National Health Service and Community Care Act 1990

Part I E+W+S The National Health Service: England and Wales

Local management E+W

1 Regional and District Health Authorities. E+W

F1 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) [F2 In the M1 National Health Service Act 1977 (in this Part of this Act referred to as “the principal Act”), Part III of Schedule 5] (supplementary provisions as to authorities) shall be amended in accordance with Part III of Schedule 1 to this Act.

F1 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 S. 1(1)(2)(4)(5) repealed (1.4.1996) by 1995 c. 17, ss. 2(1)(3), 5, Sch. 3 (with Sch. 2 paras. 6, 16)

F2 Words in s. 1(3) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II paras. 65, 66 (with Sch. 2 paras. 6, 16)

Marginal Citations

M1 1977 c. 49.

F3 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W

Textual Amendments

F3 S. 2 repealed (1.4.1996) by 1995 c. 17, s. 5(1)(2), Sch. 3

3 Primary and other functions of health authorities etc. and exercise of functions. E+W

[F4 (1) Any reference in this Act to the primary functions of a Health Authority or Special Health Authority is a reference to those functions for the time being exercisable by the Health Authority or Special Health Authority by virtue of—

(a) directions under section [F5 16D] of the principal Act;

(b) section 15 or Part II of the principal Act; or

(c) any provision of this Act (apart from subsection (2) below).]

(2) In addition to carrying out its primary functions, a [F6 Health Authority or Special Health Authority] may, as the provider, enter into an NHS contract (as defined in section 4 below) under which the goods or services to be provided are of the same description as goods or services which the [F6 Health Authority or Special Health Authority] already provides or could provide for the purposes of carrying out its primary functions.

(3) In section 16 of the principal Act (exercise of functions), in subsection (1) for the words from “an Area”, in the first place where they occur, to “Health Authority” in the second place where those words occur, there shall be substituted “a Regional or District Health Authority, or exercisable by a Regional or District Health Authority by virtue of any prescribed provision of this or any other Act, or exercisable by a Family Health Services Authority under Part I of the National Health Service and Community Care Act 1990”.

(4) In section 17 of the principal Act (directions as to exercise of functions), in subsection (1) after the words “sections 13 to 16 above” there shall be inserted “and may also give directions with respect to the exercise by health authorities or Family Health Services Authorities of functions under the National Health Service and Community Care Act 1990”.

(5) Nothing in this section or in the principal Act affects the power of a [F7 Health Authority or Special Health Authority] at any time to provide goods or services under the principal Act for the benefit of an individual where—

(a) the provision of those goods or services is neither within the primary functions of the [F7 Health Authority or Special Health Authority] nor carried out pursuant to an NHS contract; but

(b) 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.

(6) In any case where—

(a) a [F8 Health Authority or Special Health Authority] provides goods or services for the benefit of an individual as mentioned in subsection (5) above, and

(b) the provision of those goods or services is within the primary functions of another [F8 authority which is a Health Authority or Special Health Authority] or is a function of a health board,

[F8 the Health Authority or Special Health Authority] providing the goods or services shall be remunerated in respect of that provision by that [F8 other authority] or health board.

[F9 (6A) The reference in subsection (6) above to a function of a health board shall, in relation to a Health and Social Services Board constituted under the Health and Personal Social Services (Northern Ireland) Order 1972, be construed as a reference to a primary function of such a Board within the meaning of Article 9 of the Health and Personal Social Services (Northern Ireland) Order 1991.]

(7) The rate of any remuneration payable by virtue of subsection (6) above shall be calculated in such manner or on such basis as may be determined by the Secretary of State.

(8) In any case where—

(a) a [F10 Health Authority or Special Health Authority] provides goods or services for the benefit of an individual, and

(b) the provision of those goods or 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 [F10 Health Authority or Special Health Authority] shall be remunerated by the Secretary of State in respect of the provision of the goods or services in question at such rate or rates as he considers appropriate.

Textual Amendments

F4 S. 3(1) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 67(a) (with Sch. 2 paras. 6, 16)

F5 Words in s. 3(1)(a) substituted (1.9.1999 for E. and 1.12.1999 for W.) by 1999 c. 8, s. 65, Sch. 4 paras. 74, 75; S.I. 1999/2342, art. 2(1), Sch. 1; 1999/3184, art. 2(2), Sch. 2

F6 Words in s. 3(2) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 67(b) (with Sch. 2 paras. 6, 16)

F7 Words in s. 3(5) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 67(c) (with Sch. 2 paras. 6, 16)

F8 Words in s. 3(6) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 67(d) (with Sch. 2 paras. 6, 16)

F9 S. 3(6A) inserted (1.4.1991) by S.I. 1991/195, art. 7 (2).

F10 Words in s. 3(8) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 67(e) (with Sch. 2 paras. 6, 16)

4 NHS contracts. E+W

(1) In this Act the expression “NHS contract” means an arrangement under which one health service body (“the acquirer”) arranges for the provision to it by another health service body (“the provider”) of goods or services which it reasonably requires for the purposes of its functions.

(2) In this section “health service body” means any of the following, namely,—

[F11 (za) a Strategic Health Authority;]

[F12 (a) a Health Authority;

F12 (aa) a Special Health Authority;]

(b) a health board;

[F13 (bb) a Primary Care Trust]

[F14 (bbb) a Local Health Board;]

(c) the Common Services Agency for the Scottish Health Service;

F15 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) an NHS trust;

[F16 (f) a recognised fund-holding practice;]

[F17 (ff) the [F18 Commission for Healthcare Audit and Inspection]]

(g) the Dental Practice Board or the Scottish Dental Practice Board;

(h) the Public Health Laboratory Service Board; F19 . . .

(i) the Secretary of State

[F20 (j) the Northern Ireland Central Services Agency for the Health and Social Services established under the Health and Personal Social Services (Northern Ireland Order 1972;

(k) a special health and social services agency established under the Health and Personal Social Services (Special Agencies) (Northern Ireland) Order 1990;

(l) a Health and Social Services trust established under the Health and Personal Social Services (Northern Ireland) Order 1991; and

(m) the Department of Health and Social Services for Northern Ireland.]

(3) 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.

(4) If, in the course of negotiations intending to lead to an arrangement which will be an NHS contract, it appears to a health service body—

(a) that the terms proposed by another health service body are unfair by reason that the other 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) that for any other reason arising out of the relative bargaining position of the prospective parties any of the terms of the proposed arrangement cannot be agreed,

that health service body may refer the terms of the proposed arrangement to the Secretary of State for determination under the following provisions of this section.

(5) Where a reference is made to the Secretary of State under subsection (3) or subsection (4) above, 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.

(6) By his determination of a reference under subsection (4) above, the Secretary of State or, as the case may be, the person appointed under subsection (5) above may specify terms to be included in the proposed arrangement and may direct that it be proceeded with; F21 . . .

(7) a determination of a reference under subsection (3) above may contain such directions (including directions as to a payment) as the Secretary of State or, as the case may be, the person appointed under subsection (5) above considers appropriate to resolve the matter in dispute; F21 . . .

(8) Without prejudice to the generality of his powers on a reference under subsection (3) above, the Secretary of State or, as the case may be, the person appointed under subsection (5) above 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 an arrangement is so varied or brought to an end—

(a) subject to paragraph (b) below, the variation or termination shall be treated as being effected by agreement between the parties; and

(b) the directions included in the determination by virtue of subsection (7) above may contain such provisions as the Secretary of State or, as the case may be, the person appointed under subsection (5) above considers appropriate in order satisfactorily to give effect to the variation or to bring the arrangement to an end.

