established under paragraph (g).]

Textual Amendments

F20 Words repealed by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 29(3)(a), 66(2), Sch. 10

F21 Words inserted by Health Services Act 1980 (c. 53), Sch. 6 para. 1(1)

F22 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 29(3)(b)

F23 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 29(3)(c)

F24 S. 7(9)(g)(h) inserted by Health Services Act 1980 (c. 53), Sch. 6 para. 1(2)

8 University Liaison Committees. S

(1) The Secretary of State may by order constitute, in accordance with Schedule 4, for the area of a Health Board or for the combined areas of two or more Health Boards, a University Liaison Committee for the purpose of advising that Board or those Boards [F25 and any NHS trusts in the area or combined areas] on the administration of the health service in [F26 that area or those] areas so far as relating to the provision of facilities for undergraduate or post-graduate clinical teaching or for research, and for the purpose of advising that Board or those Boards [F27 , any such NHS trust] and the university or universities concerned on any matter of common interest to them.

(2) Paragraphs 11 to 15 of Schedule 1 (other than sub-paragraph (d) of paragraph 11) shall have effect in relation to the Committees constituted under this section.

Textual Amendments

F25 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 29(4)(a)

F26 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 29(4)(b)

F27 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 29(4)(c)

9 Local consultative committees. S

(1) Where, [F28 a Health Board is satisfied that a committee formed for its area is representative]—

(a) of the medical practitioners of that area, or

(b) of the dental practitioners of that area, or

(c) of the nurses and midwives of that area, or

(d) of the pharmacists of that area, or

(e) of the ophthalmic [F29 and dispensing] opticians of that area,

the [F30 Health Board] shall recognise that committee.

(2) Any committee so recognised shall be called—

(a) the area medical committee,

(b) the area dental committee,

(c) the area nursing and midwifery committee,

(d) the area pharmaceutical committee, or

(e) the area optical committee,

as the case may be, for the area concerned.

(3) Where, [F28 a Health Board is satisfied that a committee formed for its area is representative] of any other profession engaged in the provision of care or treatment under this Act, and that it is in the interests of the health service to recognise that committee for the purposes of this Act, [F31 the Board] may so recognise it.

(4) Where, [F28 a Health Board is satisfied that a committee formed for its area is representative] of two or more of the professions mentioned in subsection (1) or (3), and that it is in the interests of the health service to recognise that committee for the purposes of this Act, [F31 the Board] may so recognise it.

(5) It shall be the general function of a committee recognised under this section to advise the Health Board for its area on the provision of services under this Act, being services with which that committee is concerned in that area, but, except in so far as regulations otherwise provide, in exercising functions conferred by or under this section, such a committee shall not concern itself with the remuneration and conditions of service of practitioners or other persons of whom it is representative.

(6) In addition to any other functions which committees recognised under this section may exercise, they shall exercise such functions as may be prescribed.

(7) In exercising their functions under this Act, Health Boards shall consult with committees recognised under this section on such occasions and to such extent as may be prescribed.

(8) Any committee recognised under this section may, with the approval of the Health Board for its area, delegate any of its functions, with or without restrictions or conditions, to sub-committees and may appoint to any sub-committee persons who are not members of the committee.

(9) Health Boards shall defray the reasonable expenses of committees recognised under this section and shall pay to members of such committees and sub-committees thereof such travelling and other allowances, including compensation for loss of remunerative time, as the Secretary of State may, with the approval of the Minister for the Civil Service, from time to time determine; but payments under this subsection may only be made as respects the exercise of functions conferred by or under this section.

Textual Amendments

F28 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 29(5)(a)

F29 Words repealed (prosp.) by Health and Social Security Act 1984 (c. 48, SIF 113:1), ss. 24, 27(1), Sch. 8 Pt. I

F30 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 29(5)(b)

F31 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 29(5)(c)

Agency for Secretary of State and other bodies U.K.

10 Common Services Agency. S

(1) There shall be constituted a body, to be called the Common Services Agency for the [F32 Scottish Health Service] (hereafter in this Act referred to as “the Agency”), which shall have the functions conferred on it by this section.

(2) Schedule 5 shall have effect in relation to the Agency.

(3) The Secretary of State may by order delegate to the Agency such of his functions under this Act as he considers appropriate.

(4) After consultation with . . . F33 , the Health Boards and any other interests which appear to the Secretary of State to be concerned, the Secretary of State, where he considers it expedient for the efficient discharge of the functions of the Health Boards, may by order provide that the performance of such functions as he may determine shall stand referred to the Agency and be discharged by it on behalf of any or all of the Health Boards.

(5) The Secretary of State may by order withdraw from the Agency any function delegated or referred to it under this section.

(6) The Agency shall provide such services and carry out such tasks for bodies associated with the health service as the Secretary of State and those bodies may agree, and on such terms and conditions as may be agreed.

(7) In carrying out its functions the Agency shall act subject to, and in accordance with, such directions as may be given by the Secretary of State.

(8) The Agency shall, notwithstanding that it is exercising functions on behalf of the Secretary of State or any other body associated with the health service, be entitled to enforce any rights acquired, and shall be liable in respect of any liabilities incurred (including liability in damages for wrongful or negligent acts or omissions), in the exercise of those functions, in all respects as if the Agency were acting as a principal; and all proceedings for the enforcement of such rights or liabilities shall be brought by or against the Agency in its own name.

[F34 (9) The Agency shall not be entitled to claim in any proceedings any privilege of the Crown in respect of the recovery or production of documents; but this subsection shall be without prejudice to any right of the Crown to withhold, or procure the withholding from production of, any document on the ground that its disclosure would be contrary to the public interest.]

Textual Amendments

F32 Words substituted by Health Services Act 1980 (c. 53), Sch. 6 para. 2

F33 Words repealed by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(2), Sch. 10

F34 S. 10(9) repealed (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(2), Sch. 10

Modifications etc. (not altering text)

C3 S. 10(4) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

Yn ddilys o 01/08/2010

[F35 Healthcare Improvement Scotland U.K.

Textual Amendments

F35 Ss. 10A-10Z19 and cross-headings inserted (1.8.2010 for the insertion of s. 10A for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 for specified purposes, 1.4.2016 for specified purposes with the exception of the insertion of s. 10Z9(1)(a), 1.4.2017 for specified purposes, 19.6.2024 for specified purposes) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 108, 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.; S.S.I. 2016/22, art. 2(1)(2), sch. 1, sch. 2; S.S.I.2024/131, art. 2, sch. 1

10A Healthcare Improvement Scotland U.K.

(1) There is established a body to be known as Healthcare Improvement Scotland (in this Act referred to as “HIS”) which—

(a) is to exercise the functions conferred on it by virtue of this Act and any other enactment; and

(b) has the general duty of furthering improvement in the quality of health care.

(2) In subsection (1)(b), “health care” means services for or in connection with the prevention, diagnosis or treatment of illness provided—

(a) under the health service; or

(b) by persons providing independent health care services.

(3) In carrying out its functions, HIS is to act subject to and in accordance with such directions as may be given by the Scottish Ministers.

(4) The Scottish Ministers may vary or revoke any direction given under subsection (3).

(5) Schedule 5A (which makes further provision about the status, constitution, proceedings etc. of HIS) has effect.

Yn ddilys o 01/10/2010

Principles U.K.

10B Principles U.K.

(1) HIS must exercise its functions in accordance with the principles set out in the following subsections.

(2) The safety and wellbeing of all persons who use services provided under the health service and independent health care services are to be protected and enhanced.

(3) Good practice in the provision of those services is to be identified, promulgated and promoted.

(4) The provision of those services in a manner which takes appropriate account of guidance and other information (including evidence) published or endorsed by HIS is to be promoted and encouraged.

Yn ddilys o 01/10/2010

Functions related to the health service U.K.

10C Health service functions U.K.

(1) HIS is to exercise the following functions of the Scottish Ministers—

(a) functions in relation to supporting, ensuring and monitoring the quality of health care provided or secured by the health service including, without prejudice to the foregoing generality, providing quality assurance and accreditation;

(b) functions in relation to supporting, ensuring and monitoring the discharge of the duty under section 2B by each body to whom that section applies;

(c) functions in relation to supporting, ensuring and monitoring the discharge of the duty under section 2D by each body to whom that section applies, other than HIS, insofar as the discharge of that duty is relevant to—

(i) the quality of health care provided or secured by the health service; or

(ii) the discharge of the duty under section 2B;

(d) functions in relation to the evaluation and provision of advice to the health service on the clinical and cost effectiveness of new and existing health technologies including drugs,

conferred on them by this Act including, without prejudice to the foregoing generality, those functions specified in section 1(1).

(2) HIS is to exercise the following functions of the Scottish Ministers subject to any limitations specified—

(a) the power of the Scottish Ministers under section 16(1) to assist voluntary organisations whose activities include the provision of a service similar to or related to the functions of HIS;

(b) the power of the Scottish Ministers under section 16B to give financial assistance to voluntary organisations whose activities consist of or include the provision of services similar to or related to the functions of HIS; and such assistance may be given only on such terms and conditions as the Scottish Ministers determine;

(c) the power of the Scottish Ministers under section 42 to disseminate, in respect of the functions of HIS, information relating to the promotion and maintenance of health and the prevention of illness;

(d) the duties of the Scottish Ministers under section 47—

(i) to make available such facilities as appear to HIS to be reasonably required for undergraduate and post-graduate clinical teaching and research and for the education and training of persons providing or intending to provide services under this Act; and

(ii) to conduct, or assist by grants or otherwise under that section any person to conduct, research into matters relating to the functions of HIS;

(e) the powers of the Scottish Ministers under section 79(1) to take on lease or to purchase moveable property and land so far as required for the purposes of HIS and to use for those purposes and manage any heritable or moveable property so acquired;

(f) the powers of the Scottish Ministers under section 79(1A) to dispose of land no longer required for the purposes of HIS.

(3) HIS is to exercise the following functions—

(a) a duty to provide information to the public about the availability and quality of services provided under the health service;

(b) a duty to provide such information to a person in such form as that person may reasonably request;

(c) when requested by the Scottish Ministers, a duty to provide to the Scottish Ministers advice about any matter relevant to the health service functions of HIS;

(d) a power to provide such advice to Scottish Ministers at any time;

(e) when asked to do so, a duty to provide such advice to—

(i) persons who provide, seek to provide or may provide services under the health service;

(ii) persons, or groups of persons, representing those who use, or are eligible to use, such services;

(iii) persons, or groups of persons, representing those who care for those who use, or are eligible to use, such services;

(iv) local authorities;

(v) a Health Board, Special Health Board or the Agency (each a “body” for the purposes of subsection (4));

(vi) such other persons, or groups of persons as may be prescribed;

(f) a power to disseminate such information as HIS considers relevant of general or specific application arising out of or in connection with the exercise of its health service functions.

(4) HIS may charge a reasonable fee determined by it for any advice, forms or documents provided for the assistance of any such person, authority or body as is mentioned in subsection (3)(e).

(5) References in this Act to the health service functions of HIS are, subject to subsections (6) and (7), to the functions conferred by virtue of this section and section 10D (including any functions delegated by order under that section).

(6) Where a provision of this section which confers a function on HIS refers to the health service functions of HIS, that reference is to be construed as a reference to the functions conferred by virtue of this section and section 10D other than the function conferred by the provision.

(7) Where a provision of this section which confers a function on HIS refers to the functions of HIS, that reference is to be construed as including a reference to the functions conferred by virtue of this section and section 10D other than the function conferred by the provision.

10D Health service functions: further provision U.K.

(1) The Scottish Ministers may by order delegate to HIS such of their functions relating to the health service as they consider appropriate.

(2) HIS is to provide such services, and carry out such tasks, for bodies associated with the health service as the Scottish Ministers and those bodies may agree; and is to do so on such terms and conditions as may be so agreed.

(3) Notwithstanding that it is exercising functions relating to the health service on behalf of the Scottish Ministers or other bodies associated with the health service, HIS—

(a) is entitled to enforce any rights acquired in the exercise of those functions;

(b) is to be liable in respect of any liabilities incurred (including liability in damages for wrongful or negligent acts or omissions) in the exercise of those functions,

in all respects as if HIS were acting as a principal.

(4) All proceedings for the enforcement of such rights or liabilities are to be brought by or against HIS in its own name.

Yn ddilys o 01/10/2010

Functions related to independent health care U.K.

10E Independent health care functions U.K.

(1) HIS is to exercise the following functions—

(a) a duty to provide information to the public about the availability and quality of independent health care services;

(b) a duty to provide such information to a person in such form as that person may reasonably request;

(c) when requested by the Scottish Ministers, a duty to provide to the Scottish Ministers advice about any matter relevant to the independent health care functions of HIS;

(d) a power to provide such advice to the Scottish Ministers at any time;

(e) when asked to do so, a duty to provide such advice to—

(i) persons who provide, seek to provide or may seek to provide independent health care services;

(ii) persons, or groups of persons, representing those who use, or are eligible to use, such services;

(iii) persons, or groups of persons, representing those who care for those who use, or are eligible to use, such services;

(iv) local authorities;

(v) a Health Board, Special Health Board or the Agency (each a “body” for the purposes of subsection (2));

(vi) such other persons, or groups of persons as may be prescribed;

(f) a power to disseminate such information as HIS considers relevant of general or specific application arising out of or in connection with the exercise of its independent health care functions.

(2) HIS may charge a reasonable fee determined by it for any advice, forms or documents provided for the assistance of any person, authority or body as is mentioned in subsection (1)(e).

(3) References in this Act to the independent health care functions of HIS are, subject to subsection (4)—

(a) to the functions conferred on HIS, or on a person acting on behalf of HIS, by this section and by sections 10J, 10K, 10P to 10Z3, 10Z5, 10Z8 and 10Z19;

(b) to any functions delegated to HIS under section 10H(6) to the extent that such functions relate to standards and outcomes applicable to independent health care services;

(c) to the functions conferred on HIS by section 10M to the extent that such functions relate to inspections of independent health care services; and

(d) to the functions conferred on HIS by section 10N to the extent that such functions relate to reports on inspections of independent health care services.

(4) Where a provision of this section, or those sections, which confers a function on HIS refers to the independent health care functions of HIS, the reference is to be construed as a reference to the functions conferred by this section and those sections other than the function conferred by the provision.

Yn ddilys o 01/10/2010

Meaning of “independent health care services” U.K.

10F Meaning of “independent health care services” U.K.

(1) In this Act, an “independent health care service” is any of the following—

(a) an independent hospital;

(b) a private psychiatric hospital;

(c) an independent clinic;

(d) an independent medical agency;

(e) an independent ambulance service.

(2) In subsection (1)—

• “independent hospital” means a hospital which is neither a health service hospital nor a private psychiatric hospital; and for the purposes of this definition includes part of a health service hospital if (not being a private psychiatric hospital)—

  (a)

  it is carried on as a separate unit;

  (b)

  it does not provide treatment or nursing in pursuance of this Act;

  (c)

  no part of it is contained within the same building as any such part which does provide treatment or nursing in pursuance of this Act;

• “private psychiatric hospital” means any premises used or intended to be used for the provision of medical treatment to one or more patients subject to an order or direction under the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or the Criminal Procedure (Scotland) Act 1995 (c. 46) (whether or not other persons are treated there), not being—

  (a)

  a health service hospital;

  (b)

  a state hospital; or

  (c)

  otherwise an independent health care service;

• “independent clinic” means a clinic which is not comprised in a hospital and in or from which services are provided, other than in pursuance of this Act, by a medical practitioner or dental practitioner;

• “independent medical agency” means an undertaking which is neither an independent clinic nor an undertaking comprised in a hospital and which consists of or includes the provision of services, other than in pursuance of this Act, by a medical practitioner;

• “independent ambulance service” means, subject to subsection (5), a service which consists of or includes—

  (a)

  provision (other than provision falling within paragraph (b) below) of medical treatment, medical care or other care to relevant patients while such patients are being transported to or from a place of medical treatment;

  (b)

  provision, at or in connection with a public event, of medical treatment outwith relevant premises under arrangements made between the provider of the service and another (whether or not the service includes a means of transport for transporting patients from the event to relevant premises).

(3) In paragraph (a) of the definition of “independent ambulance service” in subsection (2)—

• “relevant patient” is a patient—

  (a)

  whose condition or recovery would or might be impaired were the treatment or care mentioned in that paragraph not to be provided;

  (b)

  whose condition affects the patient's mobility to such an extent that, were such treatment or care not to be provided while the patient is being transported as mentioned in that paragraph, the patient's condition or recovery would or might be impaired;

  (c)

  whose mobility is such that, without such treatment or care, it would be difficult or impossible for the patient to be transported as mentioned in that paragraph;

• “place of medical treatment” means a hospital or other premises used or intended to be used for the provision of medical or dental treatment, and includes an independent health care service mentioned in paragraphs (a) to (d) of subsection (1).

(4) In paragraph (b) of the definition of “independent ambulance service” in subsection (2)—

• “public event” means an event, function or other organised activity of any kind to which members of the public have access;

• “medical treatment” includes medical care and medical advice;

• “relevant premises” means premises used or intended to be used for the provision of medical treatment, medical care or medical advice, but does not include—

  (a)

  any means of transport as mentioned in that paragraph; or

  (b)

  any temporary premises at or near, and provided in connection with, the public event.

(5) A service does not fall within the definition of “independent ambulance service” in subsection (2) if it is provided under the health service, unless it is so provided for remuneration.

(6) In subsection (5), “remuneration” does not include remuneration payable by a health service body under arrangements made for the provision of the service.

(7) Where, by virtue of payment of remuneration, the provider of a service under the health service acts as an independent ambulance service, HIS's independent health care functions are exercisable in relation to that provider only where, and to the extent that, the provider is so acting.

10G Power to modify definitions U.K.

The Scottish Ministers, after consulting such persons (or groups of persons) as they consider appropriate, may by order—

(a) modify the independent health care functions of HIS by amending, removing or adding to those functions;

(b) modify the definition of independent health care service in section 10F(1).

Yn ddilys o 01/10/2010

Standards and outcomes U.K.

10H Standards and outcomes U.K.

(1) The Scottish Ministers may prepare and publish standards and outcomes applicable to—

(a) services provided under the health service;

(b) independent health care services.

(2) The Scottish Ministers must keep any standards and outcomes so published under review and may under subsection (1) publish amended standards and outcomes whenever they consider it appropriate to do so.

(3) Before publishing under subsection (1) any—

(a) standards and outcomes;

(b) amended standards and outcomes which in the opinion of the Scottish Ministers are substantially different from the standards and outcomes (or amended standards and outcomes) last so published,

the Scottish Ministers must consult such persons, or groups of persons, as they consider appropriate.

(4) In relation to a service provided under the health service, or an independent health care service, any applicable standards and outcomes published under subsection (1) must be taken into account—

(a) by HIS in making any decision under this Part;

(b) in any proceedings on an appeal under section 10Z4; and

(c) in any proceedings for an offence in relation to registration under section 10P.

(5) The Scottish Ministers may make different provision for different services under subsection (1).

(6) The Scottish Ministers may delegate their functions under subsections (1) to (3) to HIS or such other persons as they consider appropriate.

Yn ddilys o 01/10/2010

Inspections U.K.

10I Inspections of services provided under the health service U.K.

(1) HIS may, in pursuance of its general duty of furthering improvement in the quality of health care in Scotland, inspect any service provided under the health service.

(2) An inspection under this section must be conducted in accordance with a plan—

(a) prepared in accordance with section 10L; and

(b) approved by the Scottish Ministers.

10J Inspections of independent health care services U.K.

(1) HIS may inspect—

(a) any independent health care service;

(b) the organisation or co-ordination of any independent health care service.

(2) The purposes of an inspection under this section may include—

(a) reviewing and evaluating the effectiveness of the provision of the services which are the subject of the inspection;

(b) encouraging improvement in the provision of those services;

(c) enabling consideration as to the need for any recommendations to be prepared as to any such improvement to be included in the report prepared under section 10N;

(d) investigating any incident, event or cause for concern; and

(e) enabling consideration as to the need for—

(i) an improvement notice under section 10R;

(ii) a condition notice under section 10U.

(3) An inspection under this section may be in relation to—

(a) any independent health care service or combination of independent health care services;

(b) such of the services concerned provided to particular groups of persons;

(c) any part of Scotland.

(4) An inspection under this section must be conducted in accordance with a plan—

(a) prepared in accordance with section 10L; and

(b) approved by the Scottish Ministers.

(5) HIS may at any time require a person providing any independent health care service to supply it with any information relating to the service which it considers necessary or expedient to have for the purposes of its independent health care functions.

(6) References in this section to a person providing an independent health care service include, in the case of a service which is provided by a body corporate, a reference to a director, manager, secretary or other similar officer of the body.

(7) An inspection under this section may, subject to any regulations made under section 10O, take such form as HIS considers appropriate.

10K Authorised persons U.K.

(1) Any inspection under section 10J must be carried out by a person authorised by HIS (an “authorised person”).

(2) A person may be authorised by HIS to carry out inspections in relation to any independent health care service or all of them.

(3) An authorised person may at any time enter and inspect premises which are used, or which the person has reasonable cause to believe are used, for the purpose of providing the independent health care service which is the subject of the inspection.

(4) Where an authorised person is in possession of confidential information which has been obtained for the purposes of an inspection under section 10J the authorised person must not use or disclose that information other than—

(a) for the purposes of that inspection;

(b) so as to comply with an enactment or court order requiring disclosure;

(c) to the extent considered necessary by the authorised person for the purpose of protecting the welfare of—

(i) any child under the age of 16 years;

(ii) any adult at risk (within the meaning of section 3 of the Adult Support and Protection (Scotland) Act 2007 (asp 10)); or

(d) to the extent considered necessary by the authorised person for the purpose of the prevention or detection of crime or the apprehension or prosecution of offenders.

(5) For the purposes of subsection (4), information is “confidential information” where—

(a) the identity of an individual is ascertainable—

(i) from that information; or

(ii) from that information and other information which is in the possession of, or is likely to come into the possession of, the person holding that information; and

(b) the information was obtained or generated by a person who, in the circumstances, owed an obligation of confidence to that individual.

10L Inspections: best regulatory practice U.K.

(1) HIS must prepare a plan for carrying out inspections in accordance with best regulatory practice.

(2) The plan—

(a) must set out arrangements for inspections to be so carried out (including inspections of those services subject to self evaluation);

(b) may make different provision for different purposes.

(3) For the purposes of subsection (1), “best regulatory practice” means practice under which (in particular) inspections should be carried out in a way that is transparent, accountable, proportionate and consistent.

(4) In preparing a plan under subsection (1), HIS must have regard to any guidance issued by the Scottish Ministers about those matters.

(5) HIS—

(a) must keep the plan under review; and

(b) may from time to time revise, with the approval of the Scottish Ministers, the plan.

(6) HIS must, in preparing a plan (or any revisal), consult such persons as it considers appropriate.

10M Inspections at request of Scottish Ministers U.K.

(1) HIS must, at the request of the Scottish Ministers, inspect—

(a) any service provided under the health service as they may specify;

(b) any independent health care service so specified;

(c) the organisation or co-ordination of any service mentioned in paragraph (a) or (b) so specified;

(d) any independent health care service so specified together with any service provided under the health service so specified.

(2) The Scottish Ministers may specify purposes for any inspection under this section.

(3) An inspection under this section is to be conducted in accordance with a timetable approved by the Scottish Ministers.

10N Inspections: reports U.K.

(1) Where an inspection under section 10I, 10J or section 10M has been completed, HIS—

(a) must prepare a report on the matters inspected; and

(b) must without delay send a copy of that report to the person providing the service which has been inspected.

(2) Before finalising a report prepared under subsection (1), HIS must give the person providing the service an opportunity of commenting on a draft of the report.

(3) HIS must make copies of any report prepared under subsection (1) available for inspection at its offices by any person at any reasonable time; and it must take such other steps as it considers appropriate for publicising any such report.

(4) Regulations may make further provision concerning the preparation, content and effect of reports under subsection (1), and in particular may make—

(a) different provision in relation to different independent health care services and different services provided under the health service;

(b) provision requiring copies of reports to be sent to the Scottish Ministers (or such other persons as may be specified in regulations) in such circumstances as may be so specified;

(c) provision (including provision modifying any duties under this section) specifying circumstances in which—

(i) any right to receive;

(ii) access to;

(iii) availability of,

copies of reports (or of parts of such reports) may be restricted, refused or withheld.

10O Regulations relating to inspections U.K.

(1) Regulations may make further provision concerning inspections under—

(a) section 10I;

(b) section 10J;

(c) section 10M.

(2) Regulations under subsection (1) may make different provision for different inspections provided for under the provisions mentioned in that subsection.

(3) Regulations under subsection (1) may, in particular, make provision—

(a) as to types of inspection which may be conducted;

(b) as to timing and frequency of inspections;

(c) as to seizure and removal of anything found during the course of an inspection;

(d) as to persons who may be authorised to carry out inspections;

(e) requiring or facilitating the sharing or production of information (including health records) for the purposes of an inspection;

(f) as to interviews and examinations (including physical and mental examinations) which may be carried out in connection with the inspections;

(g) requiring any person to provide to an authorised person an explanation of information produced to an authorised person;

(h) requiring information produced to an authorised person to be held in compliance with prescribed conditions and further disclosures to be made in compliance with such conditions;

(i) empowering an authorised person to disclose to a person prescribed for the purposes of this paragraph any information of a prescribed nature which the authorised person holds in consequence of an inspection;

(j) creating offences punishable on summary conviction by a fine not exceeding level 4 on the standard scale for the purpose of enforcing any provision of the regulations.

(4) In subsection (3)(e), “health records” means records relating to the physical or mental health of an individual (including dental records and medical records); and for the purposes of this subsection “medical records” means records which have been prepared by a medical practitioner who is, or has been, responsible for the clinical care of the individual.

Yn ddilys o 01/10/2010

Registration U.K.

10P Registration of independent health care services U.K.

(1) A person who seeks to provide a independent health care service must apply to HIS for registration of the service.

(2) An application must—

(a) give such information as may be prescribed about prescribed matters;

(b) identify an individual (who may be the applicant) who is to manage the service;

(c) give any other information which HIS may reasonably require the applicant to give;

(d) without prejudice to subsection (1)(b) of section 10Z5, be accompanied by the fee imposed under subsection (2)(a) of that section.

10Q Grant or refusal of registration U.K.

(1) HIS may grant or refuse registration of an independent health care service under section 10P.

(2) A grant of registration may be subject to such conditions as HIS considers appropriate.

(3) If HIS is satisfied, in relation to the application, that the requirements of—

(a) such regulations as are applicable under section 10Z7; and

(b) any other enactment which appears to HIS to be relevant,

will be complied with in relation to that service, it must give notice under section 10Z(1)(a), or as the case may be section 10Z2; otherwise it must give notice under section 10Z(1)(b).

(4) On granting a registration HIS must issue a certificate of registration to the applicant.

(5) The person for the time being providing the service must ensure that the certificate (or a copy of it) is, while the certificate is current, kept affixed in a conspicuous place in each of the premises in or from which that service is provided; and, if those premises do not include the principal (or only) office of the service, then in that office also.

Yn ddilys o 01/10/2010

Improvement notices U.K.

10R Improvement notices: independent health care services U.K.

HIS may at any time give a notice (an “improvement notice”) to the person for the time being providing a registered independent health care service that, unless within such reasonable period as may be specified in the notice, there is a significant improvement, of such a nature as may be so specified, in the provision of that service, it intends to make a proposal under section 10S.

Yn ddilys o 01/10/2010

Proposals and applications in relation to registered independent health care services U.K.

10S Cancellation of registration U.K.

(1) HIS may, at any time after the expiry of the period specified in an improvement notice under section 10R given in respect of an independent health care service, propose to cancel the registration of the service—

(a) on the ground that any person has been convicted of a relevant offence in relation to the service;

(b) on the ground that the service is being, or has at any time been, carried on other than in accordance with the relevant requirements; or

(c) on any other ground which may be prescribed.

(2) For the purposes of—

(a) paragraph (a) of subsection (1) the following are relevant offences—

(i) an offence under any of sections 10G to 10Z18 (in this section, “this group of sections”);

(ii) an offence under regulations made under this group of sections; or

(iii) an offence which, in the opinion of HIS, makes it appropriate that the registration should be cancelled; and

(b) paragraph (b) of that subsection, the following are relevant requirements—

(i) any requirements or conditions imposed by or under this group of sections; or

(ii) the requirements of regulations made under this group of sections.

(3) Where a person providing a registered independent health care service ceases to provide the service, HIS may cancel the registration of the service.

10T Emergency cancellation of registration U.K.

(1) HIS may apply to the sheriff for an order cancelling the registration of an independent health care service.

(2) The application may be granted if it appears to the sheriff that, unless the order is made, there will be a serious risk to the life, health or wellbeing of persons.

(3) The sheriff may make such interim order as the sheriff thinks fit.

(4) As soon as practicable after HIS has applied for an order under subsection (1), it must notify the appropriate authorities.

(5) Where the order applied for is made (or an interim order is made), HIS must as soon as reasonably practicable give a copy of it to the person who provides the independent health care service.

(6) The sheriff may determine an application under this section in the absence of the person providing the independent health care service to which the application relates.

(7) An order under this section has effect—

(a) from the time at which it is made; or

(b) from such other time as the sheriff considers appropriate.

(8) Within 14 days of the day on which an order under this section is made, an appeal may be made to the sheriff principal against the making of the order.

(9) On an appeal under subsection (8), the sheriff principal may—

(a) confirm the order;

(b) revoke the order;

(c) modify the order;

(d) make such other order as the sheriff principal thinks fit.

(10) The decision of the sheriff principal on an appeal under subsection (8) is final.

(11) An order under this section has effect notwithstanding the making of an appeal in relation to the order.

(12) For the purposes of this section, the appropriate authorities are—

(a) each—

(i) local authority; and

(ii) Health Board,

within whose area the independent health care service is provided; and

(b) any other body established by or under an enactment whom HIS thinks it appropriate to notify.

10U Condition notices U.K.

HIS may at any time give notice (in sections 10V, 10W, 10Z1 and 10Z2 referred to as a “condition notice”) to the person for the time being providing a registered independent health care service that it proposes to—

(a) vary or remove a condition for the time being in force; or

(b) impose an additional condition,

in relation to the registration.

10V Emergency condition notices U.K.

(1) Subsection (2) applies where—

(a) a person is providing a registered independent health care service; and

(b) HIS believes that the absence of a condition in relation to the registration of that service poses a serious risk to the life, health or wellbeing of persons.

(2) HIS may at any time give notice (an “emergency condition notice”) to the person providing the registered independent health care service specifying a condition, in relation to registration, in respect of that risk.

(3) The condition so specified takes effect immediately on receipt of the emergency condition notice.

(4) An emergency condition notice must—

(a) state that, within 14 days after service of the notice, the person to whom it is given may make written representations to HIS concerning any matter which that person wishes to dispute; and

(b) explain the right of appeal conferred by section 10X(1).

(5) HIS must consider any representations made under subsection (4)(a) and, following such consideration, must—

(a) give the person providing the registered independent health care service a condition notice stating that HIS proposes to vary or remove the condition specified in the emergency condition notice; or

(b) notify the person that it does not intend to give such a condition notice.

(6) When notifying a person under subsection (5)(b), HIS must explain the right of appeal conferred by section 10X(1).

(7) Where a condition notice has been given by virtue of subsection (5)(a) containing a proposal to remove the condition, HIS must implement the proposal unless it appears to it that it would be inappropriate to do so.

10W Application of Act to condition notices following emergency condition notices U.K.

(1) Section 10Z1 does not apply to a condition notice given by virtue of section 10V(5)(a).

(2) The reference in section 10Z2(5) to a proposal in relation to which a condition notice has been given does not include a reference to a proposal contained in a condition notice given by virtue of section 10V(5)(a) to remove the condition mentioned in that provision.

(3) The reference to a proposal in section 10Z4(1) does not include a reference to a proposal contained in a condition notice given by virtue of section 10V(5)(a) to remove the condition mentioned in that provision.

10X Emergency condition notices: appeals U.K.

(1) A person—

(a) who is given an emergency condition notice; and

(b) who—

(i) makes no written representations in accordance with section 10V(4)(a); or

(ii) makes such representations but is notified as mentioned in section 10V(5)(b),

may, within 14 days after the relevant date, appeal to the sheriff against the imposition of the condition.

(2) In subsection (1), “relevant date” means—

(a) where sub-paragraph (i) of subsection (1)(b) applies, the date of service of the emergency condition notice;

(b) where sub-paragraph (ii) of that subsection applies, the date notification mentioned in that sub-paragraph is given.

(3) The sheriff may, on an appeal under subsection (1)—

(a) direct that the condition specified in the emergency condition notice is to continue to have effect;

(b) direct that the condition is to cease to have effect;

(c) direct that the condition be varied as specified in the direction;

(d) impose an additional condition in relation to the registration.

10Y Applications in respect of conditions U.K.

(1) A person providing a registered independent health care service may apply to HIS—

(a) for the variation or removal of any condition for the time being in force, or for the addition of a condition, in relation to the registration; or

(b) for cancellation of the registration,

but no such application is competent in circumstances mentioned in subsection (2).

(2) The circumstances are that HIS has given the person notice—

(a) under section 10Z(2) of its proposal to cancel the registration (unless HIS has decided not to take that step); or

(b) under section 10Z2(3) of its decision to cancel the registration and the time within which an appeal may be brought has not expired or, if an appeal has been brought, that appeal has not been determined.

(3) An application under subsection (1) must be made in such manner and state such particulars as may be prescribed; and, without prejudice to subsection (1)(b) of section 10Z5, must be accompanied by the fee imposed under subsection (2)(a) or, as the case may be, (c) of that section.

(4) If HIS decides to grant an application under subsection (1)(a) it must give the applicant notice of its decision (stating, where applicable, the condition varied, removed or added) and issue a new certificate of registration.

10Z Further provision as respects notice of proposals U.K.

(1) If an application has been made under section 10P and HIS proposes—

(a) to grant that application but to do so subject to a condition which has not been agreed in writing between it and the applicant, it must give the applicant notice of the proposed condition;

(b) to refuse that application, it must give such notice of the proposed refusal.

(2) HIS must give any person who provides a registered independent health care service notice of a proposal to cancel the registration (other than in accordance with an application under subsection (1)(b) of section 10Y).

(3) HIS must give an applicant under subsection (1)(a) of section 10Y notice of a proposal to refuse that application.

(4) A notice under this section must give HIS's reasons for its proposal.

10Z1 Right to make representations to HIS as respects proposals U.K.

(1) A condition notice or a notice under section 10Z must state that, within 14 days after service of the notice, the person to whom it is given may make written representations to HIS concerning any matter which that person wishes to dispute.

(2) Where such a notice has been given—

(a) HIS may not decide to implement the proposal until (whichever first occurs)—

(i) where the person to whom the notice was given makes such representations as are mentioned in subsection (1), it has considered those representations;

(ii) that person notifies HIS in writing that such representations will not be made;

(iii) the period of 14 days mentioned in that subsection elapses without such representations being made and without HIS receiving such notification; and

(b) where the circumstances are as mentioned in paragraph (a)(ii) or (iii) above, HIS must implement the proposal unless it appears to it that it would be inappropriate to do so.

Yn ddilys o 01/10/2010

Notice of decision on application for registration U.K.

10Z2 Notice of HIS's decisions U.K.

(1) If HIS decides to grant unconditionally an application made under section 10P, or to grant such application subject only to a condition which has been agreed in writing between HIS and the applicant, it must give the applicant notice of its decision.

(2) A notice under subsection (1) must state the agreed condition.

(3) If HIS decides to implement a proposal in relation to which it has given a person a condition notice or a notice under section 10Z, it must give that person notice of the decision.

(4) A notice under subsection (3) must—

(a) explain the right of appeal conferred by section 10Z4; and

(b) in the case of a decision to implement a proposal—

(i) in relation to which a condition notice has been given, state the condition as varied, the condition which is removed or (as the case may be) the additional condition imposed; or

(ii) of which notice has been given under subsection (1)(a) of section 10Z, state the condition subject to which the application is granted.

(5) Subject to subsection (6), a decision to implement a proposal in relation to which a condition notice has been given or of which notice has been given under subsection (1)(a) or (2) of section 10Z does not take effect—

(a) if no appeal is brought, until the period of 14 days referred to in section 10Z4(1) has elapsed; and

(b) if an appeal is brought, until that appeal is finally determined or is abandoned.

(6) Where the decision is to implement a proposal of which notice has been given under subsection (1)(a) of section 10Z and the applicant notifies HIS in writing, before the period of 14 days referred to in section 10Z4(1) has elapsed, that there will be no appeal, the decision takes effect on receipt of that notification.

Yn ddilys o 01/10/2010

Conditions as to numbers U.K.

10Z3 Conditions as to numbers U.K.

Without prejudice to the generality of section 10Q(2) or 10U, a condition imposed under either of those provisions in relation to an independent health care service may limit the number of persons to whom the service may be provided.

Yn ddilys o 01/10/2010

Appeal against decision to implement proposal U.K.

10Z4 Appeal against decision to implement proposal U.K.

(1) A person given notice under section 10Z2(3) of a decision to implement a proposal may, within 14 days after that notice is given, appeal to the sheriff against the decision.

(2) The sheriff may, on appeal under subsection (1), confirm the decision or direct that is not to have effect; and where the registration is not to be cancelled may (either or both)—

(a) vary or remove any condition for the time being in force in relation to the registration;

(b) impose an additional condition in relation to the registration.

Yn ddilys o 01/10/2010

Fees U.K.

10Z5 Registration fees U.K.

(1) The Scottish Ministers, after consulting such persons, or groups of persons, as they consider appropriate on the potential effect of so prescribing on the services which the persons, or persons they represent, provide, may prescribe—

(a) maximum fees which may be imposed by HIS under this section;

(b) circumstances in which fees so imposed are or are not to be payable.

(2) Subject to the provisions of this section, HIS must impose fees in respect of—

(a) any application made for registration of an independent health care service or for cancellation of any such registration;

(b) the annual continuation of any such registration;

(c) any application made for the variation or removal of a condition for the time being in force in relation to any such registration;

(d) issuing to a person a new certificate of registration—

(i) at the instance of that person;

(ii) by virtue of any application by that person; or

(iii) by virtue of any new information provided by that person in pursuance of regulations under this group of sections (within the meaning of section 10S(2)(a)).

(3) Without prejudice to subsection (1)—

(a) HIS must, in fixing fees under this section, have regard to its reasonable expenses in carrying out its functions; but

(b) where it appears to HIS to be appropriate it may charge a nominal fee, or remit the fee altogether.

Yn ddilys o 01/10/2010

Regulations U.K.

10Z6 Regulations: registers and registration U.K.

(1) Regulations may—

(a) make provision about the keeping of registers by HIS;

(b) make provision about registration under section 10P and in particular about—

(i) the making of applications for such registration;

(ii) the content of certificates of registration;

(iii) categories of applicant who cannot competently make certain applications;

(c) require HIS to secure that, on such conditions, in such circumstances and, subject to subsection (2) on payment of such fees as may be specified in regulations, any person is to be afforded access to, and provided with a copy of an entry in or with an extract from, a register kept by HIS;

(d) except such part of a register as may be specified in the regulations from any requirement made by virtue of paragraph (c);

(e) confer additional functions on HIS in relation to registration under section 10P.

(2) Regulations under paragraph (c) of subsection (1) may specify circumstances in which the fees mentioned in that paragraph are not to be payable; and the fees must in any event not be payable in any case where HIS consider it appropriate to provide the copy or extract in question free of charge.

