National Health Service Bill [HL]

House of Commons

Session 2005 - 06
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Other Bills before Parliament

National Health Service Bill [HL]

National Health Service Bill [HL]
Part 1 — Promotion and provision of the health service in England
1

A
Bill
To
Consolidate certain enactments relating to the health service.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Promotion and provision of the health service in England
The Secretary of State and the health service in England
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Secretary of State’s duty to promote health service
(1)
The Secretary of State must continue the promotion in England of a
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comprehensive health service designed to secure improvement—
(a)
in the physical and mental health of the people of England, and
(b)
in the prevention, diagnosis and treatment of illness.
(2)
The Secretary of State must for that purpose provide or secure the provision of
services in accordance with this Act.
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(3)
The services so provided must be free of charge except in so far as the making
and recovery of charges is expressly provided for by or under any enactment,
whenever passed.
General power to provide services
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Secretary of State’s general power
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(1)
The Secretary of State may—
(a)
provide such services as he considers appropriate for the purpose of
discharging any duty imposed on him by this Act, and
(b)
do anything else which is calculated to facilitate, or is conducive or
incidental to, the discharge of such a duty.
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Bill 225 54/1

National Health Service Bill [HL]
Part 1 — Promotion and provision of the health service in England
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(2)
Subsection (1) does not affect—
(a)
the Secretary of State’s powers apart from this section,
(b)
Chapter 1 of Part 7 (pharmaceutical services).
Provision of particular services
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Secretary of State’s duty as to provision of certain services
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(1)
The Secretary of State must provide throughout England, to such extent as he
considers necessary to meet all reasonable requirements—
(a)
hospital accommodation,
(b)
other accommodation for the purpose of any service provided under
this Act,
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(c)
medical, dental, ophthalmic, nursing and ambulance services,
(d)
such other services or facilities for the care of pregnant women, women
who are breastfeeding and young children as he considers are
appropriate as part of the health service,
(e)
such other services or facilities for the prevention of illness, the care of
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persons suffering from illness and the after-care of persons who have
suffered from illness as he considers are appropriate as part of the
health service,
(f)
such other services or facilities as are required for the diagnosis and
treatment of illness.
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(2)
For the purposes of the duty in subsection (1), services provided under—
(a)
section 83(2) (primary medical services), section 99(2) (primary dental
services) or section 115(4) (primary ophthalmic services), or
(b)
a general medical services contract, a general dental services contract or
a general ophthalmic services contract,
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must be regarded as provided by the Secretary of State.
(3)
This section does not affect Chapter 1 of Part 7 (pharmaceutical services).
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High security psychiatric services
(1)
The Secretary of State’s duty under section 1 includes a duty to provide
hospital accommodation and services for persons who—
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(a)
are liable to be detained under the Mental Health Act 1983 (c. 20), and
(b)
in the opinion of the Secretary of State require treatment under
conditions of high security on account of their dangerous, violent or
criminal propensities.
(2)
The hospital accommodation and services mentioned in subsection (1) are
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referred to in this section and paragraph 15 of Schedule 4 (NHS trusts) as “high
security psychiatric services”.
(3)
High security psychiatric services may be provided only at hospital premises
at which services are provided only for the persons mentioned in subsection
(1).
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(4)
“Hospital premises” means—
(a)
a hospital, or
(b)
any part of a hospital which is treated as a separate unit.