(9) In subsection (2) above “NHS trust” includes—

(a) such a trust established under the M2 National Health Service (Scotland) Act 1978; F22 . . .

F22 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F23 (10) Where a Health and Social Services Board constituted under the Health and Personal Social Services (Northern Ireland) Order 1972 or a body mentioned in subsection (2)(j), (k), (1) or (m) above is a party or prospective party to an arrangement or proposed arrangement which—

(a) falls within the definition of NHS contract in subsection (1) above; and

(b) also falls within the definition of HSS contract in Article 8 of the Health and Personal Social Services (Northern Ireland) Order 1991,

subsections (3) to (8) above shall apply in relation to that arrangement or proposed arrangement with the substitution for references to the Secretary of State of references to the Secretary of State and the Department of Health and Social Services for Northern Ireland acting jointly.]

Textual Amendments

F11 S. 4(2)(za) inserted (1.10.2002) by 2002 c. 17, s. 1(3), Sch. 1 Pt. 2 para. 40; S.I. 2002/2478, art. 3(1)(c) (with art. 3(3) and transitional provision in art. 4)

F12 S. 4(2)(a) and (aa) substituted (1.4.1996 subject to s. 8 of the amending Act) for s. 4(2)(a) by 1995 c. 17, ss. 2(1)(3), Sch. 1 para. 68(a) (with Sch. 2 paras. 6, 16)

F13 S. 4(2)(bb) inserted (4.1.2000) by 1999 c. 8, s. 65(1), Sch. 4 paras. 74, 76(a)(ii); S.I. 1999/2342, art. 2(3)(b)(i)

F14 S. 4(2)(bbb) inserted (10.10.2002 for W. and otherwise in force immediately before the National Health Service Act 2006 (c. 41) (which Act came into force on 1.3.2007 in accordance with s. 227(1) (subject to s. 277(2)-(5) of that Act))) by 2002 c. 17, ss. 6(2), 42(3), Sch. 5 para. 31; S.I. 2002/2532, art. 2, Sch; S.I. 2006/1407, arts. 1(1), 2, Sch. 1 Pt. 2 {para. 12(c)}

F15 S. 4(2)(d) repealed (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, ss. 2(1)(3), 5(1)(2), Sch. 1 para. 68(b), Sch. 3 (with Sch. 2 paras. 6, 16)

F16 S. 4(2)(f) repealed (E.) (1.10.1999) by 1999 c. 8, s. 65(2), Sch. 5; S.I. 1999/2540, art. 2(1)(a), Sch. 1

F17 S. 4(2)(ff) inserted (1.11.1999) by 1999 c. 8, s. 65(1), Sch. 4 paras. 74, 76(a)(ii); S.I. 1999/2793, art. 1(2)(b), Sch. 2

F18 Words in s. 4(2)(ff) substituted (11.11.2004) by The Health and Social Care (Community Health and Standards) Act 2003 (Commission for Healthcare Audit and Inspection and Commission for Social Care Inspection) (Consequential Provisions) Order 2004 (S.I. 2004/2987), art. 2(1)(c)

F19 Word at end of s. 4(2)(h) repealed (1.4.1991) by S.I. 1991/195, art. 7(3)

F20 S. 4(2)(j)(k)(l)(m) added (1.4.1991) by S.I. 1991/195, art. 7(3)

F21 Words in s. 4(6)(7) omitted (1.9.1999 (E.) and 1.12.1999 (W.)) by virtue of 1999 c. 8, s. 65(1), Sch. 4 paras. 74, 76(b); S.I. 1999/2342, art. 2(1), Sch. 5; S.I. 1999/3184, art. 2(2), Sch. 2; and those same words expressed to be repealed (1.4.2000) by 1999 c. 8, s. 65(2), Sch. 5; S.I. 2000/1041, art. 2(d), Sch.

F22 S. 4(9)(b) and word in s. 4(9)(a) repealed (1.4.1991) by S.I. 1991/195, art. 7(4)

F23 S. 4(10) added (1.4.1991) by S.I. 1991/195, art. 7(5)

Modifications etc. (not altering text)

C1 S. 4 extended (11.5.1998) by 1997 c. 46, s. 16(5); S.I. 1998/631, art. 2(2)

C2 S. 4 modified (8.3.2002 for E. and 1.7.2002 for W.) by 2001 c. 15, s. 33(5), (with ss. 64(9), 65(4)); S.I. 2002/1095, art. 2(4); S.I. 2002/1475, art. 2(1), Sch. Pt. 1

C3 S. 4(5) modified (E.) (17.3.2004) by The General Medical Services Transitional and Consequential Provisions Order 2004 (S.I. 2004/433), art. 43

C4 S. 4(5) modified (W.) (17.3.2004) by The General Medical Services Transitional and Consequential Provisions (Wales) Order 2004 (S.I. 2004/477), art. 43

C5 S. 4(8) applied (W.) (1.3.2004) by The National Health Service (General Medical Services Contracts) (Wales) Regulations 2004 (S.I. 2004/478), reg. 100(2)

Commencement Information

I1 S. 4(1)(2)(5)(6)(9) brought into force 6.3.1991 (in so far as they relate to a reference under s. 4(4)) by S.I. 1991/388

I2 S. 4(4) brought into force 6.3.1991 by S.I. 1991/388

Marginal Citations

M2 1978 c. 29.

[F24 4A Provision of certain services under NHS contracts. E+W

(1) This section applies to any arrangement under which [F25 a Strategic Health Authority,][F26 a Primary Care Trust,] a Health Authority 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 the principal Act.

(2) Any such arrangement is to be treated as an NHS contract for the purposes of section 4 (other than subsections (4) and (6)).

(3) In this section—

• “health service body” means a body which is a health service body for the purposes of section 4;

• “ophthalmic list” means a list published in accordance with regulations made under—

  (a)

  section [F27 39(1)(a)] of the principal Act;

  (b)

  section 26(2)(a) of the M3 National Health Service (Scotland) Act 1978; or

  (c)

  Article 62(2)(a) of the M4 Health and Personal Social Services (Northern Ireland) Order 1972; and

• “pharmaceutical list” means a list published in accordance with regulations made under—

  (a)

  section 42(2)(a) of the principal Act;

  (b)

  section 27(2) of the National Health Service (Scotland) Act 1978; or

  (c)

  Article 63(2A)(a) of the 1972 Order.]

Textual Amendments

F24 S. 4A inserted (1.9.1997) by 1997 c. 46, s. 31(1); S.I. 1997/1780,

F25 Words in s. 4A(1) inserted (1.10.2002) by 2002 c. 17, s. 1(3), Sch. 1 Pt. 2 para. 41; S.I. 2002/2478, art. 3(1)(c) (with art. 3(3) and transitional provision in art. 4)

F26 Words in s. 4A(1) inserted (1.10.2002) by 2002 c. 17, s. 2(5), Sch. 2 Pt. 2 para. 54; S.I. 2002/2478, art. 3(1)(d) (with art. 3(3) and transitional provision in art. 4)

F27 Words in s. 4A(3) substituted (1.7.2002) by virtue of 2001 c. 15, s. 67, Sch. 5 Pt. 1 para. 8 (with ss. 64(9), 65(4)); S.I. 2002/1475, art. 2, Sch. Pt. 1

Marginal Citations

M3 1978 c. 29.

M4 S.I. 1972/1265 (N.I.14).

