2019 No. 336
National Health Service

The Public Health Scotland Order 2019

Made
Laid before the Scottish Parliament
Coming into force in accordance with article 1
The Scottish Ministers make the following Order in exercise of the powers conferred by sections 2(1)(b), (1A), (1B), (1C) and 105(6) and (7) of the National Health Service (Scotland) Act 19781 and all other powers enabling them to do so.

Citation and commencement1.

(1)

This Order may be cited as the Public Health Scotland Order 2019.

(2)

Subject to paragraph (3) this Order comes into force on 7 December 2019.

(3)

The following provisions of this Order come into force on 1 April 2020—

(a)

articles 6 and 7, and

(b)

paragraphs 1(2)(a) and 2 to 16 of schedule 2.

Interpretation2.

In this Order—

“the Act” means the National Health Service (Scotland) Act 1978, and

“the Board” means the Special Health Board, to be known as Public Health Scotland, which is constituted by this Order.

Constitution, name and area of the Board3.

There is constituted a Special Health Board for the whole of Scotland to be known as Public Health Scotland.

Functions of the Board4.

(1)

The Board is to exercise the following functions of the Scottish Ministers—

(a)

functions conferred by the Act in relation to—

(i)

health education, including that specified in section 42 of the Act (health education),

(ii)

the provision of research and development services in the field of public health, and

(iii)

the collection, dissemination and analysis of epidemiological data and the participation in epidemiological investigations,

(b)

examining data relating to prescriptions for drugs, medicines and appliances supplied under the arrangements for the provision of pharmaceutical services,

(c)

the provision of information services in support of the functions conferred on the Board,

(d)

the protection of public health including those specified in section 1 of the Public Health etc. (Scotland) Act 20082 (duty of Scottish Ministers to protect public health), and

(e)

functions specified in paragraph (2) subject to any limitations specified in that paragraph.

(2)

The functions specified for the purposes of paragraph (1)(e) are as follows:

(a)

the power of the Scottish Ministers under section 16 of the Act3 to assist any voluntary organisations whose activities include the provision of a service similar or related to a service provided by the Board under the Act,

(b)

the power of the Scottish Ministers to give financial assistance to voluntary organisations under section 16B of the Act4 limited to assisting such organisations to which that section would apply if the expression “relevant service” as defined in section 16B(3) were limited to the provision of services provided by the Board,

(c)

the duty of the Scottish Ministers under section 37 of the Act to make arrangements to such extent as the Board considers necessary in relation to its functions for the purposes of the prevention of illness, the care of persons suffering from illness or the after-care of such persons,

(d)

the power of the Scottish Ministers under section 43 of the Act (control of spread of infectious disease),

(e)

the duty and power of the Scottish Ministers under section 47 of the Act (educational and research facilities),

(f)

the powers of the Scottish Ministers under section 79(1) of the Act5 to take on lease or to purchase moveable property or land which is required for the purposes of the Board and to use for those purposes and manage any heritable or moveable property so acquired,

(g)

the power of the Scottish Ministers under section 79(1A) of the Act6 to dispose of land no longer required for the purposes of the Board,

(h)

the powers of the Scottish Ministers under section 84B of the Act7 (joint ventures) so far as relating to the functions of the Board,

(i)

the power of the Scottish Ministers under paragraph 4 of schedule 1 of the Act8 (health boards), as applied in relation to the Board by article 5, to pay remuneration to the chairman of the Board and to such other members of the Board and of the committees and sub-committees of the Board as may be prescribed, but this does not extend to the power—

(i)

to determine remuneration, or

(ii)

to prescribe the members of the Board and of committees and sub-committees of the Board to whom it may be paid,

(j)

the power of the Scottish Ministers under paragraph 13 of schedule 1 of the Act (health boards), as applied in relation to the Board by article 5, to pay to members of the Board, any committees and sub-committees, travelling and other allowances, but this does not extend to the power to determine the amount of such allowances, and

(k)

the powers of the Scottish Ministers referred to in section 7(1) of the Health and Medicines Act 19889 (extension of powers of secretary of state for financing the health service).