10Z7 Regulations: independent health care services U.K.

(1) Regulations may impose, in relation to independent health care services, any requirements which the Scottish Ministers consider appropriate for the purposes of this Part.

(2) Without prejudice to the generality of subsection (1) regulations may make it an offence to contravene or fail to comply with—

(a) any specified provision of the regulations; or

(b) a condition of registration for the time being in force.

(3) A person who commits an offence under the regulations is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) Before the Scottish Ministers make regulations containing provision as mentioned in subsection (2), they must consult such persons, or groups of persons, as they consider appropriate.

Yn ddilys o 01/10/2010

Complaints about independent health care services U.K.

10Z8 Complaints about independent health care services U.K.

(1) HIS must establish a procedure by which a person, or someone acting on a person's behalf, may make complaints (or other representations) in relation to the provision to the person of an independent health care service or about the provision of an independent health care service generally.

(2) The procedure must provide for it to be available whether or not procedures established by the provider of the service for making complaints (or other representations) about that service have been or are being pursued.

(3) Before establishing a procedure under subsection (1), HIS must consult the Scottish Public Services Ombudsman and such persons, or groups of persons, as it considers appropriate on its proposals for such a procedure.

(4) HIS must keep the procedure under review and must vary it whenever, after such consultation, it considers it appropriate to do so.

(5) HIS must give such publicity to the procedure (including the procedure as varied under subsection (4)) as it considers appropriate and must give a copy of the procedure to any person who requests it.

Yn ddilys o 01/10/2010

Offences U.K.

10Z9 Offences in relation to registration U.K.

(1) Any person who—

(a) provides an independent health care service while it is not registered under section 10P; or

(b) with intent to deceive, pretends that an independent health care service is so registered,

commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months or to both.

(2) Any person who fails to comply with section 10Q(5) commits an offence and is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

10Z10 False statements in applications U.K.

Any person who, in an application—

(a) for registration of an independent health care service; or

(b) for variation or removal of a condition in force in relation to such a registration,

knowingly makes a statement which is false or misleading in a material respect commits an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

10Z11 Offences by bodies corporate etc. U.K.

Where an offence under this group of sections (within the meaning of section 10S(2)(a)), or under regulations made under those sections, committed by—

(a) a body corporate other than a local authority, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—

(i) is a director, manager or secretary of the body corporate; or

(ii) purports to act in any such capacity;

(b) a firm, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—

(i) is a partner in the firm; or

(ii) purports to act in that capacity;

(c) an unincorporated association other than a firm, is committed with the consent or connivance of, or is attributed to any neglect on the part of, a person who—

(i) is concerned in the management or control of the association; or

(ii) purports to act in the capacity of a person so concerned,

the person (as well as the body corporate or, as the case may be, firm or association) commits the offence and is liable to be proceeded against and punished accordingly.

Yn ddilys o 01/10/2010

Inquiries U.K.

10Z12 Inquiries U.K.

(1) HIS may cause an inquiry to be held into any matter connected with—

(a) the exercise of its functions; or

(b) the provision of an independent health care service or a service provided under the health service.

(2) Before there is commenced an inquiry under subsection (1), HIS may direct that it be held in private; but where no such direction has been given the person holding the inquiry may if that person thinks fit hold it, or any part of it, in private.

(3) Subject to subsection (4), subsections (2) to (6) of section 210 of the Local Government (Scotland) Act 1973 (c. 65) (provisions relating to local inquires) apply in relation to an inquiry under subsection (1) as they apply in relation to a local inquiry under that section.

(4) For the purposes of an inquiry under subsection (1), any reference in those subsections which, by virtue of the Scotland Act 1998 (c. 46), falls to be construed as a reference to—

(a) the Scottish Ministers, is to be construed as a reference to HIS; and

(b) a member of the staff of the Scottish Ministers, is to be construed as a reference to a member of staff of HIS.

(5) The expenses incurred by HIS in relation to an inquiry under subsection (1) (including such reasonable sum as HIS may determine for the services of any of its staff engaged in the inquiry) must, unless HIS is of the opinion that those expenses should be defrayed in whole or in part by it, be paid by such party to the inquiry as it may direct; and HIS may certify the amount of the expenses so incurred.

(6) Any sum certified under subsection (5) and to be defrayed in accordance with a direction under that subsection is a debt due by the party directed and is to be recoverable accordingly.

(7) In relation to an inquiry under subsection (1), HIS may make an award as to the expenses of the parties and as to the parties by whom such expenses are to be paid.

Yn ddilys o 01/10/2010

Arrangements to provide independent health care services: registration U.K.

10Z13 Arrangements entered into by certain bodies: services to be registered U.K.

Where, in the performance of its functions—

(a) a local authority;

(b) a Health Board; or

(c) a Special Health Board,

makes arrangements with any person to provide an independent health care service, it must ensure that the service, when provided, is registered under section 10P.

Yn ddilys o 01/10/2010

Duty of certain bodies to be aware of reports, etc. U.K.

10Z14 Local authorities and other bodies: awareness of HIS reports etc. U.K.

(1) For the purposes of its functions as they relate to the provision of independent health care services (including the making of arrangements with other persons to provide such services)—

(a) a local authority;

(b) a Health Board;

(c) a Special Health Board,

must take into account the matters mentioned in subsection (3).

(2) In carrying out its duty under subsection (1), a local authority, Health Board or Special Health Board must have regard to any guidance issued by the Scottish Ministers in respect of that duty.

(3) The matters are such—

(a) reports;

(b) information;

(c) notices,

prepared, disseminated, given or otherwise produced by HIS as are relevant to the provision of the services mentioned in subsection (1) or, as the case may be, to the organisation or co-ordination of those services.

Yn ddilys o 01/10/2010

Giving of notice U.K.

10Z15 Giving of notice U.K.

(1) In this Part, any reference to a notice being given to a person providing, or seeking to provide, an independent health care service is to be construed as a reference to its being—

(a) delivered, where the person is—

(i) an individual, to that individual;

(ii) a body corporate, to the secretary or clerk of that body; or

(iii) a firm, to a partner of that firm; or

(b) sent by post, properly addressed to the person, in a registered letter or by the recorded delivery service,

but a notice sent by post is deemed not given until the third day after the day of posting.

(2) For the purposes of subsection (1), a letter is properly addressed to—

(a) a body corporate, if addressed to the body at its registered or principal office;

(b) a firm, if addressed to the firm at its principal office; or

(c) any other person, if addressed to the person at the address last known.

Yn ddilys o 01/10/2010

Scottish Health Council U.K.

10Z16 Establishment of Scottish Health Council U.K.

(1) HIS must establish under paragraph 8(1) of Schedule 5A a committee to be known as the Scottish Health Council.

(2) When the Scottish Health Council is established—

(a) HIS must delegate to the Council the functions mentioned in section 10C(1)(b) and (c); and

(b) the Scottish Ministers are to appoint a member of HIS to chair the Council.

(3) The Scottish Ministers may, by order—

(a) modify subsection (2)(a) in relation to the functions of HIS which must be delegated to the Scottish Health Council; or

(b) dissolve the Council.

(4) Where the Scottish Ministers make an order under subsection (3)(b) dissolving the Scottish Health Council, subsection (1) has no effect for so long as the order is in force in that respect.

(5) This section is without prejudice to Schedule 5A.

Yn ddilys o 01/10/2010

Miscellaneous U.K.

10Z17 Transfer of staff U.K.

For the purposes of section 12CA, the functions conferred on, delegated to or otherwise exercisable by HIS are to be treated as functions transferred from a health service body; and for the purposes of that transfer—

(a) NHS Quality Improvement Scotland is to be treated as the transferor authority;

(b) HIS is to be treated as the transferee authority; and

(c) the date on which section 10A is commenced is to be treated as the transfer date.

10Z18 “Provide” in relation to independent health care services U.K.

In this Part, “provide” in relation to an independent health care service, means to carry on or manage such a service; and related expressions are to be construed accordingly.

Yn ddilys o 01/10/2010

Consultation with Mental Welfare Commission for Scotland U.K.

10Z19 Duty of HIS to consult the Mental Welfare Commission for Scotland U.K.

HIS must, in the exercise of its functions relating to the provision of guidance, advice or information, consult the Mental Welfare Commission for Scotland in every case in which it appears to HIS appropriate having regard to the Commission's functions under sections 5(b) and 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).]

Trusts S

11 Scottish Hospital Trust. S

(1) The Secretary of State shall constitute a Scottish Hospital Trust (hereafter in this Act referred to as “the Hospital Trust”).

(2) Schedule 6 shall have effect in relation to the Hospital Trust.

(3) It shall be the duty of the Hospital Trust to hold and administer endowments which were transferred to the Hospital Trust under section 2 of the M1 Hospital Endowments (Scotland) Act 1971.

(4) References in this Act to a “relevant endowment” are references to an endowment such as is referred to in subsection (3).

(5) The Hospital Trust shall cause proper accounts to be kept of the capital, income and expenditure vested in, received by, and expended by them, and shall cause [F36 such accounts to be audited and] an abstract thereof to be published in such manner as the Secretary of State may approve.

(6) The Hospital Trust shall give to Health Boards reasonable access to the accounts above mentioned.

(7) The Hospital Trust shall make an annual report of their proceedings to the Secretary of State, which report shall include an abstract of the accounts; and the Secretary of State shall lay any such report annually before each House of Parliament.

Textual Amendments

F36 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(2)

Marginal Citations

M1 1971 c. 8.

12 Scottish Hospital Endowments Research Trust. S

(1) The Secretary of State shall constitute a Scottish Hospital Endowments Research Trust (hereafter in this Act referred to as “the Research Trust”).

(2) Schedule 7 shall have effect in relation to the Research Trust.

(3) It shall be the duty of the Research Trust to hold and administer funds on trust for the purpose of assisting the conduct of research into any matters relating to the causation, prevention, diagnosis or treatment of illness or to the development of medical or surgical appliances, including hearing aids.

(4) The Research Trust shall have power to accept, hold and administer, in accordance with Schedule 7, any property on trust for the purpose aforesaid.

[F37 (4A) The Research Trust shall have power to engage in activities intended to stimulate the giving of money or other property to assist them in carrying out the purpose aforesaid.

(4B) Subject to any directions of the Secretary of State excluding specified activities or descriptions of activity, the activities authorised by subsection (4A) include public appeals or collections, and the soliciting of sponsorship, donations, legacies, bequests and gifts.]

(5) Before deciding to give assistance in any particular case the Research Trust shall consult with any advisory committee on medical research which the Secretary of State may from time to time direct them to consult.

(6) The Research Trust shall cause proper accounts to be kept of the capital, income and expenditure vested in, received by, and expended by them, and shall cause such accounts to be audited and an abstract thereof to be published in such manner as the Secretary of State may approve.

(7) The Research Trust shall make an annual report of their proceedings to the Secretary of State, which report shall include an abstract of the accounts; and the Secretary of State shall lay any such report annually before each House of Parliament.

Textual Amendments

F37 S. 12(4A)(4B) inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(3)

[F38 12A National Health Service trusts. S

(1) Subject to subsection (2), the Secretary of State may by order establish bodies, to be known as National Health Service trusts (in this Act referred to as “NHS trusts”) [F39 to provide goods and services for the purposes of the health service]

(2) The Secretary of State shall by regulations provide for such consultation as may be so prescribed to be carried out by a Health Board or the Agency, before he makes an order under subsection (1).

(3) Every NHS trust—

(a) shall be a body corporate having a board of directors consisting of a chairman appointed by the Secretary of State and, subject to paragraph 5(2) of Schedule 7A, executive and non-executive directors (that is to say, directors who, subject to subsection (5), respectively are and are not employees of the trust); and

(b) shall have the functions conferred on it by an order under subsection (1) and by Schedule 7A.

[F40 (4) The functions which may be specified in an order under subsection (1) include a duty to provide goods or services so specified at, from, or through a hospital or other establishment or facility so specified.]

(5) Regulations may make general provision with respect to—

(a) the qualifications for and the tenure of office of the chairman and directors of an NHS trust (including the circumstances in which they shall cease to hold, or may be removed from, office or may be suspended from performing the functions of the office);

(b) the persons by whom the directors and any of the officers are to be appointed and the manner of their appointment;

(c) the maximum and minimum numbers of the directors;

(d) the circumstances in which a person who is not an employee of the trust is nevertheless, on appointment as a director, to be regarded as an executive rather than as a non-executive director;

(e) the proceedings of the trust (including the validation of proceedings in the event of a vacancy or defect in appointment);

(f) the appointment, constitution and exercise of functions by committees and sub-committees of the trust (whether or not consisting of or including any members of the board); and

(g) the application of the seal of the trust and the constitution and proof of instruments.

(6) Part I of Schedule 7A shall have effect with respect to orders under subsection (1); Part II of that Schedule shall have effect, subject to subsection (7), with respect to the general duties and the powers and status of NHS trusts; the supplementary provisions of Part III of that Schedule shall have effect; and Part IV of that Schedule shall have effect with respect to the dissolution of NHS trusts.

(7) The specific powers conferred by paragraphs 14 and 15 in Part II of Schedule 7A may be exercised only to the extent that the exercise will not—

(a) interfere with the duty of the trust to comply with directions under paragraph 6 of that Schedule and

(b) to any significant exent interfere with the performance by the trust of its obligations under any NHS contract or any obligations imposed by an order under subsection (1).

(8) The Secretary of State may by order confer on NHS trusts specific powers additional to those contained in paragraphs 10 to 15 of Schedule 7A.]

Textual Amendments

F38 Ss. 12A–12F inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 31

F39 Words in s. 12A(1) substituted for s. 12A(1)(a)(b)(retrospectively) by 1999 c. 8, s. 46(1)(a)(8); S.S.I. 1999/90, art. 2(a), Sch. 1

F40 S. 12A(4) substituted (retrospectively) by 1999 c. 8, s. 46(1)(b)(8); S.S.I. 1999/90, art. 2(a), Sch. 1

Modifications etc. (not altering text)

C4 S. 12A(1) extended (retrospectively) by 1999 c. 8, s. 46(3)(b)(8); S.S.I. 1999/90, art. 2(a), Sch. 1

Yn ddilys o 01/10/1999

[F41 12AA Additional functions of NHS trusts. S

The Secretary of State may direct a Health Board to delegate to an NHS trust or NHS trusts some or all of their functions—

(a) under section 2(1) of making arrangements on his behalf for the provision of services mentioned in Part II; or

(b) relating to pilot schemes under Part I of the National Health Service (Primary Care) Act 1997; or

(c) relating to arrangements under section 17C for the provision of personal medical services and personal dental services.]

Textual Amendments

F41 S. 12AA inserted (1.10.1999) by 1999 c. 8 s. 47; S.S.I. 1999/90, art. 2(a), Sch. 1

[F42 12B Transfer of staff to NHS trusts. S

(1) Subject to subsection (5), this section applies to any person who, immediately before an NHS trust’s operational date—

(a) is employed by a Health Board or the Agency (in this section and section 12C referred to as a “transferor authority") to work solely at, or for the purposes of, a hospital or other establishment or facility which is to become the responsibility of the trust; or

(b) is employed by a transferor authority to work at, or for the purposes of, any such hospital, establishment or facility and is designated for the purposes of this section by a scheme made by the body specified as mentioned in paragraph 3(1)(f ) of Schedule 7A.

(2) A scheme under this section shall not have effect unless approved by the Secretary of State.

(3) Subject to section 12C, the contract of employment between a person to whom this section applies and the transferor authority shall have effect from the operational date as if originally made between him and the NHS trust.

(4) Without prejudice to subsection (3)—

(a) all the transferor authority’s rights, powers, duties and liabilities under or in connection with a contract to which that subsection applies shall by virtue of this section be transferred to the NHS trust on its operational date; and

(b) anything done before that date by or in relation to the transferor authority in respect of that contract or the employee shall be deemed from that date to have been done by or in relation to the NHS trust.

(5) In any case where—

(a) an order under section 12A(1) provides for the establish-ment of an NHS trust with effect from a date earlier than the operational date of the trust; and

(b) on or after that earlier date but before its operational date the NHS trust makes an offer of employment by the trust to a person who at that time is employed by a Health Board or the Agency to work, whether solely or otherwise, at, or for the purposes of, the hospital or other establishment or facility which is to become the responsibility of the trust; and

(c) as a result of the acceptance of the offer, the person to whom it was made becomes an employee of the NHS trust,

subsections (3) and (4) shall have effect in relation to that person’s contract of employment as if he were a person to whom this section applies and any reference in those subsections to the operational date of the trust were a reference to the date on which he takes up employment with the trust.

(6) Subsections (3) and (4) are without prejudice to any right of an employee to terminate his contract of employment if a substantial change is made to his detriment in his working conditions; but no such right shall arise by reason only of the change in employer effected by this section.

(7) A scheme under this section may designate a person either individually or as a member of a class or description of employees.]

Textual Amendments

F42 Ss. 12A–12F inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 31

[F43 12C Supplementary provisions as to transfer of staff. S

(1) In the case of a person who falls within subsection (1)(b) of section 12B, a scheme under that section may provide that, with effect from the NHS trust’s operational date, his contract of employment (in this section referred to as “his original contract”) shall be treated in accordance with the scheme as divided so as to constitute—

(a) a contract of employment with the NHS trust; and

(b) a contract of employment with the transferor authority by whom he was employed before that date.

(2) Where a scheme makes provision as mentioned in subsection (1)—

(a) the scheme shall secure that the benefits to the employee under the two contracts referred to in that subsection, when taken together, are not less favourable than the benefits under his original contract;

(b) section 12B shall apply in relation to the contract referred to in subsection (1)(a) as if it were a contract transferred under that section from the transferor authority to the NHS trust;

(c) so far as necessary to preserve any rights and obligations, the contract referred to in subsection (1)(b) shall be regarded as a continuation of the employee’s original contract; and

(d) for the purposes of section 146 of and Schedule 13 to the Employment Protection (Consolidation) Act M2 1978, the number of hours normally worked, or, as the case may be, the hours for which the employee is employed in any week under either of those contracts shall be taken to be the total of the hours normally worked or, as the case may be, for which he is employed under the two contracts taken together.

(3) Where, as a result of the provisions of section 12B, by virtue of his employment during any period after the NHS trust’s operational date—

(a) an employee has contractual rights against an NHS trust to benefits in the event of his redundancy, and

(b) he also has statutory rights against the NHS trust under Part VI of the Employment Protection (Consolidation) Act 1978 (redundancy payments),

any benefits provided to him by virtue of the contractual rights referred to in paragraph (a) shall be taken as satisfying his entitlement to benefits under Part VI of that Act.]

Textual Amendments

F43 Ss. 12A–12F inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 31

Marginal Citations

M2 1978 c.44(43:1).

Yn ddilys o 01/10/1999

[F44 12CA Transfer of staff among health service bodies. S

(1) This section applies to any person who is—

(a) employed by a health service body (the transferor authority) and is transferred to another health service body (the transferee authority) because a function of the transferor authority is transferred to the transferee authority; and

(b) designated for the purposes of this section by a scheme made by the transferor authority.

(2) A scheme under this section shall not have effect unless approved by the Secretary of State.

(3) The contract of employment between a person to whom this section applies and the transferor authority shall have effect from the transfer date as if originally made between him and the transferee authority.

(4) Without prejudice to subsection (3)—

(a) all the transferor authority’s rights, powers, duties and liabilities under or in connection with a contract to which that subsection applies shall by virtue of this section be transferred to the transferee authority on the transfer date; and

(b) anything done before the transfer date by or in relation to the transferor authority in respect of that contract shall be deemed from that date to have been done by or in relation to the transferee authority.

(5) Subsections (3) and (4) are without prejudice to any right of an employee to terminate his contract of employment if a substantial change is made to his detriment in his working conditions; but no such right shall arise by reason only of the change in employer effected by this section.

(6) A scheme under this section may designate a person either individually or as a member of a class or description of employees.

(7) In this section—

• a “health service body" is a body mentioned in section 17A(2); and

• the “transfer date" is the date on which the function is transferred from the transferor authority to the transferee authority.]

Textual Amendments

F44 S. 12CA inserted (1.10.1999) by 1999 c. 8, s. 50; S.S.I. 1999/90, art. 2(a), Sch. 1

[F45 12D Transfer of property rights and liabilities to NHS trusts. S

(1) The Secretary of State may by order provide for the transfer to an NHS trust, with effect from such date as may be specified in the order, of such of the property, liabilities and obligations of a Health Board, the Agency or the Secretary of State as, in his opinion, need to be transferred to the NHS trust for the purpose of enabling it to carry out its functions.

(2) An order under this section may create or impose, or provide for the creation or imposition of, such new rights, liabilities or obligations in respect of what is transferred or what is retained by a Health Board or the Agency as appear to the Secretary of State to be necessary or expedient.

(3) Nothing in this section affects the power of the Secretary of State or any power of a Health Board or the Agency to transfer property, liabilities or obligations to an NHS trust otherwise than under subsection (1).

(4) Stamp duty shall not be chargeable in respect of any transfer to an NHS trust effected by virtue of an order under this section.

(5) Where an order under this section provides for the transfer—

(a) of land held on lease from a third party, that is to say, a person other than the Secretary of State; or

(b) of any other asset leased or hired from a third party or in which a third party has an interest,

the transfer shall be binding on the third party notwithstanding that, apart from this subsection, it would have required his consent or concurrence, or would have required to be intimated to him.

(6) Any property, liabilities and obligations which are to be transferred to an NHS trust shall be identified by agreement between, on the one hand, the NHS trust and, on the other hand, a Health Board or the Agency; or, in default of agreement, by direction of the Secretary of State.

(7) Where, for the purpose of a transfer pursuant to an order under this section, it becomes necessary to apportion any property, liabilities and obligations, the order may contain such provisions as apear to the Secretary of State to be appropriate for the purpose; and where any such property falls within subsection (5), the order shall contain such provisions as appear to the Secretary of State to be appropriate to safeguard the interests of third parties, including, where appropriate, provision for the payment of compensation of an amount to be determined in accordance with the order.

(8) Without prejudice to section 105(7), an order under this section may include provision for matters to be settled by arbitration by a person determined in accordance with the order.]

Textual Amendments

F45 Ss. 12A–12F inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 31

Yn ddilys o 01/12/2003

[F46 12DA Stamp duty land tax S

(1) A land transaction effected by virtue of an order under section 12D(1) is exempt from charge for the purposes of stamp duty land tax.

(2) Relief under this section must be claimed in a land transaction return or an amendment of such a return.

(3) In this section—

• “land transaction” has the meaning given by section 43(1) of the Finance Act 2003;

• “land transaction return” has the meaning given by section 76(1) of that Act.]

Textual Amendments

F46 S. 12DA inserted (1.12.2003) by The Stamp Duty Land Tax (Consequential Amendment of Enactments) Regulations 2003 (S.I. 2003/2867), reg. 2, Sch. para. 9(2)

[F47 12E Originating capital debt of, and other financial provisions relating to NHS trusts. S

(1) Each NHS trust shall have an originating capital debt of an amount specified in an order made by the Secretary of State with the consent of the Treasury, being an amount representing, subject to subsection (2), the excess of the valuation of the assets which, on or in connection with the establishment of the trust, are or are to be transferred to it (whether before, on or after its operational date) over the amounts of the liabilities which are or are to be so transferred.

(2) In determining the originating capital debt of an NHS trust, there shall be left out of account such assets or, as the case may be, such liabilities as are, or are of a class, determined for the purposes of this section by the Secretary of State, with the consent of the Treasury.

(3) An NHS trust’s originating capital debt shall be deemed to have been issued out of moneys provided by Parliament and shall constitute an asset of the Consolidated Fund.

(4) In accordance with an order under subsection (1), an NHS trust’s originating capital debt shall be divided between—

(a) a loan on which interest shall be paid at such variable or fixed rates and at such times as the Treasury may determine; and

(b) public dividend capital.

(5) The loan specified in subsection (4)(a) is in this Part of this Act referred to as an NHS trust’s “initial loan” and a rate of interest on the initial loan shall be determined as if section 5 of the National Loans Act 1968 had effect in respect of it and subsections (5) to (5B) of that section shall apply accordingly.

(6) Subject to subsections (4)(a) and (5), the terms of the initial loan shall be such as the Secretary of State, with the consent of the Treasury, may determine, and, in the event of the early repayment of the initial loan, the terms may require the payment of a premium or allow a discount.

(7) With the consent of the Treasury, the Secretary of State may determine the terms on which any public dividend capital forming part of an NHS trust’s originating capital debt is to be treated as having been issued, and, in particular, may determine the dividend which is to be payable at any time on any public dividend capital.

(8) Schedule 7B shall have effect with respect to—

(a) borrowing by NHS trusts;

(b) the limits on their indebtedness;

(c) the payment of additional public dividend capital to them; and

(d) the application of any surplus funds of NHS trusts.]

Textual Amendments

F47 Ss. 12A–12F inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 31

[F48 12F Financial obligations of NHS trusts. S

(1) Every NHS trust shall ensure that its revenue is not less than sufficient, taking one financial year with another, to meet outgoings properly chargeable to revenue account.

(2) It shall be the duty of every NHS trust to achieve such financial objectives as may from time to time be set by the Secretary of State with the consent of the Treasury and as are applicable to it; and any such objectives may be made applicable to NHS trusts generally, or to a particular NHS trust or to NHS trusts of a particular description.]

Textual Amendments

F48 Ss. 12A–12F inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 31

[F49 12G Trust property of NHS trusts. S

(1) Subject to subsection (2), an NHS trust shall have power to accept, hold and administer any property on trust for purposes relating to any service which it is their function to make arrangements for, administer or provide.

(2) The Secretary of State may by order make such provision as he thinks appropriate in relation to the appointment of trustees in respect of an NHS trust for the purpose of holding in trust any property which is to be so held on behalf of the trust; and any such order may include provision as to the persons by whom, the manner in which, the conditions on which and the time within which, such trustees are to be appointed.

(3) Where—

(a) section 82 applies in relation to any endowment or property which is held on trust by a Health Board; and

(b) that endowment or property is, by virtue of an order under section 12D, transferred to an NHS trust,

section 82 shall apply to the use of that endowment or property by the trust as it applied to the use thereof by the Health Board.

(4) Trustees appointed by virtue of subsection (2) shall cause proper accounts to be kept of the capital, income and expenditure vested in, received by and expended by them; and shall cause such accounts to be audited and an abstract thereof to be published in such manner as the Secretary of State may approve.]

Textual Amendments

F49 S. 12G inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 33

Yn ddilys o 01/10/1999

[F50 Quality] S

Textual Amendments

F50 S. 12H and cross-heading inserted (1.10.1999) by 1999 c. 8, s. 51; S.S.I. 1999/90, art. 2(a), Sch. 1

[F50 12H F51 Duty of quality. S

(1) It shall be the duty of each Health Board, Special Health Board and NHS trust and of the Agency to put and keep in place arrangements for the purpose of monitoring and improving the quality of health care which it provides to individuals.

(2) The reference in subsection (1) to health care which a body there mentioned provides to individuals includes health care which the body provides jointly with another person to individuals.

(3) In this section “health care” means services for or in connection with the prevention, diagnosis or treatment of illness.]

Textual Amendments

F51 S. 12H inserted (1.10.1999) by 1999 c. 8, s. 51; S.S.I. 1999/90, art. 2(a), Sch. 1

Yn ddilys o 30/09/2004

[F52 12I Duty in relation to governance of staff S

It shall be the duty of every Health Board and Special Health Board and of the Agency to put and keep in place arrangements for the purposes of—

(a) improving the management of the officers employed by it;

(b) monitoring such management; and

(c) workforce planning.]

Textual Amendments

F52 S. 12I inserted (30.9.2004) by National Health Service Reform (Scotland) Act 2004 (asp 7), ss. 3, 12(1); S.S.I. 2004/361, art. 2(b)(i)

Co-operation and assistance S

Yn ddilys o 30/09/2004

[F53 12J Health Boards: co-operation with other Health Boards, Special Health Boards and the Agency S

(1) In exercising their functions in relation to the planning and provision of services which it is their function to provide, or secure the provision of, under or by virtue of this Act, Health Boards shall co-operate with one another, and with Special Health Boards and the Agency, with a view to securing and advancing the health of the people of Scotland.

(2) In pursuance of subsection (1) a Health Board may—

(a) undertake to provide, or secure the provision of, services as respects the area of another Health Board, and the other Health Board may enter into arrangements with the first Health Board for that purpose,

(b) undertake with one or more other Health Boards to provide, or secure the provision of, services jointly as respects their areas.

(3) A Health Board undertaking to provide, or secure the provision of, services under subsection (2) may—

(a) enter into arrangements with another Health Board, a Special Health Board or the Agency in relation to the provision of such services,

(b) do anything in relation to the provision of such services which they could do for the purpose of providing, or securing the provision of, such services as respects their area.

(4) This section is without prejudice to any other power which a Health Board may have.]

Textual Amendments

F53 S. 12J inserted (30.9.2004) by National Health Service Reform (Scotland) Act 2004 (asp 7), ss. 5, 12(1); S.S.I. 2004/361, art. 2(b)(i)

13 Co-operation between Health Boards and other authorities. S

In exercising their respective functions, Health Boards, [F54 NHS trusts,] local authorities and education authorities shall co-operate with one another in order to secure and advance the health of the people of Scotland.

Textual Amendments

F54 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(4)

Modifications etc. (not altering text)

C5 S. 13 applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C6 S. 13 applied (1.4.1993) by S.I. 1993/577, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 13 applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 13 applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. Pt. I

S. 13 applied (1.4.1999) by S.I. 1999/726, art. 5(1)(2), Sch. Pt. I

S. 13 applied (1.4.2000) by S.S.I. 2000/47, art. 5(1)(2), Sch. Pt. I

S. 13 applied (6.4.2001) by S.S.I. 2001/137, art. 5(1), Sch. Pt. I

S. 13 applied (31.3.2002) by S.S.I. 2002/103, art. 6, Sch. Pt. I (with art. 4(4))

S. 13 applied (27.6.2002) by S.S.I. 2002/305, art. 5(1), Sch. Pt. I (with art. 4(4))

[F55 13A Co-operation in planning of services for disabled persons, the elderly and others. S

(1) The duty under section 13, in relation to persons to whom this section applies, includes—

(a) joint planning of—

(i) services for those persons; and

(ii) the development of those services,

[F56 by Health Boards and such of the authorities as mentioned in that section as may be concerned]

(b) such consultation with voluntary organisations providing services similar to those mentioned in paragraph (a) as might be expected to contribute substantially to the joint planning of the services mentioned in that paragraph;

[F57 (c) the publication, at such times and in such manner as the bodies who have made joint plans under paragraph (a) consider appropriate, of those joint plans.]

(2) This section applies to—

(a) disabled persons within the meaning of the Disabled Persons (Services, Consultation and Representation) Act 1986;

(b) persons aged 65 or more; and

(c) such other categories of persons as the Secretary of State may by order specify.]

Textual Amendments

F55 S. 13A inserted by National Health Service (Amendment) Act 1986 (c. 66, SIF 113:2), s. 5(1)

F56 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(5)

F57 Section 13A(1)(c) repealed (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(2), Sch. 10

Modifications etc. (not altering text)

C7 S. 13A applied (6.4.2001) by S.S.I. 2001/137, art. 5(1), Sch. Pt. I

S. 13A applied (31.3.2002) by S.S.I. 2002/103, art. 6, Sch. Pt. I (with art. 4(4))

S. 13A applied (27.6.2002) by S.S.I. 2002/305, art. 5(1), Sch. Pt. I (with art. 4(4))

C8 S. 13A applied (1.4.2003) by S.I. 1990/2639, art. 5(1), Sch. Pt. 1 (as amended by The Health Education Board for Scotland Amendment Order 2003 (S.S.I. 2003/154), art. 6(a)(i))

[F58 13B [F59 Joint Liaison Committees. S

(1) The Secretary of State may, after consultation with such Health Boards, local authorities, education authorities, associations of such authorities and other organisations and persons as appear to him to be appropriate, by order provide for the formation and as to the functions of committees, to be known as joint liaison committees, to advise Health Boards and local education authorities on the performance of such of their duties under section 13 as consist of co-operation in the planning and operation of services of common concern to Health Boards and such authorities.

(2) An order under subsection (1) may contain provisions relating to the role of voluntary organisations in joint liaison committees.]

Textual Amendments

F58 Section 13B repealed (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(2), Sch. 10

F59 S. 13B inserted (prosp.) by National Health Services (Amendment) Act 1968 (c. 66, SIF 113:2), s. 5(1)

14 Designated medical officers. S

(1) Every Health Board shall, in accordance with regulations, designate a medical officer or officers of the Board for the purpose of exercising such functions on behalf of local authorities as may be assigned to him by or under any enactment and such other functions as local authorities may, with the agreement of the Health Board, assign to him.

(2) Any such medical officer shall, in any enactment, be known as “the designated medical officer”.

(3) A designated medical officer may exercise any powers conferred by any enactment on an authorised officer of a local authority if the local authority authorises him in writing to do so.

(4) A designated medical officer may appoint one or more persons approved by the Board to act as his depute or deputes, and all things required or authorised by law to be done by or to the designated medical officer may be done by or to any depute so appointed by him; and any reference in any enactment or instrument made under any enactment to the designated medical officer shall, where the depute is acting for the officer, include a reference to the depute.

15 Supply of goods and services to local authorities, etc. S

(1) The Secretary of State, a Health Board or the Agency may—

(a) purchase and store and, on such terms and conditions as may be agreed, supply to persons providing general medical, general dental or general ophthalmic services, or pharmaceutical services under Part II such equipment, goods or materials as may be prescribed;

(b) purchase and store and, on such terms and conditions as may be agreed, supply to local authorities, education authorities, government departments and such public bodies or classes of public bodies as may be determined by the Secretary of State, any equipment, goods or materials of a kind used in the health service;

(c) provide local authorities and education authorities, on such terms and conditions as may be agreed, with any administrative, professional or other services of persons employed by [F60 or having contracts with] the Secretary of State, a Health Board or the Agency;

(d) permit local authorities and education authorities, on such terms and conditions as may be agreed, to use premises occupied for the purposes of the health service;

(e) permit local authorities and education authorities, on such terms and conditions as may be agreed, to use any vehicle, plant or apparatus belonging to a Health Board or the Agency;

(f) permit education authorities, on such terms and conditions as may be agreed, and for the purpose of providing special education within the meaning of section [F61 1(5)(c) of the M3 Education (Scotland) Act 1980], to use any premises or facilities provided under section 36;

(g) carry out, on such terms and conditions as may be agreed, maintenance work in connection with land or buildings for the maintenance of which a local authority or education authority is responsible.

(2) In paragraphs (a) and (b) of subsection (1), the power to supply equipment, goods and materials includes a power to make arrangements with third parties for the supply by them of those things.

(3) The Secretary of State may by order provide that, in relation to a vehicle which is made available by him in pursuance of this section and is used in accordance with the terms on which it is so available, the M4 Vehicles (Excise) Act 1971 and Part VI of the M5 Road Traffic Act 1972 shall have effect with such modifications as are specified in the order.

Textual Amendments

F60 Words inserted by Health Services Act 1980 (c. 53), s. 3(2)

F61 Words substituted by Education (Scotland) Act 1980 (c. 44), Sch. 4 para. 16

Modifications etc. (not altering text)

C9 S. 15(1)(b)–(e), (2) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C10 S. 15(1)(b)-(e)(2) applied (with modifications) (1.4.1993) by S.I. 1993/577, art. 5(1), Sch. 1 Pt. I.

Marginal Citations

M3 1980 c. 44.

M4 1971 c. 10.

M5 1972 c. 20.

16 Assistance to voluntary organisations. S

(1) The Secretary of State may assist any voluntary organisation whose activities include the provision of a service similar or related to a service provided under this Act by permitting them to use premises belonging to him on such terms as may be agreed, and by making available goods, materials, vehicles or equipment (whether by way of gift, loan or otherwise) and the services of any staff who are employed in connection with the premises or other things which he permits the organisation to use.

(2) The Secretary of State may by order provide that, in relation to a vehicle which is made available by him in pursuance of this section and is used in accordance with the terms on which it is so available, the Vehicles (Excise) Act 1971 and Part VI of the M6 Road Traffic Act 1972 shall have effect with such modifications as are specified in the order.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F62

Textual Amendments

F62 Ss. 16(3), 20(2), 51, 52, 59–63, 65–68, 96(2), Sch. 16 paras. 25, 43 repealed by Health Services Act 1980 (c. 53), Sch. 7

Modifications etc. (not altering text)

C11 S. 16: by S.I. 1990/2639, art. 4(2)(a) certain functions of the Secretary of State under s. 16 are made exercisable (1.4.1991) by the Health Education Board for Scotland

Marginal Citations

M6 1972 c. 20.

[F63 16A Power to make payments towards expenditure on community services. S

(1) A Health Board may, if they think fit, make payments in accordance with this section to any regional, islands or district council towards expenditure incurred or to be incurred by them in connection with the performance of the following functions—

(a) any function relating to a matter which, by virtue of section 2(2) of the M7 Social Work (Scotland) Act 1968 or any other enactment (other than section 3 of the Disabled Persons (Employment) Act M8 1958), stands referred to the social work committee of a regional or islands council;

(b) any of a regional or islands council’s functions under section 1 of the Education (Scotland) Act M9 1980 in making provision for—

(i) special educational needs;

(ii) further education,

within the meaning of those terms in that section;

(c) any of a district or islands council’s functions under Part VII of the Housing (Scotland) Act M10 1966 (provision of housing accommodation); and

(d) any of a regional or islands council’s functions under the following provisions—

(i) Part III of the National Assistance Act M11 1948;

(ii) section 116 of the Mental Health Act 1983;

(iii) section 1 or 2 of the Chronically Sick and Disabled Persons Act M12 1970;

(iv) section 23 or 297 of the Criminal Procedure (Scotland) Act M13 1975.

(2) A Health Board may, if they think fit, make payments in accordance with this section to any of the following bodies towards expenditure incurred or to be incurred by them in connection with the provision of housing accommodation—

[F64 (a) a registered housing association within the meaning of the Housing Associations Act 1985;]

(b) any development corporation established under section 2 of the New Towns (Scotland) Act M14 1968;

(c) the Housing Corporation; and

(d) the Scottish Special Housing Association.

(3) Where a voluntary organisation provides services similar to the functions referred to in this section, payments may be made in accordance with this section to any such organisation towards expenditure incurred or to be incurred in connection with the provision of those services and such payments may be made by-

(a) any Health Board either instead of or in addition to making payments under this section to any council, authority or other body in respect of such services; and

(b) any such council, authority or other body which has received payments from a Health Board under this section, out of the sums so received.

(4) Any payments made under this section, whether in respect of expenditure of a capital or of a revenue nature, or of both, shall be made in accordance with conditions prescribed for payments of that description by the Secretary of State in directions given under this subsection.]

Textual Amendments

F63 S. 16A substituted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 2

F64 Paragraph (a) substituted by Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 4(1), Sch. 2 para. 41

Modifications etc. (not altering text)

C12 S. 16A applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt. I (with art. 6)

Marginal Citations

M7 1968 c. 49.(81:3).

M8 1958 c.33(43:1).

M9 1980 c.44(41:2).

M10 1966 c.49.

M11 1948 c.29(81:3).

M12 1970 c.44(81:3).

M13 1975 c.21(39:1).

M14 1968 c.16(123:4).