National Health Service trusts E+W

5 NHS trusts. E+W

(1) Subject to subsection (2) F28 . . . below 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), [F29 to provide goods and services for the purposes of the health service].

[F30 (2) No order shall be made under subsection (1) above until after the completion of such consultation as may be prescribed.]

(5) 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 2 to this Act, executive and non-executive directors (that is to say, directors who, subject to subsection (7) below, respectively are and are not employees of the trust); and

(b) shall have the functions conferred on it by an order under subsection (1) above and by Schedule 2 to this Act.

[F31 (6) The functions which may be specified in an order under subsection (1) above include a duty to provide goods or services so specified at or from a hospital or other establishment or facility so specified.]

[F32 (6A) The functions of an NHS trust also include power to provide services in accordance with arrangements made under section 28C of the principal Act, and to do so as a member of a qualifying body (within the meaning of section 28D of that Act).]

(7) The Secretary of State may by regulations 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 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); and

(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)

[F33 and, without prejudice to the generality of the power, any such regulations, may make provision to deal with cases where the post of any officer of an NHS trust is held jointly by two or more persons or where the functions of such an officer are in any other way performed by more than one person.]

(8) Part I of Schedule 2 to this Act shall have effect with respect to orders under subsection (1) above; Part II of that Schedule shall have effect, subject to subsection (9) below, 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.

[F34 (9) A power conferred by paragraph 14 or 15 of Part II of Schedule 2 to this Act may only be exercised—

(a) to the extent that its exercise does not to any significant extent interfere with the performance by the NHS trust of its functions or of its obligations under NHS contracts, and

(b) in circumstances specified in directions under section 17 of the principal Act, with the consent of the Secretary of State.]

(10) The Secretary of State may by order made by statutory instrument confer on NHS trusts specific powers additional to those contained in paragraphs 10 to 15 of Schedule 2 to this Act.

Textual Amendments

F28 Words in s. 5(1) repealed (1.4.2000) by 1999 c. 8, ss. 65, Sch. 5; S.I. 2000/1041, art. 2, Sch.

F29 Words in s. 5(1) substituted (retrospectively) for s. 5(1)(a)(b) by 1999 c. 8, s. 13(1)(10); S.I. 1999/2540, art. 2(1)(a), Sch. 1; S.I. 1999/3184, art. 2(1), Sch. 1

F30 S. 5(2) substituted (1.4.1996 subject to s. 8 of the amending Act) for s. 5(2)-(4) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 69(b) (with Sch. 2 paras. 6, 16)

F31 S. 5(6) substituted (retrospectively) by 1999 c. 8, s. 13(1)(10); S.I. 1999/2540, art. 2(1)(a), Sch. 1; S.I. 1999/3184, art. 2(1), Sch. 1

F32 S. 5(6A) inserted (1.4.2004 for E. for specified purposes and otherwise 1.12.2005 for E. and 1.12.2005 for W. for specified purposes and otherwise to the extent not already in force immediately before the National Health Service Act 2006 (c. 41) (which Act came into force on 1.3.2007 in accordance with s. 227(1) (subject to s. 277(2)-(5) of that Act))) by 1997 c. 46, s. 41, Sch. 2 para. 65(2); S.I. 2004/287, arts. 1(2), 2(2)(b); S.I. 2005/2926, arts. 1(2)(3), 2(b), 3(c); S.I. 2006/1407, arts. 1(1)(2), 2, Sch. 1 Pt. 2 para. 3

F33 S. 5(7): the words from “and, without prejudice” onwards follow (rather than form part of) paragraph (f) (1.4.1996 subject to s. 8 of the amending Act) by virtue of 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 69(d) (with Sch. 2 paras. 6, 16)

F34 S. 5(9) substituted (1.10.1999 for E. and 1.11.1999 for W.) by 1999 c. 8, s. 14; S.I. 1999/2540, art. 2(1)(a), Sch. 1; S.I. 1999/3184, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C6 S. 5(1) extended (11.5.2001 for specified purposes, 19.12.2001 for E. for all purposes and otherwise in force immediately before the National Health Service Act 2006 (c. 41) (which Act came into force on 1.3.2007 in accordance with s. 227(1) (subject to s. 277(2)-(5) of that Act))) by 2001 c. 15, ss. 45(5), 70 (with ss. 64(9), 65(4)); S.I. 2001/4149, art. 2(a); S.I. 2006/1407, Sch. 1 Pt. 2 para. 8(a). The amendment was superseded by the repeal of s. 5 on 1.3.2007 by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 6, 8(2), Sch. 4

6 Transfer of staff to NHS trusts. E+W

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

(a) is employed by a [F35 Health Authority ,][F36 Special Health Authority or Primary Care Trust] to work solely at, or for the purposes of, a hospital or other establishment or facility which is to become the responsibility of the [F37 NHS] trust; or

(b) is employed by a [F35 Health Authority,][F36 Special Health Authority or Primary Care Trust] to work at, or for the purposes of, such a hospital, establishment or facility and is designated for the purposes of this section by a scheme made by the [F35 Health Authority,][F36 Special Health Authority or Primary Care Trust] specified as mentioned in paragraph 3(1)(f) of Schedule 2 to this Act.

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

(3) Subject to section 7 below, the contract of employment between a person to whom this section applies and the [F35 Health Authority,][F36 Special Health Authority or Primary Care Trust] by whom he is employed shall have effect from the operational date as if originally made between him and the NHS trust.

(4) Without prejudice to subsection (3) above—

(a) all the [F38 rights, powers, duties and liabilities of the Health Authority,][F36 Special Health Authority or Primary Care Trust] 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 [F35 Health Authority,][F36 Special Health Authority or Primary Care Trust] 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 5(1) above provides for the establishment 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 [F35 Health Authority,][F36 Special Health Authority or Primary Care Trust] 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) above 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) above 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

F35 Words in s. 6 substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 para. 70(a) (with Sch. 2 paras. 6, 16)

F36 Words in s. 6 substituted (4.1.2000 for E. and otherwise in force immediately before the National Health Service Act 2006 (which Act came into force on 1.3.2007 in accordance with s. 277(1) (subject to s. 277(2)-(5)) of that Act))) by the Health Act 1999 (c. 8), ss. 65, 67(1), Sch. 4 paras. 74, 77(a); S.I. 1999/2342, art. 2(3), Sch. 2; S.I. 2006/1407, arts. 1(1), Sch. 1 Pt. 2 {para. 6(b)}

F37 Words in s. 6(1)(a) inserted (4.1.2000 for E. and otherwise in force immediately before the National Health Service Act 2006 (which Act came into force on 1.3.2007 in accordance with s. 277(1) (subject to s. 277(2)-(5)) of that Act))) by the Health Act 1999 (c. 8), ss. 65, 67(1), Sch. 4 paras. 74, 77(b); S.I. 1999/2342, art. 2(3), Sch. 2; S.I. 2006/1407, arts. 1(1), Sch. 1 Pt. 2 {para. 6(b)}

F38 Words in s. 6(4)(a) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 para. 70(b) (with Sch. 2 paras. 6, 16)

7 Supplementary provisions as to transfer of staff. E+W

(1) In the case of a person who falls within section 6(1)(b) above, 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 [F39 Health Authority,][F40 Special Health Authority or Primary Care Trust] by whom he was employed before that date (in this section referred to as “the transferor authority”).

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

(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 6 above shall apply in relation to the contract referred to in subsection (1)(a) above 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) above shall be regarded as a continuation of the employee’s original contract; F41 . . .

