National Health Service Bill [HL]

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

National Health Service Bill [HL]

National Health Service Bill [HL]
Part 10 — Protection of NHS from fraud and other unlawful activities
122

(a)
any of the circumstances in subsection (4) applied, or
(b)
he reasonably believed that they applied.
(4)
The circumstances referred to in subsection (3) are—
(a)
that the disclosure was lawful,
(b)
that the information had already been lawfully made available to the
5
public,
(c)
that the disclosure was necessary or expedient for the purpose of
protecting the welfare of any individual,
(d)
that the disclosure was made in a form in which no person to whom the
information relates is identified.
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(5)
Subsection (4)(d) is not satisfied if the identity of any such person can be
ascertained either—
(a)
from the information itself, or
(b)
from that information taken with other information obtained by virtue
of section 197 or 198 and disclosed by or on behalf of the Secretary of
15
State.
206
Offences by bodies corporate etc
(1)
If an offence committed by a body corporate is proved—
(a)
to have been committed with the consent or connivance of an officer, or
(b)
to be attributable to any neglect on his part,
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the officer as well as the body corporate is guilty of the offence and liable to be
proceeded against and punished accordingly.
(2)
“Officer”, in relation to the body corporate, means a director, manager,
secretary or other similar officer of the body, or a person purporting to act in
any such capacity.
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(3)
If the affairs of a body corporate are managed by its members, subsection (1)
applies in relation to the acts and defaults of a member in connection with his
functions of management as if he were a director of the body corporate.
(4)
If an offence committed by a partnership is proved—
(a)
to have been committed with the consent or connivance of a partner, or
30
(b)
to be attributable to any neglect on his part,

the partner as well as the partnership is guilty of the offence and liable to be
proceeded against and punished accordingly.
(5)
“Partner” includes a person purporting to act as a partner.
(6)
If an offence committed by an unincorporated association (other than a
35
partnership) is proved—
(a)
to have been committed with the consent or connivance of an officer of
the association or a member of its governing body, or
(b)
to be attributable to any neglect on the part of such an officer or
member,
40

the officer or member as well as the association is guilty of the offence and
liable to be proceeded against and punished accordingly.
(7)
“Offence” means an offence under this Part.

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Part 10 — Protection of NHS from fraud and other unlawful activities
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207
Offences committed by partnerships and other unincorporated associations
(1)
Proceedings for an offence alleged to have been committed by a partnership
must be brought in the name of the partnership (and not in that of any of the
partners).
(2)
Proceedings for an offence alleged to have been committed by an
5
unincorporated association (other than a partnership) must be brought in the
name of the association (and not in that of any of its members).
(3)
Rules of court relating to the service of documents have effect as if the
partnership or unincorporated association were a body corporate.
(4)
In proceedings for an offence brought against a partnership or an
10
unincorporated association, section 33 of the Criminal Justice Act 1925 (c. 86)
and Schedule 3 to the Magistrates’ Courts Act 1980 (c. 43) apply as they apply
in relation to a body corporate.
(5)
A fine imposed on a partnership on its conviction for an offence must be paid
out of the partnership assets.
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(6)
A fine imposed on an unincorporated association on its conviction for an
offence must be paid out of the funds of the association.
(7)
Subsections (1) and (2) do not affect any liability of a partner, officer or member
under section 206(4) or (6).
(8)
“Offence” means an offence under this Part.
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208
Penalties for offences under this Part: transitional modification
(1)
In relation to an offence committed before the commencement of section 154(1)
of the Criminal Justice Act 2003 (c. 44) (general limit on magistrates’ courts
power to impose imprisonment), the reference in section 204(6)(b) to a period
of imprisonment of 12 months is a reference to a period of imprisonment of 6
25
months.
(2)
In relation to an offence committed before the commencement of section 281(5)
of the Criminal Justice Act 2003 (alteration of penalties for summary offences),
the references in sections 204(2)(a) and 205(2)(b) to periods of imprisonment of
51 weeks are references to periods of imprisonment of 3 months.
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Supplementary
209
Orders and regulations under this Part
(1)
Any power under this Part to make an order or regulations is exercisable by
statutory instrument.
(2)
Subject to subsection (3) a statutory instrument made by virtue of this Part is
35
subject to annulment in pursuance of a resolution of either House of
Parliament.
(3)
A statutory instrument containing an order under section 196(7) may not be
made unless a draft of the instrument has been laid before, and approved by a
resolution of, each House of Parliament.
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(4)
Any power under this Part to make an order or regulations—

National Health Service Bill [HL]
Part 10 — Protection of NHS from fraud and other unlawful activities
124