[F65 16B Financial assistance by the Secretary of State to voluntary organisations. S

(1) The Secretary of State may, upon such terms and subject to such conditions as he may, with the approval of the Treasury, determine, give to a voluntary organisation to which this section applies assistance by way of grant or loan, or partly in the one way and partly in the other.

(2) This section applies to a voluntary organisation whose activities consist in or include the provision of a service similar to a relevant service, the promotion or publicising of a relevant service or a similar one or the giving of advice with respect to the manner in which a relevant service or a similar one can best be provided.

(3) In this section, “relevant service” means a service which must or may, by virtue of the National Health Service (Scotland) Act 1978, be provided or the provision of which must or may, by virtue of that Act, be secured by the Secretary of State, or a service for the provision of which a Health Board is, by virtue of that Act, under a duty to make arrangements.]

Textual Amendments

F65 S. 16B inserted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 3

Modifications etc. (not altering text)

C13 S. 16B: by S.I. 1990/2369, art. 4(2)(b) certain functions of the Secretary of State under s. 16B are made exercisable (1.4.1991) by the Health Education Board for Scotland

C14 S. 16B: functions transferred (31.3.2002) by S.S.I. 2002/103, art. 4(2)(b) (with art. 4(4))

S. 16B: functions transferred (27.6.2002) by S.S.I. 2002/305, art. 4(2)(b) (with art. 4(4))

17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F66 S

Textual Amendments

F66 S. 17 repealed by Overseas Development and Co-operation Act 1980 (c. 63), Sch. 2 Pt. I

Yn ddilys o 01/09/1997

[F67 17AA Provision of certain services under NHS contracts. S

(1) This section applies to any arrangement under which a Health Board or such other health service body as may be prescribed arrange for the provision to them—

(a) by a person on an ophthalmic list, or

(b) by a person on a pharmaceutical list,

of goods or services that they reasonably require for the purposes of functions which they are exercising under Part I of this Act.

(2) Any such arrangement is to be treated as an NHS contract for the purposes of section 17A (other than subsections (5) and (7)).

(3) In this section—

• “health service body” means a person or body which is a health service body for the purposes of section 17A;

• “ophthalmic list” means a list published in accordance with regulations made under—

  (a)

  section 26(2)(a) of this Act;

  (b)

  section 39(a) of the M15 National Health Service Act 1977; or

  (c)

  Article 62(2)(a) of the M16 Health and Personal Social Services (Northern Ireland) Order 1972; and

• “pharmaceutical list” means a list published in accordance with regulations made under—

  (a)

  section 27(2) of this Act;

  (b)

  section 42(2)(a) of the National Health Service Act 1977; or

  (c)

  Article 63(2A)(a) of the 1972 Order.]

Textual Amendments

F67 S. 17AA inserted (1.9.1997) by 1997 c. 46, s. 31(2); S.I. 1997/1780, art. 2(3)

Marginal Citations

M15 1977 c. 49.

M16 S.I. 1972/1265 (N.I.14).

[F68 17A NHS contracts. S

(1) The persons or bodies mentioned in paragraphs (a) to (e) of subsection (2) may, for the purpose of carrying out their functions under any enactment, and without prejudice to any other power they may have in that regard, enter into arrangements for the provision of goods or services to or by them with—

(a) one another; or

(b) any of the persons or bodies mentioned in paragraphs (f) to (m) of that subsection.

(2) The persons and bodies referred to in subsection (1) are—

(a) Health Boards;

(b) the Agency;

(c) the Scottish Dental Practice Board;

(d) a State Hospital Management Committee constituted under section 91 of the Mental Health (Scotland) Act M17 1984;

(e) NHS trusts established under section 12A;

(f) health authorities within the meaning of section 128(1) (interpretation) of the National Health Service Act M18 1977;

(g) the Dental Practice Board;

(h) the Public Health Laboratory Service Board;

(i) Family Health Services Authorities within the meaning of section 10 of the National Health Service Act 1977;

(j) recognised fund-holding practices;

(k) NHS trusts established under section 5 of the National Health Service and Community Care Act 1990;

(l) Health and Social Services Boards constituted under the Health and Personal Social Services (Northern Ireland) Order M19 1972; and

(m) the Secretary of State.

(3) In subsection (1)—

(a) “goods” includes accommodation; and

(b) “services” includes services of any description,

and in this Act an arrangement falling within that subsection is referred to as an “NHS contract".

(4) Whether or not an arrangement which constitutes an NHS contract would, apart from this subsection, be a contract in law, it shall not be regarded for any purpose as giving rise to contractual rights or liabilities, but if any dispute arises with respect to such an arrangement, either party may refer the matter to the Secretary of State for determination under the following provisions of this section.

(5) If, in the course of negotiations intending to lead to an arrangement which will be an NHS contract, it appears to either of the prospective parties that—

(a) the terms proposed by the other party are unfair by reason that that party is seeking to take advantage of its position as the only, or the only practicable, provider of the goods or services concerned or by reason of any other unequal bargaining position as between the prospective parties to the proposed arrangement; or

(b) for any other reason arising out of the relative bargaining positions of the prospective parties any of the terms of the proposed arrangements cannot be agreed.

that party may refer the terms of the proposed arrangement to the Secretary of State for determination under the following provisions of this section.

(6) Where a reference is made to the Secretary of State under subsection (4) or (5), the Secretary of State may determine the matter himself or, if he considers it appropriate, appoint a person to consider and determine it in accordance with regulations.

(7) By his determination of a reference under subsection (5), the Secretary of State or, as the case may be, the person appointed by him under subsection (6) may specify terms to be included in the proposed arrangement and may direct that it be proceeded with; and it shall be the duty of the prospective parties to the proposed arrangement to comply with any such directions.

(8) A determination of a reference under subsection (4) may contain such directions (including directions as to payment) as the Secretary of State or, as the case may be, the person appointed under subsection (6) considers appropriate to resolve the matter in dispute; and it shall be the duty of the parties to the NHS contract in question to comply with any such directions.

(9) Without prejudice to the generality of his powers on a reference under subsection (4), the Secretary of State or, as the case may be, the person appointed by him under subsection (6) may by his determination in relation to an arrangement constituting an NHS contract vary the terms of the arrangement or bring it to an end; and where the arrangement is so varied or brought to an end—

(a) subject to paragraph (b), the variation or termination shall be treated as being effected by agreement between the parties; and

(b) directions included in the determination by virtue of subsection (8) may contain such provisions as the Secretary of State or, as the case may be, the person appointed by him under subsection (6) considers appropriate in order satisfactorily to give effect to the variation or to bring the arrangement to an end.]

Textual Amendments

F68 Ss. 17A and 17B inserted (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 30

Modifications etc. (not altering text)

C15 S. 17A applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

Marginal Citations

M17 1984 c.36(85).

M18 1977 c.49(113:2).

M19 S.I. 1972/1265 (N.I. 14).

17B Reimbursement of Health Board’s costs. S

(1) Where a Health Board provide goods or services under this Act for an individual for whose health care it is not their function to provide by virtue of section 2(1), in circumstances where the condition of the individual is such that he needs those goods or services and, having regard to his condition, it is not practicable, before providing them, to enter into an NHS contract for their provision, that Health Board shall be remunerated in respect of that provision by the Health Board or Health and Social Services Board which has the function, or the District or Special Health Authority which has the primary functions, of providing those goods or services to that individual.

(2) The rate of any remuneration payable by virtue of subsection (1) shall be calculated in such manner or on such basis as may be determined by the Secretary of State.

(3) In any case where—

(a) a Health Board provide goods or services for the benefit of an individual; and

(b) the provision of those goods and services is not pursuant to an NHS contract; and

(c) the individual is resident outside the United Kingdom and is of a description (being a description associating the individual with another country) specified for the purposes of this subsection by a direction made by the Secretary of State,

the Health Board shall be remunerated by the Secretary of State in respect of the provision of the goods or services at such rate or rates as he considers appropriate.

(4) In subsection (1), “Health and Social Services Board” means such a Board constituted under the Health and Personal Social Services (Northern Ireland) Order 1972.

Yn ddilys o 05/03/2001

F69 17C Personal medical or dental services. S

(1) A Health Board may make one or more agreements with respect to their area, in accordance with the provisions of regulations under section 17E, under which—

(a) personal medical services are provided (otherwise than by the Board); or

(b) personal dental services are provided (otherwise than by the Board).

(2) An agreement made under this section—

(a) may not combine arrangements for the provision of personal medical services with arrangements for the provision of personal dental services; but

(b) may include arrangements for the provision of services—

(i) which are not personal medical services or personal dental services; but

(ii) which may be provided under this Part.

(3) Except to such extent as may be prescribed—

(a) a patient for whom personal medical services are provided in accordance with an agreement made under this section is not to count as a person for whom arrangements must be made by the Health Board concerned under section 19;

(b) a patient for whom personal dental services are provided under an agreement made under this section is not to count as a person for whom arrangements must be made by the Health Board concerned under section 25.

(4) This Act (and in particular section 2) has effect, in relation to personal medical services or personal dental services provided under an agreement made under this section, as if those services were provided as a result of the delegation by the Secretary of State (by directions given under section 2) of functions of his under this Part.

(5) Regulations may provide—

(a) for functions which are exercisable by a Health Board in relation to an agreement made under this section to be exercisable on behalf of the Board by a Health Authority; and

(b) for functions which are exercisable by a Health Authority in relation to an agreement made under section 28C of the M20 National Health Service Act 1977 to be exercisable on behalf of the Authority by a Health Board.

(6) For the purposes of this section—

• “Health Authority” has the same meaning as in the National Health Service Act 1977;

• “personal medical services” means medical services of a kind that may be provided by a general medical practitioner in accordance with arrangements made under Part II; and

• “personal dental services” means dental services of a kind that may be provided by a general dental practitioner in accordance with arrangements made under Part II.

Textual Amendments

F69 S. 17C inserted (5.3.2001 for certain purposes only and otherwiseprosp.) by 1997 c. 46, ss. 21(2), 41(3); S.S.I. 2001/58, art. 2

Marginal Citations

M20 1977 c. 49.

Yn ddilys o 08/11/2010

[F70 17CA Primary medical services: persons with whom agreements can be made S

(1) A Health Board may, subject to such conditions as may be prescribed, make an agreement under section 17C under which primary medical services are provided with—

(a) a medical practitioner,

(b) a health care professional (other than a medical practitioner),

(c) a qualifying partnership,

(d) a qualifying limited liability partnership,

(e) a qualifying company, or

(f) two or more of the persons mentioned in paragraphs (a) to (e).

(2) For the purposes of subsection (1)—

(a) a qualifying partnership is a partnership that satisfies both of the following conditions—

(i) at least one partner is a medical practitioner or other health care professional,

(ii) all other partners are individuals,

(b) a qualifying limited liability partnership is a limited liability partnership that satisfies both of the following conditions—

(i) at least one member is a medical practitioner or other health care professional,

(ii) all other members are individuals,

(c) a qualifying company is a company which satisfies both of the following conditions—

(i) at least one member of the company is a medical practitioner or other health care professional,

(ii) all other members are individuals.

(3) A Health Board may only make such an agreement if the Board is satisfied that all the other parties to the agreement (“the contractors”) have sufficient involvement in patient care.

(4) A contractor has sufficient involvement in patient care if—

(a) where the contractor is a medical practitioner or a health care professional, the contractor, or

(b) where the contractor is a partnership, limited liability partnership or a company, each partner or, as the case may be, member of the contractor,

regularly performs, or is engaged in the day to day provision of, primary medical services in accordance with section 17C arrangements, a general medical services contract or any other arrangement made in pursuance of section 2C(2) (or will so perform or be so engaged by virtue of the agreement in question).

(5) Regulations may—

(a) make provision as to what constitutes the regular performance of, or being engaged in the day to day provision of, primary medical services for the purposes of subsection (4),

(b) provide that references in subsection (4) to a person who is performing or is engaged in the provision of services include a person who has performed or been engaged in providing the services within such period as may be prescribed.

(6) Regulations under subsection (5)(a) may, in particular, provide that a period of time in which a person is not performing or is not engaged in the provision of primary medical services is, in prescribed circumstances, to be disregarded for the purposes of determining whether the person regularly performs or is engaged in the day to day provision of those services.

(7) In relation to an agreement under section 17C under which primary medical services are provided which is entered into with a partnership, regulations may make provision as to the effect on the agreement of a change in membership of the partnership.

(8) In this section, “health care professional” means a member of a profession which is regulated by a body mentioned (at the time the agreement in question is made) in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 (c.17).]

Textual Amendments

F70 S. 17CA inserted (8.11.2010 for certain purposes otherwise 22.12.2010) by Tobacco and Primary Medical Services (Scotland) Act 2010 (asp 3), ss. 38, 43(3), S.S.I. 2010/372, art. 2, Schs. 1, 2

Yn ddilys o 05/03/2001

[F71 17D Persons with whom agreements may be made. S

(1) A Health Board may make an agreement under section 17C only with one or more of the following—

(a) an NHS trust;

(b) in the case of an agreement under which personal medical services are provided—

(i) a qualifying medical practitioner;

(ii) an individual who is providing personal medical services in accordance with section 17C arrangements or section 28C arrangements;

(c) in the case of an agreement under which personal dental services are provided—

(i) a qualifying dental practitioner;

(ii) an individual who is providing personal dental services in accordance with section 17C arrangements or section 28C arrangements;

(d) an NHS employee, a section 17C employee or a section 28C employee;

(e) a qualifying body.

(2) In this section—

• “the 1977 Act” means the M21 National Health Service Act 1977;

• “NHS employee” means an individual who, in connection with the provision of services in the health service in Scotland or England and Wales, is employed by—

  (a)

  an NHS trust;

  (b)

  in the case of an agreement under which personal medical services are provided—

  (i)

  a medical practitioner whose name is included in a medical list kept under this Act or in a corresponding list kept under the 1977 Act; or

  (ii)

  a medical practitioner who is providing personal medical services in accordance with section 17C arrangements or section 28C arrangements;

  (c)

  in the case of an agreement under which personal dental services are provided—

  (i)

  a dental practitioner whose name is included in a list prepared in accordance with regulations made under section 25(2)(a) of this Act or section 36(1)(a) of the 1977 Act; or

  (ii)

  a dental practitioner who is providing personal dental services in accordance with section 17C arrangements or section 28C arrangements;

• “qualifying body” means—

  (a)

  a company which is limited by shares all of which are legally and beneficially owned by persons falling within paragraphs (a) to (d) of subsection (1); and also

  (b)

  in the case of an agreement under which personal dental services are provided, a body corporate which, in accordance with the provisions of Part IV of the M22 Dentists Act 1984, is entitled to carry on the business of dentistry;

• “qualifying dental practitioner” means a dental practitioner who satisfies the conditions imposed by regulations made under section 17E(2)(b) of this Act or section 28E(2)(b) of the 1977 Act;

• “qualifying medical practitioner” means a medical practitioner who satisfies the conditions imposed by regulations made under section 17E(2)(b) of this Act or section 28E(2)(b) of the 1977 Act;

• “section 17C employee” means an individual who, in connection with the provision of services in accordance with section 17C arrangements, is employed by an individual providing those services;

• “section 28C arrangements” means arrangements for the provision of services made under section 28C of the 1977 Act; and

• “section 28C employee” means an individual who, in connection with the provision of services in accordance with section 28C arrangements, is employed by an individual providing those services.]

Textual Amendments

F71 S. 17D inserted (5.3.2001 for certain purposes only and otherwiseprosp.) by 1997 c. 46, ss. 21(2), 40(3); S.S.I. 2001/58, art. 2

Marginal Citations

M21 1977 c. 49.

M22 1984 c. 24.

Yn ddilys o 05/03/2001

[F72 17E Personal medical or dental services: regulations. S

(1) The Secretary of State may make regulations with respect to the provision of services in accordance with section 17C arrangements.

(2) The regulations must—

(a) include provision for participants other than Health Boards to withdraw from section 17C arrangements if they wish to do so;

(b) impose conditions (including conditions as to qualifications and experience) to be satisfied by medical practitioners performing personal medical services, and dental practitioners performing personal dental services, in accordance with section 17C arrangements.

In paragraph (b) “practitioner” does not include a practitioner who is undergoing training of a prescribed description.

(3) The regulations may, in particular—

(a) provide that section 17C arrangements may be made only in prescribed circumstances;

(b) provide that section 17C arrangements may be made only in prescribed areas;

(c) provide that only prescribed services, or prescribed categories of service, may be provided in accordance with section 17C arrangements;

(d) require details of section 17C arrangements to be published;

(e) make provision with respect to the variation and termination of section 17C arrangements;

(f) prevent (except in such circumstances and to such extent as may be prescribed) a medical practitioner who performs personal medical services in accordance with section 17C arrangements from providing general medical services;

(g) make provision with respect to medical lists, including provision for preferential treatment for medical practitioners;

(h) provide for parties to section 17C arrangements to be treated, in such circumstances and to such extent as may be prescribed, as health service bodies for the purposes of section 17A;

(i) provide for directions, as to payments, made under section 17A(8) (as it has effect as a result of regulations made by virtue of paragraph (h)) to be enforceable in like manner as extract registered decrees arbitral bearing warrant for execution issued by the sheriff court of any sheriffdom in Scotland;

(j) confer powers or impose duties on the Dental Practice Board in relation to agreements made by virtue of section 17C(1) under which personal dental services are provided;

(k) authorise Health Boards to make payments of financial assistance for prescribed categories of preparatory work undertaken—

(i) in connection with preparing proposals for section 17C arrangements; or

(ii) in preparation for the provision of services under proposed section 17C arrangements.

F73 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The Secretary of State must—

(a) consider whether section 17C arrangements are likely to have an adverse effect on the distribution of medical practitioners providing general medical services or performing personal medical services in Scotland;

(b) if he thinks that the arrangements are likely to have that effect, consider whether it is necessary to include in the regulations provisions designed to secure that, so far as is possible, the arrangements do not have that effect; and

(c) if he thinks that it is necessary, include such provisions in the regulations.

(6) Regulations which impose conditions on persons performing personal medical services or persons performing personal dental services (whether made by virtue of subsection (2)(b) or otherwise) may, in particular, include provision of a kind that may be made by regulations under section 22.

(7) Regulations made by virtue of subsection (3)(g) may, in particular, include provision—

(a) requiring (except in prescribed circumstances) Health Boards to remove from their medical lists persons who are performing personal medical services in accordance with section 17C arrangements or corresponding services under section 28C of the M23 National Health Service Act 1977;

(b) conferring a right to transfer to a medical list on persons who have ceased to perform such services;

(c) that any provision in relation to medical lists made by or under any enactment is not to apply;

(d) as to conditions to be attached to entries in medical lists;

(e) conferring powers of disqualification on the Tribunal constituted under section 29.

(8) The power to make provision under this section of the kind mentioned in subsection (3)(j) includes power—

(a) to authorise or require the Dental Practice Board to perform on behalf of a Health Board functions of a prescribed description (including functions relating to remuneration) which have been delegated to the Dental Practice Board by the Health Board in accordance with a power conferred by the regulations;

(b) to provide that functions conferred by the regulations are only to be exercised by the Dental Practice Board in accordance with directions of the Secretary of State;

(c) to require information for the purpose of performing any functions conferred or imposed on the Dental Practice Board under this section.

(9) In this Act “section 17C arrangements” means arrangements for the provision of services made under section 17C.]

Textual Amendments

F72 S. 17E inserted (prosp.) by 1997 c. 46, ss. 22(2), 41(3)

F73 S. 17E(4) repealed (1.10.1999) by 1999 c. 8, s. 65, Sch. 4 para. 47, Sch. 5; S.S.I. 1999/90, art. 2, Sch. 1, 2

Marginal Citations

M23 1977 c. 49.

Yn ddilys o 28/02/2003

[F74 17EA Services lists S

(1) Regulations may make provision for the preparation and publication by each Health Board of one or more lists of medical practitioners approved by the Board to perform personal medical services—

(a) in accordance with section 17C arrangements; or

(b) in connection with the provision of such services under a pilot scheme.

(2) Such a list is in this Act referred to as a “services list”.

(3) A medical practitioner whose name is not included in the Board’s medical list or supplementary list may not perform medical services in the Board’s area—

(a) in accordance with such arrangements; or

(b) in such connection

unless his name is included in the Board’s services list as that of a person approved to do so.

(4) The regulations may (either or both)—

(a) make provision for the application (with such modifications as the Scottish Ministers think fit) to services lists or to persons who are, have been or seek to be included in a services list, of;

(b) in relation to such lists and persons, make provision analogous to any provision made by,

any regulations made under this Act in relation to medical lists or to persons who are, have been or seek to be included in a medical list.]

Textual Amendments

F74 S. 17EA inserted (28.2.2003 in regard to s. 17EA(1)(2)(4) and otherwise prosp.) by 2002 asp 5, ss. 18(1), 27(2); S.S.I. 2003/62, art. 2(1)(a)

Yn ddilys o 28/02/2003

[F75 17EB Application for inclusion in services list S

(1) No medical practitioner—

(a) who is a national of a member State and is registered by virtue of a qualification granted in a member State shall be entitled to have his name included in a Health Board’s services list unless he satisfies the Board that he has that knowledge of English which, in the interests of himself and his patients, is necessary for the performance of personal medical services in the Board’s area; or

(b) shall be so entitled unless he is suitably experienced.

(2) For the purposes of subsection (1)(b) a medical practitioner is “suitably experienced” if, but only if, he either—

(a) has acquired such medical experience as may be prescribed; or

(b) is by virtue of regulations made under this subsection, being regulations analogous to those made under section 22, exempt from the need to have acquired that experience,

and “medical experience” includes hospital experience in any speciality.

(3) Subsections (2) and (3) of section 22 apply in relation to regulations under subsection (2) above as they apply in relation to regulations under that section except that, for that purpose, the reference in subsection (2) of that section to the “prescribed experience" shall be construed as a reference to the medical experience prescribed by virtue of paragraph (a) of subsection (2) above.]

Textual Amendments

F75 S. 17EB inserted (28.2.2003) by 2002 asp 5, ss. 18(1), 27(2); S.S.I. 2003/62, art. 2(1)(a)

Prospective

[F76 X1 17F Lists of persons performing personal dental services S

(1) Regulations may provide that a person may not perform personal dental services under section 17C arrangements or a pilot scheme with a Health Board unless his name is included in a list maintained under the regulations by the Board.

(2) Regulations under subsection (1) may make provision in relation to such lists and in particular as to—

(a) the preparation, maintenance and publication of a list;

(b) eligibility for inclusion in a list;

(c) applications for inclusion (including provision for the procedure for applications to be made and dealt with and the documents to be supplied on application);

(d) the grounds on which an application for inclusion must be granted or refused;

(e) requirements with which a person included in a list must comply (including requirements as to standards of performance and patient care and as to declarations, consents or undertakings);

(f) suspension or removal from a list (including the grounds for and consequences of suspension or removal);

(g) circumstances in which a person included in a list may not withdraw from it;

(h) payments to be made by a Health Board in respect of a person suspended from a list (including provision for the amount of, or the method of calculating, the payment to be determined by the Scottish Ministers);

(i) criteria to be applied in making decisions under the regulations;

(j) disclosure of information about applicants for inclusion, refusals of applications, or suspensions, removals or references to the Tribunal, including in particular the disclosure of information about any such matter by a Health Board to the Scottish Ministers and by the Scottish Ministers to a Health Board.]

Editorial Information

X1 This is a new instance of s. 17F, inserted by Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), ss. 18, 43(3). A separate instance of s. 17F was inserted (1.4.1998) by National Health Service (Primary Care) Act 1997 (c. 46), s. 23(2); S.I. 1998/631, art. 2(a), Sch. 1, and repealed (1.4.2004) by Primary Medical Services (Scotland) Act 2004 (asp 1), ss. 8, 9(1), Sch. para. 1(5); S.S.I. 2004/58, art. 2(3)

Textual Amendments

F76 S. 17F inserted (prosp.) by virtue of Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), ss. 18, 43(3)

Yn ddilys o 01/10/1998

[F77 17G Right to choose dental practitioner. S

(1) Provision shall be made in regulations for conferring a right on any person to choose the dental practitioner from whom he is to receive primary dental services, subject to the consent of the practitioner concerned.

(2) The regulations shall, in particular, prescribe the procedure for choosing a practitioner.

(3) The regulations may, in particular, provide that the right to choose a dental practitioner conferred by the regulations shall, in the case of such persons as may be specified in the regulations, be exercised on their behalf by other persons so specified.

(4) In this section “primary dental services” means dental services which are—

(a) provided, in accordance with section 17C arrangements, as personal dental services; or

(b) provided under Part II as general dental services.]

Textual Amendments

F77 S. 17G inserted (1.10.1998) by 1997 c. 46, s. 24(2); S.I. 1998/1998, art. 2(2)(a), Sch. 1

Yn ddilys o 01/04/1998

[F78 17H Immunisation. S

Where the Secretary of State arranges with medical practitioners for the vaccination or immunisation of persons against any disease, he shall so far as reasonably practicable give every person providing, and every medical practitioner performing, personal medical services in accordance with section 17C arrangements an opportunity to participate in the arrangements for vaccination or immunisation.]

Textual Amendments

F78 S. 17H inserted (1.4.1998) by 1997 c. 46, s. 41(10), Sch. 2 Pt. I para. 37; S.I. 1998/631, art. 2(a), Sch. 1

Yn ddilys o 01/04/1998

[F79 17I Use of accommodation. S

If the Secretary of State considers that any accommodation provided by him by virtue of this Act is suitable for use in connection with the provision of personal medical services or personal dental services in accordance with section 17C arrangements, he may make the accommodation available on such terms as he thinks fit to persons providing those services.]

Textual Amendments

F79 S. 17I inserted (1.4.1998 for certain purposes, otherwise prosp.) by 1997 c. 46, s. 41(1), Sch. 2 Pt. I para. 38; S.I. 1998/631, arts. 2(b), 3(3), Sch. 2

Yn ddilys o 13/02/2004

[F80 General medical services contracts U.K.

Textual Amendments

F80 Ss. 17J-17O and cross-heading inserted (13.2.2004 for certain purposes otherwise 1.4.2004) by Primary Medical Services (Scotland) Act 2004 (asp 1), ss. 4, 9(1); S.S.I. 2004/58, art. 2(1)(3), Sch.

17J Health Boards' power to enter into general medical services contracts U.K.

(1) A Health Board may enter into a contract under which primary medical services are provided (whether directly or indirectly) by a contractor in accordance with the provisions of this Part.

(2) A contract under this section is referred to in this Act as a “general medical services contract”.

(3) Subject to any provision made by or under this Part, a general medical services contract may make such provision as may be agreed between the Health Board and the contractor as respects—

(a) the services to be provided under the contract;

(b) the remuneration to be paid under the contract; and

(c) any other matters.

(4) The services to be provided under a general medical services contract may include services which are not primary medical services; and the contract may provide for such other services to be performed in any place where, by virtue of section 2C, primary medical services may be performed.

(5) In this Part, “contractor”, in relation to a general medical services contract with a Health Board, means the other party to the contract.

17K Mandatory contract term: provision of prescribed primary medical services U.K.

(1) A general medical services contract must require the contractor to provide for the contractor’s patients primary medical services of such descriptions as may be prescribed.

(2) Regulations under subsection (1) may in particular describe the primary medical services by reference to the manner or circumstances in which they are provided.

17L Eligibility to be contractor under general medical services contract S

(1) A Health Board may, subject to such conditions as may be prescribed, enter into a general medical services contract with—

(a) a medical practitioner;

(b) a partnership, where the conditions mentioned in subsection (2) are satisfied; or

(c) a company limited by shares, where the conditions in subsection (3) are satisfied.

(2) The conditions referred to in subsection (1)(b) are that—

(a) all of the partners are individuals;

(b) at least one partner is a medical practitioner; and

(c) any partner who is not a medical practitioner is—

(i) an NHS employee;

(ii) a section 17C employee;

(iii) a section 28C employee or an Article 15B employee;

(iv) a health care professional who is engaged in the provision of services under this Act, the 1977 Act or the 1972 Order;

(v) an individual who is providing primary medical services in accordance with a general medical services contract;

(vi) an individual who is providing primary medical services in accordance with a section 28Q contract or general medical services in accordance with Article 56 of the 1972 Order;

(vii) an individual who is providing primary medical services in accordance with section 17C arrangements or section 28C arrangements or personal medical services in accordance with Article 15B arrangements;

(viii) an individual who is providing general dental services;

(ix) an individual who is providing primary dental services in accordance with a section 28K contract or general dental services in accordance with Article 61 of the 1972 Order;

(x) an individual who is providing personal dental services in accordance with section 17C arrangements; or

(xi) an individual who is providing primary dental services in accordance with section 28C arrangements or personal dental services in accordance with Article 15B arrangements.

(3) The conditions referred to in subsection (1)(c) are that—

(a) at least one share in the company is legally and beneficially owned by a medical practitioner; and

(b) any share which is not so owned is legally and beneficially owned by an individual referred to in subsection (2)(c)(i) to (xi).

(4) Regulations may make provision as to the effect on a general medical services contract entered into with a partnership of a change in the membership of the partnership.

(5) In this section—

• “health care professional” means a member of a profession regulated by a body mentioned (at the time the contract in question is entered into) in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17);

• “NHS employee” has the same meaning as it has in section 17D in relation to an agreement under which primary medical services are provided;

• “the 1972 Order”, “the 1977 Act”, “Article 15B arrangements”, “Article 15B employee”, “section 17C arrangements”, “section 17C employee”, “section 28C arrangements”, “section 28C employee”, “section 28K contract” and “section 28Q contract” each has the same meaning as in section 17D.

(6) The references in—

(a) subsection (2)(c)(iv) to a health care professional who is engaged in the provision of services include a health care professional who has been so engaged;

(b) subsection (2)(c)(v) to (xi) to a person or individual who is providing services include a person or individual who has provided the services,

within such period as may be prescribed.

17M Payments by Health Boards under general medical services contracts U.K.

(1) The Scottish Ministers may give directions as to payments to be made under general medical services contracts.

(2) A general medical services contract must require payments to be made under it in accordance with directions for the time being in force under this section.

(3) A direction under subsection (1) may in particular—

(a) provide for payments to be made by reference to compliance with standards or the achievement of levels of performance;

(b) provide for payments to be made by reference to—

(i) any scheme or scale specified in the direction;

(ii) a determination made by any person in accordance with factors specified in the direction;

(c) provide for the making of payments in respect of individual practitioners;

(d) provide that the whole or any part of a payment is subject to conditions (including a condition that the whole or any part of a payment is liable to be paid by a Health Board only if they are satisfied as to such conditions as may be specified in the direction);

(e) make provision having effect from a date before the date of the direction, provided that, having regard to the direction as a whole, the provision is not detrimental to the persons to whose remuneration it relates.

(4) Before giving a direction under subsection (1), the Scottish Ministers—

(a) must consult any body appearing to them to be representative of persons to whose remuneration the direction would relate; and

(b) may consult such other persons as they think appropriate.

(5) References in this section to payments include fees, allowances, reimbursements, loans and repayments.

17N Other mandatory contract terms U.K.

(1) A general medical services contract must include (in addition to provisions required by or under other provisions of this Part) such provision as may be prescribed.

(2) Regulations under subsection (1) may in particular make provision as to—

(a) the manner in which, and the standards to which, services must be provided;

(b) the persons who are to perform services;

(c) the persons to whom services are to be provided;

(d) the right of patients to choose the persons from whom they are to receive services;

(e) the variation of terms of the contract (except terms required by or under this Part);

(f) rights of entry and inspection (including inspection of clinical records and other documents);

(g) the circumstances in which, and the manner in which, the contract may be terminated;

(h) enforcement;

(i) the adjudication of disputes.

(3) Regulations making provision in pursuance of subsection (2)(c) may make provision as to the circumstances in which a contractor—

(a) must, or may, accept a person as a patient to whom services are provided under the contract;

(b) may decline to accept a person as such a patient; or

(c) may terminate the contractor’s responsibility for a patient.

(4) Regulations making provision in pursuance of subsection (2)(e) may—

(a) make provision as to the circumstances in which a Health Board may unilaterally vary the terms of a contract;

(b) make provision suspending or terminating any duty under the contract to provide services of a prescribed description.

(5) Regulations making provision of the kind described in subsection (4)(b) may prescribe services by reference to the manner or circumstances in which they are provided.

(6) A general medical services contract must contain provision requiring the contractor to comply with any directions given by the Scottish Ministers for the purposes of this section as to the drugs, medicines or other substances which may, or may not, be ordered for patients in the provision of primary medical services under the contract.

17O Resolution of disputes and entry into NHS contracts U.K.

(1) Regulations may make provision for the resolution of disputes as to the terms of a proposed general medical services contract, including, without prejudice to that generality, provision for—

(a) the referral of the terms of the proposed contract to the Scottish Ministers; and

(b) the Scottish Ministers, or a person or panel of persons appointed by them, to determine the terms on which the contract may be entered into.

(2) Regulations may make provision for any person entering, or who has entered, into a general medical services contract to be regarded as a health service body for any purposes of section 17A, in circumstances where the person so elects.

(3) Where a person is to be regarded as a health service body for any purposes of section 17A by reason only of an election by virtue of subsection (2) of this section, that section has effect in relation to that person with the omission of the words “under any enactment” in subsection (1) and with such other modifications (if any) as may be prescribed.

(4) Regulations under subsection (2) may include provision as to the application of section 17A in cases where—

(a) a partnership is to be regarded as a health service body; and

(b) there is a change in the membership of the partnership.]

Yn ddilys o 13/02/2004

Persons performing primary medical services S

[F81 17P Persons performing primary medical services S

(1) Regulations may provide that a health care professional of a prescribed description may not perform any primary medical service which a Health Board is, under section 2C(1), under a duty to provide or secure the provision of unless that professional is included in a list maintained under the regulations by the Health Board.

(2) For the purposes of this section, “health care professional” means a member of a profession regulated by a body for the time being mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17).

(3) Regulations under subsection (1) may make provision in relation to such lists and in particular as to—

(a) the preparation, maintenance and publication of a list;

(b) eligibility for inclusion in a list;

(c) applications for inclusion (including provision for the procedure for applications to be made and dealt with and the documents to be supplied on application);

(d) the grounds on which an application for inclusion may or must be granted or refused;

(e) requirements with which a person included in a list must comply (including requirements as to standards of performance and patient care and as to declarations, consents or undertakings);

(f) suspension or removal from a list (including the grounds for and consequences of suspension or removal);

(g) circumstances in which a person included in a list may not withdraw from it;

(h) payments to be made by a Health Board in respect of a person suspended from the list (including provision for the amount of, or the method of calculating, the payment to be determined by the Scottish Ministers);

(i) the criteria to be applied in making decisions under the regulations;

(j) appeals against decisions made by a Health Board under the regulations;

(k) disclosure of information about applicants for inclusion, refusals of applications, or suspensions, removals or references to the Tribunal.

(4) Regulations making provision as to the matters referred to in subsection (3)(k) may in particular authorise the disclosure of information—

(a) by a Health Board to the Scottish Ministers; and

(b) by the Scottish Ministers to a Health Board.

Textual Amendments

F81 S. 17P and cross-heading inserted (13.2.2004 for certain purposes otherwise 1.4.2004) by Primary Medical Services (Scotland) Act 2004 (asp 1), ss. 5(2), 9(1); S.S.I. 2004/58, art. 2(1)(3), Sch.

Yn ddilys o 01/04/2004

[F82 17Q Assistance and support S

(1) A Health Board may provide assistance and support to—

(a) any person providing, or proposing to provide, primary medical services under a general medical services contract;

(b) any person providing, or proposing to provide, such services in accordance with section 17C arrangements.

(2) Assistance and support provided by a Health Board under subsection (1) is to be provided on such terms, including terms as to payment, as the Board think fit.

(3) In this section, “assistance” includes financial assistance.]]

Textual Amendments

F81 S. 17P and cross-heading inserted (13.2.2004 for certain purposes otherwise 1.4.2004) by Primary Medical Services (Scotland) Act 2004 (asp 1), ss. 5(2), 9(1); S.S.I. 2004/58, art. 2(1)(3), Sch.

F82 S. 17Q inserted (1.4.2004) by Primary Medical Services (Scotland) Act 2004 (asp 1), ss. 6, 8, 9(1); S.S.I. 2004/58, art. 2(3)

Modifications etc. (not altering text)

C16 Ss. 17Q-17V and preceding cross-heading substituted for s. 17Q (prosp.) by Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), s. 21, 43(3)

Prospective

[F83 Pharmaceutical care services contracts U.K.

Textual Amendments

F83 Ss. 17Q-17V and cross-heading substituted for s. 17Q (prosp.) by Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), ss. 21, 43(3)

17R Mandatory contract term: provision of prescribed pharmaceutical care services U.K.

(1) A pharmaceutical care services contract must require the contractor to provide as respects the area of the Health Board pharmaceutical care services of such descriptions as may be prescribed.

(2) Regulations under subsection (1) may in particular describe the pharmaceutical care services by reference to the manner or circumstances in which they are provided.

17S Eligibility to be contractor under pharmaceutical care services contract U.K.

(1) A Health Board may, subject to such conditions as may be prescribed, enter into a pharmaceutical care services contract with—

(a) a registered pharmacist; or

(b) a person other than a registered pharmacist who, by virtue of section 69 of the Medicines Act 1968 (c. 67), is taken to be a person lawfully conducting a retail pharmacy business in accordance with that section,

who undertakes that all pharmaceutical care services provided under the contract will be provided by, or under the supervision of, a registered pharmacist.

[F84 (1A) In such circumstances, and subject to such conditions, as may be prescribed, subsection (1) has effect with the omission of the words from “who undertakes” to the end.]

(2) Regulations may make provision as to the effect on a pharmaceutical care services contract entered into with a partnership of a change in the membership of the partnership.

Textual Amendments

F84 S. 17S(1A) inserted (prosp.) by Health Act 2006 (c. 28), ss. 36(2), 83(2)

17T Payments by Health Boards under pharmaceutical care services contracts U.K.

(1) The Scottish Ministers may give directions as to payments to be made under pharmaceutical care services contracts.

(2) A pharmaceutical care services contract must require payments to be made under it in accordance with directions for the time being in force under this section.

(3) A direction under subsection (1) may in particular—

(a) provide for payments to be made by reference to compliance with standards or the achievement of levels of performance;

(b) provide for payments to be made by reference to—

(i) any scheme or scale specified in the direction;

(ii) a determination made by any person in accordance with factors specified in the direction;

(c) provide that the whole or any part of a payment is subject to conditions (including a condition that the whole or any part of a payment is liable to be paid by a Health Board only if they are satisfied as to such conditions as may be specified in the direction);

(d) make provision having effect from a date before the date of the direction, provided that, having regard to the direction as a whole, the provision is not detrimental to the persons to whose remuneration it relates.

(4) Before giving a direction under subsection (1), the Scottish Ministers—

(a) must consult any body appearing to them to be representative of persons to whose remuneration the direction would relate; and

(b) may consult such other persons as they think appropriate.

(5) The Scottish Ministers must publish directions given by them under subsection (1) in the Drug Tariff or in such other manner as they consider appropriate.

(6) References in this section to payments include fees, allowances and reimbursements.

17U Other mandatory contract terms: pharmaceutical care services contracts U.K.

(1) A pharmaceutical care services contract must include (in addition to provisions required by or under other provisions of this Part) such provision as may be prescribed.