F41 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where, as a result of the provisions of section 6 above, by virtue of his employment during any period after the operational date of the NHS trust,—

(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 trust under [F42 Part XI of the Employment Rights Act 1996] (redundancy payments),

any benefits provided to him by virtue of the contractual rights referred to in paragraph (a) above shall be taken as satisfying his entitlement to benefits under [F42 that Part of that Act].

Textual Amendments

F39 Words in s. 7(1)(b) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 71 (with Sch. 2 paras. 6, 16)

F40 Words in s. 7(1)(b) substituted (4.1.2000 for E. and otherwise in force immediately before the National Health Service Act 2006 (which Act came into force on 1.3.2007 in accordance with s. 277(1) (subject to s. 277(2)-(5)) of that Act))) by the Health Act 1999 (c. 8), ss. 65, 67(1), Sch. 4 paras. 74, 78; S.I. 1999/2342, art. 2(3), Sch. 2; S.I. 2006/1407, arts. 1(1), Sch. 1 Pt. 2 {para. 6(b)}

F41 In s. 7(2), para. (d) and the word "and" immediately preceding it repealed (6.2.1995) by S.I. 1995/31, reg. 6, Sch.

F42 Words in s. 7(3) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 45(2)

8 Transfer of property, rights and liabilities to NHS trust. E+W

(1) The Secretary of State may by order transfer or provide for the transfer to an NHS trust, with effect from [F43 any] date as may be specified in the order, of [F43 any] of the property, rights and liabilities of a [F44 Strategic Health Authority,][F45 Health Authority, Special Health Authority [F46 , Primary Care Trust or Local Health Board ]] or of the Secretary of StateF47 . . . .

(2) An order under this section may create or impose such new rights or liabilities in respect of what is transferred or what is retained by a [F44 Strategic Health Authority,][F48 Health Authority, Special Health Authority [F46 , Primary Care Trust or Local Health Board]] or the Secretary of State as appear to him to be necessary or expedient.

(3) Nothing in this section affects the power of the Secretary of State or any power of a [F44 Strategic Health Authority,][F48 Health Authority, Special Health Authority [F46 , Primary Care Trust or Local Health Board]] to transfer property, rights or liabilities to an NHS trust otherwise than under subsection (1) above.

(4) Stamp duty shall not be chargeable in respect of any transfer to an NHS trust effected by or 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 a [F44 Strategic Health Authority,][F48 Health Authority, Special Health Authority [F46 , Primary Care Trust or Local Health Board]], 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.

[F49 (6) Any property, rights and liabilities which—

(a) belong to, or are used or managed by, a [F44 Strategic Health Authority,]Health Authority [F50 , Local Health Board] or Special Health Authority or belong to a Primary Care Trust, and

(b) are to be transferred to an NHS trust by or by virtue of an order under this section,

must be identified by agreement between the [F44 Strategic Health Authority,] Health Authority, Special Health Authority [F51 , Primary Care Trust or Local Health Board] and the NHS trust 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, rights or liabilities, the order may contain such provisions as appear to the Secretary of State to be appropriate for the purpose; and where any such property or rights fall within subsection (5) above, 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) In the case of any transfer made by or pursuant to an order under this section, a certificate issued by the Secretary of State that any property specified in the certificate or any such interest in or right over any such property as may be so specified, or any right or liability so specified, is vested in the NHS trust specified in the order shall be conclusive evidence of that fact for all purposes.

(9) Without prejudice to subsection (4) of section 126 of the principal Act, 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

F43 Words in s. 8(1) substituted (1.11.1999 for W. and 4.1.2000 for E.) by 1999 c. 8, s. 65, Sch. 4 para. 79(1)(2)(a); S.I. 1999/2342, art. 2(3), Sch. 2; S.I. 1999/3184 art. 2(1), Sch. 1

F44 Words in s. 8 inserted (1.10.2002) by 2002 c. 17, ss. 1(3), 42(3), Sch. 1 Pt. 2 para. 42; S.I. 2002/ 2478, art. 3(1)(c) (with art. 3(3) and transitional provision in art. 4)

F45 Words in s. 8(1) substituted (4.1.2000 for E. and otherwise in force immediately before the National Health Service Act 2006 (which Act came into force on 1.3.2007 in accordance with s. 277(1) (subject to s. 277(2)-(5)) of that Act))) by the Health Act 1999 (c. 8), ss. 65(1), 67(1), Sch. 4 paras. 74, 79(1)(2)(b); S.I. 1999/2342, {art. 2(3), Sch. 2}; S.I. 2006/1407, arts. 1(1)(2), Sch. 1 Pt. 2 {para. 6(b)}

F46 Words in s. 8(1)(2)(3)(5) substituted (10.10.2002 for W. and otherwise in force immediately before the National Health Service Act 2006 (c. 41) (which Act came into force on 1.3.2007 in accordance with s. 227(1) (subject to s. 277(2)-(5) of that Act))) by 2002 c. 17, ss. 6(2), 42(3), Sch. 5 para. 32(a); S.I. 2002/2532, art. 2, Sch; S.I. 2006/1407, arts. 1(1), 2, Sch. 1 Pt. 2 {para. 12(c)}

F47 Words in s. 8(1) omitted (4.1.2000 for E.) and repealed (1.4.2000 for E.W.) by 1999 c. 8, ss. 65(1)(2), 67(1), Sch. 4 paras. 74, 79(1)(2)(c); Sch. 5; S.I. 1999/2342, art. 2(3), Sch. 2; S.I. 2000/1041, art. 2(d) Sch.

F48 Words in s. 8(2)(3)(5) substituted (4.1.2000 for E. and otherwise in force immediately before the National Health Service Act 2006 (which Act came into force on 1.3.2007 in accordance with s. 277(1) (subject to s. 277(2)-(5)) of that Act))) by the Health Act 1999 (c. 8), ss. 65(1), 67(1), Sch. 4 paras. 74, 79(1)(3); S.I. 1999/2342, art. 2(3), Sch. 2; S.I. 2006/1407, arts. 1(1)(2), Sch. 1 Pt. 2 {para. 6(b)}

F49 S. 8(6) substituted (4.1.2000 for E. and otherwise in force immediately before the National Health Service Act 2006 (which Act came into force on 1.3.2007 in accordance with s. 277(1) (subject to s. 277(2)-(5)) of that Act))) by the Health Act 1999 (c. 8), ss. 65(1), 67(1), Sch. 4 paras. 74, 79(1)(4); S.I. 1999/2342, art. 2(3), Sch. 2; S.I. 2006/1407, arts. 1(1)(2), Sch. 1 Pt. 2 {para. 6(b)}

F50 Words in s. 8(6)(a) inserted (10.10.2002 for W. and otherwise in force immediately before the National Health Service Act 2006 (c. 41) (which Act came into force on 1.3.2007 in accordance with s. 227(1) (subject to s. 277(2)-(5) of that Act))) by 2002 c. 17, ss. 6(2), 42(3), Sch. 5 para. 32(b)(i); S.I. 2002/2532, art. 2, Sch; S.I. 2006/1407, arts. 1(1), 2, Sch. 1 Pt. 2 {para. 12(c)}

F51 Words in s. 8(6) substituted (10.10.2002 for W. and otherwise in force immediately before the National Health Service Act 2006 (c. 41) (which Act came into force on 1.3.2007 in accordance with s. 227(1) (subject to s. 277(2)-(5) of that Act))) by 2002 c. 17, ss. 6(2), 42(3), Sch. 5 para. 32(b)(ii); S.I. 2002/2532, art. 2, Sch; S.I. 2006/1407, arts. 1(1), 2, Sch. 1 Pt. 2 {para. 12(c)}

9 Originating capital debt of, and other financial provisions relating to NHS trusts. E+W

(1) Each NHS trust shall have an [F52 originating capital] of an amount specified in an order made by the Secretary of State, being an amount representing, subject to subsection (2) below, 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 [F52 originating capital] of an NHS trust, there shall be left out of account such assets or, as the case may be, 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 [F52 originating capital] shall be deemed to have been issued out of moneys provided by Parliament and shall constitute an asset of the Consolidated Fund.

