National Health Service Bill [HL]

House of Commons

Session 2005 - 06
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National Health Service Bill [HL]

National Health Service Bill [HL]
Schedule 6 — Special Health Authorities established under section 28
209

Pay and allowances
2     (1)
The Secretary of State may pay to—
(a)
the chairman of a Special Health Authority, and
(b)
any member of a Special Health Authority who is appointed by the
Secretary of State,
5

such remuneration as he may determine with the approval of the Treasury.
      (2)
The Secretary of State may provide as he may determine with the approval
of the Treasury for the payment of a pension, allowance or gratuity to or in
respect of the chairman of a Special Health Authority.
      (3)
Where a person ceases to be chairman of a Special Health Authority, and it
10
appears to the Secretary of State that there are special circumstances which
make it right for that person to receive compensation, the Secretary of State
may make him a payment of such amount as the Secretary of State may
determine with the approval of the Treasury.
      (4)
The Secretary of State may pay to a member of a Special Health Authority,
15
or of a committee or sub-committee of, or joint committee or joint sub-
committee including, a Special Health Authority, such travelling and other
allowances (including attendance allowance or compensation for the loss of
remunerative time) as he may determine with the approval of the Treasury.
      (5)
Allowances may not be paid under sub-paragraph (4) except in connection
20
with the exercise, in such circumstances as the Secretary of State may
determine with the approval of the Treasury, of such functions as he may so
determine.
      (6)
Payments under this paragraph must be made at such times, and in such
manner and subject to such conditions, as the Secretary of State may
25
determine with the approval of the Treasury.
Staff
3     (1)
A Special Health Authority may employ such officers as it may determine.
      (2)
A Special Health Authority may—
(a)
pay its officers such remuneration and allowances, and
30
(b)
employ them on such other terms and conditions,

as it may determine.
      (3)
A Special Health Authority must, in exercising its powers under sub-
paragraph (1) or (2), act in accordance with regulations and any directions
given by the Secretary of State.
35
      (4)
Regulations and directions under sub-paragraph (3) may make provision
with respect to any matter connected with the employment by a Special
Health Authority of its officers, including in particular provision—
(a)
with respect to the qualifications of persons who may be employed
as officers of a Special Health Authority,
40
(b)
requiring a Special Health Authority to employ a chief officer and
officers of such other descriptions as may be prescribed and to
employ, for the purpose of performing prescribed functions of the
Special Health Authority or any other body, officers having
prescribed qualifications or experience, and
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National Health Service Bill [HL]
Schedule 6 — Special Health Authorities established under section 28
210

(c)
as to the manner in which any officers of a Special Health Authority
must be appointed.
      (5)
A direction under sub-paragraph (3) may relate to a particular officer or
class of officer specified in the direction.
      (6)
Regulations and directions under sub-paragraph (3) may provide for
5
approvals or determinations to have effect from a date specified in them.
      (7)
The date may be before or after the date of giving the approvals or making
the determinations but may not be before if it would be to the detriment of
the officers to whom the approvals or determinations relate.
      (8)
Regulations may provide for the transfer of officers from one Special Health
10
Authority to another Special Health Authority or to a Strategic Health
Authority, and for arrangements under which the services of an officer of a
Special Health Authority are placed at the disposal of another Special Health
Authority, a Strategic Health Authority or a local authority.
      (9)
Sub-paragraph (11) applies where the registration of a dental practitioner in
15
the dentists register is suspended—
(a)
by an interim suspension order under section 32 of the Dentists Act
1984 (c. 24) (interim orders), or
(b)
by a direction or an order of the Health Committee, the Professional
Performance Committee or the Professional Conduct Committee of
20
the General Dental Council under any of sections 27B, 27C or 30 of
that Act following a relevant determination that that practitioner’s
fitness to practise is impaired.
     (10)
For the purposes of sub-paragraph (9), a “relevant determination” that a
practitioner’s fitness to practice is impaired is a determination which is
25
based solely on—
(a)
the ground mentioned in paragraph (b) of subsection (2) of section 27
of the Dentists Act 1984 (deficient professional performance),
(b)
the ground mentioned in paragraph (c) of that subsection (adverse
physical or mental health), or
30
(c)
both those grounds.
     (11)
The suspension does not terminate any contract of employment made
between the dental practitioner and a Special Health Authority, but a person
whose registration is so suspended must not perform any duties under a
contract made between him and a Special Health Authority which involves
35
the practice of dentistry within the meaning of the Dentists Act 1984.
     (12)
Directions may be given—
(a)
by the Secretary of State to a Special Health Authority to place the
services of any of its officers at the disposal of another Special Health
Authority or of a Strategic Health Authority,
40
(b)
by the Secretary of State to any Special Health Authority to employ
as an officer of the Special Health Authority any person who is or
was employed by another Special Health Authority or by a Strategic
Health Authority and is specified in the direction.
     (13)
Regulations made in pursuance of this paragraph may not require that all
45
consultants employed by a Special Health Authority must be so employed
whole-time.

