Health and Social Care (Community Health and Standards) Act 2003

Appointments and employment

187 Appointments to certain health and social care bodies

(1) This section applies to a body (however established) which has functions relating to—

(a) health;

(b) social care;

(c) the regulation of professions associated with health or social care.

(2) The Secretary of State may direct a Special Health Authority to exercise so much of the appointments function relating to a body to which this section applies as is specified in the direction.

(3) If the Secretary of State gives a direction under subsection (2) the 1977 Act has effect as if—

(a) the direction is a direction of the Secretary of State under section 16D of that Act;

(b) the function is exercisable by the Special Health Authority under section 16D.

(4) If the Secretary of State gives a direction under subsection (2) in respect of a body which exercises functions in relation to any part of the United Kingdom other than England and Wales subsection (5) applies—

(a) at the time the direction is given;

(b) for the purposes of anything done by a Special Health Authority in pursuance of the direction.

(5) Sections 11 and 16D of and (so far as relating to a Special Health Authority) Schedule 5 to the 1977 Act and any other provision of that Act which relates to the exercise of the function in pursuance of the direction must be taken to extend to any part of the United Kingdom in relation to which the body exercises functions.

(6) The appointments function is any function exercisable by the Secretary of State in relation to—

(a) the appointment of persons to be members of a body to which this section applies;

(b) the removal (whether permanently or otherwise) of such persons from the membership of the body,

and includes any function relating to the appointment to or removal from (whether permanently or otherwise) any particular office in the membership of the body.

(7) For the purposes of this section it is immaterial that a body has functions relating to matters other than those specified in subsection (1).

(8) Schedule 12 amends certain enactments which provide for appointments to be made to certain bodies by or on the advice of the Privy Council.

(9) If in the exercise of a power conferred by virtue of that Schedule the Privy Council gives a direction corresponding to a direction given by the Secretary of State under subsection (2) above, subsections (3) to (5) above apply for the purposes of the Privy Council’s direction as they apply for the purposes of a direction given by the Secretary of State.

(10) Nothing in this section applies in relation to the Commission for Healthcare Audit and Inspection or the Commission for Social Care Inspection.

188 Appointments to certain health and social care bodies: joint functions

(1) This section applies if (apart from section 187) the appointments function in relation to a body is exercisable jointly or concurrently with a person who is not a Minister of the Crown.

(2) A requirement to exercise the function jointly or concurrently does not prevent the Secretary of State from making a direction in relation to the body but he must not do so unless he first consults the other person.

(3) If a direction is given as mentioned in subsection (2) so much of the functions of the Secretary of State and of the other person as are specified in the direction is exercisable by the Special Health Authority acting alone.

(4) Subsections (2) and (3) do not apply if the other person is the Scottish Ministers but that does not prevent the Secretary of State from giving a direction under section 187 in relation to the exercise of any function he has.

(5) Appointments function has the same meaning as in section 187.

189 Validity of clearance for employment in certain NHS posts

(1) In section 7 of the Protection of Children Act 1999 (c. 14) (effect of inclusion of person on lists relating to suitability for child care positions) after subsection (3) there are inserted the following subsections—

“(3A) This section does not apply in relation to an offer of relevant NHS employment if each of the following paragraphs applies in respect of the individual to whom the offer is made—

(a) at the time the offer is made he is employed by an NHS body;

(b) that NHS body has ascertained that he is not included in the list kept under section 1 above or (during the period that he is employed by that body) another NHS body or an employment agency or employment business has ascertained that he is not included in the list;

(c) subsection (1A) (inserted by paragraph 26(2) of Schedule 4 to the Care Standards Act 2000) does not apply to him;

(d) he accepts the offer and for so long as he is employed in the employment to which the offer relates paragraph (c) applies.

(3B) Relevant NHS employment is employment in a child care position with an NHS body.

(3C) Each of the following is an NHS body—

(a) a National Health Service trust;

(b) a Strategic Health Authority;

(c) an NHS foundation trust;

(d) a Health Authority;

(e) a Local Health Board;

(f) a Special Health Authority;

(g) a Primary Care Trust.”

(2) In section 89 of the Care Standards Act 2000 (c. 14) (effect of inclusion of person on lists relating to suitability for care positions) after subsection (4) there are inserted the following subsections—

“(4A) This section does not apply in relation to an offer of relevant NHS employment if each of the following paragraphs applies in respect of the individual to whom the offer is made—

(a) at the time the offer is made he is employed by an NHS body;

(b) that NHS body has ascertained that he is not included in the list kept under section 81 above or (during the period that he is employed by that body) another NHS body or an employment agency or employment business has ascertained that he is not included in the list;

(c) subsection (2) does not apply to him;

(d) he accepts the offer and for so long as he is employed in the employment to which the offer relates paragraph (c) applies.

(4B) Relevant NHS employment is employment in a care position with an NHS body.

(4C) Each of the following is an NHS body—

(a) a National Health Service trust;

(b) a Strategic Health Authority;

(c) an NHS foundation trust;

(d) a Health Authority;

(e) a Local Health Board;

(f) a Special Health Authority;

(g) a Primary Care Trust.”

(3) Section 7(3A)(b) of the Protection of Children Act 1999 (c. 14) has effect until the coming into force of paragraph 121 of Schedule 21 to the Education Act 2002 (c. 32) as if for “the list kept under section 1 above” there is substituted “any of the lists mentioned in subsection (1)(a)”.

(4) The effect of subsections (1) to (3) is to be disregarded in determining for the purposes of section 1 of the Regulatory Reform Act 2001 (c. 6) (power by order to make provision reforming law which imposes burdens) whether any provision of either of the following Acts falls within subsection (4)(a) of that section (provision amended by an Act within previous two years)—

(a) the Protection of Children Act 1999 (c. 14);

(b) the Care Standards Act 2000 (c. 14).