[F53 (4) An NHS trust’s originating capital shall be public dividend capital.]

F54 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F54 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) With the consent of the Treasury, the Secretary of State may determine

[F55 (a) the dividend which is to be payable at any time on any public dividend capital issued, or treated as issued, under this Act,

(b) the amount of any such public dividend capital which is to be repaid at any time,

(c) any other terms on which any public dividend capital is so issued, or treated as issued]

(8) An order under subsection (1) above shall be made—

(a) with the consent of the Treasury; and

(b) by statutory instrument.

(9) Schedule 3 to this Act 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;

[F56 (ca) the making of supplementary payments to them;] and

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

Textual Amendments

F52 Words in s. 9(1)(2)(3) substituted (1.9.1999 for E. and 1.11.1999 for W.) by 1999 c. 8, s. 15(1)(2); S.I. 1999/2342, art. 2(1), Sch. 1; S.I. 1999/3184, art. 2(1), Sch. 1

F53 S. 9(4) substituted (1.9.1999 for E. and 1.11.1999 for W.) by 1999 c. 8, s. 15(1)(3); S.I. 1999/2342, art. 2(1), Sch. 1; S.I. 1999/3184, art. 2(1), Sch. 1

F54 S. 9(5)(6) omitted (1.9.1999 for E. and 1.11.1999 for W.) by virtue of 1999 c. 8, s. 15(1)(4); S.I. 1999/2342, art. 2(1), Sch. 1; S.I. 1999/3184, art. 2(1), Sch. 1; and those same subsections expressed to be repealed (1.4.2000) by 1999 c. 8, s. 65(2), Sch. 5; S.I. 2000/1041, art. 2(d), Sch.

F55 S. 9(7)(a)-(c) substituted (1.9.1999 for E. and 1.11.1999 for W.) for words in s. 9(7) by 1999 c. 8, s. 15(1)(5); S.I. 1999/2342, art. 2(1), Sch. 1; S.I. 1999/3184, art. 2(1), Sch. 1

F56 S. 9(ca) inserted (1.8.2001 for E. and 1.7.2002 for W.) by 2001 c. 15, s. 3(2), (with ss. 64(9), 65(4)); S.I. 2001/2804, art. 2(1)(a); S.I. 2002/1475, art. 2(1), Sch. Pt. 1

Modifications etc. (not altering text)

C7 S. 9: Treasury consent requirements continued (W.) (1.7.1999) by S.I. 1999/672, arts. 1(2), 2, Sch. 1

10 Financial obligations of NHS trusts. E+W

(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.

Modifications etc. (not altering text)

C8 S. 10: Treasury consent requirement continued (W.) (1.7.1999) by S.I. 1999/672, arts. 1(2), 2, Sch. 1

11 Trust funds and trustees for NHS trusts. E+W

(1) The Secretary of State may by order made by statutory instrument provide for the appointment of trustees for an NHS trust; and any trustees so appointed shall have power to accept, hold and administer any property on trust for the general or any specific purposes of the NHS trust (including the purposes of any specific hospital or other establishment or facility [F57 at or from which services are provided] by the trust) or for all or any purposes relating to the health service.

(2) An order under subsection (1) above may—

(a) make provision as to the persons by whom trustees are to be appointed and generally as to the method of their appointment;

(b) make any appointment subject to such conditions as may be specified in the order (including conditions requiring the consent of the Secretary of State);

(c) make provision as to the number of trustees to be appointed, including provision under which that number may from time to time be determined by the Secretary of State after consultation with such persons as he considers appropriate; and

(d) make provision with respect to the term of office of any trustee and his removal from office.

(3) Where, under subsection (1) above, trustees have been appointed for an NHS trust, the Secretary of State may by order made by statutory instrument provide for the transfer of any trust property from the NHS trust to the trustees so appointed.

(4) In section 91 of the principal Act (private trusts for hospitals) in subsection (3) (definition of “the appropriate hospital authority”) after paragraph (a) there shall be inserted the following paragraphs—

“(aa) where the hospital is owned and managed by an NHS trust and trustees have been appointed for the NHS trust, those trustees;

(ab) where the hospital is owned and managed by an NHS trust and neither paragraph (a) nor paragraph (aa) above applies, the NHS trust;”.

(5) In section 92 of the principal Act (further transfers of trust property)—

(a) in subsection (1) after the word “hospital” there shall be inserted “or other establishment or facility”F58 . . .;

F58 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F58 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) at the end of the section there shall be added the following subsection—

“(6) If it appears to the Secretary of State at any time that—

(a) the functions of any special trustees should be discharged by the trustees for an NHS trust, or

(b) the functions of the trustees for an NHS trust should be discharged by special trustees,

then, whether or not there has been any such change as is mentioned in subsection (1) above, he may, after consulting the special trustees and the trustees for the NHS trust, by order provide for the transfer of all trust property from or to the special trustees to or from the trustees for the NHS trust.”

(6) In section 96 of the principal Act (trusts: supplementary provisions)—

(a) any reference to sections 90 to 95 of the principal Act includes a reference to subsections (1) to (3) above; and

(b) after subsection (1) there shall be inserted the following subsection—

“(1A) Where any transfer of property by virtue of those sections is of, or includes,—

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

(b) 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.”

(7) In section 98(1) of the principal Act (accounts and audit) after paragraph (d) there shall be inserted—

“(dd) any trustees for an NHS trust appointed in pursuance of section 11 of the National Health Service and Community Care Act 1990; and”.

Textual Amendments

F57 Words in s. 11(1) substituted (retrospectively) by 1999 c. 8, s. 13(6)(10); S.I. 1999/2540, art. 2(a), Sch. 1; S.I. 1999/3184, art. 2(1), Sch. 1

F58 Words in s. 11(5)(a) and paras. (b) and (c) repealed (1.4.1996) by 1995 c. 17, s. 5(1)(2), Sch. 3 (with Sch. 2 paras. 6, 16)

Family Health Services Authorities E+W

12 Functions of Family Health Services Authorities. E+W

(1) In section 15 of the principal Act (duty of Family Health Services Authority)—

F59 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) in paragraph (b) of that subsection, after the words “perform such" there shall be inserted “management and"; and

(c) at the end of that subsection there shall be inserted the following subsections—

“(1A) In relation to a Family Health Services Authority for a locality in England, any reference in this Act or the National Health Service and Community Care Act 1990 to the relevant Regional Health Authority is a reference to that Authority in whose region lies the whole or the greater part of the Authority’s locality.

(1B) In relation to a medical practitioner, any reference in this Act or the National Health Service and Community Care Act 1990 to the relevant Family Health Services Authority shall be construed as follows,—

(a) if he practices in partnership with other medical practitioners, the relevant Authority is that Authority on whose medical list the members of the practice are included and, if some are included on one Authority’s medical list and some on another’s or if any of the members is included in the medical lists of two or more Authorities, the relevant Authority is that Authority in whose locality resides the largest number of individuals who are on the lists of patients of the members of the practice; and

(b) in any other case, the relevant Authority is that Authority on whose medical list he is included and, if there is more than one, that one of them in whose locality resides the largest number of individuals who are on his list of patients.”