(3)

In exercising any functions of the Scottish Ministers to acquire, use, manage or dispose of land the Board must ensure—

(a)

that any instrument in connection with the exercise of those functions is in the name of the Scottish Ministers and not that of the Board, and

(b)

that, where any such instrument requires to be executed by the Scottish Ministers, and it is not executed in accordance with section 1(8) of the Reorganisation of Offices (Scotland) Act 193910, it is executed on their behalf in accordance with—

(i)

paragraph 6 of schedule 2 of the Requirements of Writing (Scotland) Act 199511, or

(ii)

regulation 5 of the Electronic Documents (Scotland) Regulations 201412.

(4)

Nothing in this Order will prevent or restrict the following persons from exercising any function under the Act or any other enactment specified in this Order—

(a)

the Scottish Ministers,

(b)

any Health Board,

(c)

any other Special Health Board,

(d)

the Common Services Agency, or

(e)

Healthcare Improvement Scotland.

(5)

Paragraph (4)(b) includes functions of a Health Board being exercised by an integrated joint board or a local authority in accordance with section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 201413 and the Public Bodies (Joint Working) (Prescribed Health Board Functions) (Scotland) Regulations 201414.

Application of enactments5.

(1)

Each of the enactments specified in column 1 of each part of schedule 1 (the subject matter of which is described generally in column 2 of each part of that schedule) applies in relation to the Board as it applies in relation to Health Boards, subject to the modifications and limitations (if any) specified in column 3 of each part of schedule 1 and to paragraph (2).

(2)

The enactments which are applied in relation to the Board by virtue of paragraph (1) are so applied only for the purposes of the exercise by the Board of its functions.

Dissolution and revocation6.

(1)

NHS Health Scotland15 is dissolved.

(2)

The following enactments are revoked—

(a)

the Health Education Board for Scotland Order 199016, and

(b)

the Health Education Board for Scotland Amendment Order 200317.

Transfer of property, rights and liabilities7.

The property and all other rights and liabilities of NHS Health Scotland will transfer to and vest in Public Health Scotland with effect from 1 April 2020.

Consequential amendments8.

Schedule 2 (consequential amendments) has effect.

JEANE FREEMAN
A member of the Scottish Government

St Andrew’s House,

Edinburgh

SCHEDULES

SCHEDULE 1Enactments applied to the Board

Article 5(1)

PART 1The Act

Column 1

Column 2

Column 3

Enactment

Nature of Provision

Modifications and Limitations (where applicable)

In the Act—

In part 1—

Organisation

In section 2—

Health Boards

Subsection (3)

Variation of area of Health Board

Subsection (4)

Provision incidental to variation of area of Health Board

Subsection (5)

Health Boards to act in accordance with regulations or directions18

Subsection (8)

Health Board to act as principal

In section 10—

Common Services Agency

Subsection (4)

Power to provide that functions of Health Boards may be referred to the Agency19

Section 12J

Co-operation with other Health Boards, Special Health Boards and the Agency20

In subsection (1) for “one another” substitute “Health Boards”.

In subsection (2)(a) for “another” substitute “a”.

Omit “other”.

In subsection (2)(b) omit “other”.

In subsection (3)(a) for “another” substitute “a”.

Section 12K

Power of Health Board to carry out other Health Board’s functions21

For “another” substitute “a”.

After “Health Board” insert “or Special Health Board” each time it appears.

Section 13

Co-operation between Health Boards and other Authorities22

After “integration joint boards” insert “, Health Boards”.

Section 13A

Co-operation in planning of services for disabled persons, the elderly and others23

After “(including HIS” insert “and Health Boards”.

In section 15—

Supply of goods and services to local authorities, etc.

Subsection (1)(b)

Supply etc. of equipment, goods or materials to local and education authorities, government departments and other public bodies

Subsection (1)(c)

Provision of services to local and education authorities24

Subsection (1)(d)

Use of health service premises by local and education authorities

Subsection (1)(e)

Use of health service vehicles etc. by local and education authorities25

Subsection (2)

Arrangements with third parties for the supply of equipment, goods and materials26

For “paragraphs (a) and” substitute “paragraph”.

Omit “(including paragraph (a)” to “subsection (1A))”.