(2) Regulations under subsection (1) may in particular—

(a) make provision as to the manner in which, and the standards to which, services must be provided;

(b) provide that the Scottish Ministers may give directions as to the manner in which, and the standards to which, services must be provided;

(c) make provision as to—

(i) the persons who are to perform services;

(ii) the area in which services are to be provided;

(iii) the persons to whom services are to be provided;

(iv) requirements to be complied with where a contractor provides any pharmaceutical care services indirectly (including requirements as to the pharmaceutical care services which may or may not be so provided);

(v) the variation of terms of the contract (except terms required by or under this Part);

(vi) rights of entry and inspection (including inspection of clinical records and other documents);

(vii) the circumstances in which, and the manner in which, the contract may be terminated;

(viii) enforcement;

(ix) the adjudication of disputes.

(3) Regulations making provision in pursuance of subsection (2)(c)(iii) may make provision as to the circumstances in which a contractor—

(a) must, or may, accept a person as a person to whom services are provided under the contract;

(b) may decline to accept a person as such a person; or

(c) may terminate the contractor's responsibility for a person.

(4) Regulations making provision in pursuance of subsection (2)(c)(v) may—

(a) make provision as to the circumstances in which a Health Board may unilaterally vary the terms of a contract;

(b) make provision suspending or terminating any duty under the contract to provide services of a prescribed description.

(5) Regulations making provision of the kind described in subsection (4)(b) may prescribe services by reference to the manner or circumstances in which they are provided.

(6) A pharmaceutical care services contract must contain provision requiring the contractor to comply with directions for the time being in force given by the Scottish Ministers under regulations under subsection (1).

17V Resolution of disputes and entry into NHS contracts: pharmaceutical care services contracts U.K.

(1) Regulations may make provision for the resolution of disputes as to the terms of a proposed pharmaceutical care services contract, including, without prejudice to that generality, provision for—

(a) the referral of the terms of the proposed contract to the Scottish Ministers; and

(b) the Scottish Ministers, or a person or panel of persons appointed by them, to determine the terms on which the contract may be entered into.

(2) Regulations may make provision for any person entering, or who has entered, into a pharmaceutical care services contract to be regarded as a health service body for any purposes of section 17A, in circumstances where the person so elects.

(3) Where a person is to be regarded as a health service body for any purposes of section 17A by reason only of an election by virtue of subsection (2) of this section, that section has effect in relation to that person with the omission of the words “under any enactment” in subsection (1) and with such other modifications (if any) as may be prescribed.

(4) Regulations under subsection (2) may include provision as to the application of section 17A in cases where—

(a) a partnership is to be regarded as a health service body; and

(b) there is a change in the membership of the partnership.]

Prospective

[F85 Drug Tariff U.K.

Textual Amendments

F85 S. 17W and preceding cross-heading inserted (prosp.) by Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), ss. 22, 43(3)

17W Drug Tariff U.K.

(1) The Scottish Ministers must prepare, maintain and publish a document (to be known as the “ Drug Tariff ”).

(2) The Scottish Ministers—

(a) must include in the Drug Tariff, such information relating to pharmaceutical care services as may be prescribed;

(b) may include in it such other information relating to such services as they consider appropriate.]

Prospective

[F86 Persons performing pharmaceutical care services U.K.

Textual Amendments

F86 S. 17X and preceding cross-heading inserted (prosp.) by Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), ss. 23, 43(3)

17X Persons performing pharmaceutical care services U.K.

(1) Regulations may provide that a registered pharmacist may not perform any pharmaceutical care service which a Health Board is, under section 2CA(1), under a duty to provide or secure the provision of unless that pharmacist is included in a list maintained under the regulations by the Health Board.

(2) Regulations under subsection (1) may make provision in relation to such lists and in particular as to—

(a) the preparation, maintenance and publication of a list;

(b) eligibility for inclusion in a list;

(c) applications for inclusion (including provision for the procedure for applications to be made and dealt with and documents to be supplied on application);

(d) the grounds on which an application for inclusion must be granted or refused;

(e) requirements with which a person included in a list must comply (including requirements as to standards of performance and patient care and as to declarations, consents or undertakings);

(f) suspension or removal from a list (including the grounds for and consequences of suspension or removal);

(g) circumstances in which a person included in a list may not withdraw from it;

(h) payments to be made by a Health Board in respect of a person suspended from the list (including provision for the amount of, or the method of calculating, the payment to be determined by the Scottish Ministers);

(i) criteria to be applied in making decisions under the regulations;

(j) disclosure of information about applicants for inclusion, refusals of applications, or suspensions, removals or references to the Tribunal.

(3) Regulations making provision as to the matters referred to in subsection (2)(j) may in particular authorise the disclosure of information—

(a) by a Health Board to the Scottish Ministers; and

(b) by the Scottish Ministers to a Health Board.]

Prospective

[F87 Assistance and support: primary medical services and pharmaceutical care services U.K.

Textual Amendments

F87 S. 17Y and preceding cross-heading inserted (prosp.) by Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), ss. 24, 43(3)

17Y Assistance and support: primary medical services and pharmaceutical care services U.K.

(1) A Health Board may provide assistance and support to—

(a) any person providing, or proposing to provide, primary medical services under a general medical services contract;

(b) any person providing, or proposing to provide, such services in accordance with section 17C arrangements;

(c) any person providing, or proposing to provide, pharmaceutical care services under a pharmaceutical care services contract.

(2) Assistance and support provided by a Health Board under subsection (1) is to be provided on such terms, including terms as to payment, as the Board think fit.

(3) In this section, “ assistance ” includes financial assistance. ]

Part II S Provision of Services

Modifications etc. (not altering text)

C17 Pt II (ss. 18-35) restricted (1.4.1998) by 1997 c. 46, s. 12(1); S.I. 1998/631, art. 2(2)(b), Sch. 2

Pt. II (ss. 18-35) power to modify conferred (1.4.1998) by 1997 c. 46, s. 15(2)(a); S.I. 1998/631, art. 2(2)(b), Sch. 2

Pt. II (ss. 18-35) power to apply conferred (1.4.1998) by 1997 c. 46, s. 15(2)(b); S.I. 1998/631, art. 2(2)(b), Sch. 2

General Services S

18 Duty of Secretary of State. S

It shall be the duty of the Secretary of State to secure the provision of general medical, general dental and general ophthalmic services, and of pharmaceutical services, in accordance with the provisions of this Part.

General medical services S

19 Arrangements and regulations for general medical services. S

(1) It shall be the duty of every Health Board, in accordance with regulations, to make as respects their area arrangements with medical practitioners for the provision by them of personal medical services for all persons in the area who wish to take advantage of the arrangements; and the services provided in accordance with the arrangements are in this Act referred to as “general medical services”.

(2) Regulations may make provision for defining the personal medical services to be provided and for securing that the arrangements will be such that all persons availing themselves of those services will receive adequate personal care and attendance; and the regulations shall include provision—

(a) for the preparation and publication of lists of medical practitioners who undertake to provide general medical services;

(b) for securing a right to any person to choose or to change, in accordance with the prescribed procedure, the medical practitioner by whom he is to be attended, subject to the consent of the practitioner who is to give the attendance and to any prescribed limit on the number of patients to be accepted by any practitioner;

(c) for the distribution, among medical practitioners whose names are on the aforesaid lists, of any persons who have indicated a wish to obtain general medical services but who have not made any choice of medical practitioner or have been refused by the practitioner chosen;

(d) for the issue to patients or their personal representatives by medical practitioners providing such services as aforesaid of such certificates as may be prescribed, being certificates reasonably required by them under or for the purposes of any enactment;

(e) for the removal from the list of medical practitioners undertaking to provide general medical services for persons in any area of the name of a medical practitioner in whose case it has been determined in such manner as may be prescribed that he has never provided or has ceased to provide general medical services for persons in that area.

[F88 (f) for the making of arrangements for the temporary provision of general medical services in an area;

(g) for the circumstances in which a name added to the list by virtue of subsection (5) below may be removed from it.]

[F89 (3) The remuneration to be paid under arrangements under this Part to a practitioner who provides general medical services shall not, except in special circumstances, consist wholly or mainly of a fixed salary which has no reference to the number of patients for whom the practitioner has undertaken to provide such services.]

[F90 (4) Regulations shall —

(a) include provision for the making to a medical practitioner providiong general medical services of payments in respect of qualifying services provided by a spouse or other relative of his; and

(b) provide that the rates and conditions of payment and the qualifying services in respect of which the payments may be made shall be such as may be determined by the Secretary of State after consultation with such bodies as he may recognise as representing such medical practitioners.]

[F91 (5) The persons with whom arrangements for the temporary provision of general medical services in an area may be made by virtue of regulations under subsection (2) include medical practitioners who are not on the list of medical practitioners providing such services in the area, and the power to prepare and publish lists of medical practitioners conferred by paragraph (a) of that subsection accordingly includes power to add the names of medical practitioners with whom such arrangements are made to the lists.

(6) Regulations may provide that this Act and any regulations made under it shall apply in relation—

(a) to the making of arrangements for the temporary provision of general medical services; and

(b) to the provision of general medical services in pursuance of any such arrangements,

subject to such modifications as may be specified in the regulations.

(7) Where the registration of a medical practitioner in the register of medical practitioners is suspended—

(a) by a direction of the Health Committee of the General Medical Council under [F92 section 37(1) or (2) of the Medical Act 1983] (unfitness to practise by reason of physical or mental condition);

(b) by an Order of that Committee under [F92 section 38(1)] of that Act (order for immediate suspension); or

(c) by an interim order of the preliminary Proceedings Committee of the Council under [F92 section 42(3)(b)] of that Act,

the suspension shall not terminate any arrangements made with him for the provision of general medical services; but he shall not provide such services in person during that period of suspension.]

[F93 (8) In relation to a medical practitioner, any reference in this Act to the relevant Health Board shall be construed as follows—

(a) if he practises in partnership with other medical practitioners, the relevant Health Board is the Board on whose medical list the members of the practice are included and, if some are included on one Board’s medical list and some on another’s or if any of the members is included on the medical lists of two or more Boards, the relevant Health Board is the Board in whose area resides the largest number of individuals who are on the lists of patients of members of the practice; and

(b) in any other case, the relevant Health Board is the Board on whose medical list he is included and, if there is more than one, the Board in whose area resides the largest number of individuals who are on his list of patients.]

Textual Amendments

F88 S. 19(2)(f)(g) inserted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 14(2), Sch. 7 para. 2(a)

F89 S. 19(3) repealed(prosp.) by National Health Service Act 1966 (c. 8), s. 10(3) (as substituted by Sch. 16 para. 22(b) of this Act), 12(3)

F90 S. 19(4) added by Health Services Act 1980 (c. 53, SIF 113:2), s. 7

F91 S. 19(5)–(7) inserted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 14(2), Sch. 7 para. 2(b)

F92 Words substituted by Medical Act 1983 (c. 54, SIF 83:1), ss. 54, 56(1), Sch. 5 para. 17(a)

F93 S. 19(8) inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 37

Modifications etc. (not altering text)

C18 S. 19 extended by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 17(1)

Yn ddilys o 01/04/2004

19A Medical lists. S

F94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F94 Ss. 19-23 repealed (1.4.2004) by Primary Medical Services (Scotland) Act 2004 (asp 1), ss. 8, 9(1), Sch. para. 1(7); S.S.I. 2004/58, art. 2(3)

Yn ddilys o 01/04/2004

19B Vacancies for medical practitioners. S

F95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F95 Ss. 19-23 repealed (1.4.2004) by Primary Medical Services (Scotland) Act 2004 (asp 1), ss. 8, 9(1), Sch. para. 1(7); S.S.I. 2004/58, art. 2(3)

20 Applications to provide general medical services. S

(1) [F96 Subject to subsection (1A) below] all applications made in the prescribed manner to a Health Board for inclusion in a list kept by that Board of the names of medical practitioners undertaking to provide general medical services for persons in the Board’s area shall be referred by the Board to the Medical Practices Committee and F97 any medical practitioner whose application is granted by that Committee shall [F98 subject to the provisions of this Part of this Act relating to the disqualification of practitioners] be entitled to the inclusion of his name in the list.

[F99 (1A) No medical practitioner who is a national of a member State and is registered by virtue of a qualification granted in a member State shall be entitled to have his application for the inclusion of his name in the list kept by any Health Board referred to the Medical Practices Committee unless he satisfies the Board that he has that knowledge of English which, in the interests of himself and his patients, is necessary for the provision of general medical services in the Board’s area; and where a Board is not so satisifed with respect to any applicant the Board shall not refer his application to the Committee.]

(2)F100

Textual Amendments

F96 Words inserted by S.I. 1981/432, art. 4(1)(a)

F97 Words repealed by Health Services Act 1980 (c. 53), Sch. 7

F98 Words inserted by Health Services Act 1980 (c. 53), Sch. 6 para. 3

F99 S. 20(1A) inserted by S.I. 1981/432, art. 4(1)(b)

F100 Ss. 16(3), 20(2), 51, 52, 59–63, 65–68, 96(2), Sch. 16 paras. 25, 43 repealed by Health Services Act 1980 (c. 53), Sch. 7

Modifications etc. (not altering text)

C19 S. 20(1) excluded (31.3.1995) by S.I. 1995/416, reg. 24(22)

C20 S. 20(1A) modified (31.3.1995) by S.I. 1995/416, reg. 24(21)

21 Requirement of suitable experience. S

(1) Where the Secretary of State has made regulations for the purposes of this section, and after a day prescribed as the appointed day for those purposes—

(a) the Medical Practices Committee shall refuse any application under section 20 made after that day if the medical practitioner is not suitably experienced; and

(b) a Health Board shall not arrange under section 19 with a medical practitioner for him to provide general medical services for persons in its area unless the Medical Practices Committee have granted an application by him for the inclusion of his name in the list kept by the Board of medical practitioners undertaking to provide general medical services for persons in that area.

(2) For the purposes of this section a medical practitioner is “suitably experienced” if, but only if, he either—

(a) has acquired the prescribed medical experience, or

(b) is by virtue of regulations made under section 22 exempt from the need to have acquired that experience,

and “medical experience” includes hospital experience in any specialty.

Modifications etc. (not altering text)

C21 S. 21 excluded (31.3.1995) by S.I. 1995/416, reg. 24(22)

S. 21 applied (28.11.1997) by 1997 c. 46, s. 2(4); S.I. 1997/2620, art. 2(2)

C22 15.2.1981 appointed under s. 21(1) by S.I. 1980/30, reg. 3

C23 S. 21(2) applied (with modifications) (1.4.1998) by 1997 c. 46, s. 11(5)(6); S.I. 1998/631, art. 2(1)(a), Sch. 1

22 Regulations as to section 21. S

(1) Regulations may for the purposes of section 21 provide—

(a) for prescribing the medical experience needed to satisfy paragraph (a) of section 21(2);

(b) as to the documents which an applicant may or must produce as evidence that he is suitably experienced or has acquired medical experience of any particular kind;

(c) for requiring an applicant who claims to have acquired the prescribed experience to submit particulars of his experience to a prescribed body, and for requiring that body, if satisfied that he has acquired the prescribed experience, to issue him a certificate (a “certificate of prescribed experience") to that effect;

(d) for enabling an applicant without the prescribed experience who considers that the medical experience which he has acquired is, or ought to be regarded as, equivalent to the prescribed experience to submit particulars of that experience to a prescribed body, and for requiring or enabling that body, if satisfied that the applicant’s medical experience is so equivalent, to issue him a certificate (a “certificate of equivalent experience") to that effect;

(e) for treating an applicant who holds a certificate of equivalent experience as satisfying paragraph (a) of section 21(2);

(f) as to the circumstances or conditions in or subject to which a medical practitioner is exempt from the need to have acquired the prescribed experience;

(g) for conferring on an applicant who is refused a certificate of prescribed experience or a certificate of equivalent experience a right of appeal to a body constituted by the Secretary of State, and for any matter for which it appears to the Secretary of State to be requisite or expedient to provide in consequence of the conferring of that right;

(h) for anything authorised or required by section 21 to be prescribed or otherwise provided for by regulations.

In this section—

• “applicant” means a medical practitioner who has made or proposes to make an application to which paragraph (a) of section 21(1) applies;

• “the prescribed experience” means the medical experience for the time being prescribed for the purposes of paragraph (a) of section 21(2).

(2) Regulations under this section shall be framed so as to allow the prescribed experience to be acquired without undertaking whole-time employment.

(3) Any power under this section to make regulations—

(a) may be exercised so as to make different provision for different areas or different periods of time or in relation to different cases or different circumstances;

(b) includes power to make such incidental or supplemental provision in the regulations as the Secretary of State considers appropriate.

Subordinate Legislation Made

P1 S. 22: s. 105(7) (with ss. 22 and 108(1)) power exercised by S.I. 1991/576

P2 S. 22: for previous exercises of this power see Index to Government Orders.

Modifications etc. (not altering text)

C24 S. 22 applied (with modification) (1.4.1998) by 1997 c. 46, s. 11(5)(6); S.I. 1998/631, art. 2(1)(a), Sch. 1

23 Distribution of general medical services. S

(1) The Medical Practices Committee may refuse any application under section 20 on the ground that the number of medical practitioners undertaking to provide general medical services in the area of the Health Board concerned or in part of that area is already adequate.

[F101 (1A) The Secretary of State may by order specify the maximum number of medical practitioners with whom, in any year, all Health Boards taken as a whole may enter into arrangements under section 19 for the provision of general medical services.

(1B) An order under subsection (1A) may contain such incidental and consequential provisions (including provisions amending this Part of this Act) as appear to the Secretary of State to be appropriate including, in particular, provisions as to the basis on which the Medical Practices Committee are to refuse applications under section 20 in order to secure that any maximum number specified in the order is not exceeded.]

(2) [F102 Subject to subsection (2A)] if in the opinion of the Medical Practices Committee additional practitioners are required for any area or part, but the number of applications exceeds the number required, the Committee shall select the persons whose applications are to be granted and shall refuse the other applications.

[F103 (2A) If, in the opinion of the Medical Practices Committee, a medical practitioner is required for a particular part of the area of a Health Board, then, in such circumstances as may be prescribed,—

(a) the Board shall, in accordance with regulations, select the medical practitioner whose application they wish to be considered by the Committee; and

(b) the Committee shall not consider any application from a medical practitioner who is not so selected; and

(c) any medical practitioner who has made an application but is not so selected may appeal to the Secretary of State on a point of law;

and if the Secretary of State allows an appeal under paragraph (c) he shall remit the application to the Board for reconsideration.]

(3) Before selecting any persons under subsection (2) the Medical Practices Committee shall consult the Health Board concerned, and that Board shall consult the area medical committee (if any) for their area before expressing their views on the persons to be selected.

(4) Except as provided in subsections (1) to (3), or as required by section 21, the Medical Practices Committee shall not refuse any application under section 20, but

[F104 (a) in granting an application shall specify, by reference to one or more prescribed conditions relating to hours or the sharing of work, the provision of general medical services for which the applicant will be entitled to be remunerated; and

(b)] the Committee may grant an application subject to conditions excluding the provision of general medical services by the applicant in such part of parts of the area of the Health Board as the Committee may specify.[F105 and an order under subsection (1A) may make provision as to the extent to which account is to be taken under the order of medical practitioners whose ability to carry out renumerated work is limited by virtue of conditions imposed under paragraph (a)]

(5) A medical practitioner who has made an application under section 20 which has been refused [F106 by the Medical Practices Committee] or has been granted [F106 by that Committee] subject to [F107 such conditions][F107 conditions under paragraph (a) or (b) of subsection (4)] may appeal to the Secretary of State [F108 ; and the Secretary of State may, on any such appeal, direct the Medical Practices Committee to grant the application either unconditionally or subject to such conditions as the Secretary of State may specify][F108 on a point of law; and, if the Secretary of State allows such an appeal, he shall remit the application to the Medical Practices Committee for reconsideration].

[F108 This subsection does not apply where an application has been refused under paragraph (a) of section 21(1) [F109 or under section 8 of the Health and Medicines Act 1988 (persons over retiring age) and regulations under that section].]

(6) Where the Medical Practices Committee select persons from a number of applicants, the persons selected shall not be included in the list in question during the period for bringing an appeal to the Secretary of State or pending the determination of any such appeal.

[F110 (7) If the Secretary of State grants an appeal to which subsection (6) above relates, he may direct either that the application—

(a) shall be granted in addition to those already granted; or

(b) shall be granted instead of such one of those applications as he may specify.

In the latter case, he shall make the other applicant a party to the appeal, and no further appeal shall be brought by that applicant in respect of the application in question.]

(8) [F111 The Medical Practices Committee shall, in a case where persons have to be selected from a number of applicants, and the Secretary of State shall on an appeal in any such case][F111 In any case where medical practitioners have to be selected from a number of applicants, the Medical Practices Committee or, where subsection (2A) applies, the Health Board shall]—

(a) have regard to any desire expressed by any applicant to practise with other medical practitioners already providing general medical services in the area or part of an area concerned and to any desire expressed by such other practitioners to take any applicant into practice with them;

(b) have special regard to such matters in cases where an applicant is related to any other such practitioner.

Textual Amendments

F101 S. 23(1A)(1B) inserted (prosp.) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 39(1), 67(2)

F102 Words inserted (prosp.) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 39(2), 67(2)

F103 S. 23(2A) inserted (prosp.) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 39(2), 67(2)

F104 S. 23(4)(a) and “(b)" following it inserted (prosp.) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 39(3), 67(2)

F105 Words inserted (prosp.) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss.39(3), 67(2)

F106 Words inserted by S.I. 1981/432, art. 4(2)

F107 Words “conditions under paragraph (a) or (b) of subsection (4)" substituted (prosp.) for words “such conditions" by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 39(4), 67(2)

F108 Words commencing “on a point of law" substituted (prosp.) for words following “Secretary of State" by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 39(4), 67(2)

F109 Words added by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 25(2), Sch. 2 para. 10

F110 S. 23(7) repealed (prosp.) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 39(5), 66(2), 67(2), Sch. 10

F111 Words commencing “In any case where" substituted (prosp.) for words commencing “The Medical Practices Committee" by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 39(6), 67(2)

24 Regulations for Medical Practices Committee. S

Regulations may make provision for conferring or imposing on the Medical Practices Committee such additional functions in relation to arrangements for the provision of general medical services as may be prescribed; and regulations shall provide—

(a) for requiring Health Boards to make to the Medical Practices Committee, at such times and in such manner as may be prescribed, reports as to—

(i) the number of medical practitioners required to meet the reasonable needs of their areas and the different parts of those areas;

(ii) the occurrence of any vacancies in the lists of medical practitioners kept by them under this Part; and

(iii) the need for filling such vacancies;

(b) for prescribing the procedure for—

(i) the determination of applications by the Medical Practices Committee;

(ii) the making and determination of appeals to the Secretary of State under section 23 [F112 and, where such an appeal is allowed, the reconsideration of any application]; and

(iii) requiring Health Boards and applicants to be informed of the decisions of the Committee and the Secretary of State.

[F113 (2) Regulations under this section may make provision for, and in connection with, the variation of any condition imposed under subsection (4) or (5) of section 23 including provision for appeals to the Secretary of State on a point of law.]

Textual Amendments

F112 Words inserted (prosp.) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 39(7)(a), 67(2)

F113 S. 24(2) added (prosp.) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 39(7)(b), 67(2)

Yn ddilys o 05/03/2001

[F114 24A Liabilities and obligations in relation to deputies. S

(1) Regulations may make provision with respect to the liabilities and obligations of—

(a) a Part II practitioner who, in connection with any obligation of his to provide general medical services, enters into arrangements under which a Part I practitioner deputises, or is engaged to deputise, for him; or

(b) a Part II practitioner who enters into arrangements under which he deputises, or is engaged to deputise, for a Part I practitioner, in connection with that practitioner’s obligation to perform personal medical services in accordance with section 17C arrangements.

(2) The regulations may, in particular—

(a) modify any liabilities or obligations which would otherwise be applicable by virtue of this Part;

(b) apply (with or without modifications) any provision made by or under this Part (including any provision so made by virtue of section 17 of the M24 Health and Medicines Act 1988).

(3) In subsection (1)—

• “Part I practitioner” means a medical practitioner who performs personal medical services in accordance with section 17C arrangements; and

• “Part II practitioner” means a medical practitioner who provides general medical services.]

Textual Amendments

F114 S. 24A inserted (5.3.2001 for certain purposes only and otherwiseprosp.) by 1997 c. 46, ss. 25(2), 41(3); S.S.I. 2001/58, art. 2

Marginal Citations

M24 1988 c. 49.

Yn ddilys o 28/02/2003

[F115 24B Supplementary lists S

(1) Regulations may make provision for the preparation and publication by each Health Board of one or more lists of medical practitioners approved by the Board to assist in the provision of general medical services.

(2) Such a list is in this Act referred to as a “supplementary list”.

(3) A medical practitioner whose name is not included in the Board’s medical list or services list may not assist in the provision of general medical services in the Board’s area unless his name is included in the Board’s supplementary list.

(4) The regulations may (either or both)—

(a) make provision for the application (with such modifications as the Scottish Ministers think fit) to supplementary lists or to persons who are, have been or seek to be included in a supplementary list, of;

(b) in relation to such lists and persons, make provision analogous to any provision made by,

any regulations made under this Act in relation to medical lists or to persons who are, have been or seek to be included in a medical list.]

Textual Amendments

F115 S. 24B inserted (28.2.2003 in regard to s. 24B(1)(2)(4) and 31.5.2003 in regard to s. 24B(3)) by 2002 asp 5, ss. 18(2), 27(2); S.S.I. 2003/62, art. 2(1)(b)(2) (with savings for effects of 2003 asp 5, s. 18(2) by S.S.I. 2003/63, art. 2)

Yn ddilys o 28/02/2003

[F116 24C Application for inclusion in supplementary list S

(1) No medical practitioner—

(a) who is a national of a member State and is registered by virtue of a qualification granted in a member State shall be entitled to have his name included in a Health Board’s supplementary list unless he satisfies the Board that he has that knowledge of English which, in the interests of himself and his patients, is necessary for him to assist in the provision of general medical services in the Board’s area; or

(b) shall be so entitled unless he is suitably experienced.

(2) For the purposes of subsection (1)(b) a medical practitioner is “suitably experienced” if, but only if, he either—

(a) has acquired such medical experience as may be prescribed; or

(b) is by virtue of regulations made under this subsection, being regulations analogous to those made under section 22, exempt from the need to have acquired that experience,

and “medical experience” includes hospital experience in any speciality.

(3) Subsections (2) and (3) of section 22 apply in relation to regulations under subsection (2) above as they apply in relation to regulations under that section except that, for that purpose, the reference in subsection (2) of that section to the “prescribed experience” shall be construed as a reference to the medical experience prescribed by virtue of paragraph (a) of subsection (2) above.]

Textual Amendments

F116 S. 24C inserted (28.2.2003) by 2002 asp 5, ss. 18(2), 27(2); S.S.I. 2003/62, art. 2(1)(b) (with savings for effects of 2003 asp 5, s. 18(2) by S.S.I. 2003/63, art. 2)

General dental services S

25 Arrangements for provision of general dental services. S

(1) It shall be the duty of every Health Board, in accordance with regulations, to make as respects their area arrangements with dental practitioners under which any person for whom a dental practitioner undertakes in accordance with the arrangements to provide dental treatment and appliances shall receive such treatment and appliances; and the services provided in accordance with those arrangements are in this Act referred to as “general dental services”.

(2) Regulations may make provision as to the arrangements to be made under subsection (1), and shall include provision—

(a) for the preparation and publication of lists of dental practitioners who undertake to provide general dental services;

[F117 (b) for conferring a right, subject to—

(i) [F118 subsections (2A) and (2B)]

(ii) the provisions of this Part relating to the disqualification of persons providing services; and

(iii) section 8 (persons over retiring age) of the Health and Medicines Act 1988 and regulations made under that section,

on any dental practitioner who wishes to be included in any such list to be so included;]

(c) for conferring a right on any person to choose in accordance with the prescribed procedure the dental practitioner from whom he is to receive general dental services, subject to the consent of the practitioner so chosen;

(d) for the removal from the list of dental practitioners undertaking to provide general dental services for persons in any area of the name of a dental practitioner in whose case it has been determined in such manner as may be prescribed that he has never provided, or has ceased to provide, general dental services for persons in that area.

[F119 (2A) No dental practitioner who is a national of a member State and is registered by virtue of a qualification granted in a member State shall be entitled to have his name included in the list kept by a Health Board unless he satisfies the Board that he has that knowledge of English which, in the interests of himself and his patients, is necessary for the provisions of general dental services in the Board’s area.]

[F120 (2B) Regulations may make the exercise of the right conferred by virtue of paragraph (b) of subsection (2) subject to any provision made by or under the regulations, and, in such cases as may be prescribed, may confer a right of appeal to a prescribed body in respect of a refusal to include a dental practitioner on such a list as is referred to in paragraph (a) of that subsection.]

(3) The remuneration to be paid under arrangements made under this section to a dental practitioner who provides general dental services elsewhere than at a health centre shall not, F121 , consist wholly or mainly of a fixed salary [F122 unless either—

(a) the remuneration is paid in pursuance of arrangements made under section 33, or

(b) the services are provided in prescribed circumstances and the practitioner consents,

and it shall be the Secretary of State’s duty, before he prescribes any circumstances for the purposes of paragraph (b), to consult such organisations as appear to him to be representative of the dental profession.]

[F123 (4) Where the registration of a dental practitioner in the dentists register is suspended—

(a) by an order under [F124 section 32 of the Dentists Act 1984] (interim suspension); or

(b) by a direction or [F125 an order of the Health Committee under] that Act (health cases),

the suspension shall not terminate any arrangements made with him for the provision of general dental services, but he shall not provide such services in person during the suspension.

(5) Regulations may provide for the making of payments in consequence of suspension to a dental practitioner whose registration is so suspended.]

Textual Amendments

F117 S. 25(2)(b) substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(6)

F118 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 40(2)

F119 S. 25(2A) inserted by S.I. 1981/432, art. 4(3)(b)

F120 S. 25(2B) inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 40(3)

F121 Words repealed by Health Services Act 1980 (c. 53), Sch. 7

F122 Words inserted by Health Services Act 1980 (c. 53), Sch. 6 para. 4

F123 S. 25(4)(5) added by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 16(a)

F124 Words substituted by Dentists Act 1984 (c. 24, SIF 83:1), s. 54(1), Sch. 5 para. 12(a)

F125 Words substituted by Dentists Act 1984 (c. 24, SIF 83:1), s. 54(1), Sch. 5 para. 12(b)

Modifications etc. (not altering text)

C25 S. 25(2) extended by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 17(1)

General ophthalmic services S

26 Arrangements for provision of general ophthalmic services. S

(1) It shall be the duty of every Health Board to make as respects their area, in accordance with regulations, arrangements with medical practitioners having the prescribed qualifications, [F126 and with ophthalmic opticians], for securing [F127 the testing by such practitioners and opticians of the sight—

(a) of a child;

(b) of a person whose resources fall to be treated under the regulations as being less than his requirements or as being equal to his requirements; or

(c) of a person of such other description as may be prescribed.

(1A) In this section—

• “child” means—

(a) a person who is under the age of 16 years; or

(b) a person who is under the age of 19 years and receiving qualifying full-time education; and

“qualifying full time education” means full-time instruction at a recognised educational establishment or by other means accepted as comparable by the Secretary of State, and for the purposes of this definition—

(i)

“recognised educational establishment” means an establishment recognised by the Secretary of State as being, or as comparable to, a school, college or university; and

(ii)

regulations may prescribe the circumstances in which a person is or is not to be treated as receiving full-time instruction.

(1B) Regulations under this section may direct how a person’s resources and requirements are to be calculated and, without pre-judice to the generality of this subsection, may direct that they shall be calculated—

(a) by a method set out in the regulations;

(b) by a method described by reference to a method of calculating or estimating income or capital specified in an enactment other than this section or in an instrument made under an Act of Parliament or by reference to such a method but subject to prescribed modifications;

(c) by reference to an amount applicable for the purposes of a payment under an Act of Parliament or an instrument made under an Act of Parliament; or

(d) by reference to the person’s being, or having been, entitled to payment under an Act of Parliament or an instrument made under an Act of Parliament.

(1C) Descriptions of persons may be prescribed for the purposes of subsection (1) above by reference to any criterion and, without prejudice to the generality of this subsection, by reference to any of the following criteria—

(a) their age;

(b) the fact that a prescribed person or a prescribed body accepts them as suffering from a prescribed medical condition;

(c) the fact that a prescribed person or a prescribed body accepts that a prescribed medical condition from which they suffer arose in prescribed circumstances;

(d) their receipt of benefit in money or in kind under any enactment or their entitlement to receive any such benefit; and

(e) the receipt of any such benefit by other persons satisfying prescribed conditions or the entitlement of other persons satisfying prescribed conditions to receive such benefits.

(1D) Regulations which refer to an Act of Parliament or an instrument made under an Act of Parliament may direct that the reference is to be construed as a reference to that Act or instrument—

(a) as it has effect at the time when the regulations are made; or

(b) both as it has effect at that time and as amended subsequently.

(1E) Regulations may provide that a person—

(a) whose sight is tested by a person who provides general ophthalmic services; and

(b) who is shown during the testing or within a prescribed time after it to fall within subsection (1) above,

shall be taken for the purposes of the testing to have so fallen immediately before his sight was tested; and the testing shall be treated—

(i) for the purposes of any arrangements under this section;

(ii) for the purposes of remuneration in respect of the testing; and

(iii) for any such other purpose as may be prescribed, as a testing of sight under this Act.

(1F) Regulations shall define the services for the provision of which arrangements under this section are to be made and the services so defined are in this Act referred to as “general ophthalmic services”.]

(2) Regulations may make provision as to the arrangements to be made under subsection (1), and shall include provision—

(a) for the preparation and publication of lists of medical practitioners, [F128 and opthalmic opticians] respectively who undertake to provide general ophthalmic services;

(b) for conferring a right, subject to the provisions of this Act relating to the disqualification of practitioners, on any medical practitioner having the prescribed qualifications, [F129 or any ophthalmic optician], who wishes to be included in the appropriate list, to be so included;

(c) for conferring on any person a right to choose in accordance with the prescribed procedure the medical practitioner or ophthalmic optician by whom his sight is to be tested or from whom any prescription for the supply of optical appliances is to be obtained F130 ;

(d) for the removal from the list of medical practitioners, [F131 or ophthalmic opticians] undertaking to provide general ophthalmic services for persons in any area of the name of a medical practitioner, [F132 or opthalmic optician], as the case may be, in whose case it has been determined, in such manner as may be prescribed, that he has never provided or has ceased to provide general ophthalmic services for persons in that area.

(3) The power conferred by this section to prescribe the qualifications to be possessed by any medical practitioner includes—

(a) power to prescribe a requirement that the practitioner shall show, to the satisfaction of a committee recognised by the Secretary of State for the purpose, that he possesses such qualifications (including qualifications as to experience) as may be mentioned in the regulations, and

(b) power to confer on a person who is dissatisfied with the determination of such a committee, a right of appeal to a committee appointed by the Secretary of State, and to make provision for any matter for which it appears to the Secretary of State to be requisite or expedient to make provision in consequence of the conferring of that right.

Textual Amendments

F126 Words substituted by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 1(7), Sch. 1 Pt. II para. 1

F127 Words commencing “the testing by such practitioners" to s. 26(1F) substituted for words in s. 26(1) commencing “—(a) the" by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 13(4)

F128 Words substituted by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 1(7), Sch. 1 Pt. II para. 2

F129 Words substituted by Health and Social Security Act 1984 (c.48, SIF 113:1), s. 1(7), Sch. 1 Pt. II para. 3

F130 Words repealed by Health and Social Security Act 1984 (c. 48, SIF 113:1), ss. 1(5)(b), 24, Sch. 8 Pt. I

F131 Words substituted by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 1(7), Sch. 1 Pt. II para. 4(a)

F132 Words substituted by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 1(7), Sch. 1 Pt. II para. 4(b)

Modifications etc. (not altering text)

C26 S. 26(2) extended by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 17(1)

Pharmaceutical services S

27 Arrangements for provision of pharmaceutical services. S

(1) It shall be the duty of every Health Board to make, in accordance with regulations, arrangements as respects its area for the [F133 provision] to persons who are in that area of—

(a) proper and sufficient drugs and medicines and listed appliances which are ordered for those persons by a medical practitioner in pursuance of his functions in the health service, the health service for England and Wales, the Northern Ireland health service or the armed forces of the Crown (excluding forces of a Commonwealth country and forces raised in a colony), and

[F134 (b) proper and sufficient drugs and medicines which are ordered for those persons by a dental practitioner in pursuance of the provision by that Board [F135 or by an NHS trust] of dental services; and

(c) listed drugs and medicines which are ordered for those persons by a dental practitioner in pursuance of the provision by him of general dental services [F136 ; and

(d) such services as may be prescribed,]]

and the [F137 provision of drugs, medicines, appliances and services in accordance with the arrangements is] in this Act referred to as “pharmaceutical services”.

In this subsection—

• “listed” means included in a list for the time being approved by the Secretary of State for the purposes of this subsection;

• “the health service for England and Wales” and “the Northern Ireland health service” mean respectively the health service established in pursuance of section 1 of the M25 National Health Service Act 1946 or any service provided in pursuance of Article 4(a) of the M26 Health and Personal Social Services (Northern Ireland) Order 1972.

[F138 (2) Regulations shall provide for securing that arrangements made by a Health Board under subsection (1) will enable persons in the Board’s area for whom drugs, medicines or appliances mentioned in that subsection are ordered as there mentioned [F139 , or to whom services mentioned in subsection (1)(d) are to be provided,] to receive them from persons with whom such arrangements have been made.

(3) The regulations shall include provision—

(a) for the preparation and publication by a Health Board of one or more lists of persons, other than medical practitioners and dental practitioners, who undertake to provide pharmaceutical services from premises in the Board’s area;

(b) that an application to a Health Board for inclusion in such a list shall be made in the prescribed manner and shall state—

(i) the [F140 pharmaceutical] services which the applicant will undertake to provide and, if they consist of or include the supply of appliances, which appliances he will undertake to supply; and

(ii) the premises from which he will undertake to provide those services;

(c) that, except in prescribed cases—

(i) an application for inclusion in such a list by a person not already included; and

(ii) an application by a person already included in such a list for inclusion also in respect of [F140 pharmaceutical] services or premises other than those already listed in relation to him,

shall be granted only if the Health Board is satisfied, in accordance with the regulations, that it is necessary or desirable to grant it in order to secure in the neighbourhood in which the premises are located the adequate provision by persons included in the list of the services, or some of the services, specified in the application; and

(d) for the removal of an entry in respect of premises from a list if it has been determined in the prescribed manner that the person to whom the entry relates—

(i) has never provided from those premises; or

(ii) has ceased to provide from them, the [F140 pharmaceutical] services, or any of the services, which he is listed as undertaking to provide from them.

(4) The regulations may include provision—

(a) that an application to a Health Board may be granted in respect of some only of the [F140 pharmaceutical] services specified in it;

(b) that an application to a Health Board relating to [F140 pharmaceutical] services of a prescribed description shall be granted only if it appears to the Board that the applicant has satisfied such conditions with regard to the provision of those [F140 pharmaceutical] services as may be prescribed;

[F141 (ba) that an application to a Health Board by a person who qualified to have his name registered under the Pharmacy Act 1954 by virtue of section 4A of that Act (qualification by European diploma) shall not be granted unless the applicant satisfies the Board that he has the knowledge of English which, in the interests of himself and the persons making use of the services to which the application relates, is necessary for the provision of pharmaceutical services in the Board’s area.]