F59 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In section 42 of the principal Act (regulations as to pharmaceutical services), in subsection (3)—

(a) in paragraph (d) for the words following “approved by" there shall be substituted “reference to prescribed criteria by the Family Health Services Authority in whose locality those premises are situated; and"; F59 . . .

F59 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In section 44 of the principal Act (recognition by Secretary of State of certain local committees), in subsection (1)—

(a) for the words from “the Secretary of State" to “is representative" there shall be substituted “a Family Health Services Authority is satisfied that a committee formed for its locality is representative"; F59 . . .

F59 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F60 . . ..

F59 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F59 S. 12: subsections (1)(a)(2) in each of subsections (3) and (4) para. (b) and the word "and" immediately preceding it, and subsection (5) repealed (1.4.1996) by 1995 c. 17, s. 5(1)(2), Sch. 3 (with Sch. 2 paras. 6, 16)

F60 Words in s. 12(4) repealed (1.10.2002) by 2002 c. 17, s. 37, Sch. 8 para. 18, Sch. 9 Pt. 3; S.I. 2002/2478, art. 3(1)(e)(f) (with art. 3(3) and transitional provision in art. 4)

F61 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W

Textual Amendments

F61 S. 13 repealed (1.4.1996) by 1995 c. 17, s. 5(1)(2), Sch. 3 (with Sch. 2 paras. 6, 16)

Fund-holding practices E+W+S

F62 14

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F62 S. 14 repealed (1.10.1999 for E. and 1.4.2000 for W.) by 1999 c. 8, ss. 1, 65, Sch. 5; S.I. 1999/2540, art. 2(1)(a), Sch. 1; S.I. 2000/1026, art. 2(1), Sch.; S.I. 2000/1041, art. 2(1)(d), Sch.

[F63 15 Payments to recognised fund-holding practices. E+W+S

F63 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F64 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F63 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F65 (4) In any case where—

(a) a Health Authority make 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 list of patients of any of the members of the practice reside in the area of another Health Authority, or in the area of a Health Board,

the Health Authority making the payment shall be entitled to recover from that other Health Authority, or from that Health Board, an amount equal to such portion of the payment as may be determined in accordance with directions given by the Secretary of State.]

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F63 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F63 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F64 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F63 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F63 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Extent Information

E1 S. 15 other than s. 15(4) does not extend to Scotland

Textual Amendments

F63 S. 15 repealed (1.10.1999 for E., 1.4.2000 for W. and otherwise prosp.) by 1999 c. 8, ss. 1, 65, Sch. 5; S.I. 1999/2540, art. 2(1)(a), Sch. 1; S.I. 2000/1026, art. 2(1), Sch.; S.I. 2000/1041, art. 2(d), Sch.

F64 S. 15(2)(5) and (8) repealed (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, ss. 2(1)(3), 5(1)(2), Sch. 1 para. 74(b)(e) and (g), Sch. 3 (with Sch. 2 paras. 6, 16)

F65 S. 15(4) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 74(a) (with Sch. 2 paras. 6, 16)

Commencement Information

I3 S. 15 wholly in force at 1.4.1991 see s. 67(1) and S.I. 1990/1329, art. 2(8), Sch. 3.

F66 16

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F66 S. 16 repealed (1.10.1999 for E. and 1.4.2000 for W.) by 1999 c. 8, ss. 1, 65, Sch. 5; S.I. 1999/2540, art. 2(1)(a), Sch. 1; S.I. 2000/1026, art. 2(1), Sch.; S.I. 2000/1041, art. 2(1)(d), Sch.

F67 17

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F67 S. 17 repealed (1.10.1999 for E. and 1.4.2000 for W.) by 1999 c. 8, s. 65, Sch. 5; S.I. 1999/2540, art. 2(1)(a); S.I. 2000/1026, art. 2(1), Sch.; S.I. 2000/1041, art. 2(1)(d), Sch.

Indicative amounts E+W

[F68 18 Indicative amounts for doctors’ practices. E+W

(1) Subject to [F69 subsections (2) and (8)] below, for each financial year, [F70 every Primary Care Trust and] every [F71 Local Health Board] shall, by notice in writing given to each practice in relation to the members of which it is the relevant [F72 Primary Care Trust or][F71 Local 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 [F72 Primary Care Trust or][F71 Local Health 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) above does not apply with respect to a practice which is or forms part of a fund-holding practice recognised under section 14 above.

(3) For the purposes of this section, a “practice” means—

[F73 (a) a person or body who has entered into a contract under section 28Q of the principal Act, otherwise than in partnership; or

(b) two or more individuals practising in partnership who together have entered into such a contract,]

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 [F74 Primary Care Trust or][F75 Local 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) above.

(5) For the purpose of measuring the extent to which a practice is operating within the indicative amount notified to it under subsection (1) above for any financial year, a [F74 Primary Care Trust or][F75 Local 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 or listed appliances.

(7) F76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F77 (8) This section does not apply in relation to the performance or provision of personal medical services in accordance with arrangements made under section 28C of the principal Act.]

[F78 (9) In this section, references to the “relevant” Primary Care Trust or Local Health Board, in relation to a practice, are to the Primary Care Trust or Local Health Board with which it has entered into a contract under section 28Q of the principal Act.]]

Textual Amendments

F68 S. 18 repealed by 1999 c. 8, ss. 65, 67(1), Sch. 4 para. 80, Sch. 5 (the repeal being brought into force: on 1.10.1999 to the extent that Sch. 5 repeals s. 18(2) for E. by S.I. 1999/2540, art. 2(1)(a), Sch. 1; on 1.4.2000 to the extent that Sch. 5 repeals s. 18(2) and is not already in force by S.I. 2000/1041, art. 2(1)(d), Sch.; the repeal being otherwise prosp.)

F69 Words in s. 18(1) substituted (1.4.1998) by 1997 c. 46, s. 41(10), (11), Sch. 2 para. 65(8); S.I. 1998/631, art. 2(b), Sch. 2

F70 Words in s. 18(1) inserted (1.10.2002 with effect as mentioned in Sch. 2 para. 55(2) of the amending act) by 2002 c. 17, s. 2(5), Sch. 2 Pt. 2 para. 55(1)(a)(i)(2); S.I. 2002/2478, art. 3(1)(d) (with art. 3(3) and transitional provision in art. 4)

F71 Words in s. 18(1) substituted (1.4.2004) by Health and Social Care (Community Health and Standards Act 2003 (c. 43), ss. 184, 199(1)(a), Sch. 11 para. 56(2); S.I. 2004/288, arts. 1(5), 5(2)(v) (as amended by S.I. 2004/866, art. 2(1)); S.I. 2004/480, art. 4(2)(z)

F72 Words in s. 18(1) inserted (1.10.2002 with effect as mentioned in Sch. 2 para. 55(2) of the amending act) by 2002 c. 17, s. 2(5), Sch. 2 Pt. 2 para. 55(1)(a)(ii)(2); S.I. 2002/2478, art. 3(1)(d) (with art. 3(3) and transitional provision in art. 4)

F73 S. 18(3)(a)(b) substituted (1.4.2004) by Health and Social Care (Community Health and Standards Act 2003 (c. 43), ss. 184, 199(1)(a), Sch. 11 para. 56(3); S.I. 2004/288, arts. 1(5), 5(2)(v) (as amended by S.I. 2004/866, art. 2(1)); S.I. 2004/480, art. 4(2)(z)