(a)
may make different provision for different cases or descriptions of case
or different purposes or areas, and
(b)
may make incidental, supplementary, consequential, transitory,
transitional or saving provision.
210
Interpretation of this Part
5
(1)
In this Part—
“authorised officer”, in relation to any function, means (subject to
subsection (5)) an officer of the Secretary of State authorised by him to
act in exercise of the function,
“document” means anything in which information of any description is
10
recorded,
“enactment” includes any provision of subordinate legislation (within the
meaning of the Interpretation Act 1978 (c. 30)), and references to
enactments include enactments passed or made after the passing of this
Act,
15
“employed” means employed whether under a contract of service or a
contract for services or otherwise, and whether for remuneration or not,
“functions to which this Part applies” has the meaning given by section
195(4),
“health service provider” and “NHS contractor” have the meaning given
20
by section 196,
“NHS body” must be construed in accordance with section 196,
“personal records” has the meaning given by section 12 of the Police and
Criminal Evidence Act 1984 (c. 60),
“statutory health body” has the meaning given by section 196.
25
(2)
References in this Part to the provision of services—
(a)
in relation to statutory health bodies, health service providers or NHS
contractors, include references to the provision of goods or facilities,
and
(b)
include references to the provision of services (or goods or facilities)
30
wherever that takes place.
(3)
References in this Part to the health service are references to the health service
in England.
(4)
In relation to information recorded otherwise than in legible form, any
reference in this Part to the production of documents is a reference to the
35
production of a copy of the information in legible form.
(5)
Where functions of the Secretary of State are exercisable by a Special Health
Authority—
(a)
references in this Part to authorised officers include officers of the
Special Health Authority authorised by or on behalf of the Special
40
Health Authority to act in exercise of the functions, and
(b)
references in this Part to information held or disclosed by or on behalf
of the Secretary of State include information held or disclosed by or on
behalf of the Special Health Authority.

National Health Service Bill [HL]
Part 11 — Property and finance
Chapter 2 — Trusts
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Part 11
Property and finance
Chapter 1
Land and other property
211
Acquisition, use and maintenance of property
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(1)
The Secretary of State may acquire—
(a)
any land, either by agreement or compulsorily,
(b)
any other property,

required by him for the purposes of this Act.
(2)
In particular, land may be so acquired to provide residential accommodation
10
for persons employed for any of those purposes.
(3)
The Secretary of State may use for the purposes of any of the functions
conferred on him by this Act any property belonging to him by virtue of this
Act, and he has power to maintain all such property.
(4)
A local social services authority may be authorised to purchase land
15
compulsorily for the purposes of this Act by means of an order made by the
authority and confirmed by the Secretary of State.
(5)
The Acquisition of Land Act 1981 (c. 67) applies to the compulsory purchase of
land under this section.
(6)
Section 120(3) of the Local Government Act 1972 (c. 70) (which relates to the
20
application of Part 1 of the Compulsory Purchase Act 1965 (c. 56) where a
council is authorised to acquire land by agreement) applies to the acquisition
of land by the Secretary of State under this section as it applies to such
acquisition by a council under that section.
(7)
Sections 238 and 239 of the Town and Country Planning Act 1990 (c. 8) (use and
25
development of consecrated land and burial grounds) apply to consecrated
land or land comprised in a burial ground (within the meaning of section 240
of that Act) which—
(a)
the Secretary of State holds for the purposes of the health service, and
(b)
has not been the subject of a relevant acquisition (within the meaning
30
of that section) by him,

as if that land had been the subject of such an acquisition by him for those
purposes.
Chapter 2
Trusts
35
212
Special trustees for a university hospital or teaching hospital
(1)
In this Act “special trustees” are trustees appointed by the Secretary of State in
relation to England under—
(a)
section 29 of the National Health Service Reorganisation Act 1973 (c.
32),
40

National Health Service Bill [HL]
Part 11 — Property and finance
Chapter 2 — Trusts
126

(b)
section 95 of the National Health Service Act 1977 (c. 49), and
(c)
this section,

for any hospital falling within subsection (2).
(2)
A hospital falls within this subsection if, immediately before the day appointed
for the purposes of section 29 of the National Health Service Reorganisation
5
Act 1973 (c. 32), it was controlled and managed by a University Hospital
Management Committee or a Board of Governors, other than—
(a)
a body on whose request an order was made under section 24(2) of that
Act, or
(b)
a preserved Board within the meaning of section 15(6) of that Act.
10
(3)
Special trustees must hold and administer the property transferred under the
National Health Service Reorganisation Act 1973.
(4)
The number of special trustees appointed under this section is such as the
Secretary of State may from time to time determine after consultation with
such persons as he considers appropriate.
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(5)
Special trustees have power to accept, hold and administer any property on
trust, being a trust which is wholly or mainly for hospitals for which they are
appointed, for all or any purposes relating to—
(a)
hospital services (including research), or
(b)
any other part of the health service associated with hospitals.
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(6)
The term of office of any special trustee appointed under this section must be
fixed by the Secretary of State, but a special trustee may be removed by the
Secretary of State at any time during the special trustee’s term of office.
(7)
Subsection (3) is subject to sections 213 and 214.
213
Transfers of trust property
25
(1)
The Secretary of State may, having regard to any change or proposed change—
(a)
in the arrangements for the administration of a hospital or other
establishment or facility, or
(b)
in the area or functions of any NHS body other than an NHS foundation
trust,
30

by order provide for the transfer of any trust property from any relevant health
service body to any other relevant health service body.
(2)
In this section “relevant health service body” means—
(a)
an NHS body,
(b)
special trustees, or
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(c)
trustees for a Primary Care Trust, an NHS trust or an NHS foundation
trust.
(3)
Where property is transferred by an order under this section to two or more
bodies, it must be apportioned by them in such proportions as they may agree,
or as may in default of agreement be determined by the Secretary of State, and
40
the order may provide for the way in which the property must be apportioned.
(4)
Where property is so apportioned, the Secretary of State may by order make
any consequential amendments of the trust instrument relating to the
property.