(c) that the inclusion of a person in a list in pursuance of such an application may be for a fixed period;

(d) that, where the premises from which an application states that the applicant will undertake to provide [F140 pharmaceutical] services are in an area of a prescribed description, the applicant shall not be included in the list unless his inclusion is approved by a prescribed body and by reference to [F142 prescribed criteria]; and

(e) that the prescribed body may give its approval subject to conditions.

(5) The regulations shall include provision conferring on such persons as may be prescribed rights of appeal from decisions made by virtue of subsection (3) or (4).

(6) The regulations shall be so framed as to preclude—

(a) a person included in a list published under subsection (3)(a) above; and

(b) an employee of such a person;

from taking part in the decision whether an application such as is mentioned in subsection (3)(c) above should be granted or an appeal against such a decision brought by virtue of subsection (5) above should be allowed.]

Textual Amendments

F133 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(7)(a)(i)

F134 S. 27(1)(b)(c) substituted for s. 27(1)(b) by Health Services Act 1980 (c. 53), s. 20(2)

F135 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(7)(a)(ii)

F136 S. 27(1)(d) and “; and" preceding it inserted by National Health Service and Community Care Act 1990 (c.19, SIF 113:2), s. 66(1), Sch. 9 para. 19(7)(a)(iii)

F137 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(7)(a)(iv)

F138 S. 27(2)–(6) substituted for (2) by National Health Service (Amendment) Act 1986 (c. 66, SIF 113:2), s. 3(3)

F139 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(7)(b)

F140 Word inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(7)(c)

F141 S. 27(4)(ba) inserted by S.I. 1987/2202, art. 5

F142 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(7)(d)

Modifications etc. (not altering text)

C27 S. 27(2) extended by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 17(1)

Marginal Citations

M25 1946 c. 81.

M26 S.I. 1972/1265.

Yn ddilys o 15/08/1997

[F143 27A Arrangements for providing additional pharmaceutical services. S

(1) The Secretary of State may—

(a) give directions to a Health Board requiring them to arrange for the provision to persons in their area of additional pharmaceutical services; or

(b) by giving directions to a Health Board authorise them to arrange for such provision if they wish to do so.

(2) Directions under this section may make different provision in relation to different services specified in the directions.

(3) The Secretary of State must publish any directions under this section in the Drug Tariff or in such other manner as he thinks appropriate.

(4) In this section—

• “additional pharmaceutical services”, in relation to directions, means such services (of a kind that do not fall within section 27) as may be specified in the directions; and

• “Drug Tariff” means the Drug Tariff published under regulation 9 of the M27 National Health Service (Pharmaceutical Services) (Scotland) Regulations 1995 or under any corresponding provision replacing, or otherwise derived from, that regulation.]

Textual Amendments

F143 S. 27A inserted (15.8.1997) by 1997 c. 46, s. 27(2); S.I. 1997/1780, art. 2(1), Sch.

Marginal Citations

M27 S.I. 1995/414.

Yn ddilys o 15/08/1997

[F144 27B Terms and conditions etc. S

(1) Directions under section 27A may require the Health Authority to whom they apply, when making arrangements—

(a) to include, in the terms on which the arrangements are made, such terms as may be specified in the directions;

(b) to impose, on any person providing a service in accordance with the arrangements, such conditions as may be so specified.

(2) The arrangements must secure that any service to which they apply is provided only by a person whose name is included in a pharmaceutical list.

(3) Different arrangements may be made with respect to—

(a) the provision of the same service by the same person but in different circumstances; or

(b) the provision of the same service by different persons.

(4) A Health Authority must provide details of proposed arrangements (including the remuneration to be offered for the provision of services) to any person who asks for them.

(5) After making any arrangements, a Health Authority must publish, in such manner as the Secretary of State may direct, such details of the arrangements as he may direct.

(6) In this section, “pharmaceutical list” means, subject to any provision of the directions in question, a list—

(a) published by the Health Authority concerned, or by any other Health Authority, in accordance with regulations made under section 27(2)(a) of this Act; or

(b) published by any body in accordance with regulations made under section 42(2)(a) of the M28 National Health Service Act 1977or Article 63(2A)(a) of the M29 Health and Personal Social Services (Northern Ireland) Order 1972.]

Textual Amendments

F144 S. 27B inserted (15.8.1997) by 1997 c. 46, s. 28(2); S.I. 1997/1780, art. 2(1), Sch.

Marginal Citations

M28 1978 c. 29.

M29 S.I. 1972/1265 (N.I.14).

28 Persons authorised to provide pharmaceutical services. S

(1) Except as may be provided by [F145 or under] regulations, no arrangements shall be made by a Health Board with a medical practitioner or dental practitioner under which he is required or agrees to provide pharmaceutical services to any person to whom he is rendering general medical services or general dental services.

(2) Except as may be provided by [F146 or under] regulations, no arrangements for the dispensing of medicines [F147 or the provision of pharmaceutical services] shall be made with persons other than persons who are registered pharmacists or are persons lawfully conducting a retail pharmacy business in accordance with section 69 of the M30 Medicines Act 1968, and who undertake [F148 (a)] that all medicines [F149 provided] by them under the arrangements made under this Part shall be dispensed [F150 , and (b) that all services mentioned in section 27(1)(d) provided by them under those arrangements shall be provided] either by, or under the direct supervision of, a registered pharmacist.

Textual Amendments

F145 Words inserted by National Health Service (Amendment) Act 1986 (c. 66, SIF 113:2), s. 3(4)

F146 Words inserted by National Health Service (Amendment) Act 1986 (c. 66, SIF 113:2), s. 3(4)

F147 Words inserted by National Health Service and Community Care Act 1990 (c.19, SIF 113:2), s. 66(1), Sch. 9 para. 19(8)(a)

F148 “(a)" inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(8)(b)

F149 Word substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(8)(c)

F150 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(8)(d)

Marginal Citations

M30 1968 c. 67.(84).

[F151 Remuneration for services] S

Textual Amendments

F151 S. 28A inserted (prosp.) by Health and Social Security Act 1984 (c. 48, SIF 113:1), ss. 7(2), 27(1)

28A Regulations as to remuneration. S

(1) Regulations shall make provision as to the remuneration to be paid to persons who provide general medical services, general dental services, general ophthalmic services or pharmaceutical services under this Part of this Act [F152 and may include provision for the remuneration of persons providing those services in respect of the instruction of any person in matters relating to those services]

(2) Subject to sections 19(3) and 25(3), remuneration under the regulations may consist of payments by way of—

(a) salary;

(b) fees;

(c) allowances;

(d) reimbursement (in full or in part) of expenses incurred or expected to be incurred in connection with the provision of the services [F153 or instruction].

and the regulations may provide that the remuneration shall be determined from time to time by such authority as may be specified.

(3) If section 10 of the National Health Service Act M31 1966 is brought into operation, upon the date of its commencement the words “section 10 of the National Health Service Act 1966 and section" shall be substituted for the words “sections 19(3) and" in subsection (2) above.

Textual Amendments

F152 Words added by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 15(1)

F153 Words added by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 15(2)

Marginal Citations

M31 1966 c.8(113:2).

[F154 28B Remuneration— supplementary. S

(1) The authority specified in regulations under the preceding section may be the Secretary of State or some other person or persons and is referred to in this section as a “determining authority”.

(2) The power conferred by the preceding section includes power to make regulations providing for a determination in more than one stage and by more than one determining authority.

(3) Regulations under the preceding section shall provide—

(a) that determination may be made with respect either to any of the descriptions of services mentioned in subsection (1) of the preceding section generally or to any category of services falling within such a description;

(b) that, before making such a determination, the determining authority shall consult—

(i) a prescribed body established to provide advice in connection with the matters to be determined; or

(ii) an organisation appearing to the Secretary of State to be representative of persons to whose remuneration the determination would relate,

or both such a body and such an organisation.

(4) Regulations under the preceding section may provide—

(a) that a determination such as is mentioned in subsection (3) above shall have effect in relation to remuneration in respect of a period beginning on or after a date specified in the determination, which may be the date of the determination or an earlier or later date, but may be an earlier date only if, taking the determination as a whole, it is not detrimental to the persons to whose remuneration it relates; and

(b) that any such determination which does not specify such a date shall have effect in relation to remuneration in respect of a period beginning—

(i) if it is required to be published, on the date of publication;

(ii) if it is not so required, on the date on which it is made.

(5) Regulations under the preceding section may provide—

(a) for determinations of the remuneration of particular persons or descriptions of persons for particular items of service or in particular circumstances;

(b) that a determining authority shall have a discretion, when making a determination by virtue of this subsection,—

(i) as to the amount of remuneration to be paid; and

(ii) as to the persons to whom and conditions on which it is to be paid; and

(c) that a determination made by virtue of this subsection may be revised—

(i) to correct an error; or

(ii) where it appears to the determining authority that it was made in ignorance of or under a mistake as to a relevant fact.

(6) Regulations under the preceding section may provide—

(a) that determinations may be made by reference to any of the following—

(i) rates or conditions of remuneration of any persons or any descriptions of persons which are fixed or determined, or to be fixed or determined, otherwise than by way of a determination under the regulations;

(ii) scales, indices or other data of any description specified in the regulations; and

(b) that any determination which in accordance with regulations made by virtue of paragraph (a)(ii) above falls to be made by reference to a scale or an index or to any other data may be made not only by reference to that index or scale or those data in the form current at the time of the determination but also by reference to the scale, index or data in any subsequent form attributable to amendment or revision taking effect after that time or to any other cause.

(7) Any determination under regulations under the previous section shall be made after taking into account all the matters which are considered to be relevant by the determining authority and, without prejudice to the generality of this subsection, such matters may include—

(a) the amount or estimated amount of expenses (taking into account any discounts) incurred in the past or likely to be incurred in the future (whether or not by persons to whose remuneration the determination will relate) in connection with the provision of services of [F155 the description to which the determination will relate or of any category falling within that description];

(b) the amount or estimated amount of any remuneration paid or likely to be paid to persons providing such services;

(c) the amount or estimated amount of any other payments or repayments or other benefits received or likely to be received by any such persons;

[F156 (d) the extent to which it is desirable to encourage the provision, either generally or in particular places, of the description or category of services to which the determination will relate;]

(e) the desirability of promoting services which are—

(i) economic and efficient; and

(ii) of an appropriate standard.

[F157 (8) If the determination is of remuneration for a category of services falling within one of the descriptions of services mentioned in subsection (1) of the preceding section, the reference in subsection (7)(a) above to a category of services is a reference to the same category of services or to any other category of services falling within the same description.]]

Textual Amendments

F154 S. 28B added (prosp.) by Health and Social Security Act 1984 (c. 48, SIF 113:1), ss. 7(3), 27(1)

F155 Words substituted by National Health Service (Amendment) Act 1986 (c. 66, SIF 113:2), s. 4(6)(a)

F156 Para. (d) substituted by National Health Service (Amendment) Act 1986 (c. 66, SIF 113:2), s. 4(6)(b)

F157 Subsection (8) inserted by National Health Service (Amendment) Act 1986 (c. 66, SIF 113:2), s. 4(7)

Yn ddilys o 01/03/2000

[F158 28C Indemnity cover. S

(1) Regulations may make provision for the purpose of securing that, in prescribed circumstances, prescribed Part II practitioners hold approved indemnity cover.

(2) The regulations may, in particular, make provision as to the consequences of a failure to hold approved indemnity cover, including provision—

(a) for securing that a person is not be added to any list unless he holds approved indemnity cover;

(b) for the removal from a list prepared by a Health Board of a Part II practitioner who does not within a prescribed period after the making of a request by the Health Board in the prescribed manner satisfy the Health Board that he holds approved indemnity cover.

(3) For the purposes of this section—

• “approved body” means a person or persons approved in relation to indemnity cover of any description, after such consultation as may be prescribed, by the Secretary of State or by such other person as may be prescribed;

• “approved indemnity cover” means indemnity cover made—

  (a)

  on prescribed terms; and

  (b)

  with an approved body;

• “indemnity cover”, in relation to a Part II practitioner (or person who proposes to provide Part II services), means a contract of insurance or other arrangement made for the purpose of indemnifying him and any person prescribed in relation to him to any prescribed extent against any liability which—

  (a)

  arises out of the provision of Part II services in accordance with arrangements made by him with a Health Board under this Part of this Act; and

  (b)

  is incurred by him or any such person in respect of the death or personal injury of a person;

• “list” has the same meaning as in section 29;

• “Part II practitioner” means a person whose name is on a list;

• “Part II services” means general medical services, general dental services, general ophthalmic services or pharmaceutical services;

• “personal injury” means any disease or impairment of a person’s physical or mental condition and includes the prolongation of any disease or such impairment;

and a person holds approved indemnity cover if he has entered into a contract or arrangement which constitutes approved indemnity cover.

(4) The regulations may provide that a person of any description who has entered into a contract or arrangement which is—

(a) in a form identified in accordance with the regulations in relation to persons of that description; and

(b) made with a person or persons so identified,

is to be treated as holding approved indemnity cover for the purposes of the regulations.]

Textual Amendments

F158 S. 28C and sidenote inserted (1.3.2000) by 1999 c. 8, s. 56(1); S.S.I. 2000/38, art. 2

Yn ddilys o 17/10/2005

[F159 Assistance and support: general dental services S

Textual Amendments

F159 S. 28D and preceding cross-heading inserted (17.10.2005) by Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), ss. 16, 43(3); S.S.I. 2005/492, art. 3(a), Sch. 1

28D Assistance and support: general dental services S

(1) A Health Board may provide assistance and support to any person providing, or proposing to provide, general dental services.

(2) Assistance and support provided by a Health Board under subsection (1) is to be provided on such terms, including terms as to payment, as the Board think fit.

(3) In this section, “assistance” includes financial assistance.]

Provisions as to disqualification of practitioners S

29 Disqualification of persons providing services. S

(1) There shall be constituted a tribunal (hereafter in this Act referred to as “the Tribunal”) for the purpose of inquiring into cases where representations are made in the prescribed manner to the Tribunal by a Health Board or any other person that the continued inclusion of any person in any list prepared under this Part—

(a) of medical practitioners undertaking to provide general medical services;

(b) of medical practitioners undertaking to provide general ophthalmic services;

(c) of dental practitioners undertaking to provide general dental services;

(d) of ophthalmic opticians undertaking to provide general ophthalmic services;

(e)

F160 (f) of persons undertaking to provide pharmaceutical services,

would be prejudicial to the efficiency of the services in question.

(2) Schedule 8 shall have effect in relation to the Tribunal.

(3) The Tribunal, on receiving representations from a Health Board, shall, and in any other case may, inquire into the case and, if they are of the opinion that the continued inclusion of the said person in any list to which the representations relate would be prejudicial to the efficiency of the said services, shall direct that his name be removed from that list, and may also, if they think fit, direct that his name be removed from, or not be included in, any corresponding list kept by any other Health Board under this Part.

(4) An appeal shall lie to the Secretary of State from any direction of the Tribunal under subsection (3), and the Secretary of State may confirm or revoke that direction in whole or in part.

(5) Where the Tribunal direct that the name of any person be removed from, or not included in, any list or lists, the Health Board or Boards concerned shall—

(a) if no appeal is brought, at the end of the period for bringing an appeal, or

(b) if an appeal is brought and the direction of the Tribunal as regards any such list or lists is confirmed by the Secretary of State, on receiving notice of the Secretary of State’s decision,

remove the name of the person concerned from the list or lists in question.

(6) The references in subsections (1), (3) and (5) to a Health Board shall include a reference to such committee or joint committee as may be prescribed.

Textual Amendments

F160 S. 29(1)(e) repealed by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 24, Sch. 8 Pt. I

Yn ddilys o 31/01/2004

[F161 29A The NHS Tribunal: supplementary. S

(1) Where an ophthalmic optician is a body corporate, the body corporate is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if any director meets that condition (whether or not he first met that condition when he was a director).

(2) Where a body corporate carries on a retail pharmacy business, the body corporate is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if any one of the body of persons controlling the body corporate meets that condition (whether or not he first met that condition when he was one of them).

(3) A person who is included in any list (“the practitioner”) is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if—

(a) another person, because of an act or omission of his occurring in the course of providing any services mentioned in section 29(8) on the practitioner’s behalf, meets that condition; and

(b) the practitioner failed to take all such steps as were reasonable to prevent acts or omissions within section 29(7)(a) occurring in the course of the provision of those services on his behalf.

(4) The Tribunal is not required to inquire into a fraud case if they have previously inquired into representations in respect of the person concerned and the same acts or omissions.

(5) In a fraud case, regulations may make provision (including provision modifying the effect of this Part) for the purpose of securing that the person subject to the inquiry is not added to any list until proceedings in that case are finally concluded.

(6) For the purposes of this group of sections, in a fraud or efficiency case proceedings are finally concluded—

(a) if the Tribunal determine not to disqualify or conditionally disqualify him when they make that determination;

(b) if they determine to disqualify or conditionally disqualify him and no appeal is brought against the determination, at the end of the period for bringing an appeal;

(c) if they determine to disqualify or conditionally disqualify him and an appeal is brought against the determination, when the appeal process is exhausted.

(7) An inquiry under section 29 is not affected by the person subject to the inquiry withdrawing from, withdrawing any application to be included in or being removed from the list to which the case relates.]

Textual Amendments

F161 Ss. 29, 29A-29C substituted for s. 29 (31.1.2004 for certain purposes and otherwise 4.3.2004) by 1999 c. 8, ss. 58(1), 67(1); S.S.I. 2004/32, art. 2(1)(2) (with savings for effect of 1999 c. 58 by S.S.I. 2004/31, art. 3)

Yn ddilys o 31/01/2004

[F162 29B Powers of NHS Tribunal. S

(1) Subsection (2) applies where the Tribunal are of the opinion—

(a) on inquiring into an efficiency case, that the person meets the first condition for disqualification;

(b) on inquiring into a fraud case, that the person meets the second condition for disqualification.

(2) The Tribunal—

(a) shall make a local disqualification, that is disqualify him for inclusion in the list to which the case relates; and

(b) may also make a national disqualification, that is disqualify him for inclusion in all lists within the same paragraph of section 29(8) as that list.

(3) If the Tribunal make a national disqualification they may also declare that the person is not fit to be engaged in any capacity in the provision of the services to which the lists in question relate (referred to in this group of sections as a declaration of unfitness).

(4) The Tribunal shall not make any disqualification or declaration under this section if they are of the opinion that it would be unjust to do so.

(5) A disqualification under this section shall have effect when the case is finally concluded.

(6) If a person is disqualified for inclusion in any list prepared by a Health Board, the Board must not enter him in the list and (if he is already included in the list) must remove him from the list.]

Textual Amendments

F162 Ss. 29, 29A-29C and sidenotes substituted for s. 29 and sidenote (31.1.2004 for certain purposes otherwise 4.3.2004) by 1999 c. 8, ss. 58(1), 67(1); S.S.I. 2004/32, art. 2(1)(2) (with savings for effect of 1999 c. 58 by S.S.I. 2004/31, art. 3)

Yn ddilys o 31/01/2004

[F163 29C Conditional disqualification etc. S

(1) The functions of making disqualifications under section 29B include making a conditional disqualification, that is, a disqualification which is to come into effect only if the Tribunal determine (on a review under section 30) that the person subject to the inquiry has failed to comply with any conditions imposed by them.

(2) Conditions may be imposed by virtue of subsection (1) with a view to—

(a) removing any prejudice to the efficiency of the services in question; or

(b) preventing any acts or omissions within section 29(7)(a),

(as the case may be).

(3) Conditions so imposed shall have effect when proceedings in the case are finally concluded.

(4) Section 29B(4) applies to a conditional disqualification as it applies to a disqualification.

(5) The Tribunal may by directions—

(a) vary the terms of service of the person subject to the inquiry (including terms imposed by regulations under this Part);

(b) confer functions on any Health Board,

for the purpose of or in connection with the imposition of any conditions by virtue of this section.

(6) References in any enactment to a disqualification by the Tribunal do not include a conditional disqualification.]

Textual Amendments

F163 Ss. 29, 29A-29C and sidenotes substituted for s. 29 and sidenote (31.1.2004 for certain purposes otherwise 4.3.2004) by 1999 c. 8, ss. 58(1), 67(1); S.S.I. 2004/32, art. 2(1)(2) (with savings for effect of 1999 c. 58 by S.S.I. 2004/31, art. 3)

30 Removal of disqualification. S

(1) Any person whose name has been removed by a direction under section 29 from any list or lists shall be disqualified for inclusion in any list to which that direction relates until the Tribunal or the Secretary of State direct under this section to the contrary.

(2) For the purpose of deciding whether or not to issue a direction under this section (or under paragraph 6 of Schedule 15) the Tribunal or the Secretary of State, as the case may be, may hold an inquiry.

31 Disqualification provisions in England or Wales or Northern Ireland. S

If—

(a) under any provisions in force in England or Wales or Northern Ireland corresponding to the provisions of this Part, a person is for the time being disqualified for inclusion in all lists prepared under those provisions of persons undertaking to provide services of one or more of the kinds specified in section 29(1), then

(b) that person shall, so long as that disqualification is in force, be disqualified for inclusion in a list prepared under this Part of persons undertaking to provide services of that kind or those kinds, and the name of that person shall be removed from any such list in which his name is included.

32 Regulations as to sections 29 to 31. S

Regulations shall make provision—

(a) with regard to the procedure for the holding of inquiries by the Tribunal or the Secretary of State under sections 29 to 31 and for the making and determining of appeals to the Secretary of State under that procedure, and, in particular, for securing that any person who is the subject of such an inquiry shall be informed, as soon as may be, of the substance of any charge or complaint to which the inquiry relates and shall have an opportunity—

(i) of appearing, either in person or by counsel or solicitor or such other representative as may be prescribed, before the Tribunal and, in the case of an inquiry by, or appeal to, the Secretary of State, before a person appointed by the Secretary of State, and

(ii) of being heard by the Tribunal or the person so appointed, and of calling witnesses and producing other evidence on his behalf,

and that the hearing, whether by the Tribunal or the person so appointed, shall be in public if the person who is the subject of the inquiry so requests;

(b) for conferring on the Tribunal and on any person so appointed such powers as the Secretary of State considers necessary for the purpose of holding such inquiries, including power to require the attendance of witnesses and the production of documents and to administer oaths; and

(c) for the publication of decisions of the Tribunal and the Secretary of State under this section and of the imposition and removal of any disqualification imposed by virtue of this section, and for the intimation to any person who is the subject of such an inquiry of the grounds upon which any disqualification has been imposed in his case.

Yn ddilys o 01/01/1996

[32A F164 Applications for interim suspension. S

(1) A Health Board who have made representations under section 29 may, at any time before the case is disposed of by the Tribunal, apply to the Tribunal for a direction to be made under subsection (2) below in relation to the person to whom the case relates.

(2) If, on an application under this section, the Tribunal are satisfied that it is necessary to do so in order to protect patients, they shall direct that subsection (3) below shall apply to the person concerned as respects services of the kind to which the case in question relates.

(3) A person to whom this subsection applies shall—

(a) be deemed to have been removed from any relevant list in which his name is included,

(b) be disqualified for inclusion in any relevant list in which his name is not included, and

(c) be deemed to be a person in relation to whom there is in force a declaration under section 29(3)(c) concerning his fitness to be engaged in the provision of services of the relevant kind.

(4) A direction under subsection (2) above shall cease to have effect on the Tribunal’s disposing of the case in connection with which it is made.

(5) In subsection (2) above, the reference to patients is to persons to whom services of the kind to which the case in question relates are, or may be, provided under this Part of this Act.

(6) In the application of subsection (3) above to any person—

(a) “relevant list” means a list prepared under this Part of this Act of persons undertaking to provide services of the kind to which the direction applying the subsection to him relates, and

(b) “services of the relevant kind” means services of the kind to which that direction relates.]

Textual Amendments

F164 S. 32A inserted (1.1.1996 for certain purposes and otherwise 1.4.1996) by 1995 c. 31, s. 8; S.I. 1995/3214, art. 2, Sch.(with art. 3); S.I. 1996/552, art. 2

Yn ddilys o 01/01/1996

F165 32B Continuation of suspension pending appeal. S

(1) Where—

(a) on disposing of a case under section 29, the Tribunal make a direction under subsection (3)(b) of that section, and

(b) the person to whom the direction relates is a person to whom section 32A(3) above would, apart from this section, cease to apply on the disposal of the case,

the Tribunal may, if they consider it necessary to do so in order to protect patients, direct that that provision shall continue to apply to him as respects services of the kind to which the direction under section 29(3)(b) relates.

(2) A direction under subsection (1) above shall cease to have effect—

(a) where no appeal against the direction under section 29(3)(b) is brought, at the end of the period for bringing an appeal, and

(b) where an appeal against that direction is brought, when the appeal process has been exhausted.

(3) Where the power conferred by subsection (1) above is exercisable by virtue of a direction which is not coupled with a declaration under section 29(3)(c), section 32(A)(3) shall have effect, in relation to the exercise of that power, with the omission of paragraph (c).

(4) In subsection (1) above, the reference to patients is to persons to whom services of the kind to which the direction under section 29(3)(b) relates are, or may be, provided under this Part of this Act.

Textual Amendments

F165 S. 32B inserted (1.1.1996 for certain purposes and otherwise 1.4.1996) by 1995 c. 31, s. 8; S.I. 1995/3214, art. 2, Sch. (with art. 3); S.I. 1996/552, art. 2

Yn ddilys o 01/01/1996

[F166 F167 32C Sections 32A and 32B: procedure etc. S

(1) Before making a direction under section 32A(2) or 32B(1) in relation to any person, the Tribunal shall give him an opportunity—

(a) to appear before them, either—

(i) in person; or

(ii) by counsel or solicitor or such other representative as may be prescribed; and

(b) to be heard and to call witnesses and produce other evidence.

(2) Regulations may—

(a) make provision for, or for the determination of, procedure in relation to determining applications under section 32A or the exercise of the power conferred by section 32B(1), and

(b) provide for the functions of the Tribunal under section 32A or 32B to be carried out, or to be carried out in prescribed circumstances, by the chairman or a deputy chairman of the Tribunal.]

Textual Amendments

F166 Ss. 29, 29A-29C substituted for s. 29 (31.1.2004 for certain purposes and otherwise 4.3.2004) by 1999 c. 8, ss. 58(1), 67(1); S.S.I. 2004/32, art. 2(1)(2) (with savings for effect of 1999 c. 58 by S.S.I. 2004/31, art. 3)

F167 S. 32C inserted (1.1.1996 for certain purposes and otherwise 1.4.1996) by 1995 c. 31, s. 8; S.I. 1995/3214, art. 2, Sch.(with art. 3); S.I. 1996/552, art. 2

Yn ddilys o 01/01/1996

F168 32D Suspension provisions in England and Wales or in Northern Ireland. S

(1) This section applies where, under any provisions in force in England and Wales or in Northern Ireland corresponding to section 32A or 32B, a person (“the practitioner") is disqualified for inclusion in all lists prepared under the provisions in force there corresponding to the provisions of this Part of this Act of persons undertaking to provide services of one or more of the kinds specified in section 29(1), other than those in which his name is included.

(2) The practitioner shall, while he is so disqualified—

(a) be disqualified for inclusion in any list prepared under this Part of this Act of persons undertaking to provide services of the same kinds (“relevant list") in which his name is not included, and

(b) be deemed to have been removed from any relevant list in which his name is included.

Textual Amendments

F168 S. 32D inserted (1.1.1996 for certain purposes and otherwise 1.4.1996) by 1995 c. 31, s. 8; S.I. 1995/3214, art. 2, Sch. (with art. 3); S.I. 1996/552, art. 2

Yn ddilys o 01/01/1996

F169 32E Payments in consequence of suspension. S

(1) Regulations may provide for the making to persons to whom section 32A(3) or 32D(2) applies of payments in consequence of the application of that provision.

(2) Regulations under subsection (1) above may provide for the determination by the Secretary of State in a prescribed manner of anything for which provision may be made by regulations under that subsection.

Textual Amendments

F169 S. 32E inserted (1.1.1996 for certain purposes and otherwise 1.4.1996) by 1995 c. 31, s. 8; S.I. 1995/3214, art. 2, Sch. (with art. 3); S.I. 1996/552, art. 2

Supplementary provisions relating to Part II S

33 Powers of Secretary of State where services are inadequate. S

If the Secretary of State is satisfied, after such inquiry as he may think fit, as respects the area of any Health Board or part of any such area that the persons included in any list prepared under this Part—

(a) of medical practitioners undertaking to provide general medical services,

(b) of dental practitioners undertaking to provide general dental services,

(c) of persons undertaking to provide general ophthalmic services, or

(d) of persons undertaking to provide pharmaceutical services,

are not such as to secure the adequate provision of the services in question in that area or part, or that for any other reason any considerable number of persons in any such area or part are not receiving satisfactory services under the arrangements in force under this Part, he may authorise the Health Board to make such other arrangements as he may approve, or may himself make other arrangements, and may dispense with any of the requirements of regulations made under this Part so far as appears to him to be necessary to meet exceptional circumstances and enable such arrangements to be made.

34 Exercise of choice of medical practitioner etc. in certain cases. S

Regulations may provide that where a right to choose the person by whom services are to be provided under this Part is conferred by or under any provision of this Part, that right shall, in the case of such persons as may be specified in the regulations, be exercisable on their behalf by other persons so specified.

35 Prohibition of sale of medical practices. S

(1) Where the name of any medical practitioner is or has been at any time on or after 5th July 1948 entered in any list of medical practitioners undertaking to provide general medical services, it shall be unlawful subsequently to sell the goodwill or any part of the goodwill of the medical practice of that medical practitioner.

This subsection is subject to subsections (2) and (3); and the additional provisions contained in Schedule 9 have effect for the purposes of this section.

(2) Where a medical practitioner, whose name has ceased to be entered in any list of medical practitioners undertaking to provide general medical services, practises in an area for which he has never been on any such list, subsection (1) does not render unlawful the sale of the goodwill or any part of the goodwill of his practice in that area.

(3) Subsection (1) does not prevent the sale of the goodwill or any part of the goodwill of a medical practice carried on in any area, being a sale by a medical practitioner whose name has never been entered in a list of a Health Board (or of an Executive Council) for that area of medical practitioners undertaking to provide general medical services, notwithstanding that any part of the goodwill to be sold is attributable to a practice previously carried on by a person whose name was entered in such a list.

Yn ddilys o 01/10/1999

[F170 35A Interpretation of Part II. S

Where, under a direction by the Secretary of State, a Health Board has delegated any of its functions to an NHS trust, any reference in this Part to a Health Board in relation to such a delegated function shall, unless the context otherwise requires, include a reference to an NHS trust.]

Textual Amendments

F170 S. 35A inserted (1.10.1999) by 1999 c. 8, s. 65(1), Sch. 4 para. 55; S.S.I. 1999/90, art. 2(a)(b)

Part III S Other Services and Facilities

36 Accommodation and services. S

(1) It shall be the duty of the Secretary of State to provide throughout Scotland, to such extent as he considers necessary to meet all reasonable requirements, accommodation and services of the following descriptions—

(a) hospital accommodation, including accommodation at state hospitals;

(b) premises other than hospitals at which facilities are available for any of the services provided under this Act;

(c) medical, nursing and other services, whether in such accommodation or premises, in the home of the patient or elsewhere.

(2) Where accommodation or premises provided under this section afford facilities for the provision of general medical, general dental or general ophthalmic services, or of pharmaceutical services, they shall be made available for those services on such terms and conditions as the Secretary of State may determine.

Modifications etc. (not altering text)

C28 S. 36 restricted (1.1.2003) by S.S.I. 2002/533, reg. 5(3)

C29 S. 36(1): functions transferred (27.6.2002) by S.S.I. 2002/305, art. 4(2)(c) (with art. 4(4))

37 Prevention of illness, care and after-care. S

The Secretary of State shall make arrangements, to such extent as he considers necessary to meet all reasonable requirements, for the purposes of the prevention of illness, the care of persons suffering from illness or the after-care of such persons.

Modifications etc. (not altering text)

C30 S. 37: functions tranferred (27.6.2002) by S.S.I. 2002/305, art. 4(2)(d) (with art. 4(4))

38 Care of mothers and young children. S

It shall be the duty of the Secretary of State to make arrangements, to such extent as he considers necessary, for the care, including in particular medical and dental care, of expectant mothers and nursing mothers and of young children.

Yn ddilys o 19/03/2005

[F171 38A Breastfeeding S

(1) The Scottish Ministers shall make arrangements, to such extent as they consider necessary to meet all reasonable requirements, for the purpose of supporting and encouraging the breastfeeding of children by their mothers.

(2) The Scottish Ministers shall have the power to disseminate, by whatever means, information promoting and encouraging breastfeeding.]

Textual Amendments

F171 S. 38A inserted (19.3.2005) by Breastfeeding etc. (Scotland) Act 2005 (asp 1), ss. 4, 5

Yn ddilys o 17/10/2005

[F172 38B Detection of vision problems in children S

(1) It is the duty of the Scottish Ministers, to such extent as they consider necessary to meet all reasonable requirements, to provide for the detection of vision problems in children.

(2) In this section, “children” means persons under the age of 16 years.]

Textual Amendments

F172 S. 38B inserted (17.10.2005) by Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), ss. 11, 43(3); S.S.I. 2005/492, art. 3(a), Sch. 1

39 Medical and dental inspection, supervision and treatment of pupils and young persons. S

(1) It shall be the duty of the Secretary of State to provide for the medical F173 inspection, at appropriate intervals, and for the medical F173 supervision [F174 and treatment], of all pupils in attendance at any school under the management of an education authority [F175 or at any self-governing school], and of all young persons in attendance at any F176 other educational establishment under such management.

[F177 (2) It is also the Secretary of State’s duty to provide, to such extent as he considers necessary to meet all reasonable requirements—

(a) for the dental inspection of such pupils and young persons as are mentioned in subsection (1);

(b) for their dental treatment; and

(c) for their education in dental health.]

(3) It shall be the duty of every education authority [F178 and of every board of management] to make arrangements for encouraging and assisting pupils and young persons to take advantage of facilities for medical [F179 treatment made available under subsection (1) and dental treatment made available for the purpose of] subsection (2); but where, in the case of any pupil or young person, his parent gives notice to the authority that he objects to the pupil or young person availing himself of the said facilities, the pupil or young person shall not be encouraged or assisted to do so.

(4) It shall be the duty of every education authority [F180 and of every board of management] to afford sufficient and suitable facilities for the medical F181 inspection, supervision and treatment, described in [F182 subsection (1) and for the dental inspection, treatment and education described in subsection (2)].

(5) Expressions used in this section and in the Education (Scotland) Act [F183 M32 1980] have in this section the same meanings as in that Act.

Textual Amendments

F173 Words repealed by Health and Medicines Act 1988 (c. 49, SIF 113:2), ss. 10(2)(a)(i), 25(2), Sch. 3

F174 Words inserted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 10(2)(a)(ii)

F175 Words inserted by Self Governing Schools etc. (Scotland) Act 1989 (c. 39, SIF 41:2), s. 25(3), Sch. 6 para. 2(a)

F176 Words repealed by Self Governing Schools etc. (Scotland) Act 1989 (c. 39, SIF 41:2), s. 82(2), Sch. 11

F177 S. 39(2) substituted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 10(2)(b)

F178 Words inserted by Self-Governing Schools etc. (Scotland) Act 1989 (c. 39, SIF 41:2), s. 25(3), Sch. 6 para. 2(b)

F179 Words substituted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 10(2)(c)

F180 Words inserted by Self-Governing Schools etc. (Scotland) Act 1989 (c. 39, SIF 41:2), s. 25(3), Sch. 6 para. 2(c)

F181 Words repealed by Health and Medicines Act 1988 (c. 49, SIF 113:2), ss. 10(2)(d)(i), 25(2), Sch. 3

F182 Words substituted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 10(2)(d)(ii)

F183 Words substituted by Education (Scotland) Act 1980 (c. 44), Sch. 4 para. 17

Modifications etc. (not altering text)

C31 S. 39 extended by Education (Scotland) Act 1980 (c. 44), s. 57

Marginal Citations

M32 1980 c. 44.

40 Vaccination and immunisation. S

(1) The Secretary of State shall have power to make arrangements with medical practitioners for the vaccination or immunisation of persons against any disease, either by medical practitioners or by persons acting under their direction and control.

(2) In making arrangements under this section, the Secretary of State shall, in so far as is reasonably practicable, give every medical practitioner providing general medical services under Part II an opportunity to provide services under this section.

(3) The Secretary of State may, either directly or by another person, supply free of charge to medical practitioners providing services under this section, vaccines, sera or other preparations for vaccinating or immunising persons against any disease.

41 Family planning. S

It shall be the duty of the Secretary of State to make arrangements, to such extent as he considers necessary, for the giving of advice on contraception, the medical examination of persons seeking advice on contraception, the treatment of such persons and the supply of contraceptive substances or appliances.

Modifications etc. (not altering text)

C32 S. 41: functions transferred (27.6.2002) by S.S.I. 2002/305, art. 4(2)(e) (with art. 4(4))

42 Health education. S

The Secretary of State shall have power to disseminate, by whatever means, information relating to the promotion and maintenance of health and the prevention of illness.

Modifications etc. (not altering text)

C33 By S.I. 1990/2639, art. 4(1)(a) certain functions of the Secretary of State specified in s. 42 are made exercisable (1.4.1991) by Health Education Board for Scotland

C34 S. 42: functions transferred (27.6.2002) by S.S.I. 2002/305, art. 4(2)(f) (with art. 4(4))

43 Control of spread of infectious disease. S

The Secretary of State may provide or secure the provision of a service, which may include the provision of laboratories, for the control of the spread of infectious disease; and he may allow persons to make use of services provided at such laboratories on such terms (including terms as to the payment of charges) and on such conditions as he may determine.

44 Supplies of blood and other substances. S

(1) Where the Secretary of State has acquired supplies of human blood for the purpose of carrying out blood transfusion, or supplies of any other substances or preparations not readily obtainable or has acquired any part of a human body for the purpose of, or in the course of providing, any service under this Act, he may make arrangements for making such supplies available to medical practitioners and other persons who require them or for supplying that part to any person on such terms (including terms as to the payment of charges) and on such conditions as he may determine.

(2) Subsection (1) is subject to section 54 (restriction of powers).

45 Ambulances. S

It shall be the duty of the Secretary of State to make such provision as he thinks necessary for securing that ambulances and other means of transport are available for the conveyance of persons suffering from illness or of expectant or nursing mothers or of other persons for whom such transport is reasonably required in order to avail themselves of any service under this Act.

Modifications etc. (not altering text)

C35 S. 45 excluded by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 11(2), 17(2)

46 Provision of vehicles for persons suffering from physical defect or disability. S

(1) The Secretary of State may provide invalid carriages for persons appearing to him to be suffering from severe physical defect or disability, and, at the request of such a person, may provide for him a vehicle other than an invalid carriage.

(2) The Secretary of State shall have power, in the case of an invalid carriage or other vehicle provided by him for, or belonging to, any such person as is mentioned in subsection (1), on such terms and subject to such conditions as he may determine—

(a) to adapt the vehicle for the purpose of making it suitable for the circumstances of that person;

(b) to maintain and repair the vehicle;

(c) to take out insurance policies relating to the vehicle and pay the duty, if any, with which the vehicle is chargeable under the M33 Vehicles (Excise) Act 1971;

(d) to provide a structure for the keeping of the vehicle therein and provide all material and execute all works necessary for the erection of the structure.