F74 Words in s. 18 inserted (1.10.2002 with effect as mentioned in Sch. 2 para. 55(2) of the amending act) by 2002 c. 17, s. 2(5), Sch. 2 Pt. 2 para. 55(1)(b); S.I. 2002/2478, art. 3(1)(d) (with art. 3(3) and transitional provision in art. 4)

F75 Words in s. 18(4)(5) substituted (1.4.2004) by Health and Social Care (Community Health and Standards Act 2003 (c. 43), ss. 184, 199(1)(a), Sch. 11 para. 56(4); S.I. 2004/288, arts. 1(5), 5(2)(v) (as amended by S.I. 2004/866, art. 2(1)); S.I. 2004/480, art. 4(2)(z)

F76 S. 18(7) repealed (1.4.2004 ) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 196, 199(1), Sch. 14 Pt. 4; S.I. 2004/288, arts. 1(5), 6(2)(i) (as amended (23.3.2004) by S.I. 2004/866, art. 2(1)); S.I. 2004/480, art. 5(2)(i) (as amended by S.I. 2004/1019, art. 2(5)(a))

F77 S. 18(8) inserted (1.4.1998) by 1997 c. 46, s. 41(10(11), Sch. 2 para. 65(10); S.I. 1998/631, art. 2(b), Sch. 2

F78 S. 18(9) inserted (1.4.2004) by Health and Social Care (Community Health and Standards Act 2003 (c. 43), ss. 184, 199(1)(a), Sch. 11 para. 56(5); S.I. 2004/288, arts. 1(5), 5(2)(v) (as amended by S.I. 2004/866, art. 2(1)); S.I. 2004/480, art. 4(2)(z)

Modifications etc. (not altering text)

C9 S. 18 modified (1.4.1991) by S.I. 1991/556, reg. 3.

S. 18(2) applied (with modifications) (1.4.1997) by S.I. 1997/980, reg. 3

C10 S. 18: functions of local authority may be responsibility of an executive of the authority (1.4.2000) by virtue of S.I. 2000/695, reg. 3(2)(b), Sch. 2

C11 S. 18 modified (temp.) (1.4.2004) by The General Medical Services and Personal Medical Services Transitional and Consequential Provisions Order 2004 (S.I. 2004/865), art. 115

C12 S. 18 modified (W.) (1.4.2004) by The General Medical Services Transitional and Consequential Provisions (Wales) (No. 2) Order 2004 (S.I. 2004/1016), art. 91

Commencement Information

I4 S. 18 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/1329, art. 2(8), Sch. 3.

Funding, audit and liabilities E+W

F79 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W

Textual Amendments

F79 S. 19 repealed (1.4.1996) by 1995 c. 17, s. 5(1)(2), Sch. 3 (with Sch. 2 paras. 6, 16)

20 Extension of functions etc. of Audit Commission to cover the health service. E+W

F80 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In section 98 of the principal Act (accounts and audit),—

(a) in subsection (1), in the words following paragraph (e) for the words from “appointed” to “Comptroller” there shall be substituted “appointed by the Audit Commission for Local Authorities and the National Health Service in England and Wales and the Comptroller”;

F81 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F82 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F82 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F80 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F80 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F80 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F80 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F80 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F80 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F80 S. 20(1)(3)-(8) repealed (11.9.1998) by 1998 c. 18, ss. 54(3), 55(2), Sch. 5

F81 S. 20(2)(b) repealed (1.10.1999 for E. and 1.4.2000 for W.) by 1999 c. 8, ss. 65(2), Sch. 4 para. 83(6), Sch. 5; S.I. 1999/2540, art. 2(1)(a), Sch. 1; S.I. 2000/1041, art. 2(d), Sch.

F82 S. 20(2)(c)(d) repealed (1.4.1996) by 1995 c. 17, s. 5(1)(2), Sch. 3 (with Sch. 2 para. 6)

21 Schemes for meeting losses and liabilities etc. of certain health service bodies. E+W

(1) The Secretary of State may by regulations made with the consent of the Treasury establish a scheme whereby any of the bodies specified in subsection (2) below 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 or injury arising out of the carrying out of the functions of the bodies concerned.

(2) The bodies referred to in subsection (1) above are—

[F83 (za) Strategic Health Authorities;]

[F84 (a) Health Authorities;

(aa) Special Health Authorities;]

[F85 (aaa) Primary Care Trusts;]

[F86 (aab) Local Health Boards;]

(b) NHS trusts;

[F87 (ba) NHS foundation trusts;]

[F88 (bb) the [F89 Commission for Healthcare Audit and Inspection]];and

(c) the Public Health Laboratory Service Board;

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) above, a scheme under this section may—

(a) provide for the scheme to be administered by the Secretary of State or by a [F90 Strategic Health Authority,][F91 Health Authority, Special Health Authority,][F92 Primary Care Trust][F93 , NHS trust or NHS foundation 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, a 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, a [F90 Strategic Health Authority,][F91 Health Authority, Special Health Authority,][F92 Primary Care Trust][F93 , NHS trust or NHS foundation trust] shall carry out such functions in connection with the administration of the scheme by the Secretary of State as he may direct.

[F94 but the Secretary of State may not make a direction under paragraph (a) above in relation to an NHS foundation trust]

[F95 F96 (5) A person or body administering a scheme under this section does not require permission under any provision of the Financial Services and Markets Act 2000 as respects activities carried out under the scheme.]

Textual Amendments

F83 S. 21(2)(za) inserted (1.10.2002) by 2002 c. 17, s. 1(3), Sch. 1 Pt. 2 para. 43(a); S.I. 2002/2478, art. 3(1)(d) (with art. 3(3) and transitional provision in art. 4)

F84 S. 21(2)(a)(aa) substituted (1.4.1996 subject to s. 8 of the amending Act) for s. 21(2)(a) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 79(a) (with Sch. 2 paras. 6, 16)

F85 S. 21(2)(aaa) inserted (4.1.2000 for E. and otherwise in force immediately before the National Health Service Act 2006 (which Act came into force on 1.3.2007 in accordance with s. 277(1) (subject to s. 277(2)-(5)) of that Act))) by the Health Act 1999 (c. 8), ss. 65(1), 67(1), Sch. 4 paras. 74, 81(1)(2)(a); S.I. 1999/2342, art. 2(3)(a), Sch. 2; S.I. 2006/1407, arts. 1(1)(2), Sch. 1 Pt. 2 para. 6(b)

F86 S. 21(2)(aab) inserted (10.10.2002 for W. and otherwise in force immediately before the National Health Service Act 2006 (c. 41) (which Act came into force on 1.3.2007 in accordance with s. 227(1) (subject to s. 277(2)-(5) of that Act))) by 2002 c. 17, ss. 6(2), 42(3), Sch. 5 para. 33; S.I. 2002/2532, art. 2, Sch; S.I. 2006/1407, arts. 1(1), 2, Sch. 1 Pt. 2 {para. 12(c)}

F87 S. 21(2)(ba) inserted (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 34, 199(1), Sch. 4 para. 84(a); S.I. 2004/759, art. 2

F88 S. 21(2)(bb) inserted (1.11.1999) by 1999 c. 8, s. 65, Sch. 4 paras. 74, 81(1)(2)(b); S.I. 1999/2793, art. 2(1)(b), Sch 2