National Health Service Bill [HL]
Schedule 6 — Special Health Authorities established under section 28
211

4     (1)
The Secretary of State must, before he makes regulations under paragraph 3,
consult such bodies as he may recognise as representing persons who, in his
opinion, are likely to be affected by the regulations.
      (2)
The Secretary of State must, before he gives directions to a Special Health
Authority under paragraph 3(12) in respect of any officer of a Special Health
5
Authority—
(a)
consult the officer about the directions,
(b)
satisfy himself that the Special Health Authority of which he is an
officer has consulted the officer about the placing or employment in
question, or
10
(c)
in the case of a direction under paragraph 3(12)(a), consult with
respect to the directions such body as he may recognise as
representing the officer.
      (3)
But if the Secretary of State—
(a)
considers it necessary to give directions under paragraph 3(12)(a) for
15
the purpose of dealing temporarily with an emergency, and
(b)
has previously consulted bodies recognised by him as
representing the relevant officers about the giving of directions for
that purpose,

the Secretary of State may disregard sub-paragraph (2) in relation to the
20
directions.
Miscellaneous
5
Provision may be made by regulations as to—
(a)
the appointment and tenure of office of the chairman, vice-chairman
and members of a Special Health Authority,
25
(b)
the appointment and tenure of office of any members of a committee
or sub-committee of a Special Health Authority who are not
members of the Special Health Authority,
(c)
the appointment and tenure of office of any members of a joint
committee or joint sub-committee including a Special Health
30
Authority who are not members of the Special Health Authority,
(d)
the circumstances in which a member of a Special Health Authority
who is (or must be regarded as) an officer of the Special Health
Authority may be suspended from performing his functions as a
member,
35
(e)
the appointment and constitution of committees and sub-
committees (and joint committees and joint sub-committees) of (or
including) a Special Health Authority (including any such
committees consisting wholly or partly of persons who are not
members of the Special Health Authority in question), and
40
(f)
the procedure of a Special Health Authority and of such committees
and sub-committees as are mentioned in paragraph (e).
6
Regulations made under this Schedule may make provision (including
provision modifying this Schedule) to deal with cases where the post of chief
officer or any other officer of a Special Health Authority is held jointly by
45
two or more persons or where the functions of such an officer are in any
other way performed by more than one person.

National Health Service Bill [HL]
Schedule 6 — Special Health Authorities established under section 28
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7
A Special Health Authority may pay subscriptions, of such amounts as the
Secretary of State may approve, to the funds of such bodies as he may
approve.
8
A Special Health Authority has power to accept gifts of property (including
property to be held on trust, either for the general or any specific purposes
5
of the Special Health Authority or for any purposes relating to the health
service).
9     (1)
The Secretary of State may by order provide for the appointment of trustees
for a Special Health Authority to hold property on trust—
(a)
for the general or any specific purposes of the Special Health
10
Authority (including the purposes of any specific hospital or other
establishment or facility at or from which services are provided by
the Special Health Authority), or
(b)
for any purposes relating to the health service.
      (2)
An order under sub-paragraph (1) may—
15
(a)
make provision as to the persons by whom trustees must 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),
20
(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
25
his removal from office.
      (3)
Where under sub-paragraph (1) trustees have been appointed for a Special
Health Authority, the Secretary of State may by order provide for the
transfer of any trust property from the Special Health Authority to the
trustees.
30
10
The proceedings of a Special Health Authority are not invalidated by any
vacancy in its membership or by any defect in a member’s appointment.
11    (1)
A Special Health Authority may—
(a)
make available at a hospital for which it has responsibility
accommodation or services for patients who give undertakings (or
35
for whom undertakings are given) to pay any charges imposed by
the Special Health Authority in respect of the accommodation or
services, and
(b)
make and recover charges in respect of such accommodation or
services and calculate them on any basis that it considers to be the
40
appropriate commercial basis.
      (2)
A Special Health Authority may exercise the power conferred by sub-
paragraph (1) only if it is satisfied that its exercise—
(a)
does not to any significant extent interfere with the performance by
the Special Health Authority of any function conferred on it under
45
this Act to provide accommodation or services of any kind, and
(b)
does not to a significant extent operate to the disadvantage of
persons seeking or afforded admission or access to accommodation