Section 16A

Power to make payments towards expenditure on community services27

In part IV—

Powers of the Scottish Ministers

Section 77

Default powers28

Section 78B

Relationship of sections 77, 78 and 78A29

In part V—

Property and Finance

In section 79—

Purchase of land and moveable property

Subsection (3)

Power to acquire moveable property on behalf of the Scottish Ministers30

In section 83—

Power of Health Boards and local health councils to hold property on trust

Subsection (1)

Power to hold property on trust31

Subsection (1A)

Power to hold property on trust32

Section 84

Power of trustees to make payments to Health Boards33

Section 84A

Power to raise money and property by appeals, collections and other similar activities34

Section 84B

Joint ventures35

Section 85AA

Means of meeting expenditure of health boards out of public funds36

In section 85A

Financial duties of bodies referred to in section 85

Subsection (4)

Disregard for the purposes of the section of certain trust funds37

Section 86

Provision in relation to the keeping and auditing of accounts and their submission to the Scottish Ministers38

Section 87

Power to make regulations as to financial arrangements of health service bodies39

In schedule 1–

Health Boards

Paragraph 1

Health Boards to be bodies corporate and have a common seal

In paragraph 2

Appointment of Chairman and members40

Sub-paragraph (1)

Health Boards to consist of certain types of members

In sub-paragraph 1(b), omit “following nomination” to the end.

Paragraph 3A

Chairman may not be an employee of that Health Board41

Paragraph 4

Payment of remuneration to the Chairman and such members of Health Boards as may be prescribed42

Paragraph 5

Employment of officers and servants43

Paragraph 5A

Provision concerning regulations and directions made under paragraph 5 above44

Paragraph 6

Power to make regulations as to method of appointment, qualifications, remuneration and conditions of service of officers and servants

Paragraph 7

Officers and servants employed in accordance with regulations and directions45

Paragraph 7A

Power to make regulations providing for transfer of officers and servants46

In sub-paragraph (a) for “another” substitute “a”. After sub-paragraph (a), insert “(aa) another Special Health Board;”.

Paragraph 7B

Directions to Health Boards to place officers or servants at disposal of other bodies47

Paragraph 11

Power to make regulations as to appointments, committees and procedure48

Paragraph 11A

Subscription to funds of other bodies49

Paragraph 12

Proceedings not to be invalidated by vacancies50

Paragraph 13

Payment to members of a Health Board and its committees and sub-committees of travelling and other allowances, including compensation for loss of remunerative time

Omit “, including compensation for loss of remunerative time,”.

Paragraph 14

Allowances not payable except in circumstances determined by the Scottish Ministers

Paragraph 15

Time and method of payment of allowances

In schedule 5—

The Agency

Paragraph 7B

Power to make regulations providing for the transfer of officers and servants51

Paragraph 7C

Power to make directions as to placing of staff with other bodies52

PART 2Acts other than the Act

Column 1

Column 2

Column 3

Enactment

Nature of Provision

Modifications and Limitations (where applicable)

The Public Bodies (Admission to Meetings) Act 196053

Admission of the public to meetings

Requirements of Writing (Scotland) Act 199554

Where they have delegated any function relating to the acquisition, management or disposal of land, power of the Scottish Ministers to authorise any officer of a Health Board to sign a document on their behalf

Schedule 2, paragraph 6

PART 3Enactments other than Acts of Parliament

Column 1

Column 2

Column 3

Enactment

Nature of Provision

Modifications and Limitations (where applicable)

The National Health Service (Professions Supplementary to Medicine) (Scotland) Regulations 197455

Prohibits employment for provision of services under the National Health Service of certain health professionals unless they are registered under the Health and Social Work Professions Order 2001

The National Health Service (Financial Provisions) (Scotland) Regulations 197456

Preparation of estimates of income and expenditure and accounts of Health Boards and related matters of a financial nature

Limited to exclude the application of any provisions which relate to Local Health Councils or the Common Services Agency.

The National Health Service (Remuneration and Conditions of Service) (Scotland) Regulations 199157

The determination of remuneration and conditions of service of officers of Health Boards

The Health Boards (Membership and Procedure) (Scotland) Regulations 200158

Provision as to the membership of, and procedure to be applied by, Health Boards

The Electronic Documents (Scotland) Regulations 201459

Where they have delegated any function relating to the acquisition, management or disposal of land, power of the Scottish Ministers to authorise any officer of a Health Board to authenticate an electronic document on their behalf

Regulation 5

SCHEDULE 2Consequential Amendments

Article 8

PART 1Acts

The Ethical Standards in Public Life etc. (Scotland) Act 2000

1.