F89 Words in s. 21(2)(bb) substituted (11.11.2004) by The Health and Social Care (Community Health and Standards) Act 2003 (Commission for Healthcare Audit and Inspection and Commission for Social Care Inspection) (Consequential Provisions) Order 2004 (S.I. 2004/2987), art. 2(1)(c)

F90 Words in s. 21(3)(4) inserted (1.10.2002) by 2002 c. 17, s. 1(3), Sch. 1 Pt. 2 para. 43(b); S.I. 2002/2478, art. 3(1)(d) (with art. 3(3) and transitional provision in art. 4)

F91 Words in s. 21(3)(a)(4)(b)(5) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 79(b) (with Sch. 2 paras. 6, 16)

F92 Words in s. 21(3)-(5) inserted (4.1.2000 for E. and otherwise in force immediately before the National Health Service Act 2006 (which Act came into force on 1.3.2007 in accordance with s. 277(1) (subject to s. 277(2)-(5)) of that Act))) by the Health Act 1999 (c. 8), ss. 65(1), 67(1), Sch. 4 paras. 74, 81(1)(3); S.I. 1999/2342, art. 2(3)(a), Sch. 2; S.I. 2006/1407, arts. 1(1)(2), Sch. 1 Pt. 2 {para. 6(b)}

F93 Words in s. 21(3)(a)(4)(b) substituted (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 34, 199(1), Sch. 4 para. 84(b); S.I. 2004/759, art. 2

F94 Words in s. 21(4) substituted (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 34, 199(1), Sch. 4 para. 84(c); S.I. 2004/759, art. 2

F95 S. 21(5) substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 319

F96 By Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 34, 199(1), Sch. 4 para. 84(d); S.I. 2004/759, art. 2 it is provided that the words ", NHS trust or NHS foundation trust" be substituted in s. 21(5) for the words "or NHS trust" (the latter words were superseded (1.12.2001) by reason of the substitution of s. 21(5) by The Financial Services and Markets Act 2000 (Consequential Amendments and Repeals) Order 2001 (S.I. 2001/3649), art. 319)

Further amendments of the principal Act E+W

22 The Medical Practices Committee. E+W

(1) Section 7 of the principal Act (the Medical Practices Committee) shall be amended in accordance with this section.

(2) At the beginning of subsection (1) there shall be inserted “Subject to subsection (1A) below”.

(3) After subsection (1) there shall be inserted the following subsection—

“(1A) The Secretary of State may by order make such modifications as he considers appropriate of paragraphs (a) and (b) of subsection (1) above.”

(4) At the end of the section there shall be added the following subsection—

“(4) 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.”

23 Distribution of general medical services. E+W

F97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F97 S. 23 repealed (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 c. 43, ss. 196, 199(1), Sch. 14 Pt. 4; S.I. 2004/288, arts. 1(5), 6(2)(i) (as amended (23.3.2004) by S.I. 2004/866, art. 2(1)); S.I. 2004/480, art. 5(2)(i) (as amended by S.I. 2004/1019, art. 2(5)(a))

24 Limitations on right to be included on list of dental practitioners. E+W

(1) Section 36 of the principal Act (regulations as to arrangements for general dental services) shall be amended in accordance with this section.

(2) In subsection (1)(b) (regulations to include provision conferring a right, subject to certain qualifications, to be entered on a list of dental practitioners providing general dental services) for the words “subsection (2)” there shall be substituted “subsections (2) and (3)”.

(3) At the end of the section there shall be added the following subsection—

“(3) Regulations may make the exercise of the right conferred by virtue of paragraph (b) of subsection (1) above 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.”

25 Transfer to DHA of certain functions relating to private patients. E+W

(1) Section 65 of the principal Act (accommodation and services for private patients) shall be amended in accordance with this section.

(2) In subsection (1) (power of Secretary of State to authorise accommodation and services at hospitals to be made available for private patients etc.)—

(a) for the words from the beginning to “as he may determine”, in the first place where those words occur, there shall be substituted “Subject to the provisions of this section, to such extent as they may determine, a District or Special Health Authority may make available at a hospital or hospitals for which they have responsibility accommodation and services”;

F98 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F98 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) After subsection (1) there shall be inserted the following subsection—

“(1A) Before determining to make any accommodation or services available as mentioned in subsection (1) above, a District or Special Health Authority shall consult organisations representative of the interests of persons likely to be affected by the determination.”

(4) In subsection (2)—

F98 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) for the words from “to which an authorisation” to “made available” there shall be substituted “which are made available under subsection (1) above to be so made available”.

(5) For subsection (3) of that section there shall be substituted the following subsection—

“(3) The Secretary of State may give directions to a District or Special Health Authority in relation to the exercise of its functions under this section; and it shall be the duty of an authority to whom directions are so given to comply with them.”

Textual Amendments

F98 s. 25(2)(b)(c)and (4)(a) repealed (1.4.1996) by 1995 c. 17, s. 5(1)(2), Sch. 3 (with Sch. 2 para. 6)

Commencement Information

I5 S. 25 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/1329, art. 2(8), Sch. 3.

Interpretation E+W

26 Interpretation of Part I. E+W

(1) Subsection (2) below has effect with respect to the interpretation of this Part of this Act and the M5 National Health Service Act 1977 (the principal Act).

(2) In section 128 of the principal Act, in subsection (1)—

(a) after the words “this Act” there shall be inserted “and Part I of the National Health Service and Community Care Act 1990”;

F99 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) in the definition of “health service hospital” after the words “this Act” there shall be inserted “or vested in an NHS trust”;

(d) after the definition of “modifications” there shall be inserted—

““NHS contract” has the meaning assigned by section 4(1) of the National Health Service and Community Care Act 1990;

“National Health Service trust” has the meaning assigned by section 5 of the National Health Service and Community Care Act 1990 and “NHS trust” shall be construed accordingly”;

(e) after the definition of “officer” there shall be inserted—

““operational date”, in relation to an NHS trust, shall be construed in accordance with paragraph 3(1)(e) of Schedule 2 to the National Health Service and Community Care Act 1990”;

(f) after the definition of “patient” there shall be inserted—

““pharmaceutical services” has the meaning assigned by section 41 of this Act”;

(g) in the definition of “prescribed” after the words “this Act” there shall be inserted “or Part I of the National Health Service and Community Care Act 1990”;

(h) after the definition of “prescribed” there shall be inserted—

““primary functions” shall be construed in accordance with section 3 of the National Health Service and Community Care Act 1990”; and

(i) in the definition of “regulations” after the words “this Act” there shall be inserted “or Part I of the National Health Service and Community Care Act 1990”.

(3) In this Part of this Act—

• “goods” includes accommodation;

• “health board” means a Health Board constituted under section 2 of the M6 National Health Service (Scotland) Act 1978 or a Health and Social Services Board constituted under the M7 Health and Personal Social Services (Northern Ireland) Order 1972; and

• [F100 “provide” includes manage]

• “services” includes services of any description, whether or not being services under the principal Act.

Textual Amendments

F99 S. 26(2)(b) repealed (1.4.1996) by 1995 c. 17. s. 5(1)(2), Sch. 3 (with Sch. 2 para. 6)

F100 S. 26(3): definition of “provide” inserted (retrospectively) by 1999 c. 8, s. 13(2)(10); S.I. 1999/2540, art. 2(1)(a), Sch. 1; S.I. 1999/3184, art. 2(1), Sch. 1

Marginal Citations

M5 1977 c. 49.

M6 1978 c. 29.

M7 S.I. 1972/1265 (N.I.14).