(3) The Secretary of State may, on such terms and subject to such conditions as he may determine, make payments by way of grant towards costs incurred by any such person as is mentioned in subsection (1) in respect of all or any of the following matters in relation to an invalid carriage or other vehicle provided by the Secretary of State for, or belonging to, that person, that is to say—

(a) the taking of any such action as is referred to in subsection (2);

(b) the purchase of fuel for the purposes of the vehicle, so far as the cost of the purchase is attributable to duties of excise payable in respect of fuel; and

(c) the taking of instruction in the driving of the vehicle.

(4) Regulations made by the Secretary of State may provide for any incidental or supplementary matter for which it appears to him necessary or expedient to make provision in connection with the taking of any action under subsection (2) or the making of any payment under subsection (3).

(5) In this section “invalid carriage” means a mechanically propelled vehicle specially designed and constructed, and not merely adapted, for the use of a person suffering from some physical defect or disability, and used solely by such a person.

Marginal Citations

M33 1971 c. 10.

47 Educational and research facilities. S

(1) It shall be the duty of the Secretary of State to make available such facilities, in any premises provided by him under this Act, as appear to him to be reasonably required for undergraduate and post-graduate clinical teaching and research, and for the education and training of persons providing or intending to provide services under this Act.

(2) Without prejudice to the general powers and duties conferred or imposed on the Secretary of State under the M34 Scottish Board of Health Act 1919, the Secretary of State may conduct, or assist by grants or otherwise any person to conduct, research into any matters relating to the causation, prevention, diagnosis or treatment of illness, or into such other matters relating to the health service as he thinks fit.

Modifications etc. (not altering text)

C36 S. 47: functions transferred (31.3.2002) by S.S.I. 2002/103, art. 4(1)(a) (with art. 4(4))

S. 47: functions transferred (27.6.2002) by S.S.I. 2002/305, art. 4(2)(g) (with art. 4(4))

Marginal Citations

M34 1919 c. 20.

48 Residential and practice accommodation. S

(1) The Secretary of State may provide, on such terms and conditions as may be agreed, residential accommodation for officers employed for the purposes of any of his functions under this Act, or for officers employed by a voluntary organisation for the purposes of any service provided under this Part.

(2) The Secretary of State may, in any case, in view of the special circumstances thereof, provide, on such terms and conditions as may be agreed—

(a) residential accommodation for medical and dental practitioners providing services under Part II;

(b) practice accommodation for such medical and dental practitioners and for such other persons providing services under this Act as he thinks fit.

(3) In subsection (2) “practice accommodation”, in relation to a person providing services of any kind, means accommodation suitable for the provision of services of that kind.

Modifications etc. (not altering text)

C37 S. 48: functions transferred (27.6.2002) by S.S.I. 2002/305, art. 4(2)(h) (with art. 4(4))

Part IV U.K. Powers of the Secretary of State

Control of maximum prices for medical supplies U.K.

49 Maximum prices of medical supplies may be controlled. S

(1) The Secretary of State may by order provide for controlling maximum prices to be charged for any medical supplies required for the purposes of this Act.

(2) The Secretary of State may by direction given with respect to any undertaking, or by order made with respect to any class or description of undertakings, being an undertaking or class or description of undertakings concerned with medical supplies required for the purposes of this Act, require persons carrying on the undertaking or undertakings of that class or description—

(a) to keep such books, accounts and records relating to the undertaking as may be prescribed by the direction or, as the case may be, by the order or a notice served under the order;

(b) to furnish at such times, in such manner and in such form as may be so prescribed such estimates, returns or information relating to the undertaking as may be so prescribed.

(3) The additional provisions set out in Schedule 10 have effect in relation to this section; and

• “medical supplies” in this section includes surgical, dental and optical materials and equipment; and

• “undertaking” in this section and that Schedule means any public utility undertaking or any undertaking by way of trade or business.

Additional powers as to services and supplies; and the use of those services and supplies for private patients S

50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F184 S

Textual Amendments

F184 S. 50 repealed by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 25(2), Sch. 3

51, 52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F185 S

Textual Amendments

F185 Ss. 16(3), 20(2), 51, 52, 59–63, 65–68, 96(2), Sch. 16 paras. 25, 43 repealed by Health Services Act 1980 (c. 53), Sch. 7

53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F186 S

Textual Amendments

F186 S. 53 repealed by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 25(2), Sch. 3

54 Restriction of powers under sections 44, 50 and 53. S

The Secretary of State shall exercise the powers conferred on him by the provisions of section 44 (supplies of blood and other substances) F187 only if and to the extent that he is satisfied that anything which he proposes to do or allow under those powers—

(a) will not to a significant extent interfere with the performance by him of any duty imposed on him by this Act to provide accommodation or services of any kind; and

(b) will not to a significant extent operate to the disadvantage of persons seeking or afforded admission or access to accommodation or services at health service hospitals (whether as resident or non-resident patients) otherwise than as private patients.

Textual Amendments

F187 Words repealed by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 25(2), Sch. 3

Further provisions as to payments by patients for health service accommodation and services S

55 Hospital accommodation on part payment. S

(1) The Secretary of State may authorise the accommodation described in this section to be made available, [F188 for patients to such extent as he may determine, and may recover such charges as he may determine in respect of such accommodation and calculate them on any basis that he considers to be the appropriate commercial basis].

The accommodation mentioned above is—

(a) in single rooms or small wards which are not for the time being needed by any patient on medical grounds;

(b) at any hospital [F189 vested in the Secretary of State].

(2)F190

Textual Amendments

F188 Words substituted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 7(9)(a)

F189 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(9)

F190 S. 55(2) repealed by Health and Medicines Act 1988 (c. 49, SIF 113:2), ss. 7(9)(b), 25(2), Sch. 3

56 Expenses payable by remuneratively employed resident patients. S

The Secretary of state may require any person—

(a) who is a resident patient for whom the Secretary of State provides services under this Act; and

(b) who is absent during the day for the purpose of engaging in remunerative employment from the hospital where he is a patient,

to pay such part of the cost of his maintenance in the hospital and any costs incidental thereto as may seem reasonable to the Secretary of State having regard to the amount of that person’s remuneration, and the Secretary of State may recover the payment so required.

[F191 57 Accommodation and services for private patients. S

(1) If the Secretary of State is satisfied, in the case of a health service hospital [F192 vested in the Secretary of State] that it is reasonable to do so, he may authorise accommodation and services at the hospital in question to be made available, to such extent as he may determine, for patients who give undertakings (or for whom undertakings are given) to pay, in respect of the accommodation and services made available, such charges as the Secretary of State may determine and may make and recover such charges as he may determine in respect of such accommodation and services and calculate them on any basis that he considers to be the appropriate commercial basis; but he shall do so only if and to the extent that he is satisfied that to do so—

(a) will not to a significant extent interfere with the performance by him of any duty imposed on him by this Act to provide accommodation or services of any kind; and

(b) will not to a significant extent operate to the disadvantage of persons seeking or afforded admission or access to accommodation or services at health service hospitals (whether as resident or non-resident patients) otherwise than under this section.

(2) The Secretary of State may allow accommodation and services to which an authorisation under subsection (1) above relates to be made available in connection with treatment, in pursuance of arrangements made by a medical practitioner or dental practitioner serving (whether in an honorary or paid capacity) on the staff of a health service hospital for the treatment of private patients of that practitioner.

[F193 (3) The Secretary of State shall revoke an authorisation under this section only if and to the extent that he is satisfied that sufficient accommodation and facilities for the private practice of medicine and dentistry are otherwise reasonably available (whether privately or at health service hospitals) to meet the reasonable demand for them in the area served by the hospital in question.]]

Textual Amendments

F191 S. 57 substituted for ss. 57, 58 by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 7(11)

F192 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(10)

F193 Section 57(3) repealed (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(2), Sch. 10

Modifications etc. (not altering text)

C38 S. 57 applied (1.4.1999) by S.I. 1999/686, art. 5(1), Sch. Pt. I

58A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F194 S

Textual Amendments

F194 S. 58A repealed by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 25(2), Sch. 3

59—63. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F195 S

Textual Amendments

F195 Ss. 16(3), 20(2), 51, 52, 59–63, 65–68, 96(2), Sch. 16 paras. 25, 43 repealed by Health Services Act 1980 (c. 53), Sch. 7

Use by practitioners of health service accommodation and facilities for private practice S

64 Permission for use of facilities in private practice. S

(1) A person to whom this section applies who wishes to use any relevant health service accommodation or facilities for the purpose of providing medical, dental, pharmaceutical, ophthalmic or chiropody services to non-resident private patients may apply in writing to the Secretary of State for permission under this section.

(2) Any application for permission under this section must specify—

(a) which of the relevant health service accommodation or facilities the applicant wishes to use for the purpose of providing services to such patients; and

(b) which of the kinds of services mentioned in subsection (1) he wishes the permission to cover.

(3) On receiving an application under this section the Secretary of State—

(a) shall consider whether anything for which permission is sought would interfere with the giving of full and proper attention to persons seeking or afforded access otherwise than as private patients to any services provided under this Act; and

(b) shall grant the permission applied for unless in his opinion anything for which permission is sought would so interfere.

(4) Any grant of permission under this section shall be on such terms (including terms as to the payment of charges for the use of the relevant health service accommodation or facilities pursuant to the permission) as the Secretary of State may from time to time determine.

(5) The persons to whom this section applies are—

(a) persons of any of the following descriptions who provide services under Part II, namely, medical practitioners, dental practitioners, registered pharmacists, and ophthalmic F196 opticians; and

(b) other persons who provide pharmaceutical or ophthalmic services under Part II; and

(c) chiropodists who provide services under this Act at premises where services are provided under Part II.

(6) In this section—

(a) “relevant health service accommodation or facilities”, in relation to a person to whom this section applies, means any accommodation or facilities available at premises provided by the Secretary of State by virtue of this Act, being accommodation or facilities which that person is for the time being authorised to use for the purposes of Part II; or

(b) in the case of a person to whom this section applies by virtue of paragraph (c) of subsection (5), accommodation or facilities which that person is for the time being authorised to use for purposes of this Act at premises where services are provided under Part II.

Textual Amendments

F196 Words repealed by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 24, Sch. 8 Pt. I

65—68. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F197 S

Textual Amendments

F197 Ss. 16(3), 20(2), 51, 52, 59–63, 65–68, 96(2), Sch. 16 paras. 25, 43 repealed by Health Services Act 1980 (c. 53), Sch. 7

Regulations as to certain charges S

69 Charges for drugs, medicines or appliances or pharmaceutical services. S

(1) Regulations may provide for the making and recovery in such manner as may be prescribed of such charges as may be prescribed in respect of—

(a) the supply under this Act (otherwise than under Part II) of drugs, medicines or appliances (including the replacement and repair of those appliances),

(b) such of the pharmaceutical services referred to in Part II as may be prescribed.

(2) Regulations under subsection (1) may provide for the grant, on payment of such sums as may be prescribed by those regulations, of certificates conferring on the persons to whom the certificates are granted exemption from charges otherwise exigible under the regulations in respect of drugs, medicines and appliances supplied during such period as may be prescribed, and different sums may be so prescribed in relation to different periods.

(3) The additional provisions of paragraphs 1 and 4 of Schedule 11 have effect in relation to this section.

70 Charges for dental or optical appliances. S

(1) Regulations may provide for the making and recovery in such manner as may be prescribed of charges of such amounts as are mentioned in sub-paragraph (1) of paragraph 2 of Schedule 11, in respect of the supply under this Act of such F198 optical appliances as are mentioned in that sub-paragraph.

[F199 (1A) Regulations may provide for the making and recovery in such manner as may be prescribed of charges of amounts calculated in accordance with section 71A in respect of the supply under this Act of dentures and other dental appliances of prescribed descriptions.]

(2) If the Secretary of State, after consultation with the university associated with any hospital providing facilities for clinical dental teaching, is satisfied that it is expedient in the interests of dental training or education that the charges imposed by subsection [F200 (1A)] should be remitted in the case of dental services provided at that hospital, either generally or subject to limitations or conditions, he may by order provide for that purpose.

Any order made under this subsection may be revoked or varied by a subsequent order made by the Secretary of State after such consultation as is mentioned above.

(3) The additional provisions of paragraphs 2 and 5 of Schedule 11 have effect in relation to this section.

Textual Amendments

F198 Words repealed by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 25(2), Sch. 3

F199 S. 70(1A) inserted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 11(4)

F200 “(1A)" substituted for “(1)" by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 25(1), Sch. 2 para. 12

71 Charges for dental treatment. S

(1) A charge of [F201 an amount calculated in accordance with section 71A] may be made and recovered, in such manner as may be prescribed, in respect of any services provided as part of the general dental services under Part II, not being—

(a)

F202 (b) the repair of appliances other than prescribed appliances;

(c) the arrest of bleeding; F202

(d)

F202 The additional provisions of paragraphs 3 and 5 of Schedule 11 have effect in relation to this subsection.

(2) Regulations may provide that, in the case of such special dental treatment as may be prescribed, being treatment provided as part of the general dental services, such charges as may be prescribed may be made and recovered by the person providing the services.

Textual Amendments

F201 Words substituted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 11(5)

F202 S. 71(1)(a)(d) and word “or" preceding (d) repealed by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 25(2), Sch. 3

Modifications etc. (not altering text)

C39 By Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 11(7) it is provided that s. 71(1) shall cease to have effect so far as it provides that a charge may not be authorised for the clinical examination of a patient and any report on that examination

[F203 71A Calculation of charges for dental appliances and treatment. S

(1) Subject to the following provisions of this section, regulations may make such provision as to the amount of any charge—

(a) authorised by section 70(1A) for the supply of dentures or other dental appliances; or

(b) authorised by section 71 for the provision of services,

as appears to the Secretary of State to be appropriate.

(2) Without prejudice to the generality of subsection (1) above, regulations may provide that any such charge in respect of appliances or services supplied or provided under Part II of this Act—

(a) shall be of an amount equal—

(i) to the practitioner’s remuneration in respect of the supply or provision; or

(ii) to any part of that remuneration; or

(b) shall be otherwise calculated by reference to that remuneration.

(3) Without prejudice to the generality of subsection (1) above, regulations may provide that any charge which is so authorised in respect of appliances supplied otherwise than under Part II of this Act—

(a) shall be of an amount equal—

(i) to the remuneration a practitioner would receive for a supply under that Part of equivalent appliances; or

(ii) to any part of such remuneration; or

(b) shall be otherwise calculated by reference to such remuneration.

(4) The charge shall not exceed the amount which the Secretary of State considers to be the cost to the health service of the supply or provision.

(5) In this section “cost to the health service” does not include—

(a) any fee in respect of a visit by a practitioner to a patient; or

(b) any fee or part of a fee payable by a patient in pursuance of regulations under section 71(2) or section 73(b) or 74(b).]

Textual Amendments

F203 S. 71A inserted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 11(6)

72 Charges in respect of services etc. provided under sections 37, 38 and 41. S

Regulations may provide for the recovery of such charges as may be prescribed—

(a) in respect of such services provided under section 37 (prevention of illness, care and after-care) as may be prescribed, not being services provided in a hospital;

(b) in respect of such articles or services provided under section 38 (care of mothers and young children) as may be prescribed, not being articles or services provided in a hospital, and not being a drug, a medicine or an appliance of a type normally supplied;

(c) from persons availing themselves of any service under section 41 (except advice on contraception),

and may provide for the remission of any such charge, in whole or in part, in such circumstances as may be prescribed.

73 Charges for more expensive supplies. S

Regulations may provide for the making and recovery of such charges as may be prescribed—

(a) by the Secretary of State in respect of the supply by him of any appliance or vehicle which is, at the request of the person supplied, of a more expensive type than the prescribed type, or in respect of the replacement or repair of any such appliance, or the replacement of any such vehicle, or the taking of any such action in relation to the vehicle as is mentioned in section 46(2).

(b) by persons providing general dental services F204 in respect of the supply, as part of those services, of any dental F204 appliance which is, at the request of the person supplied, of a more expensive type than the prescribed type or in respect of replacement or repair of any such appliance.

[F205 (c) by a National Health Service trust in respect of the supply by them of any appliance or vehicle which is, at the request of the person supplied, of a more expensive type than the prescribed type, or in respect of the replacement or repair of any such appliance, or the replacement of any such vehicle.]

Textual Amendments

F204 Words repealed by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 24, Sch. 8 Pt. I

F205 S. 73(c) inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(11)

74 Charges for repairs and replacements in certain cases. S

Regulations may provide for the making and recovery of such charges as may be prescribed—

(a) by the Secretary of State in respect of the replacement or repair of any appliance or vehicle supplied by him, or

(b) by persons providing general dental services F206 in respect of the replacement or repair of any dental F206 appliance supplied as part of those services, [F207 or]

[F207 (c) by an NHS trust in respect of the replacement or repair of any appliance or vehicle supplied by them,]

if it is determined in the prescribed manner that the replacement or repair is necessitated by an act or omission of the person supplied or (if the act or omission occurred when the person supplied was under 16 years of age) of the person supplied or of the person having charge of him when the act or omission occurred.

Textual Amendments

F206 Words repealed by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 24, Sch. 8 Pt. I

F207 S. 74(c) and preceding word “or" inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(12)

75 Sums otherwise payable to those providing services. S

Regulations made—

(a) under sections 69 to 71 and under sections 73 and 74 providing for the making and recovery of charges in respect of any services, may provide for the reduction of the sums which would otherwise be payable by a Health Board to the persons by whom those services are provided by the amount of the charges authorised by the regulations in respect of those services;

(b) for the purposes of section 70(1) in relation to appliances provided as part of the general dental services F208 under Part II, may provide for the reduction of the sums which would otherwise be payable by a Health Board to the persons by whom those services are provided by the amount of the charges authorised by section 70(1) in respect of those appliances.

Textual Amendments

F208 Words repealed by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 24, Sch. 8 Pt. I

[F209 75A Remission and repayment of charges and payment of travelling expenses. S

(1) Regulations may provide in relation to prescribed descriptions of persons—

(a) for the remission or repayment of the whole or any part of any charges which would otherwise be payable by them in pursuance of section 69(1) above, section 70(1) [F210 or, (1A)] above or section 71 above;

(b) for the payment by the Secretary of State in such cases as may be prescribed of travelling expenses (including the travelling expenses of a companion) incurred or to be incurred for the purpose of their availing themselves of any services provided under this Act; and

(c) where they are persons whose travelling expenses are payable by virtue of paragraph (b) above, for the payment by the Secretary of State in such cases as may be prescribed of expenses necessarily incurred by them (and by any companion whose travelling expenses are so payable) in obtaining overnight accommodation for the purpose mentioned in that paragraph [F211 and]

[F211 (d) for the payment by the Secretary of State to NHS trusts of such sums as will reimburse them for any sums paid by them as travelling expenses in such cases as may be prescribed].

(2) Descriptions of persons may be prescribed for the purposes of paragraph (a), (b) [F212 , (c) or (d)] of subsection (1) above by reference to any criterion and, without prejudice to the generality of this subsection, by reference to any of the following criteria-

(a) their age;

(b) the fact that a prescribed person or a prescribed body accepts them as suffering from a prescribed medical condition;

(c) the fact that a prescribed person or a prescribed body accepts that a prescribed medical condition from which they suffer arose in prescribed circumstances;

(d) their receipt of benefit in money or in kind under any enactment or their entitlement to receive any such benefit;

(e) the receipt of any such benefit by other persons satisfying prescribed conditions or the entitlement of other persons satisfying prescribed conditions to receive such benefits; and

(f) the relationship, as calculated in accordance with the regulations by a prescribed person, between their resources and their requirements.

(3) Regulations under this section may direct how a person’s resources and requirements are to be calculated and, without pre-judice to the generality of this subsection, may direct that they shall be calculated—

(a) by a method set out in the regulations;

(b) by a method described by reference to a method of calculating or estimating income or capital specified in an enactment other than this section or in an instrument made under an Act of Parliament or by reference to such a method but subject to prescribed modifications;

(c) by reference to an amount applicable for the purposes of a payment under an Act of Parliament or an instrument made under an Act of Parliament; or

(d) by reference to the person’s being or having been entitled to payment under an Act of Parliament or an instrument made under an Act of Parliament.

(4) Regulations under this section which refer to an Act of Parliament or an instrument made under an Act of Parliament may direct that the reference is to be construed as a reference to that Act or instrument—

(a) as it has effect at the time when the regulations are made; or

(b) both as it has effect at that time and as amended subsequently.]

Textual Amendments

F209 S. 75A inserted by Social Security Act 1988 (c. 7, SIF 113:1), s. 14(2)

F210 Words inserted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 25(1), Sch. 2 para. 13

F211 S. 75A(1)(d) and preceding word “and" inserted by National Health Service and Community Care Act 1990 (c.19, SIF 113:2), s. 66(1), Sch. 9 para. 19(13)(a)

F212 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(13)(b)

Yn ddilys o 07/07/2010

[F213 75B Reimbursement of the cost of services provided in another EEA state S

(1) A Health Board must reimburse the cost of eligible services incurred by or on behalf of an eligible person on or after 23rd August 2010, but this is subject to the limits applicable under subsections (3) and (4), to subsections (6) and (7) and to any deduction applicable under section 75D.

(2) Eligible services are services provided by an authorised provider in an EEA state other than the UK, which are necessary to treat or diagnose a medical condition of the eligible person and are—

(a) services, not being specified services, that are the same as or equivalent to those that the Health Board in whose area the eligible person resides would make or have made available under this Act in the circumstances of the person's case;

(b) specified services for which the Health Board in whose area the eligible person resides has given authorisation under section 75C; or

(c) services—

(i) which are neither the same as nor equivalent to services that the Health Board would make available under this Act in the circumstances of the person's case; and

(ii) for which the Health Board has given authorisation under section 75C.

(3) In respect of services other than dental services, a Health Board may limit the amount payable by way of reimbursement under subsection (1) to the amount that the same or equivalent services would have cost the Health Board in whose area the eligible person resides if those services had been provided under this Act otherwise than in accordance with this section and section 75C.

(4) In respect of dental services a Health Board may limit the amount payable by way of reimbursement under subsection (1) to the amount that would have been payable in respect of the same or equivalent services if those services had been provided under this Act otherwise than in accordance with this section and section 75C.

(5) Where the same or equivalent services referred to in subsection (4) would have required approval from the Dental Practice Board, the Health Board—

(a) may require the eligible person to submit evidence as to the clinical necessity of the dental services; and

(b) may decline to reimburse the costs of any services which were not clinically necessary.

(6) The duty in subsection (1) does not apply where the cost of the eligible services was incurred in connection with an arrangement which was entered into by or on behalf of the eligible person in the course of business and under which the applicant for reimbursement has gained or might be expected to gain any financial benefit.

(7) This section and section 75C do not apply in circumstances where Articles 20 and 27(3) of Regulation (EC) 883/2004 apply.

(8) In this section and sections 75C and 75D—

• “authorised provider” in relation to services provided in an EEA state other than the United Kingdom means a person who is lawfully providing services;

• “eligible person” means a person who is ordinarily resident in Scotland;

• “eligible services” has the meaning given in subsection (2) of this section;

• “services” includes any goods, including drugs, medicines and appliances which are used or supplied in connection with the provision of a service, but does not include accommodation other than hospital accommodation; and

• “specified services” means those services comprising—

  (a)

  services which would require a stay in hospital accommodation for at least one night;

  (b)

  medical treatment that involves general anaesthesia, epidural anaesthesia or intravenously administered sedation;

  (c)

  dental treatment that involves general anaesthesia or intravenously administered sedation;

  (d)

  services whose provision involves the use of specialised or cost-intensive medical infrastructure or medical equipment.

Textual Amendments

F213 Ss. 75B-75D inserted (7.7.2010) by The National Health Service (Reimbursement of the Cost of EEA Treatment) (Scotland) Regulations 2010 (S.S.I. 2010/283), reg. 3(3)

Yn ddilys o 07/07/2010

75C Prior authorisation S

(1) An eligible person may apply to the Health Board in whose area that person resides for prior authorisation for the purposes of section 75B.

(2) Prior authorisation must be given if the eligible services are specified services which—

(a) are the same as or equivalent to those that the Health Board in whose area the eligible person resides would make available under this Act in the circumstances of the person's case; and

(b) are not available to the eligible person from the Health Board without undue delay.

(3) Prior authorisation may be given for any other eligible services falling within section 75B(2)(b) or (c).

(4) “Undue delay” means that the services cannot be provided within a period of time which is acceptable on the basis of medical evidence as to the clinical needs of the eligible person, taking into account that person's state of health at the time the decision is made and the probable course of the medical condition to which the services relate.

(5) In assessing whether there is undue delay for the purposes of subsection (2), the Health Board must consider—

(a) the eligible person's medical history;

(b) the extent of any pain, disability, discomfort or other suffering that is attributable to the medical condition to which the services are to relate;

(c) whether any such pain, disability, discomfort or suffering makes it impossible or extremely difficult for the patient to carry out ordinary daily tasks; and

(d) the extent to which the services would be likely to alleviate, or enable the alleviating of, the pain, disability, discomfort or suffering.

(6) Any authorisation under this section must be in writing.

Textual Amendments

F213 Ss. 75B-75D inserted (7.7.2010) by The National Health Service (Reimbursement of the Cost of EEA Treatment) (Scotland) Regulations 2010 (S.S.I. 2010/283), reg. 3(3)

Yn ddilys o 07/07/2010

75D Deduction of NHS charges S

(1) A Health Board may deduct from any amount to be reimbursed under section 75B(1), in whole or in part, any NHS charge which would have been payable by the eligible person for the same service or an equivalent service if the service had been made available by the Health Board in whose area the eligible person resides.

(2) Subsection (1) does not apply to the extent that the eligible person would, if the services received had been provided under this Act otherwise than in accordance with sections 75B and 75C, be entitled to any exemption or remission from any NHS charge.

(3) In this section “NHS charge” means any charge payable in accordance with sections 69 to 74 or regulations made under those sections.]

Textual Amendments

F213 Ss. 75B-75D inserted (7.7.2010) by The National Health Service (Reimbursement of the Cost of EEA Treatment) (Scotland) Regulations 2010 (S.S.I. 2010/283), reg. 3(3)

Inquiries, and default and emergency powers S

76 Inquiries. S

(1) The Secretary of State may cause an inquiry to be held in any case where he deems it advisable to do so in connection with any matter arising under this Act.

(2) The provisions of Schedule 12 shall have effect with regard to any inquiry which the Secretary of State is, under this Act, required or authorised to hold.

77 Default powers. S

(1) Where the Secretary of State is of the opinion, on representations made to him or otherwise, that—

(a) any Health Board;

[F214 (aa) an NHS trust]

(b) the Medical Practices Committee; or

(c) the Dental Estimates Board;

have failed to carry out any functions conferred or imposed on them by or under this Act, or have in carrying out those functions failed to comply with any regulations, schemes, proposals or directions relating to those functions, he may after holding an inquiry make an order declaring them to be in default.

(2) When such an order is made, the members of the body shall forthwith vacate their office, and the order—

(a) shall provide for the appointment, in accordance with the provisions of this Act, of new members of the body; and

(b) may contain such provisions as seem to the Secretary of State expedient for authorising any person to act in the place of the body in question pending the appointment of new members.

(3) An order made under this section may contain such supplementary and incidental provisions as appear to the Secretary of State to be necessary or expedient.

Textual Amendments

F214 S. 77(1)(aa) inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(14)

Modifications etc. (not altering text)

C40 S. 77 extended by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 17(2), 91(2), Sch. 1 para. 8(a)

C41 S. 77 applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C42 S. 77 applied (1.4.1993) by S.I. 1993/577, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 77 applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 77 applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. Pt. I

S. 77 applied (1.4.1999) by S.I. 1999/726, art. 5(1)(2), Sch. Pt. I

S. 77 applied (1.4.2000) by S.S.I. 2000/47, art. 5(1)(2), Sch. Pt. I

S. 77 applied (6.4.2001) by S.S.I. 2001/137, art. 5(1), Sch. Pt. I

S. 77 applied (31.3.2002) by S.S.I. 2002/103, art. 6, Sch. Pt. I (with art. 4(4))

S. 77 applied (27.6.2002) by S.S.I. 2002/305, art. 5(1), Sch. Pt. I (with art. 4(4))

C43 S. 77 modified (15.8.1997) by 1997 c. 46, s. 41(10), Sch. 2 Pt. I paras. 32, 51; S.I. 1997/1780, art. 2(1), Sch.

Yn ddilys o 01/10/1998

78 Emergency powers. S

If the Secretary of State is of the opinion that an emergency exists, and thinks it necessary in order to secure the effective continuance of any service under this Act, he shall have power to direct that any function conferred by or under this Act on any body or person shall, during the period of the emergency, be performed by such other body or person as he may specify in the direction.

Modifications etc. (not altering text)

C44 S. 78 extended by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 17(2), 91(2), Sch. 1 para. 8(b)

C45 S. 78 modified (1.10.1998) by 1997 c. 46, s. 41(10), Sch. Pt. I paras. 32, 52; S.I. 1998/1998, art. 2(2)(b) Sch. 2

Yn ddilys o 30/09/2004

[F215 78A Powers in case of service failure S

(1) This section applies where—

(a) it is a function of a body or person under or by virtue of this Act to provide, or secure the provision of, a service, and

(b) the Scottish Ministers consider that the body or person has failed, is failing or is likely to fail—

(i) to provide the service, or

(ii) to provide it to a standard which they regard as acceptable.

(2) The Scottish Ministers may, where they consider it necessary for the purpose of ensuring the provision of the service in question to a standard which they regard as acceptable, direct that specified functions of the body or person under or by virtue of this Act be performed, for a specified period and to a specified extent, by—

(a) a body falling within subsection (4), or

(b) one or more persons falling within subsection (5).

(3) In subsection (2), “specified” means specified in the direction.

(4) A body falls within this subsection if it is—

(a) a Health Board,

(b) a Special Health Board, or

(c) the Agency.

(5) A person falls within this subsection if the person is—

(a) an employee of a Health Board, a Special Health Board or the Agency,

(b) a member of the staff of the Scottish Administration, or

(c) an employee of a local authority.

(6) A body or person appointed by a direction given under subsection (2) to perform functions of a body or person referred to in subsection (1) is referred to in this section as an “appointed person”.

(7) An appointed person must comply with a direction given under subsection (2).

(8) The remuneration and expenses of, and any other costs reasonably incurred by, an appointed person in performing the functions specified in the direction shall, unless otherwise specified in the direction, be paid by the body or person referred to in subsection (1).

(9) Anything done or omitted by an appointed person in performing the functions specified in the direction is to be regarded as done or omitted by the body or person referred to in subsection (1).

(10) A person dealing with an appointed person in good faith and for value is not concerned to inquire whether the appointed person is acting within the powers conferred by virtue of the direction.

(11) The Scottish Ministers may vary or withdraw a direction given under subsection (2).]

Textual Amendments

F215 Ss. 78A, 78B inserted (30.9.2004) by National Health Service Reform (Scotland) Act 2004 (asp 7), ss. 6, 12(1); S.S.I. 2004/361, art. 2(b)(i)

Yn ddilys o 30/09/2004

[F215 78B Relationship of sections 77, 78 and 78A S

The powers conferred by each of sections 77, 78 and 78A are without prejudice to the powers conferred by the other two sections.]

Textual Amendments

F215 Ss. 78A, 78B inserted (30.9.2004) by National Health Service Reform (Scotland) Act 2004 (asp 7), ss. 6, 12(1); S.S.I. 2004/361, art. 2(b)(i)

Part V E+W+S Property and Finance

Land and other property S

79 Purchase of land and moveable property. S

(1) The Secretary of State may purchase by agreement any moveable property and, by agreement or compulsorily, any land which he considers is required for the purposes of any service under this Act [F216 and may take any such property or land on lease,], and may use for those purposes any property, heritable or moveable, acquired by him or on his behalf under this Act.

[F217 (1A) Without prejudice to any other power of disposal, the Secretary of State may dispose of any land which he considers is no longer required for the purposes of any service under this Act and where he has delegated any of his functions with regard to the acquisition, management or disposal of land to a Health Board or to the Agency, any instrument in connection with the exercise of those functions shall be deemed to be validly executed by him if it is executed on his behalf by any officer of the Health Board or the Agency authorised by him for the purpose; and any instrument so executed shall, for the purposes of section 1(8) and (9) of the Re-organisation of Offices (Scotland) Act M35 1939, be deemed to have been executed by an officer of the Secretary of State duly authorised by him.]

(2) Where the Secretary of State acquires premises under subsection (1) [F218 other than on lease] he may acquire compulsorily, in accordance with Schedule 13, any equipment, furniture or other moveable property used in or in connection with the premises.

(3) Any Health Board or the Agency may acquire on behalf of the Secretary of State any moveable property which may be required for the purposes aforesaid.

(4) For the purpose of the purchase of land by agreement by the Secretary of State—

(a) the Lands Clauses Acts (except so much thereof as relates to the acquisition of land otherwise than by agreement, and the provisions relating to access to the special Act, and except sections 120 to 125 of the M36 Lands Clauses Consolidation (Scotland) Act 1845), and

(b) section 6 and sections 70 to 78 of the M37 Railways Clauses Consolidation (Scotland) Act 1845 (as originally enacted and not as amended by section 15 of the M38 Mines (Working Facilities and Support) Act 1923),

are hereby incorporated with this section; and in construing those Acts for the purposes of this section, this section shall be deemed to be the special Act and the Secretary of State shall be deemed to be the promoter of the undertaking.

Textual Amendments

F216 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(15)(a)

F217 S. 79(1A) inserted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 14(2), Sch. 7 para. 3

F218 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(15)(b)

Modifications etc. (not altering text)

C46 S. 79(1) extended by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 17(2), 91(6)

C47 By S.I. 1990/2369, art. 4(2)(c) certain functions of the Secretary of State under s. 79(1) are made exercisable (1.4.1991) by the Health Education Board for Scotland

C48 S. 79(1A) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C49 By S.I. 1990/2369, art. 4(2)(d) certain functions of the Secretary of State under s. 79(1A) (see entry above) are made exercisable by the Health Education Board for Scotland

C50 S. 79(1A)(3) applied (1.4.1993) by S.I. 1993/577, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 79(1A)(3) applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt.I (with art. 6)

C51 S. 79(3) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

Marginal Citations

M35 1939 c.20(57).

M36 1845 c. 19.

M37 1845 c. 33.

M38 1923 c. 20.

80 Transferred property free of trusts. S

(1) All property vested in the Secretary of State by virtue of section 6 of the M39 National Health Service (Scotland) Act 1947 is so vested free of any trust existing immediately before 5th July 1948; and the Secretary of State may use any such property for the purpose of any of the functions exercisable by him under this Act, but shall so far as practicable secure that the objects for which any such property was used immediately before the said 5th July are not prejudiced by the exercise of the power hereby conferred.

(2) Where the character and associations of any voluntary hospital transferred to the Secretary of State by virtue of the said Act of 1947 are such as to link it with a particular religious denomination, regard shall be had in the general administration of the hospital to the preservation of the character and associations of the hospital.

Marginal Citations

M39 1947 c. 27.

81 Power of voluntary organisations to transfer property to Secretary of State. S

Notwithstanding anything contained in the constitution or rules of any voluntary organisation formed for the purpose of providing a service of nurses for attendance on the sick in their own home or of midwives, or in any trust deed or other instrument relating to any such organisation or service, any property vested in the organisation or held by any persons on trust for the organisation or service or for any specific purposes connected with the organisation or service may be transferred to the Secretary of State on such terms as may be agreed between the Secretary of State and the organisation or trustees, with a view to the property being used or held by the Secretary of State for purposes similar to the purposes for which it was previously used or held.

Trust property S

82 Use and administration of certain endowments and other property held by Health Boards. S

(1) All endowments vested in a Health Board by virtue of section 37 of the M40 National Health Service (Scotland) Act 1972 are so vested free of any trust existing immediately before 1st April 1974 (hereafter in this section referred to in relation to any such endowment as “the original trust”); but all such endowments shall be held by the Health Board on trust for such purposes relating to services provided under this Act in or in relation to hospitals, or to the functions of the Board with respect to research, as the Board may think fit.

(2) All property vested in a Health Board by virtue of section 39 of the said Act of 1972 is so vested free of any trust existing immediately before the said 1st April (hereafter in this section referred to in relation to any such property as “the original trust”); but all such property shall be held by the Health Board on trust for such purposes relating to services provided by them under this Act, or to the functions of the Board with respect to research, as the Board may think fit.

(3) In exercising the power conferred on them by this section in relation to any endowment or property a Health Board shall secure, so far as is reasonably practicable, that the objects of the original trust (including, in the case of an endowment, the objects of the endowment) and the observance of any conditions attaching thereto, including, in particular, conditions intended to preserve the memory of any person or class of persons, are not prejudiced by the exercise of the power.

(4) Any reference in this section to an endowment or to any property includes a reference to the accumulated income thereof.

Modifications etc. (not altering text)

C52 S. 82 applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. Pt. I

Marginal Citations

M40 1972 c. 58.

83 Power of Health Boards and local health councils to hold property on trust. S

(1) A Health Board shall have power to accept, hold and administer any property on trust for purposes relating to any service which it is their function to make arrangements for, administer or provide, or to their functions with respect to research.

(2) A local health council shall have power to accept, hold and administer any property on trust for purposes relating to any function conferred upon them by or under any enactment.

Modifications etc. (not altering text)

C53 S. 83(1) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C54 S. 83(1) applied (1.4.1993) by S.I. 1993/577, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 83(1) applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 83(1) applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. Pt. I

S. 83(1) applied (1.4.1999) by S.I. 1999/726, art. 5(1)(2), Sch. Pt. I

S. 83(1) applied (1.4.2000) by S.S.I. 2000/47, art. 5(1)(2), Sch. Pt. I

S. 83(1) applied (6.4.2001) by S.S.I. 2001/137, art. 5(1), Sch. Pt. I

S. 83(1) applied (31.3.2002) by S.S.I. 2002/103, art. 6, Sch. Pt. I (with art. 4(4))

S. 83(1) applied (27.6.2002) by S.S.I. 2002/305, art. 5(1), Sch. Pt. I (with art. 4(4))

84 Power of trustees to make payments to Health Boards. S

(1) Where property (other than property transferred to the Secretary of State under Part V of the M41 National Health Service (Scotland) Act 1972 or to a Health Board under Part VI of that Act) was immediately before 1st April 1974, and is at any time after the commencement of this Act, held on trust under a trust instrument the terms of which authorise or require the trustees (whether immediately or in the future) to apply any part of the capital or income of the property for the purposes of any hospital or service which is administered by a Health Board [F219 or an NHS trust], the trust instrument shall be construed as authorising, or, as the case may be, requiring, the trustees to pay that capital or income to the Health Board [F220 or NHS trust] concerned.

(2) Where property so held on trust is, under the trust instrument, to be applied for the purposes of hospitals which are administered by more than one Health Board [F221 or NHS trust], the trustees shall distribute the property between the Boards [F222 or NHS trusts] concerned, in such manner, having regard to the purposes of the trust, as the trustees may determine.

(3) Any sums paid to a Health Board [F223 or an NHS trust] under this section shall, so far as practicable, be applied by them for the purposes specified in the trust instrument.