(1)

The Ethical Standards in Public Life etc. (Scotland) Act 200060 is amended as follows.

(2)

In paragraph 1 of schedule 3 (devolved public bodies)—

(a)

omit the entry for “NHS Health Scotland”, and

(b)

after “The Poverty and Inequality Commission” insert “Public Health Scotland”.

The Freedom of Information (Scotland) Act 2002

2.

(1)

The Freedom of Information (Scotland) Act 200261 is amended as follows.

(2)

In Part 4 (the national health service) of schedule 1 (Scottish public authorities)—

(a)

omit paragraph 32B, and

(b)

after paragraph 35 insert—

“35A.

Public Health Scotland.”

The Public Appointments and Public Bodies etc. (Scotland) Act 2003

3.

(1)

The Public Appointments and Public Bodies etc. (Scotland) Act 200362 is amended as follows.

(2)

In schedule 2 (the specified authorities) under the heading “National Health Service bodies”, in the entry for “any Special Health Board” omit paragraph (iv) and the “or” immediately preceding it.

The Civil Contingencies Act 2004

4.

(1)

The Civil Contingencies Act 200463 is amended as follows.

(2)

In Part 4 (category 2 responders: Scotland) of schedule 1 (category 1 and 2 responders), after paragraph 38 insert—

“38A.

Public Health Scotland constituted by the Public Health Scotland Order 201964.”.

The Local Electoral Administration and Registration Services (Scotland) Act 2006

5.

(1)

The Local Electoral Administration and Registration Services (Scotland) Act 200665 is amended as follows.

(2)

In section 57 (keeping of central register for health and local authority purposes)—

(a)

in subsection (1) after “Health Boards,” insert “Public Health Scotland,”, and

(b)

in subsection (2)(b) after “Health Board” insert “, Public Health Scotland”.

The Public Health etc. (Scotland) Act 2008

6.

(1)

The Public Health etc. (Scotland) Act 200866 is amended as follows.

(2)

In section 15 (notifiable diseases and health risk states: duties on health boards)—

(a)

in subsection (1) after “common services agency”, insert “and Public Health Scotland”, and

(b)

in subsection (5)(a) after “common services agency”, insert “and Public Health Scotland”.

(3)

In section 16(5) (notifiable organisms: duties on directors of diagnostic laboratories)—

(a)

in paragraph (a) omit “and”,

(b)

in paragraph (b) for “agency.” substitute “agency; and”, and

(c)

after paragraph (b) insert—

“(c)

Public Health Scotland.”.

(4)

In section 21(2) (public health investigations) after paragraph (c) insert—

“(ca)

Public Health Scotland;”.

The Certification of Death (Scotland) Act 2011

7.

(1)

The Certification of Death (Scotland) Act 201167 is amended as follows.

(2)

In section 24(1)(b) (fees in respect of medical reviewer functions) for “the Common Services Agency for the Scottish Health Service” substitute “Public Health Scotland”.

(3)

In section 31 (interpretation) after the definition of “medical reviewer” insert—
““Public Health Scotland” means the Special Health Board of that name constituted by the Public Health Scotland Order 201968;”.

The Islands (Scotland) Act 2018

8.

(1)

The Islands (Scotland) Act 201869 is amended as follows.

(2)

In the schedule (duties in relation to island communities: relevant authorities)—

(a)

Omit paragraph 49, and

(b)

After paragraph 57 insert—

“57A.

Public Health Scotland.”.

PART 2Enactments other than Acts of Parliament

The Abortion (Scotland) Regulations 1991

9.

(1)

The Abortion (Scotland) Regulations 199170 are amended as follows.

(2)

In regulation 5(a) (restriction on disclosure of information) for “the Common Services Agency for the Scottish Health Service” substitute “Public Health Scotland”.

The National Health Service Central Register (Scotland) Regulations 2006

10.

(1)

The National Health Service Central Register (Scotland) Regulations 200671 are amended as follows.

(2)

In schedule 1 (additional information which may be contained in an entry in, and obtained from persons or places to create and maintain, the register), in the table, in entry 4(a)(i) in column (1), for “the Common Services Agency” substitute “Public Health Scotland”.

The Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009

11.

(1)

The Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 200972 are amended as follows.

(2)

In paragraph 6(6)(a)(iv) (duties of drivers, escort commanders, masters, carriers and consignors in the event of a radiation emergency) of part 1 (radiation emergencies) of schedule 2 (radiation emergencies and notifiable events) for “Health Protection Scotland” substitute “Public Health Scotland”.

The Public Water Supplies (Scotland) Regulations 2014

12.

(1)

The Public Water Supplies (Scotland) Regulations 201473 are amended as follows.

(2)

In regulation 38(1)(c) (notification of health risk events) for “Health Protection Scotland” substitute “Public Health Scotland”.

The Climate Change (Duties of Public Bodies: Reporting Requirements) (Scotland) Order 2015

13.

(1)

The Climate Change (Duties of Public Bodies: Reporting Requirements) (Scotland) Order 201574 is amended as follows.

(2)

In schedule 1 (listed bodies) under the heading “National health service” after “NHS Education for Scotland” insert “Public Health Scotland”.

The National Health Service (General Medical Services Contracts) (Scotland) Regulations 2018

14.

(1)

The National Health Service (General Medical Services Contracts) (Scotland) Regulations 201875 are amended as follows.

(2)

In paragraph 7(c) (storage of vaccines) of schedule 6 (other contractual terms) for “Health Protection Scotland” substitute “Public Health Scotland”.

The National Health Service (Primary Medical Services Section 17C Agreements) (Scotland) Regulations 2018

15.

(1)

The National Health Service (Primary Medical Services Section 17C Agreements) (Scotland) Regulations 201876 are amended as follows.

(2)

In paragraph 5(c) (storage of vaccines) of schedule 1 (content of agreements) for “Health Protection Scotland” substitute “Public Health Scotland”.

The Radiation (Emergency Preparedness and Public Information) Regulations 2019

16.

(1)

The Radiation (Emergency Preparedness and Public Information) Regulations 201977 are amended as follows.

(2)

In regulation 10(5)(f)(ii) (operator’s emergency plan) for “Health Protection Scotland” substitute “Public Health Scotland”.

(3)

In regulation 11(5)(g)(ii) (local authority’s off-site emergency plan) for “Health Protection Scotland” substitute “Public Health Scotland”.

EXPLANATORY NOTE
(This note is not part of the Order)

This Order constitutes, under article 3, a Special Health Board for the whole of Scotland to be known as Public Health Scotland (the “Board”). In accordance with article 1 the Order comes into force on 7 December 2019, except articles 6 and 7, which relate to the dissolution of the Special Health Board known as NHS Health Scotland, and the consequential amendments in paragraphs 1(2)(a) and 2 to 16 of schedule 2, which come into force on 1 April 2020.

Article 4 of the Order confers on the new Board functions in relation to:

  • health education, including that specified in section 42 of the National Health Service (Scotland) Act 1978 (“the Act”),

  • the provision of research and development services in the field of public health,

  • the collection, dissemination and analysis of epidemiological data and the participation in epidemiological investigations,

  • examining data relating to prescriptions for drugs, medicines and appliances supplied under the arrangements for the provision of pharmaceutical services,

  • the provision of information services in support of the functions conferred on the Board, and

  • the protection of public health including those specified in section 1 of the Public Health etc. (Scotland) Act 2008.

Article 4 also enables the Board to exercise in connection with its functions, certain functions of the Scottish Ministers, such as the giving of assistance to voluntary organisations, the duty to make arrangements for the purposes of the prevention of illness and in connection with the acquisition, management and disposal of property.

Article 5 and schedule 1 apply various provisions to the Board in enactments which apply to Health Boards in general. These include provisions as to the funding of Health Boards and the keeping and auditing of accounts, provisions in schedule 1 of the Act including those for appointment and remuneration of Board members and staff and other provisions in statutory instruments relating to Health Boards.

Article 6 dissolves the Special Health Board known as NHS Health Scotland and revokes the enactments relating to its constitution.

Article 7 provides that the property and all other rights and liabilities of NHS Health Scotland will transfer to and vest in Public Health Scotland with effect from 1 April 2020.

Article 8 gives effect to the consequential amendments in schedule 2.