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Part 11 — Property and finance
Chapter 2 — Trusts
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(5)
In this section “special trustees” includes special trustees within the meaning
of section 160 of the National Health Service (Wales) Act 2006 (c. 00).
214
Transfer of functions and property to or from special trustees
(1)
If it appears to the Secretary of State at any time that all the functions of any
special trustees should be discharged by a Primary Care Trust, an NHS trust, a
5
Special Health Authority or an NHS foundation trust, he may by order provide
for the transfer of all trust property from the special trustees to the body or, in
such proportions as may be specified in the order, to those bodies.
(2)
Before acting under subsection (1) the Secretary of State must consult the
special trustees and other bodies concerned.
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(3)
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 a Primary Care Trust, an NHS trust or an NHS foundation
trust (“the trustees of the body”), or
(b)
the functions of the trustees of the body should be discharged by
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special trustees,

he may, after consulting the special trustees and the trustees of the body, by
order provide for the transfer of all trust property from the special trustees to
to the trustees of the body, or from the trustees of the body to the special
trustees.
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(4)
Where property is transferred by an order under this section to two or more
bodies, it must be apportioned by them in such proportions as they may agree,
or as may in default of agreement be determined by the Secretary of State, and
the order may provide for the way in which the property must be apportioned.
(5)
Where property is so apportioned, the Secretary of State may by order make
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any consequential amendments of the trust instrument relating to the
property.
(6)
“Special trustees” includes special trustees within the meaning of section 160 of
the National Health Service (Wales) Act 2006.
215
Trustees and property under section 222
30
(1)
Where property is given in pursuance of section 222 (power of NHS bodies to
raise money) to or on trust for any purposes of a hospital for which special
trustees have been appointed, the property may be held, administered and
applied by the special trustees instead of by the body responsible for the
hospital if that body and the special trustees agree.
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(2)
The body responsible for a hospital is—
(a)
in the case of a hospital vested in an NHS trust or an NHS foundation
trust, that trust, and
(b)
in any other case, the Strategic Health Authority or Primary Care Trust
exercising functions of the Secretary of State in respect of the hospital.
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(3)
Subsection (4) applies where property is given in pursuance of section 222—
(a)
on trust for any purposes of a Primary Care Trust for which trustees
have been appointed under paragraph 12 of Schedule 3,

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Chapter 2 — Trusts
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(b)
on trust for any purposes of an NHS trust for which trustees have been
appointed under paragraph 10 of Schedule 4, or paragraph 10 of
Schedule 3 to the National Health Service (Wales) Act 2006 (c. 00), or
(c)
on trust for any purposes of an NHS foundation trust for which trustees
have been appointed under section 51.
5
(4)
Where this subsection applies and the trustees and the Primary Care Trust,
NHS trust or NHS foundation trust agree, the property may be held,
administered and applied by the trustees instead of by the Primary Care Trust,
NHS trust or NHS foundation trust.
(5)
Property given in pursuance of section 222 on trust may be transferred by
10
order of the Secretary of State under section 213 or 214 in the same
circumstances as other trust property may be transferred under either of those
sections.
216
Application of trust property: further provisions
(1)
Any discretion given by a trust instrument to the trustees of property
15
transferred under—
(a)
section 24 of the National Health Service Reorganisation Act 1973 (c. 32)
(transfer of trust property from abolished authorities),
(b)
section 25 of that Act (transfer of trust property held for health
services by local health authorities),
20
(c)
section 92 of the National Health Service Act 1977 (c. 49) (further
transfers of trust property), or
(d)
section 213 or 214 of this Act,

is exercisable by the person to whom the property is so transferred and, subject
to this section, the transfer does not affect the trusts on which the property is
25
held.
(2)
Where—
(a)
property has been transferred under section 24 of the National Health
Service Reorganisation Act 1973, or section 92 of the National Health
Service Act 1977, and
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(b)
any discretion is given by a trust instrument to the trustees to apply the
property, or income arising from the property, to such hospital
services (including research) as the trustees consider appropriate
without any restriction on the kinds of hospital services and without
any restriction to one or more specified hospitals,
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the discretion is enlarged so as to allow the application of the property or of the
income arising from the property, to such extent as the trustees consider
appropriate, for any other part of the health service associated with any
hospital.
(3)
Subsection (2) applies on any subsequent transfer of the property under section
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213 or 214.
217
Trusts: supplementary provisions
(1)
This section applies in relation to—
(a)
section 51(1) to (3),
(b)
sections 212 to 214,
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(c)
section 216,