Textual Amendments

F219 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(16)(a)(i)

F220 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(16)(a)(ii)

F221 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(16)(b)(i)

F222 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(16)(b)(ii)

F223 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(16)(c)

Modifications etc. (not altering text)

C55 S. 84 applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C56 S. 84 applied (1.4.1993) by S.I. 1993/577, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 84 applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 84 applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. Pt. I

S. 84 applied (1.4.1999) by S.I. 1999/726, art. 5(1)(2), Sch. Pt. I

S. 84 applied (1.4.2000) by S.S.I. 2000/47, art. 5(1)(2), Sch. Pt. I

S. 84 applied (6.4.2001) by S.S.I. 2001/137, art. 5(1), Sch. Pt. I

S. 84 applied (27.6.2002) by S.S.I. 2002/305, art. 5(1), Sch. Pt. I (with art. 4(4))

S. 84 applied (31.3.2002) by S.S.I. 2002/103, art. 6, Sch. Pt. I (with art. 4(4))

Marginal Citations

M41 1972 c. 58.

[F224 84A Power to raise money, etc., by appeals, collections, etc. S

(1) A Health Board [F225 or NHS trust] shall have power to engage in activities intended to stimulate the giving (whether on trust or otherwise) of money or other property to assist them in providing or improving any services or any facilities or accommodation which is or are to be provided as part of the health service or to assist them in connection with their functions with respect to research.

(2) A local health council shall have power to engage in activities intended to stimulate the giving (whether on trust or otherwise) of money or other property to assist them in carrying out any function conferred upon them by or under any enactment.

(3) Subject to any directions of the Secretary of State excluding specified descriptions of activity, the activities authorised by this section include public appeals or collections and competitions, entertainments, bazaars, sales of produce or other goods and other similar activities and the activities may involve the use of land, premises or other property held by or for the benefit of the Board [F226 , NHS trust] or local health council exercising the power subject however to any restrictions on the purposes for which trust property may be used.

(4) Subject to subsections (5) and (6), the Health Board [F226 , NHS trust] or local health council at whose instance property is given in pursuance of this section shall, after defraying out of it any expenses incurred in obtaining it, hold, administer and apply the property on trust for or for the purpose for which it was given.

(5) Where property held by a Health Board [F226 , NHS trust] or local health council under this section is more than sufficient to enable the purpose for which it was given to be fulfilled, the excess shall be applicable, in default of any provision for its application made by the trust or other instrument under or in accordance with which the property comprising the excess was given, for such purposes connected with any of the functions of the Board [F226 , NHS trust] or council as the Board [F226 , NHS trust] or council think fit.

(6) Where property held by a Health Board [F226 , NHS trust] or local health council under this section is insufficient to enable the purpose for which it was given to be fulfilled then—

(a) the Board [F226 , NHS trust] or the council may apply so much of the capital or income at their disposal as is needed to enable the purpose to be fulfilled subject, however, in the case of trust property, to any restrictions on the purposes for which the trust property may be applied, and in the case of money paid or payable by the Secretary of State under section 85(1), to any directions he may give; but

(b) where the capital or income applicable under paragraph (a) is insufficient or is not applied to enable the purpose to be fulfilled, the property so held by the Board [F226 , NHS trust] or the council shall be applicable, in default of any provision for its application made by the trust or other instrument under or in accordance with which the property was given, for such purposes connected with any of the functions of the Board [F226 , NHS trust] or council as the Board [F226 , NHS trust] or council think fit.

(7) Where under subsections (5) or (6) property becomes applicable for purposes other than that for which it was given, the Health Board [F226 , NHS trust] or local health council shall have regard to the desirability of applying the property for a purpose similar to that for which it was given.]

Textual Amendments

F224 S. 84A inserted by Health Services Act 1980 (c. 53), s. 5(2)

F225 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(17)(a)

F226 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(17)(b)

Modifications etc. (not altering text)

C57 S. 84A applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C58 S. 84A applied (1.4.1993) by S.I. 1993/577, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 84A applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 84A applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. Pt. I

S. 84A applied (1.4.1999) by S.I. 1999/726, art. 5(1)(2), Sch. Pt. I

S. 84A applied (1.4.2000) by S.S.I. 2000/47, art. 5(1)(2), Sch. Pt. I

S. 84A applied (6.4.2001) by S.S.I. 2001/137, art. 5(1), Sch. Pt. I

S. 84A applied (27.6.2002) by S.S.I. 2002/305, art. 5(1), Sch. Pt. I (with art. 4(4))

S. 84A applied (31.3.2002) by S.S.I. 2002/103, art. 6, Sch. Pt. I (with art. 4(4))

Yn ddilys o 17/10/2005

[F227 Joint ventures S

Textual Amendments

F227 S. 84B and cross-heading inserted (S.) (17.10.2005) by Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), ss. 37(1), 43(3); S.S.I. 2005/492, art. 3(a), Sch. 1

84B Joint ventures S

(1) The Scottish Ministers may do any (or all) of the following—

(a) form or participate in forming companies to provide facilities or services for persons or groups of persons exercising functions, or otherwise providing services, under this Act;

(b) participate in companies providing facilities or services for persons or groups of persons falling within paragraph (a);

(c) with a view to securing or facilitating the provision by companies of facilities or services for persons or groups of persons falling within paragraph (a)—

(i) invest in the companies (whether by acquiring assets, securities or rights or otherwise);

(ii) provide loans and guarantees and make other kinds of financial provision to or in respect of them.

(2) For the purpose of subsection (1), it is immaterial that the facilities or services provided or to be provided by a company are not provided or to be provided—

(a) only to persons or groups of persons exercising functions, or otherwise providing services, under this Act; or

(b) to such persons or groups of persons only in that capacity.

(3) In this section—

• “companies” means companies within the meaning of the Companies Act 1985 (c. 6);

• “facilities” includes the provision of (or the use of) premises, goods, equipment, materials, vehicles, plant or apparatus.]

Finance and accounts S

Yn ddilys o 01/10/1999

[F228 85AA Means of meeting expenditure of Health Boards out of public funds. S

(1) The Secretary of State shall pay to each Health Board sums equal to their general Part II expenditure.

(2) “General Part II expenditure" is expenditure which—

(a) is attributable to the payment of remuneration to persons providing services in pursuance of Part II; but

(b) does not fall within paragraphs (b) to (e) of subsection (4).

(3) The Secretary of State shall pay to each Health Board, in respect of each financial year, sums not exceeding the amount allotted for that year by the Secretary of State to the Board towards meeting their main expenditure.

(4) In subsection (3) “main expenditure” means expenditure which is attributable to—

(a) the performance by the Board of their functions in that year, but—

(i) is not general Part II expenditure; and

(ii) does not fall within paragraphs (b) to (d);

(b) the reimbursement of expenses of persons providing services in pursuance of Part II which are designated expenses incurred in connection with the provision of the services (or in giving instruction in matters relating to the services);

(c) remuneration which is paid to persons providing additional pharmaceutical services (in accordance with directions under section 27A) in respect of such of those services as are designated;

(d) remuneration which is—

(i) paid to persons providing general medical services under Part II;

(ii) determined by the Health Board concerned; and

(iii) of a designated description; or

(e) remuneration which is referable to the cost of drugs for which the Health Board is accountable in that year (whether paid by it or by another Health Board).

(5) In paragraphs (b) to (e) of subsection (4), “designated” means designated in writing by the Secretary of State for the purposes of that paragraph and in relation to the allotment in question.

(6) An amount is allotted to a Health Board for a year under this section when they are notified by the Secretary of State that it is allotted to them for that year; and the Secretary of State may make an allotment under this section increasing or reducing an allotment previously so made.

(7) Where the Secretary of State proposes to pay any sum to a Health Board, he may, with the consent of the Treasury, instead pay that sum to an NHS trust in discharge of the whole or any part of any liability of the Health Board to the NHS trust.

(8) The Secretary of State may give directions to a Health Board with respect to the application of sums paid to them and a Board to whom directions have been given under this subsection shall comply with the directions.

(9) The expenditure of a University Liaison Committee shall, for the purposes of this section, be deemed to be the expenditure of the Health Board for whose area it is constituted, and, where a University Liaison Committee is constituted for the areas of more than one Health Board, its expenditure shall be apportioned between the Boards concerned in such manner as may be determined by the Secretary of State.

(10) Payments under this section shall be made at such times and in such manner, and subject to such conditions as to records, certificates or otherwise, as the Secretary of State may determine.

(11) In this section and section 85AB, “drugs” includes medicines and listed appliances (within the meaning of section 27).]

Textual Amendments

F228 S. 85, 85AA, 85AB substituted for s. 85 (1.10.1999) by 1999 c. 8, s. 52; S.I. 1999/90, art. 2(a), Sch. 1

Modifications etc. (not altering text)

C59 S. 85AA applied (1.4.2000) by S.S.I. 2000/47, art. 5(1)(2), Sch. Pt. I

S. 85AA applied (6.4.2001) by S.S.I. 2001/137, art. 5(1), Sch. Pt. I

S. 85AA applied (31.3.2002) by S.S.I. 2002/103, art. 6, Sch. Pt. I (with art. 4(4))

S.85AA applied (27.6.2002) by S.S.I. 2002/305, art. 5(1), Sch. Pt. I (with art. 4(4))

C60 S. 85AA applied (1.4.2003) by S.I. 1990/2639, art. 5(1), Sch. Pt. 1 (as amended by The Health Education Board for Scotland Amendment Order 2003 (S.S.I. 2003/154), art. 6(c))

Yn ddilys o 01/10/1999

[F229 85AB Further provision as to expenditure on drugs. S

(1) For each financial year, the Secretary of State shall apportion, in such manner as he thinks appropriate, among all Health Boards the total of the remuneration referable to the cost of drugs which is paid by each Health Board in that year.

(2) A Health Board is accountable in any year for remuneration referable to the cost of drugs to the extent (and only to the extent) that such remuneration is apportioned to it under subsection (1).

(3) Where in any financial year any remuneration referable to the cost of drugs for which a Health Board is accountable is paid by another Health Board, the remuneration is to be treated (for the purposes of this section) as having been paid by the first Health Board in the performance of its functions.

(4) The Secretary of State may, in particular, exercise his discretion under subsection (1)—

(a) so that any apportionment reflects, in the case of each Health Board, the financial consequences of orders for the provision of drugs, being orders which in his opinion are attributable to the Board in question;

(b) by reference to averaged or estimated amounts.

(5) The Secretary of State may make provision for any remuneration referable to the cost of drugs which is paid by a Health Board other than the Health Board which is accountable for the payment to be reimbursed in such manner as he may determine.

(6) The Secretary of State shall determine what remuneration paid by Health Boards to persons providing pharmaceutical services is to be treated for the purposes of section 85AA and this section as remuneration referable to the cost of drugs.]

Textual Amendments

F229 S. 85, 85AA, 85AB substituted for s. 85 (1.10.1999) by 1999 c. 8, s. 52; S.I. 1999/90, art. 2(a), Sch. I

85 Expenses of certain bodies and travelling expenses and receipts. S

[F230 (1) Subject to subsection (2), there shall, in respect of each financial year, be paid by the Secretary of State sums not exceeding the amount allotted F231 by him for that year to each of the following bodies towards meeting the expenditure attributable to the performance by that body of their functions in that year—

(a)

F232 (b) every Health Board;

(c) the Agency;

(d) the Medical Practices Committee;

(e) the Dental Estimates Board;

(f) the Tribunal;

(g) every local health council.

[F233 (1A) The date on which an allotment under subsection (1) above [F234 or subsection (2)(a) below] (including an allotment increasing or reducing an allotment previously made) takes effect is the date on which the body receiving the allotment are notified of its amount by the Secretary of State.]

(2) Subsection (1) does not apply in respect of the expenditure of a Health Board which is attributable to the performance of their functions under Part II, but in that respect there shall, in respect of each financial year, be paid by the Secretary of State

[F235 (a) such amounts as he may allot for any kind of expenditure attributable to reimbursement of expenses of persons providing services in pursuance of that Part; and

(b) sums equal to any other expenditure attributable to remuneration of persons providing such services.]

(2A) The Secretary of State may give directions to a body referred to in subsection (1) with respect to the application of the sums paid to them under that subsection and it shall be the duty of any body to whom directions have been given under this subsection to comply with the directions.]

(3) The expenditure of a University Liaison Committee shall, for the purposes of this section, be deemed to be the expenditure of the Health Board for whose area it is constituted, and, where a University Liaison Committee is constituted for the areas of more than one Health Board, its expenditure shall be apportioned between the Boards concerned in such manner as may be determined by the Secretary of State.

(4) Payments under subsection (1) shall be made at such times and in such manner, and subject to such conditions as to records, certificates or otherwise, as the Secretary of State may determine.

(5)

F236 (6) Any sums received by the Secretary of State under this Act shall be paid into the Consolidated Fund, F237 .

Textual Amendments

F230 S. 85(1)-(2A) substituted for s. 85(1)(2) by Health Services Act 1980 (c. 53), s. 6(3)(5) in relation to the financial year 1980 to 1981 and subsequent years

F231 Words repealed by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 24, Sch. 8 Pt. I

F232 S. 85(1)(a) repealed by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(2), Sch. 10

F233 S. 85(1A) inserted by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 6(3)

F234 Words inserted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 25(1), Sch. 2 para. 14

F235 S. 85(2)(a)(b) substituted for words commencing “sums equal to the expenditure" by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 16(3)

F236 S. 85(5) repealed by Social Security Act 1988 (c. 7, SIF 113:1), s. 16(2), Sch. 5

F237 Words repealed by Health Services Act 1980 (c. 53), Sch. 7

Modifications etc. (not altering text)

C61 S. 85(1)(2A)(4)(6) extended by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 2(8)(a), 17(2), 91(2), Sch. 1 para. 8(c)

C62 Ss. 85(1)(2A), 85A(1)(3)(4) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C63 S. 85(1)(2A) applied (with modifications) (1.4.1993) by S.I. 1993/577, art. 5(1), Sch. 1 Pt. I.

[F238 85A Financial duties of bodies referred to in section 85. S

(1) It is the duty of each such body as is referred to in section 85(1), in respect of each financial year, so to perform their functions as to secure that the expenditure attributable to the performance of their functions in that year does not exceed the aggregate of—

(a) the amounts allotted to that body for that year under section 85(1) [F239 and, as the case may be, section 85(2)(a)];

(b) any other sums received under this Act in that year by that body; and

(c) any sums received otherwise than under this Act in that year by that body for the purposes of enabling them to defray any such expenditure.

(2) Subsection (3) of section 85 shall apply for the purposes of this section as it applies for the purposes of that section.

(3) The Secretary of State may give such directions to a body referred to in section 85(1) as appear to him to be requisite to secure that the body comply with the duty imposed on them by subsection (1) and it shall be the duty of the body to comply with the directions.

Directions under this subsection may be specific in character.

(4) To the extent to which—

(a) any expenditure of a Health Board or a local health council is defrayed by that body as trustee; or

(b) any sums are received by such a body as trustee or under section 84A,

that expenditure and, subject to subsection (5), those sums shall be disregarded for the purposes of this section, and, for those purposes, sums which, in the hands of such a body, cease to be trust funds and become applicable by the body otherwise than as trustee shall be treated, on their becoming so applicable, as having been received by the body otherwise than as trustee.

(5) Of the sums received by a body under section 84A so much only as accrues to the body after defraying any expenses incurred in obtaining them shall be disregarded under subsection (4).

(6) Subject to subsection (4), the Secretary of State may, by directions, determine—

(a) whether sums of a description specified in the directions are or are not to be treated for the purposes of this section as being receivable under this Act by a body of a description so specified;

(b) whether expenditure of a description specified in the directions is or is not to be treated for the purposes of this section as being attributable to the performance of functions by a body of a description so specified; or

(c) the extent to which and the circumstances in which sums received but not yet spent by a body under section 85(1) [F240 , or, as the case may be, section 85(2)(a)] are to be treated for the purposes of this section as part of the expenditure of the body and to which financial year’s expenditure they are to be attributed.]

Textual Amendments

F238 S. 85A inserted by Health Services Act 1980 (c. 53), s. 6(4)(5) in relation to the financial year 1980 to 1981 and subsequent years

F239 Words inserted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 16(4)(a)

F240 Words inserted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 16(4)(b)

Modifications etc. (not altering text)

C64 S. 85A(1)(3) extended by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 2(8)(b), 17(2), 91(2), Sch. 1 para. 8(d)

C65 Ss. 85(1)(2A), 85A(1)(3)(4) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C66 S. 85A(1)(3)(4) applied (1.4.1993) by S.I. 1993/577, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 85A(1)(3)(4) applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 85A(1)(3)(4) applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. Pt. I

S. 85A(1)(3)(4) applied (1.4.1999) by S.I. 1999/726, art. 5(1)(2), Sch. Pt. I

[F241 85B Schemes for meeting losses and liabilities etc. of certain health service bodies. S

(1) The Secretary of State may by regulations made with the consent of the Treasury establish a scheme whereby any of the bodies mentioned in subsection (2) may make provision to meet—

(a) expenses arising from any loss of or damage to their property; and

(b) liabilities to third parties for loss, damage (including solatium) or injury arising out of the carrying out of the functions of the bodies concerned.

(2) The bodies referred to in subsection (1) are—

(a) Health Boards;

(b) the Agency;

(c) a State Hospital Management Committee constituted under section 91 of the Mental Health (Scotland) Act 1984; and

(d) NHS trusts,

but a scheme under this section may limit the class or description of bodies which are eligible to participate in it.

(3) Without prejudice to the generality of the power conferred by subsection (1), a scheme under this section may-

(a) provide for the scheme to be administered by the Secretary of State, the Agency, or a Health Board or NHS trust specified in the scheme;

(b) require any body which participates in the scheme to make payments in accordance with the scheme; and

(c) provide for the making of payments for the purposes of the scheme by the Secretary of State.

(4) Without prejudice to any other power of direction conferred on the Secretary of State,-

(a) if the Secretary of State so directs, any body which is eligible to participate in a scheme shall do so; and

(b) where a scheme provides for it to be administered by the Secretary of State, the Agency or a Health Board or NHS trust shall carry out such functions in connection with the administration of the scheme as the Secretary of State may direct.

(5) Neither the Secretary of State nor any body administering a scheme under this section shall, by virtue of their activities under the scheme, be regarded as carrying on insurance business for the purposes of the Insurance Companies Act 1982.]

Textual Amendments

F241 S. 85B inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 41

Modifications etc. (not altering text)

C67 Ss. 85B, 86 applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C68 S. 85B applied (1.4.1993) by S.I. 1993/577, art. 5(1)(2), Sch. Pt. (with art. 6)

S. 85B applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 85B applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. Pt. I

S. 85B applied (1.4.1999) by S.I. 1999/726, art. 5(1)(2), Sch. Pt. I

86 Accounts of Health Boards and the Agency. S

[F242 (1) The following bodies that is to say—

(a) every Health Board;

(b) the Agency; and

(c) every NHS trust,]

shall keep, in such form as the Secretary of State may, with the approval of the Treasury, direct, accounts of all moneys received or paid out by them, and those accounts shall be audited [F243 by auditors appointed by the Secretary of State][F243 in accordance with Part VII of the Local Government (Scotland) Act 1973 by auditors appointed by the Accounts Commission for Scotland]; and the Comptroller and Auditor General may examine all such accounts and any records relating thereto and any report of the auditor thereof.

[F244 (1A) So far as relates to allotted sums paid to the members of a recognised fund-holding practice—

(a) accounts shall be kept in such form as the Secretary of State may with the approval of the Treasury direct and shall be audited [F245 by auditors appointed by the Secretary of State][F245 in accordance with Part VII of the Local Government (Scotland) Act 1973 by auditors appointed by the Accounts Commission for Scotland];

(b) the Comptroller and Auditor General may examine the accounts and the records relating to them and any report of the auditor on them;

(c) in respect of each financial year, annual accounts in such form as the Secretary of State may with the approval of the Treasury direct shall be prepared and submitted to the relevant Health Board; and

(d) in respect of each financial year, each Health Board shall prepare, in such form as the Secretary of State may with the approval of the Treasury direct, and include in its own accounts, a summarised version of the accounts submitted to the Board under paragraph (c).

(1B) In preparing its annual accounts in pursuance of subsection (1), an NHS trust shall comply with any directions given by the Secretary of State with the approval of the Treasury as to—

(a) the methods and principles according to which the accounts are to be prepared; and

(b) the information to be given in the accounts.]

[F246 (1C) In such circumstances and to such extent as regulations made by the Secretary of State so provide, the requirement in subsection (1A)(a) to have accounts audited shall not apply to the accounts for any year of a recognised fund-holding practice if those accounts are submitted to a Health Board and summarised in the Board’s accounts.]

[F247 (2) Regulations may make provision generally with respect to the audit of accounts under [F248 subsection (1)][F248 subsections (1) and (1A)] and, in particular, for conferring on the auditor of any of those accounts such rights of access to, and production of, books, accounts, vouchers or other documents as may be specified in the regulations, and such right in such conditions as may be so specified to require from any member or officer, or former member or officer, of a [F249 Health Board or the Agency][F249 body mentioned in paragraphs (a) to (c) of subsection (1) or a recognised fund holding practice] such information relating to the affairs of the [F250 Board or the Agency][F250 body or practice] as the Secretary of State may think necessary for the proper performance of the duty of the auditor.]

(3) Every [F251 body mentioned in paragraphs (a) to (c) of subsection (1)] shall prepare and transmit to the Secretary of State in respect of each financial year accounts in such form as the Secretary of State may, with the approval of the Treasury, direct.

(4) The Secretary of State shall prepare in respect of each financial year, in such form as the Treasury may direct, summarised accounts of the [F252 bodies mentioned in paragraphs (a) to (c) of subsection (1)], and shall transmit them on or before 30th November in each year to the Comptroller and Auditor General, who shall examine and certify them and lay a copy of them, together with his report thereon, before each House of Parliament.

[F253 (5) In this section “recognised fund-holding practice” and “allotted sum” have the same meaning as in section 87B.]

Textual Amendments

F242 S. 86(1)(a)(b)(c) substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 36(2)(3)

F243 Words commencing “in accordance with Part VII" substituted (prosp.) for words commencing “by auditors appointed" by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 36(1), 67(2), Sch. 7 para. 14(2)

F244 S. 86(1A)(1B) inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 36(2)(4)

F245 Words beginning “in accordance" substituted (prosp.) for words beginning “by auditors" by National Healh Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 36(1), 67(2), Sch. 7 para. 14(2)

F246 Subsection (1C) inserted (prosp.) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 36(1), 67(2), Sch. 7 para. 14(3)

F247 S. 86(2) repealed (prosp.) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), ss. 36(1), 66(2), 67(2), Sch. 7 para. 14(4), Sch. 10

F248 Words “subsections (1) and (1A)" substituted (temp. from 17.9.1990 to 31.3.1995) for words “subsection (1)" by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 36(5)(a); S.I. 1990/1793, art. 2(1), Sch. 1

F249 Words commencing “body mentioned in paragraphs (a) to (c)" substituted (temp. from 17.9.1990 to 31.3.1995) for words “Health Board or the Agency" by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 36(5)(b); S.I. 1990/1793, art. 2(1), Sch. 1

F250 Words “body or practice" substituted (temp. from 17.9.1990 to 31.3.1995) for words “Board or the Agency" by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 36(5)(c); S.I. 1990/1793, art. 2(1), Sch. 1

F251 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 36(6)

F252 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 36(7)

F253 S. 86(5) added by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 36(8)

Modifications etc. (not altering text)

C69 Ss. 85B, 86 applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C70 S. 86 extended by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 2(8)(c), 17(2), 91(2), Sch. 1 para. 8(e)

C71 S. 86 applied (1.4.1993) by S.I. 1993/577, art. 5(1)(2), Sch. Pt. I(with art. 6)

S. 86 applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt. I (with art. 6)

C72 S. 86(1A)(a) excluded (7.11.1997) by S.I. 1997/2469, reg. 2

87 Regulation of financial arrangements of Health Boards, the Agency and the Dental Estimates Board. S

(1) Regulations may provide, in the case of all or any of the following bodies, that is to say, Health Boards, the Agency, and the Dental Estimates Board, for restricting the making of payments by or on behalf of the body otherwise than on such authorisation and subject to such conditions as may be specified in the regulations; but such provision may be made subject to such exceptions as may be so specified.

(2) Regulations made under this section may contain such other provisions as to the making and carrying out by all or any of those bodies of such arrangements with respect to financial matters as the Secretary of State thinks necessary for the purpose of securing that the affairs of such bodies are conducted, so far as reasonably practicable, in such manner as to prevent financial loss and to ensure and maintain efficiency.

(3) Without prejudice to the operation of the provisions of any such regulations, the Secretary of State may give to any of the said bodies such directions (which may be specific in character) as to any matter with respect to which regulations may be made under this section as it appears to him is requisite for the purpose of securing that the affairs of the body are conducted, so far as reasonably practicable, in such manner as is mentioned in subsection (2); and a body to whom any such directions are given shall comply therewith.

Modifications etc. (not altering text)

C73 S. 87 applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C74 S. 87 applied (1.4.1993) by S.I. 1993/577, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 87 applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 87 applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. Pt. I

S. 87 applied (1.4.1999) by S.I. 1999/726, art. 5(1)(2), Sch. Pt. I

S. 87 applied (1.4.2000) by S.S.I. 2000/47, art. 5(1)(2), Sch. Pt. I

S. 87 applied (6.4.2001) by S.S.I. 2001/137, art. 5(1), Sch. Pt. I

S. 87 applied (31.3.2002) by S.S.I. 2002/103, art. 6, Sch. Pt. I (with art. 4(4))

S. 87 applied (27.6.2002) by S.S.I. 2002/305, art. 5(1), Sch. Pt. I (with art. 4(4))

[F254 Fund-holding practices] E+W+S

Textual Amendments

F254 Ss. 87A–87C inserted (the insertion being in force 17.9.1990 in relation to the provisions of section 87A and section 87B(1) (in so far as section 87B(1) provides for the meaning of “recognised fund-holding practice" and “allotted sum") but otherwise in force 1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 34

87A Recognition of fund-holding practices of doctors. S

(1) Any one or more medical practitioners who are providing general medical services in accordance with arrangements under section 19 may apply to the relevant Health Board for recognition as a fund-holding practice.

(2) The relevant Health Board shall not grant recognition as a fund-holding practice unless the medical practitioner or, as the case may be, each of the medical practitioners concerned fulfils such conditions as may be prescribed.

(3) Where two or more medical practitioners who wish to make an application under subsection (1) are not partners in a single partnership, section 19(8)(a) (construction of “relevant Health Board") shall apply as if the medical practitioners were practising in a single partnership.

(4) Regulations may make provision with respect to—

(a) the making of applications under subsection (1);

(b) the granting and refusal of recognition as a fund-holding practice;

(c) the conditions to be fulfilled for obtaining and continuing to be entitled to such recognition;

(d) appeals against any refusal of such recognition by a Health Board;

(e) withdrawing from, or becoming a member of, an existing recognised fund-holding practice;

(f) the continuity or otherwise of a recognised fund-holding practice in the event of the death or withdrawal of a member or the addition of a new member; and

(g) the operation of this section in a case where one or more of the medical practitioners wishing to make an application under subsection (1) is also on the medical list of a Family Health Services Authority established under section 10 of the National Health Service Act 1977,

and regulations making the provision referred to in paragraph (g) may make such modifications of the preceding provisions of this section as the Secretary of State considers appropriate.

[F255 87B Payments to recognised fund-holding practices. E+W+S

(1) In respect of each financial year, every Health Board shall be liable to pay to the members of each recognised fund-holding practice in relation to which it is the relevant Health Board a sum determined in such manner and by reference to such factors as the Secretary of State may direct (in this section referred to as an “allotted sum”).

(2) The liability to pay an allotted sum under subsection (1) may be discharged, in whole or in part, in either of the following ways—

(a) by making payments on account of the allotted sum at such times and in such manner as the Secretary of State may direct; and

(b) by discharging liabilities of the members of the practice to any other person (including, in particular, liabilities under NHS contracts);

and any reference in this section and section 87C to payment of or of a part of an allotted sum includes a reference to the discharge, in accordance with this subsection, of the whole or part of the liability to pay that sum.

(3) In any case where—

(a) a Health Board makes a payment of, or of any part of, an allotted sum to the members of a recognised fund-holding practice, and

(b) some of the individuals on the lists of patients of any of the members of the practice reside in the area of another Health Board, or in the region of a Regional Health Authority established under section 8 of the National Health Service Act 1977,

the Board making the payment shall be entitled to recover from that other Board or the Authority an amount equal to such portion of the payment as may be determined in accordance with directions given by the Secretary of State.

(4) The members of a recognised fund-holding practice may apply allotted sums only for purposes specified in regulations under subsections (5).

(5) Regulations shall make provision with respect to the purposes for which allotted sums are to be or may be applied and may make provision generally with respect to the operation of recognised fund-holding practices in relation to allotted sums; and the regulations may, in particular,—

(a) require the members of a practice to pay to the relevant Health Board out of allotted sums paid to them an amount determined in accordance with the regulations as the basic cost of the drugs, medicines and listed appliances supplied pursuant to orders given by or on behalf of members of the practice;

(b) provide that the goods and services, other than general medical services, which may be purchased by or on behalf of the members of such a practice out of allotted sums for the individuals on the lists of patients of the members of the practice shall be such as may be specified in a list approved for the purpose under the regulations; and

(c) impose a limit on the amount which may be spent out of an allotted sum on the provision of goods and services for any one individual, being a limit above which the cost of any goods and services for that individual in the financial year in question will fall to be met by the Health Board whose functions include the provision of goods and services (not necessarily the goods and services in question) to the individual concerned.

(6) In accordance with directions given by the Secretary of State, the relevant Health Board shall monitor the expenditure of the members of a recognised fund-holding practice and may institute an audit and review in any case where the Board consider it necessary to do so.]

Textual Amendments

F255 Ss. 87A–87C inserted (the insertion being in force 17.9.1990 in relation to the provisions of section 87A and section 87B(1) (in so far as section 87B(1) provides for the meaning of “recognised fund-holding practice" and “allotted sum") but otherwise in force 1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 34

[F256 87C Renunciation and removal of recognition as a fund-holding practice and withholding of funds. S

(1) Regulations may make provision as to the circumstances in which the members of a recognised fund-holding practice may renounce that status and such regulations may, in particular, make provision as to—

(a) the notice to be given and the number of members of the practice by whom it is to be given;

(b) the procedure to be followed; and

(c) the consequences of such a renunciation.

(2) Regulations may make provision as to the circumstances in which and the grounds on which the relevant Health Board may remove recognition from the members of a fund-holding practice,—

(a) with immediate effect; or

(b) with effect from the end of a particular financial year; or

(c) with effect from such other date as may be specified by the Health Board.

(3) Where provision is made as mentioned in subsection (2), regulations shall make provision with respect to—

(a) the procedure for removal of recognition;

(b) appeals against the removal of recognition by a Health Board; and

(c) the consequences of the removal of recognition.

(4) Without prejudice to the generality of the powers conferred by subsection (3), regulations making provision as mentioned in paragraph (c) of that subsection may—

(a) provide for the transfer of rights and obligations from the members of the fund-holding practice to one or more Health Boards determined in accordance with the regulations;

(b) provide for the recovery of sums from members of the practice; and

(c) require the members of the practice to furnish such information as may reasonably be required by the Health Board.

(5) The bringing of an appeal against the removal of recognition by a Health Board shall not be regarded as preserving the recognised status of the members of the fund-holding practice and, accordingly, subject to the outcome of the appeal, the relevant Health Board shall not be required, after the removal takes effect, to make any (or, as the case may be, any further) payment to the members of the practice of any part of the allotted sum for the financial year in question or, as the case may be, to determine and pay any allotted sum for a future financial year.

(6) Where any part of an allotted sum has been applied by the members of a recognised fund-holding practice (or any one or more of them) for purposes other than those specified in regulations under section 87B(5), regulations may make provision for and in connection with the recovery by the relevant Health Board of an amount equal to that part.

(7) Where provision is made as mentioned in subsection (6), regulations shall make provision with respect to appeals against the recovery of any amount by a Health Board.]

Textual Amendments

F256 Ss. 87A–87C inserted (the insertion being in force 17.9.1990 in relation to the provisions of section 87A and section 87B(1) (in so far as section 87B(1) provides for the meaning of “recognised fund-holding practice" and “allotted sum") but otherwise in force 1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 34

Yn ddilys o 01/04/1992

[F257 Indicative amounts] E+W+S

Textual Amendments

F257 S. 87D inserted (1.4.1992) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 35

Prospective

87D Indicative amounts for doctors’ practices. S

(1) Subject to [F258 subsection (2)and (8)], for each financial year every Health Board shall, by notice in writing given to each practice in relation to the members of which it is the relevant Health Board, specify an amount of money (in this Act referred to as an “indicative amount”) representing the basic price of the drugs, medicines and listed appliances which, in the opinion of the Board, it is reasonable to expect will be supplied in that year pursuant to orders given by or on behalf of the members of that practice.

(2) Subsection (1) does not apply with respect to a practice which is or forms part of a fund-holding practice recognised under section 87A.

(3) For the purposes of this section, a “practice” means—

(a) a single medical practitioner who [F259 is on the medical list of a Health Board and] practises otherwise than in partnership; or

[F260 (b) in the case of two or more medical practitioners who practise in partnership with each other, each medical practitioner who is on the medical list of a Health Board;]

and any reference to the members of a practice shall be construed accordingly.

(4) The members of a practice shall seek to secure that, except with the consent of the relevant Health Board or for good cause, the orders for drugs, medicines and listed appliances given by them or on their behalf are such that the basic price of the items supplied pursuant to those orders in any financial year does not exceed the indicative amount notified to the practice for that year under subsection (1).

(5) For the purpose of measuring the extent to which a practice is operating within the indicative amount notified to it under subsection (1) for any financial year, a Health Board shall set against that indicative amount an amount equal to the basic price of the drugs, medicines and listed appliances supplied in that year pursuant to orders given by or on behalf of members of the practice.

(6) For the purposes of this section, regulations may make provision as to the specification of, or means of calculating, the basic price of any drugs, medicines and listed appliances.

(7) If, in the case of any practice, a member is on the medical list of a [F261 Health Authority established under section 8] of the National Health Service Act 1977 (as well as on that of a Health Board), any question whether this section applies in relation to the members of the practice shall be determined in accordance with regulations; and any such regulations may modify the preceding provisions of this section in their application to such practice.

[F262 (8) This section does not apply in relation to the performance or provision of personal medical services in accordance with section 17C arrangements.]

Textual Amendments

F258 Words in s. 87D(1) substituted (prosp.) by 1997 c. 46, s. 41(3)(10), Sch. 2 Pt. I para. 55(1)(2)

F259 Words in s. 87D(3)(a) inserted (prosp.) by 1997 c. 46, s. 41(3)(10), Sch. 2 Pt. I para. 55(1)(3)(a)

F260 S. 87D(3)(b) substituted (prosp.) by 1997 c. 46, s. 41(3)(10), Sch. 2 Pt. I para. 55(1)(3)(b)

F261 Words in s. 87D substituted (28.6.1995 for certain purposes and 1.4.1996 for all other purposes) by 1995 c. 17, ss. 2(1), 2(3), Sch. 1 Pt. III para. 102(6) (with Sch. 2 para. 6)

F262 s. 87D(8) inserted (prosp.) by 1997 c. 46, s. 41(3)(10), Sch. 2 Pt. I para. 55(1)(4)

Modifications etc. (not altering text)

C75 S. 87D modified (1.4.1992) by S.I. 1992/81, reg. 3.

Remuneration, allowances and superannuation S

88 Payment of allowances and remuneration to members of certain bodies connected with the health services. S

(1) The Secretary of State may pay to members of—

(a) the Medical Practices Committee,

(b) the Dental Estimates Board,

(c) the Tribunal,

(d) any body on which functions are conferred by regulations under section 22, and

(e) any body specified in an order made by the Secretary of State as being a body recognised by him to have been formed for the purpose of performing a function connected with the provision of services under this Act,

such travelling and other allowances, including compensation for loss of remunerative time, as he may, with the approval of the Minister for the Civil Service, from time to time determine.

(2) The Secretary of State may pay to members of—

(a) the Medical Practices Committee,

(b) the Dental Estimates Board,

(c) the Tribunal,

(d) any other body constituted under or by virtue of Part II, being a body specified in an order made for the purposes of this section by the Secretary of State with the approval of the Minister for the Civil Service, and

(e) any body on which functions are conferred by regulations under section 22,

such remuneration as the Secretary of State may, with such approval, from time to time determine.

(3) Allowances shall not be paid under subsection (1) except in connection with the performance of such powers or duties, in such circumstances, as may, with the approval of the Minister for the Civil Service, be determined by the Secretary of State.

(4) Any payments made under this section shall be made at such times and in such manner, and subject to such conditions as to records, certificates or otherwise, as the Secretary of State may, with the approval of the Minister for the Civil Service, determine.

89 Superannuation of officers of certain hospitals. S

(1) The Secretary of State may enter into an agreement with the governing body of any hospital to which this section applies for admitting, on such terms and conditions as may be provided in the agreement, officers of the hospital of such classes as may be so provided to participate in the superannuation benefits provided under regulations made under section 10 of the M42 Superannuation Act 1972, in like manner as officers of Health Boards; and the said regulations shall apply accordingly in relation to the officers so admitted, subject to such modifications as may be provided in the agreement.

(2) The governing body of any hospital to which this section applies shall have all such powers as may be necessary for the purpose of giving effect to any terms and conditions on which their officers are admitted to participate in those superannuation benefits.

(3) This section applies to any hospital (not vested in the Secretary of State) which is used, in pursuance of arrangements made by the governing body of the hospital with a Health Board, for the provision of services under this Act.

Marginal Citations

M42 1972 c. 11.

Part VI S The Health Service Commissioner for Scotland

Modifications etc. (not altering text)

C76 Pt VI (ss.90-97) applied (with modifications) (1.4.1993) by S.I. 1993/577, art. 5(1), Sch. 1 Pt. I.

90 Appointment of Commissioner and tenure of office. S

(1) For the purpose of conducting investigations in accordance with the following provisions of this Part, there shall be appointed a Commissioner, to be known as the Health Service Commissioner for Scotland.

(2) Her Majesty may, by Letters Patent, from time to time appoint a person to be the Commissioner, and any person so appointed shall, subject to [F263 subsections (3) and (3A)], hold office during good behaviour.

(3) A person appointed to be the Commissioner may be relieved of office by Her Majesty at his own request, or may be removed from office by Her Majesty in consequence of Addresses from both Houses of Parliament, and shall in any case vacate office on completing the year of service in which he attains the age of 65 years.

[F264 (3A) Her Majesty may declare the office of Commissioner to have been vacated if satisfied that the person appointed to be the Commissioner is incapable for medical reasons:

(a) of performing the duties of his office; and

(b) of requesting to be relieved of it.]

(4) The Commissioner shall not be a member of the House of Commons, or of the Senate or House of Commons of Northern Ireland, and accordingly the M43 House of Commons Disqualification Act 1975 shall continue to have effect with the following amendments—

(a) in Part III of Schedule 1 there shall be inserted, at the appropriate point in alphabetical order, the entry “The Health Service Commissioner for Scotland"; and

(b) the like amendment shall be made in the Part substituted for the said Part III by Schedule 3 to the said Act in its application to the Senate and House of Commons of Northern Ireland.

(5) The Commissioner shall not be a member of a body subject to investigation or any management committee thereof.

Textual Amendments

F263 Words substituted by Parliamentary and Health Service Commissioners Act 1987 (c. 39, SIF 89), s. 2(1)(a)

F264 S. 90(3A) inserted by Parliamentary and Health Service Commissioners Act 1987 (c. 39, SIF 89), s. 2(1)(b)

Modifications etc. (not altering text)

C77 Pt. VI (ss. 90–97) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

Marginal Citations

M43 1975 c. 24.