National Health Service Bill [HL]
Part 1 — Promotion and provision of the health service in England
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Other services
Schedule 1 makes further provision about the Secretary of State and services
under this Act.
Provision of services otherwise than in England
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Performance of functions outside England
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(1)
The Secretary of State may provide or secure the provision of anything
mentioned in section 3(1) outside England.
(2)
The Secretary of State’s functions may be performed outside England and
Wales, in so far as they relate to—
(a)
holidays for patients,
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(b)
the transfer of patients to or from Scotland, Northern Ireland, the Isle of
Man or the Channel Islands, or
(c)
the return of patients who have received treatment in England and
Wales, to countries or territories outside the British Islands (including
for this purpose the Republic of Ireland).
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Exercise and distribution of functions
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Distribution of health service functions
(1)
The Secretary of State may direct a Strategic Health Authority, a Primary Care
Trust or a Special Health Authority to exercise any of his functions relating to
the health service which are specified in the directions.
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(2)
The Secretary of State may direct a Special Health Authority to exercise any
functions of a Strategic Health Authority or a Primary Care Trust which are
specified in the directions.
(3)
The functions which may be specified in directions include functions under
enactments relating to mental health and care homes.
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Secretary of State’s directions to health service bodies
(1)
The Secretary of State may give directions to any of the bodies mentioned in
subsection (2) about its exercise of any functions.
(2)
The bodies are—
(a)
Strategic Health Authorities,
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(b)
Primary Care Trusts,
(c)
NHS trusts, and
(d)
Special Health Authorities.
(3)
Nothing in provision made by or under this or any other Act affects the
generality of subsection (1).
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National Health Service Bill [HL]
Part 1 — Promotion and provision of the health service in England
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NHS contracts
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NHS contracts
(1)
In this Act, an NHS contract is an arrangement under which one health service
body (“the commissioner”) arranges for the provision to it by another health
service body (“the provider”) of goods or services which it reasonably requires
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for the purposes of its functions.
(2)
Section 139(6) (NHS contracts and the provision of local pharmaceutical
services under pilot schemes) makes further provision about acting as
commissioner for the purposes of subsection (1).
(3)
Paragraph 15 of Schedule 4 (NHS trusts and NHS contracts) makes further
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provision about an NHS trust acting as provider for the purposes of subsection
(1).
(4)
“Health service body” means any of the following—
(a)
a Strategic Health Authority,
(b)
a Primary Care Trust,
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(c)
an NHS trust,
(d)
a Special Health Authority,
(e)
a Local Health Board,
(f)
a Health Board constituted under section 2 of the National Health
Service (Scotland) Act 1978 (c. 29),
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(g)
a Health and Social Services Board constituted under the Health and
Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265
(N.I.14)),
(h)
the Common Services Agency for the Scottish Health Service,
(i)
the Wales Centre for Health,
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(j)
the Health Protection Agency,
(k)
the Commission for Healthcare Audit and Inspection,
(l)
the Scottish Dental Practice Board,
(m)
the Secretary of State,
(n)
the Welsh Ministers,
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(o)
the Northern Ireland Central Services Agency for the Health and Social
Services established under the Health and Personal Social Services
(Northern Ireland) Order 1972,
(p)
a special health and social services agency established under the Health
and Personal Social Services (Special Agencies) (Northern Ireland)
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Order 1990 (S.I. 1990/247 (N.I.3)),
(q)
a Health and Social Services trust established under the Health and
Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194
(N.I.1)),
(r)
the Department of Health, Social Services and Public Safety.
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(5)
Whether or not an arrangement which constitutes an NHS contract would
apart from this subsection be a contract in law, it must not be regarded for any
purpose as giving rise to contractual rights or liabilities.
(6)
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 this section.
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National Health Service Bill [HL]
Part 1 — Promotion and provision of the health service in England
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(7)
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
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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,
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that health service body may refer the terms of the proposed arrangement to
the Secretary of State for determination under this section.
(8)
Where a reference is made to the Secretary of State under subsection (6) or (7),
he may determine the matter himself or appoint a person to consider and
determine it in accordance with regulations.
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(9)
“The appropriate person” means the Secretary of State or the person appointed
under subsection (8).
(10)
By the determination of a reference under subsection (7) the appropriate
person may specify terms to be included in the proposed arrangement and
may direct that it be proceeded with.
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(11)
A determination of a reference under subsection (6) may contain such
directions (including directions as to payment) as the appropriate person
considers appropriate to resolve the matter in dispute.
(12)
The appropriate person may by the determination in relation to an NHS
contract vary the terms of the arrangement or bring it to an end (but this does
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not affect the generality of the power of determination under subsection (6)).
(13)
Where an arrangement is so varied or brought to an end—
(a)
subject to paragraph (b), the variation or termination must be treated as
being effected by agreement between the parties, and
(b)
the directions included in the determination by virtue of subsection (11)
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may contain such provisions as the appropriate person considers
appropriate in order to give effect to the variation or to bring the
arrangement to an end.
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Provision for bodies in Northern Ireland
(1)
Subsection (2) applies where a Health and Social Services Board constituted
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under the Health and Personal Social Services (Northern Ireland) Order 1972
(S.I. 1972/1265 (N.I.14)) or a body mentioned in paragraph (o), (p), (q) or (r) of
section 9(4) is a party or prospective party to an arrangement or proposed
arrangement which—
(a)
falls within the definition of NHS contract in section 9(1), and
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(b)
also falls within the definition of HSS contract in Article 8 of the
Health and Personal Social Services (Northern Ireland) Order 1991 (S.I.
1991/194 (N.I.1)).
(2)
Subsections (5) to (13) of section 9 apply in relation to the arrangement or
proposed arrangement with the substitution for references to the Secretary of
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State of references to the Secretary of State and the Department of Health,
Social Services and Public Safety acting jointly.