91 Salary and pension of Commissioner. S

(1) Subject to the provisions of this section, there shall be paid to the holder of the office of Commissioner the same salary as if he were employed in the civil service of the State in such appointment as the House of Commons may, by resolution, from time to time determine, and any such resolution may take effect from the date on which it is passed or such other date as may be specified therein.

(2) Subject to the provisions of this section and subsections (5) to (7) of section 107 of the M44 National Health Service Act 1977, Schedule 1 to the M45 Parliamentary Commissioner Act 1967 (pensions and other benefits) shall have effect with respect to persons who have held office as Commissioner as it has effect with respect to persons who have held office as Commissioner under that Act of 1967.

(3) The salary payable to a holder of the office of a Commissioner shall be abated by the amount of any pension payable to him in respect of any public office in the United Kingdom or elsewhere to which he has previously been appointed or elected.

(4) In computing the salary of a former holder of the office of Commissioner for the purposes of Schedule 1 to that Act of 1967 there shall be disregarded—

(a) any abatement of that salary under subsection (3);

(b) any temporary abatement of that salary in the national interest; and

(c) any voluntary surrender of that salary in whole or in part.

(5) Where—

(a) a person holds the office of Parliamentary Commissioner for Administration and one or more of the offices of Health Service Commissioner for England, Health Service Commissioner for Scotland and Health Service Commissioner for Wales he shall, so long as he does so, be entitled only to the salary pertaining to the first-mentioned office; and

(b) a person holds two or more of those offices other than that of Parliamentary Commissioner for Administration he shall, so long as he does so, be entitled only to the salary pertaining to such one of those offices as he selects.

(6) A person—

(a) shall not be entitled to make simultaneously different elections in pursuance of paragraph 1 of Schedule 1 to that Act of 1967 in respect of different offices mentioned in subsection (5), and

(b) shall, if he has made or is treated as having made an election in pursuance of that paragraph in respect of such an office, be deemed to have made the same election in respect of all other offices to which he is, or is subsequently, appointed,

and no account shall be taken for the purposes of that Schedule of a period of service in such an office if salary in respect of the office was not paid for that period.

(7) The Minister for the Civil Service may—

(a) by regulations provide that Schedule 1 to that Act of 1967 shall have effect in relation to persons who have held more than one of the offices mentioned in subsection (5), and

(b) by those regulations modify that Schedule as he considers necessary in consequence of those persons having held more than one of those offices,

and different regulations may be made in pursuance of paragraph 4 of that Schedule in relation to different offices so mentioned.

This subsection is subject to subsection (6).

(8) Any salary, pension or other benefit payable by virtue of this section shall be charged on and issued out of the Consolidated Fund.

Modifications etc. (not altering text)

C78 Pt. VI (ss. 90–97) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

Marginal Citations

M44 1977 c. 49.

M45 1967 c. 13.

92 Administrative provisions. S

(1) The Commissioner may appoint such officers as he may determine with the approval of the Minister for the Civil Service as to numbers and conditions of service.

(2) Any function of the Commissioner under this Part may be performed by any officer of the Commissioner authorised for that purpose by him or by any officer so authorised of another Commissioner mentioned in subsection (5) of section 107 of the M46 National Health Service Act 1977.

(3) To assist him in any investigation, the Commissioner may obtain advice from any person who in his opinion is qualified to give it, and such fees or allowances may be paid to such person by the Commissioner as he may, with the approval of the Minister for the Civil Service, determine.

(4) The expenses of the Commissioner under this Part, to such amount as may be sanctioned by the Minister for the Civil Service, shall be defrayed out of moneys provided by Parliament.

Modifications etc. (not altering text)

C79 Pt. VI (ss. 90–97) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

Marginal Citations

M46 1977 c. 49.

[F265 92A Appointment of acting Commissioner. S

(1) Where the office of Commissioner becomes vacant, Her Majesty may, pending the appointment of a new Commissioner, appoint a person under this section to act as the Commissioner at any time during the period of twelve months beginning with the date on which the vacancy arose.

(2) A person appointed under this section shall hold office during Her Majesty’s pleasure and, subject to that, shall hold office—

(a) until the appointment of a new Commissioner or the expiry of the period of twelve months beginning with the date on which the vacancy arose, whichever occurs first; and

(b) in other respects, in accordance with the terms and conditions of his appointment which shall be such as the Secretary of State may, with the approval of the Treasury, determine.

(3) A person appointed under this section shall, while he holds office, be treated for all purposes, except those of section 91, as the Commissioner.

(4) Any salary, pension or other benefit payable by virtue of this section shall be charged on and issued out of the Consolidated Fund.

(5) A person appointed under this section shall not, during his appointment, be a member of a body subject to investigation or any management committee thereof.]

Textual Amendments

F265 S. 92A inserted by Parliamentary and Health Service Commissioners Act 1987 (c. 39, SIF 89), s. 6(3)

93 Bodies and action subject to investigation. S

(1) In this Part a “body subject to investigation” means any of the following bodies—

(a) Health Boards;

(b) the Agency;

[F266 (bb) NHS trusts]

[F267 (bb) the Dental Practice Board;]

(c)

F268 (2) Subject to the provisions of this section, the Commissioner may investigate—

(a) an alleged failure in a service provided by a body subject to investigation, or

(b) an alleged failure of a body subject to investigation to provide a service which it was the function of the body to provide, or

(c) any other action taken by or on behalf of a body subject to investigation,

in a case where a complaint is duly made by or on behalf of any person that he has sustained injustice or hardship in consequence of the failure or in consequence of maladministration connected with the other action.

(3) Except as hereafter provided, the Commissioner shall not conduct an investigation under this Part in respect of any of the following matters—

(a) any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative;

(b) any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law;

but the Commissioner may conduct an investigation notwithstanding that the person aggrieved has or had such a right or remedy, if he is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it.

(4) Without prejudice to subsection (3), the Commissioner shall not conduct an investigation under this Part in respect of any such action as is described in Schedule 14.

(5) Her Majesty may, by Order in Council, amend the said Schedule 14 so as to exclude from the provisions of that Schedule action described in paragraph 4 or 5 of that Schedule.

(6) In determining whether to initiate, continue or discontinue an investigation under this Part, the Commissioner shall, subject to the foregoing provisions of this section, act in accordance with his own discretion; and any question whether a complaint is duly made under this Part shall be determined by the Commissioner.

Textual Amendments

F266 S. 93(1)(bb) inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(18)

F267 S. 93(1)(bb) inserted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 12(5)

F268 S. 93(1)(c) repealed by Health Services Act 1980 (c. 53), Sch. 7

Modifications etc. (not altering text)

C80 Pt. VI (ss. 90–97) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

94 Provisions relating to complaints. S

(1) A complaint under this Part may be made by any individual or by any body of persons, whether incorporated or not, not being—

(a) a local authority or other authority or body constituted for purposes of the public service or of local government or for the purposes of carrying on under national ownership any industry or undertaking or part of an industry or undertaking;

(b) any other authority or body whose members are appointed by Her Majesty or any Minister of the Crown or government department, or whose revenues consist wholly or mainly of moneys provided by Parliament.

(2) Where the person by whom a complaint might have been made under the foregoing provisions of this Part has died or is for any reason unable to act for himself, the complaint may be made by his personal representative or by a member of his family or by some body or individual suitable to represent him; but except as aforesaid a complaint shall not be entertained under this Part unless made by the person aggrieved himself.

(3) A complaint shall not be entertained under this Part unless it is made in writing to the Commissioner by or on behalf of the person aggrieved not later than 12 months from the day on which the matters alleged in the complaint first came to the notice of the person aggrieved; but the Commissioner may conduct an investigation pursuant to a complaint not made within that period if he considers it proper to do so.

(4) Before proceeding to investigate a complaint the Commissioner shall satisfy himself that the complaint has been brought by or on behalf of the person aggrieved to the notice of the body subject to investigation and that that body has been afforded a reasonable opportunity to investigate and reply to the complaint; but the Commissioner may disregard the preceding provisions of this subsection in relation to a complaint made by an officer of the body subject to investigation on behalf of the person aggrieved if the officer is authorised by virtue of subsection (2) to make the complaint and the Commissioner is satisfied that in the particular circumstances those provisions ought to be disregarded.

[F269 (5) Notwithstanding the foregoing provisions of this section, a body subject to investigation—

(a) may itself (excluding its officers) refer to the Commissioner a complaint that a person has, in consequence of a failure or maladministration for which the body is responsible, sustained such injustice or hardship as is mentioned in section 93(2) above if the complaint—

(i) is made in writing to that body by that person, or by a person authorised by virtue of subsection (2) above to make the complaint to the Commissioner on his behalf, and

(ii) is so made not later than one year from the day mentioned in subsection (3) above, or within such other period as the Commissioner considers appropriate in any particular case, but

(b) shall not be entitled to refer a complaint in pursuance of paragraph (a) above after the expiry of twelve months beginning with the day on which the body received the complaint;

and a complaint referred to the Commissioner in pursuance of this subsection shall, subject to section 93(6) above, be deemed to be duly made to him under this Part.]

Textual Amendments

F269 S. 94(5) substituted by Parliamentary and Health Service Commissioners Act 1987 (c. 39, SIF 89), s. 8

Modifications etc. (not altering text)

C81 Pt. VI (ss. 90–97) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

95 Application of certain provisions of the Parliamentary Commissioner Act 1967. S

The following provisions of the M47 Parliamentary Commissioner Act 1967 shall, with any necessary modifications, apply to the Commissioner, to his officers and to a body subject to investigation as they apply to the Commissioner under that Act, to his officers and to a department or authority concerned:—

• section 7 (procedure in respect of investigations);

• section 8 (evidence);

• section 9 (obstruction and contempt);

• section 11 (secrecy of information), except subsection (4);

and in sections 7(1) and 8(1) of the said Act of 1967 as applied by this section the words “the principal officer of” and “Minister” shall be omitted.

Modifications etc. (not altering text)

C82 Pt. VI (ss. 90–97) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

Marginal Citations

M47 1967 c. 13.

[F270 95A Consulting other Commissioners. S

(1) Where, at any stage in the course of conducting an investigation under this Part, the Commissioner forms the opinion that the complaint relates partly to a matter which could be the subject of an investigation under—

(a) the Parliamentary Commissioner Act M48 1967; or

(b) Part V of the National Health Service Act M49 1977, he shall, if he considers it necessary, inform the person initiating the complaint of the steps necessary to initiate a complaint under the Parliamentary Commissioner Act 1967 or, as the case may be, Part V of the National Health Service Act 1977.

(2) In the circumstances described in subsection (1), the Commissioner shall consult the Parliamentary Commissioner or the Health Service Commissioner for England or for Wales, as appropriate,about the complaint (unless he also holds office as that other Commissioner) and such consultation may extend to any matter relating to the complaint, including—

(a) the conduct of any investigation into the complaint; and

(b) the form, content and publication of any report of the results of such an investigation;

and the application by section 95 of section 11(2) of the Parliamentary Commissioner Act M50 1967 shall not extend to the disclosure of informa-tion by the Commissioner or any of his officers in the course of such consultations.

(3) Where the Commissioner also holds office as any of the other Commissioners mentioned in subsection (2) and a person initiates a complaint to him in his capacity as such other Commissioner which relates partly to a matter with respect to which that person has previously initiated a complaint to him under this Part, or subsequently initiates such a complaint, information obtained by him or his officers in the course of or for the purposes of the investigation under this Part may be disclosed for the purposes of his carrying out his functions as such other Commissioner in relation to that person’s complaint.]

Textual Amendments

F270 S. 95A inserted by Parliamentary and Health Service Commissioners Act 1987 (c. 39, SIF 89), s. 4(5)

Marginal Citations

M48 1967 c.13(89).

M49 1977 c.49(113:2).

M50 1967 c.13(89).

96 Reports by Commissioner. S

(1) In any case where the Commissioner conducts an investigation under this Part, he shall send a report of the results of his investigation to—

(a) the person who made the complaint;

[F271 (aa) to any member of the House of Commons who, to the Commissioner’s knowledge, assisted in the making of the complaint (or if he is no longer a member to such other member as the Commissioner thinks appropriate),]

(b) the body subject to investigation;

(c) any person who is alleged in the complaint to have taken or authorised the action complained of;

(d) F272 , the Secretary of State.

(2)

F273 (3) In any case where the Commissioner decides not to conduct an investigation under this Part, he shall send a statement of his reasons for doing so to the persons and bodies described in paragraphs (a) [F274 to] (b) of subsection (1).

(4) If, after an investigation under this Part has been conducted by the Commissioner or an officer authorised by him, it appears to the Commissioner that injustice or hardship has been caused to the person aggrieved in the circumstances described in section 93(2), and that the injustice or hardship has not been or will not be remedied, he may, if he thinks fit—

(a)

F275 (b) F272 , make a special report to the Secretary of State who shall, as soon as is reasonably practicable, lay a copy of the report before each House of Parliament.

(5) The Commissioner shall annually make to the Secretary of State a general report on the performance of his functions under this Part F272 , and may from time to time make to the Secretary of State such other reports with respect to those functions as the Commissioner thinks fit; and the Secretary of State shall lay a copy of any such report before each House of Parliament.

(6) The Commissioner F272 may from time to time lay before each House of Parliament such F272 reports with respect to his F272 functions under this Part as he thinks fit.

(7) For the purpose of the law of defamation, any report or statement made, sent or laid in pursuance of this section, shall be absolutely privileged.

Textual Amendments

F271 S. 96(1)(aa) inserted by Parliamentary and Health Service Commissioners Act 1987 (c. 39, SIF 89), s. 5(1)

F272 Words repealed by Health Services Act 1980 (c. 53), Sch. 7

F273 Ss. 16(3), 20(2), 51, 52, 59–63, 65–68, 96(2), Sch. 16 paras. 25, 43 repealed by Health Services Act 1980 (c. 53), Sch. 7

F274 Word substituted by Parliamentary and Health Service Commissioners Act 1987 (c. 39, SIF 89), s. 5(3)

F275 S. 96(4)(a) repealed by Health Services Act 1980 (c. 53), Sch. 7

Modifications etc. (not altering text)

C83 Pt. VI (ss. 90–97) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

97 Interpretation of Part VI. S

(1) In this Part and in Schedule 14

• “action” includes failure to act, and other expressions connoting action shall be construed accordingly;

• “body subject to investigation” has the meaning assigned to it by section 93(1);

• “the Commissioner” means the Health Service Commissioner for Scotland;

• “person aggrieved” means a person who claims or is alleged to have sustained such injustice or hardship as is mentioned in section 93(2).

(2) It is hereby declared that nothing in this Part authorises or requires the Commissioner to question the merits of a decision taken without maladministration by a body subject to investigation in the exercise of a discretion vested in that body.

Modifications etc. (not altering text)

C84 Pt. VI (ss. 90–97) applied (1.4.1991) by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

Part VII S Miscellaneous and Supplementary

Miscellaneous S

98 Charges in respect of non-residents. S

Regulations may provide for the making and recovery in such manner as may be prescribed of such charges as [F276 the Secretary of State may determine] in respect of the provision of such services under this Act as may be prescribed for such persons not ordinarily resident in Great Britain as may be prescribed; and the regulations may provide that the charges are only to be made in such cases as may be determined in accordance with the regulations. [F277 The Secretary of State may calculate charges under this section on any basis that he considers to be the appropriate commercial basis.]

Textual Amendments

F276 Words substituted by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 7(13)

F277 Words added by Health and Medicines Act 1988 (c. 49, SIF 113:2), s. 7(14)

Modifications etc. (not altering text)

C85 S. 98 applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. 1

99 Evasion of charges. S

If any person, for the purpose of evading the payment of any charge under this Act, or of reducing the amount of any such charge—

(a) knowingly makes any false statement or false representation, or

(b) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,

the charge, or as the case may be the balance of the charge, may be recovered from him as a simple contract debt by the person by whom the cost of the service in question was defrayed.

Modifications etc. (not altering text)

C86 S. 99 applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. 1

Yn ddilys o 14/10/1999

[F278 99ZA Recovery of charges and payments. S

(1) Where goods or services to which this section applies are provided and either—

(a) any charge payable by any person under this Act in respect of the provision of the goods or services is reduced, remitted or repaid, but that person is not entitled to the reduction, remission or repayment; or

(b) any payment under this Act is made to, or for the benefit of, any person in respect of the cost of obtaining the goods or services but that person is not entitled to, or to the benefit of, the payment,

the amount mentioned in subsection (2) is recoverable as a debt from the person in question by the responsible authority.

(2) That amount—

(a) in a case within subsection (1)(a), is the amount of the charge or (where it has been reduced) reduction;

(b) in a case within subsection (1)(b), is the amount of the payment.

(3) Where two or more persons are liable under section 99 or this section to pay an amount in respect of the same charge or payment, those persons shall be jointly and severally liable.

(4) For the purposes of this section, the circumstances in which a person is to be treated as not entitled to a reduction, remission or repayment of a charge, or to (or to the benefit of) a payment, include in particular those in which it is received (wholly or partly)—

(a) on the ground that he or another is a person of a particular description, where the person in question is not in fact of that description;

(b) on the ground that he or another holds a particular certificate, when the person in question does not in fact hold such a certificate or does hold such a certificate but is not entitled to it;

(c) on the ground that he or another has made a particular statement, when the person in question has not made such a statement or the statement made by him is false.

(5) In this section and section 99ZB, “responsible authority” means—

(a) in relation to the recovery of any charge under section 99 in respect of the provision of goods or services to which this section applies, the person by whom the charge is recoverable;

(b) in relation to the recovery by virtue of this section of the whole or part of the amount of any such charge, the person by whom the charge would have been recoverable;

(c) in a case within subsection (1)(b), the person who made the payment.

(6) But the Secretary of State may by directions provide for—

(a) the functions of any responsible authority of recovering any charges under this Act in respect of the provision of goods or services to which this section applies;

(b) the functions of any responsible authority under this section and section 99ZB,

to be exercised on behalf of the authority by another health service body.

(7) This section applies to the following goods and services—

(a) dental treatment and appliances provided in pursuance of this Act;

(b) drugs and medicines provided in pursuance of this Act;

(c) the testing of sight;

(d) optical appliances;

(e) any other appliances provided in pursuance of this Act.]

Textual Amendments

F278 Ss. 99ZA-ZB inserted (14.10.1999) by 1999 c. 8, s. 59(1); S.S.I. 1999/115, art. 2

Yn ddilys o 14/10/1999

[F279 99ZB

(1) Regulations may provide that, where a person fails to pay—

(a) any amount recoverable from him under section 99 in respect of the provision of goods or services to which section 99ZA applies; or

(b) any amount recoverable from him under section 99ZA,

a notice (referred to in this section as a penalty notice) may be served on the person, by or on behalf of the responsible authority, requiring him to pay to the authority, within a prescribed period, that amount together with a charge (referred to in this section as a penalty charge) of an amount determined in accordance with the regulations.

(2) The regulations may not provide for the amount of the penalty charge to exceed whichever is the smaller of—

(a) £100;

(b) the amount referred to in subsection (1)(a) or (b) multiplied by 5.

(3) The Secretary of State may by order provide for subsection (2) to have effect as if, for the sum specified in paragraph (a) or the multiplier specified in paragraph (b) (including that sum or multiplier as substituted by a previous order), there were substituted a sum or (as the case may be) multiplier specified in the order.

(4) Regulations may provide that, if a person fails to pay the amount he is required to pay under a penalty notice within the period in question, he must also pay to the responsible authority by way of penalty a further sum determined in accordance with the regulations.

(5) The further sum must not exceed 50 per cent. of the amount of the penalty charge.

(6) Any sum payable under the regulations (including the amount referred to in subsection (1)(a) or (b)) may be recovered by the responsible authority as a debt.

(7) But a person is not liable by virtue of a penalty notice—

(a) to pay at any time so much of any amount referred to in subsection (1)(a) or (b) for which he is jointly and severally liable with another as at that time has been paid, or ordered by a court to be paid, by that other; or

(b) to a penalty charge, or a further sum by way of penalty, if he shows that he did not act wrongfully, or with any lack of care, in respect of the charge or payment in question.

(8) Section 99ZA and this section apply to charges which may be made and recovered under section 20 of the M51 National Health Service (Primary Care) Act 1997 as they apply to charges under this Act which may be recovered under section 99; and the reference to this Act in section 99ZA(7)(a) includes a reference to a pilot scheme (within the meaning of the 1997 Act).]

Textual Amendments

F279 S. 99ZA-ZB inserted (14.10.1999) by 1999 c. 8, s. 59(2); S.I. 1999/115, art. 2

Marginal Citations

M51 1997 c.46.

[F280 99A Holidays for patients etc. S

The Secretary of State’s functions may be performed outside Scotland, in so far as they relate—

(a) to holidays for patients;

(b) to the transfer of patients to or from England, Wales, Northern Ireland, the Isle of Man or the Channel Islands; or

(c) to the return of patients who have received treatment in Scotland to countries or territories outside the British Islands.]

Textual Amendments

F280 S. 99A added by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 9(2)

100 Accommodation for persons displaced in course of development. S

(1) Where the carrying out of a scheme for the provision by the Secretary of State in pursuance of this Act or the [F281 Mental Health (Scotland) Act 1984] of accommodation or other facilities will involve the displacement from any premises of persons residing in them, the Secretary of State may make arrangements with one or more of the following bodies—

(a) an authority who are a local authority for the purposes of the Housing (Scotland) Act [F282 1987],

[F283 (b) the Scottish Special Housing Association;

(c) a Housing Association or Housing Trust within the meaning of the Housing Associations Act 1985.]

[F284 (d)] a development corporation established under the M52 New Towns (Scotland) Act 1968,

for securing, in so far as it appears to him that there is no other residential accommodation suitable for the reasonable requirements of those persons available on reasonable terms, the provision of residential accommodation in advance of the displacements from time to time becoming necessary as the carrying out of the scheme proceeds.

(2) Arrangements made under subsection (1) may include provision for the making by the Secretary of State to the body with whom the arrangements are made of payments of such amounts, and for such purposes, as may be approved by the Treasury.

Textual Amendments

F281 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 17(2), 127(1), Sch. 3 para. 39

F282 “1987" substituted for “1966" by Housing (Scotland) Act 1987 (c. 26, SIF 61), ss. 335, 339(2), Sch. 23 para. 24(a)

F283 S. 100(1)(b)(c) substituted for paragraph (b) by Housing (Scotland) Act 1987 (c. 26, SIF 61), ss. 335, 339(2), Sch. 23 para. 24(b)

F284 “(d)" substituted for “(c)" by Housing (Scotland) Act 1987 (c. 26, SIF 61), ss. 335, 339(2), Sch. 23 para. 24(c)

Marginal Citations

M52 1968 c. 16.

101 Protection of Health Boards and Common Services Agency. S

Section 166 of the M53 Public Health (Scotland) Act 1897 (which relates to the protection of local authorities and their officers) shall apply in relation to a Health Board [F285 , an NHS trust] and the Agency in like manner as the said section applies in relation to a local authority, but with the substitution for any reference to that Act of a reference to this Act.

Textual Amendments

F285 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(19)

Modifications etc. (not altering text)

C87 S. 101 excluded by National Health Service (Amendment) Act 1986 (c.66, SIF 113:2), ss. 1(6), 2(3)

C88 S. 101 applied by S.I. 1990/2639, art. 5(1)(2), Sch. Pt. I

C89 S. 101 applied (1.4.1993) by S.I. 1993/577, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 101 applied (1.4.1995) by S.I. 1995/574, art. 5(1)(2), Sch. Pt. I (with art. 6)

S. 101 applied (1.4.1999) by S.I. 1999/686, art. 5(1)(2), Sch. Pt. I

S. 101 applied (1.4.1999) by S.I. 1999/726, art. 5(1)(2), Sch. Pt. I

S. 101 applied (1.4.2000) by S.S.I. 2000/47, art. 5(1)(2), Sch. Pt. I

S. 101 applied (6.4.2001) by S.S.I. 2001/137, art. 5(1), Sch. Pt. I

S. 101 applied (31.3.2002) by S.S.I. 2002/103, art. 6, Sch. Pt. I (with art. 4(4))

S. 101 applied (27.6.2002) by S.S.I. 2002/305, art. 5(1), Sch. Pt. I (with art. 4(4))

Marginal Citations

M53 1897 c. 38.

102 State hospitals. S

(1) The Secretary of State may provide for the management of a state hospital either by a committee constituted under section [F286 91(2)] of the [F287 Mental Health (Scotland) Act 1984] or by a Health Board or the Agency to the extent that power to do so is delegated to the Board or Agency by the Secretary of State.

(2)F288

Textual Amendments

F286 “91(2)" substituted for “90(2)" by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(20)

F287 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 17(2), 127(1), Sch. 3 para. 40

F288 S. 102(2) repealed by Mental Health (Amendment) (Scotland) Act 1983 (c. 39), s. 39(3), Sch. 3 (the 1983 Act was itself repealed by Mental Health (Scotland) Act 1984 (c.36, SIF 85), s. 127(2), Sch. 5)

103 Arbitration. S

Any question which is required by this Act or by any regulation thereunder to be determined by arbitration shall be determined by a single arbiter agreed upon by the parties, or, failing such agreement, appointed by the Court of Session on the application of any of the parties to the question; and at any stage in the proceedings in any such arbitration the arbiter may, and shall if so directed by the Court of Session, state a case for the opinion of that Court on any question of law arising in the arbitration.

104 Exemption from stamp duty. S

(1) Stamp duty shall not be payable on any conveyance, agreement or assignation made, or instrument executed, solely for the purpose of giving effect to any transfer of property, rights or liabilities by, or by an order made under, sections 2 or 82 or paragraph 7 of Schedule 6.

(2) Section 12 of the M54 Finance Act 1895 (which requires Acts to be stamped as conveyances on sale in certain cases) shall not apply to the transfer of property, rights or liabilities by, or by an order made under, section 2, and stamp duty shall not be payable on any such order.

Marginal Citations

M54 1895 c. 16.

Yn ddilys o 01/12/2003

[F289 104A Exemption from stamp duty land tax S

(1) This section applies to a land transaction effected by a conveyance, agreement or assignation made, or an instrument executed, solely for the purpose of giving effect to any transfer of property, rights or liabilities held upon trust under section 82.

(2) For the purposes of stamp duty land tax the land transaction is exempt from charge.

(3) Relief under this section must be claimed in a land transaction return or an amendment of such a return.

(4) In this section—

• “land transaction” has the meaning given by section 43(1) of the Finance Act 2003;

• “land transaction return” has the meaning given by section 76(1) of that Act.]

Textual Amendments

F289 S. 104A inserted (1.12.2003) by The Stamp Duty Land Tax (Consequential Amendment of Enactments) Regulations 2003 (S.I. 2003/2867), reg. 2, Sch. para. 9(3)

Supplementary S

105 Orders, regulations and directions. S

(1) Any power to make orders and regulations conferred by this Act shall be exercisable by statutory instrument.

[F290 (1A) Subsection (1) does not apply to orders made under section 12D(1) or paragraph 26(1) of Schedule 7A.]

(2) A statutory instrument made by virtue of this Act shall, subject to subsections (3) and (4), be subject to annulment in pursuance of a resolution by either House of Parliament.

(3) No regulations shall be made under sub-paragraphs (1) or (2) of paragraph 6 of Schedule 6 (capital value of and borrowings from relevant endowments) unless a draft has been laid before Parliament and approved by a resolution of each House of Parliament.

(4) Subsection (2) does not apply to—

(a) an order made under section 2(1) constituting a Health Board;

(b) orders made under sections 2(11), 8, 10(3) to (5) [F291 12A(1), 12A(8), 12E(1), 12G(2),], 70(2) and 102(2) [F292 paragraph 25(1) of Schedule 7A and paragraph 3 of Schedule 7B];

(5) Any power to make regulations conferred on the Secretary of State by this Act is, if the Treasury so direct, exercisable by the Treasury and the Secretary of State jointly except in the case of—

(a) regulations made under section 22;

(b) regulations made under section 69(1) in respect of charges for the drugs, medicines or appliances referred to in paragraph (a) of that subsection, or under paragraph 1(1) of Schedule 11 in respect of the remission or repayment of any charge payable under that section in the cases provided for in paragraph 1(1) of that Schedule;

(c) regulations made under paragraph 2(2) of that Schedule;

(d) regulations made under paragraph 2(6) of that Schedule;

(6) Where under any provision of this Act—

(a) power to make an order may be exercisable, or

(b) directions may be given, or

(c) schemes may be made,

that provision includes power to vary or revoke the order or direction or scheme, as the case may be, by subsequent order or subsequent directions or subsequent scheme made in the like manner and subject to the same provisions.

(7) Any power [F293 conferred by this Act] to make regulations [F294 , orders or directions] may be exercised—

(a) either in relation to all cases to which the power extends, or in those cases subject to exceptions, or in relation to any [F295 specified cases or classes of case], and

(b) subject to such other exceptions or conditions as the Secretary of State thinks fit,

and shall include power to make such incidental or supplementary provision as appears to the Secretary of State to be expedient.

[F296 This subsection does not apply to regulations made under section 22 (but without prejudice to subsection (3) of that section) or to an order made under section 49 (but without prejudice to paragraph 1(1) of Schedule 10).]

Textual Amendments

F290 S. 105(1A) inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(21)(a)

F291 Figures inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(21)(b)

F292 Words inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(21)(c)

F293 Words inserted by Health Services Act 1980 (c. 53), Sch. 6 para. 5(1)(a)

F294 Words substituted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 29(1), Sch. 9 Pt. I para. 24

F295 Words substituted by Health Services Act 1980 (c. 53), Sch. 6 para. 5(1)(c)

F296 Words inserted by Health Services Act 1980 (c. 53), Sch. 6 para. 5(1)(d)

Modifications etc. (not altering text)

C90 S. 105(7) extended by Health and Social Security Act 1984 (c. 48, SIF 113:1), s. 28(3)

106 Supplementary regulatory powers. S

Regulations may make provision for all or any of the following matters,—

(a) for prescribing the forms of notices and other documents, and the manner of service of notices and other documents;

(b) for prescribing the manner in which documents may be executed or proved;

(c) for prescribing the manner in which resolutions of any bodies constituted under this Act are to be proved.

107 Local enactments. S

(1) Subject to subsection (2), where any local enactment provides for any matter which is also provided for by any provision of this Act or of any order or regulations made under this Act, the provisions of this Act, or as the case may be, of that order or those regulations, shall have effect in substitution for the local enactment, which shall cease to have effect.

(2) The Secretary of State may by order except from the operation of subsection (1) such local enactments as may be specified in the order and direct that corresponding provisions of this Act or of any order or regulations made under this Act, shall not have effect in the areas in which the specified local enactments have effect.

(3) If it appears to the Secretary of State that any local enactment not being an enactment which has ceased to have effect by virtue of subsection (1), is inconsistent with any provision of this Act or that any order or regulations made under this Act, or is no longer required, or regulations to be amended, having regard to any such provision, order or regulation, he may by order repeal or amend the local enactment as he may consider appropriate.

108 Interpretation and construction. S

(1) In this Act, unless the contrary intention appears—

• “the Agency” has the meaning indicated in section 10;

• “area medical committee”, “area dental committee”, “area nursing and midwifery committee”, “area pharmaceutical committee” and “area optical committee” have the meanings indicated in section 9(2);

• F297 “the Dental Estimates Board” has the meaning indicated in section 4;

• “dental practitioner” means a person registered in the dentists register under the Dentists Act [F298 1984];

• “designated medical officer” means an officer designated under section 14;

• “dispensing optician” means a person who is registered in the register kept under section 2 of the Opticians Act 1958 of dispensing opticians or a body corporate enrolled in the list kept under section 4 of that Act or such bodies carrying on business as dispensing opticians;

• “education authority” has the same meaning as in the Education (Scotland) Act [F299 M55 1980];

• “equipment” includes any machinery, apparatus or appliance, whether fixed or not, and any vehicle;

• F300 “functions” includes powers and duties;

• “governing body”, in relation to any hospital to which section 89 applies, includes any body, whether corporate or unincorporate, having the control and management of the hospital or any part of it or otherwise carrying on the business of the hospital or any part of it;

• “Health Board” means a [F301 Health Board] constituted under section 2;

• “the health service” means the health service established in pursuance of section 1 of the M56 National Health Service (Scotland) Act 1947;

• “health service hospital” means a hospital vested in the Secretary of State [F302 for the purposes of his functions] under this Act [F303 or vested in an NHS trust];

• F300 “hospital” means—

  (a)

  any institution for the reception and treatment of persons suffering from illness,

  (b)

  any maternity home, and

  (c)

  any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation, and any institution for providing dental treatment maintained in connection with a dental school,

  and includes clinics, dispensaries, and out-patient departments maintained in connection with any such home or institution, and “hospital accommodation” shall be construed accordingly;

• “the Hospital Trust” has the meaning indicated in section 11;

• “illness” includes mental disorder within the meaning of the [F304 Mental Health (Scotland) Act 1984] and any injury or disability requiring medical or dental treatment or nursing;

• “local authority” means a regional, islands or district council;

• “local consultative committee” means a committee recognised by the Secretary of State under section 9(1);

• “local health council” has the meaning indicated in section 7;

• “medical” includes surgical;

• “the Medical Practices Committee” has the meaning indicated in section 3;

• [F305 “medical practitioner”means a registered medical practitioner within the meaning of Schedule 1 to the Interpretation Act 1978]

• “medicine” includes such chemical re-agents as are included in a list for the time being approved by the Secretary of State for the purposes of section 27;

• “modifications” includes additions, omissions and amendments;

• [F306 “National Health Service trust” has the meaning indicated by section 12A and “NHS trust” shall be construed accordingly

• “NHS contract” has the meaning indicated by section 17A(3)]

• F307 “officer” includes servant;

• [F308 “operational date”, in relation to an NHS trust, shall be construed in accordance with paragraph 3(1)(e) of Schedule 7A;]

• “ophthalmic optician” means a person registered in either of the registers kept under [F309 section 7 of the Opticians Act 1989] of ophthalmic opticians or a body corporate enrolled in the list kept under [F310 section 9] of that Act of such bodies carrying on business as ophthalmic opticians;

• “patient” includes an expectant or nursing mother and a lying-in woman;

• F311 “prescribed” means prescribed by regulations made by the Secretary of State under this Act;

• “property” includes rights;

• [F312 “provide” includes manage]

• “registered pharmacist” means a pharmacist registered in the register of pharmaceutical chemists;

• “regulations” means regulations made by the Secretary of State under this Act;

• “relevant endowment” has the meaning indicated in section 11;

• “the Research Trust” has the meaning indicated in section 12;

• [F313 “Special Health Board” means a Special Health Board constituted under section 2;]

• F314 “state hospital” has the same meaning as in the [F315 Mental Health (Scotland Act 1984];

• “superannuation benefits” means annual superannuation allowances, gratuities and periodical payments payable on retirement, death or incapacity, and similar benefits;

• “the Tribunal” has the meaning indicated in section 29;

• “the Trust” has the meaning indicated in section 11;

• “University Liaison Committee” means a committee such as is referred to in section 8;

• [F316 “voluntary organisation” means a body the activities of which are carried on otherwise than for profit, but does not include any public or local authority.]

(2) References in this Act to the purposes of a hospital shall be construed as referring both to the general purposes of the hospital and to any specific purpose of the hospital.

(3) Any reference in this Act to any enactment is a reference to it as amended or applied by or under any other enactment including this Act.

(4) In this Act, except where otherwise indicated,—

(a) a reference to a numbered Part, section or Schedule is a reference to the Part or section of, or the Schedule to, this Act so numbered;

(b) a reference in a section to a numbered subsection is a reference to the subsection of that section so numbered;

(c) a reference in a section, subsection or Schedule to a numbered or lettered paragraph is a reference to the paragraph of that section, subsection or Schedule so numbered or lettered; and

(d) a reference to any provision of an Act (including this Act) includes a reference to any Schedule incorporated in the Act by that provision.

Textual Amendments

F297 Definition repealed by Nurses, Midwives and Health Visitors Act 1979 (c. 36), s. 24(2), Sch. 7 para. 29, Sch. 8

F298 “1984" substituted for “1957" by Dentists Act 1984 (c. 24, SIF 83:1), s. 54(1), Sch. 5 para. 13

F299 Words substituted by Education (Scotland) Act 1980 (c. 44), Sch. 4 para. 18

F300 Definitions repealed by Health Services Act 1980 (c. 53), Sch. 7

F301 Words substituted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(22)(a)

F302 Words inserted by Health Services Act 1980 (c. 53), Sch. 6 para. 6(a)

F303 Words added by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(22)(b)

F304 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 17(2), 127(1), Sch. 3 para. 41

F305 Definition substituted by Medical Act 1983 (c. 54, SIF 83:1), ss. 54, 56(1), Sch. 5 para. 17(b)

F306 Definitions inserted (the insertion not being in force until 1.4.1991 so far as it relates to the definition of “NHS contract") by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(22)(c)

F307 Definition repealed by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(2), Sch. 10

F308 Definition inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(22)(d)

F309 Words substituted by Opticians Act 1989 (c. 44, SIF 83:1), s. 37(1)(a)

F310 Words substituted by Opticians Act 1989 (c. 44, SIF 83:1), s. 37(1)(b)

F311 Definition repealed by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(2), Sch. 10

F312 S. 108: definition of “provide” inserted (retrospectively) by 1999 c. 8, s. 46(2)(8); S.S.I. 1999/90, art. 2(a), Sch. 1

F313 Definition inserted by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(22)(e)

F314 Definition repealed by Health Services Act 1980 (c. 53), Sch. 7

F315 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), ss. 17(2), 127(1), Sch. 3 para. 41

F316 Definition substituted by Health Services Act 1980 (c. 53), Sch. 6 para. 6(b)

Marginal Citations

M55 1980 c. 44.

M56 1947 c. 27.

109 Transitional provisions and savings, consequential amendments and repeals. S

Schedule 15 to this Act is hereby given effect, and subject to the transitional provisions and savings contained in that Schedule—

(a) the enactments and the order specified in Schedule 16 have effect subject to the amendments (being amendments consequent on this Act) specified in that Schedule, and

(b) the enactments specified in Schedule 17 (which include enactments which were spent before the passing of this Act) are hereby repealed to the extent specified in the third column of that Schedule;

but nothing in this Act shall be taken as prejudicing the operation of [F317 sections 16(1) and 17(2)(a) of the M57 Interpretation Act 1978] (which relates to the operation of repeals).

Textual Amendments

F317 Words substituted by virtue of Interpretation Act 1978 (c. 30), s. 25(2)

Modifications etc. (not altering text)

C91 The text of s. 109(a)(b) is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991

Marginal Citations

M57 1978 c. 30.

110 Citation, extent and commencement. S

(1) This Act may be cited as the National Health Service (Scotland) Act 1978.

(2) Subject to [F318 subsection (3)][F318 subsections (2A) and (3)], this Act extends only to Scotland.

[F319 (2A) Section 87B(3) extends also to England and Wales.]

(3) Paragraph 3 of Schedule 10 extends to other parts of the United Kingdom.

(4) This Act shall come into force on 1st January 1979.

Textual Amendments

F318 Words “subsections (2A) and (3)" substituted (1.4.1991) for “subsection (3)" by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(23)(a)

F319 S. 110(2A) inserted (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(1), Sch. 9 para. 19(23)(b)