National Health Service Bill [HL]
Schedule 7 — Constitution of public benefit corporations
213

or services at health service hospitals (whether as resident or non-
resident patients) otherwise than under this section.
      (3)
Before a Special Health Authority decides to make accommodation or
services available under sub-paragraph (1), it must consult organisations
representative of the interests of persons likely to be affected by the decision.
5
      (4)
A Special Health Authority may allow accommodation or services which are
made available under sub-paragraph (1) to be so made available in
connection with treatment in pursuance of arrangements—
(a)
made by a medical practitioner or dental practitioner serving
(whether in an honorary or paid capacity) on the staff of a health
10
service hospital,
(b)
for the treatment of private patients of that practitioner.
      (5)
References in this paragraph to a health service hospital include references
to such a hospital within the meaning of section 206 of the National Health
Service (Wales) Act 2006 (c. 00), but do not include references to a hospital
15
vested in an NHS trust or an NHS foundation trust.
12    (1)
Any rights acquired, or liabilities (including liabilities in tort) incurred, in
respect of the exercise by a Special Health Authority of any function
exercisable by it by virtue of section 7 or section 29 are enforceable by or
against that Special Health Authority (and no other body).
20
      (2)
This paragraph does not apply in relation to the joint exercise of any
functions by a Special Health Authority with another body under section
29(1)(b).
13
Provision may be made by regulations with respect to the recording of
information by a Special Health Authority, and the furnishing of
25
information by a Special Health Authority to the Secretary of State, another
Special Health Authority or a Strategic Health Authority.
Schedule 7
Section 30

Constitution of public benefit corporations
Requirement for a constitution
30
1     (1)
A public benefit corporation must have a constitution.
      (2)
As well as any provision authorised or required to be made by this Schedule,
the constitution may make further provision (other than provision as to the
powers of the corporation) consistent with this Schedule.
2
The constitution must name the corporation and, if the corporation is an
35
NHS foundation trust, its name must include the words “NHS foundation
trust”.
Eligibility for membership
3     (1)
The persons who may become or continue as members of a public benefit
corporation are—
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National Health Service Bill [HL]
Schedule 7 — Constitution of public benefit corporations
214

(a)
individuals who live in any area specified in the constitution as the
area for a public constituency,
(b)
individuals employed by the corporation under a contract of
employment and, if the constitution so provides, individuals who
exercise functions for the purposes of the corporation otherwise than
5
under a contract of employment with the corporation,
(c)
if the constitution so provides, individuals who have attended any of
the corporation’s hospitals as either a patient or the carer of a patient
within a period specified in the constitution.
      (2)
The constitution may specify one or more areas as areas for public
10
constituencies, each of which must be an electoral area for the purposes of
local government elections in England and Wales or an area consisting of
two or more such electoral areas.
      (3)
A person may become or continue as a member of the corporation by virtue
of sub-paragraph (1)(b) only if—
15
(a)
he is employed by the corporation under a contract of employment
which has no fixed term or has a fixed term of at least 12 months, or
(b)
he has been continuously employed by the corporation for at least 12
months or, where he exercises functions for the purposes of the
corporation as mentioned in that sub-paragraph, he has done so
20
continuously for such a period.
      (4)
Chapter 1 of Part 14 of the Employment Rights Act 1996 (c. 18) applies for
the purpose of determining whether an individual has been continuously
employed by the corporation, or has continuously exercised functions for
the purposes of the corporation, as it applies for the purposes of that Act.
25
      (5)
The constitution may divide those who come within sub-paragraph (1)(b)
into two or more descriptions of individuals.
      (6)
An individual providing care in pursuance of a contract (including a
contract of employment), or as a volunteer for a voluntary organisation,
does not come within sub-paragraph (1)(c).
30
      (7)
The constitution may divide those who come within sub-paragraph (1)(c)
into three or more descriptions of individuals, one of which must comprise
the carers of patients.
      (8)
The constitution may make further provision as to the circumstances in
which a person may not become or continue as a member.
35
Constituencies
4     (1)
Members of a public benefit corporation are referred to as follows.
      (2)
Those who live in an area specified in the constitution as an area for any
public constituency are referred to collectively as a public constituency.
      (3)
Those who come within paragraph 3(1)(b) are referred to collectively as the
40
staff constituency and, if the power in paragraph 3(5) is exercised, each
description of members is referred to as a class within that constituency.
      (4)
Those who come within paragraph 3(1)(c) are referred to collectively as the
patient’s constituency and, if the power in paragraph 3(7) is exercised, each
description of members is referred to as a class within that constituency.
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National Health Service Bill [HL]
Schedule 7 — Constitution of public benefit corporations
215

      (5)
A person who is a member of a constituency, or of a class within a
constituency, may not while that membership continues be a member of any
other constituency or class.
      (6)
A person who comes within paragraph 3(1)(b) may not become or continue
as a member of any constituency other than the staff constituency.
5
5
The constitution must require a minimum number of members of each
constituency or, where there are classes within the constituency, of each
class.
Becoming a member
6     (1)
An individual who is eligible to become a member of a public benefit
10
corporation may do so on an application made to the corporation.
      (2)
The constitution may provide for any individual who is—
(a)
eligible to become a member of the staff constituency, and
(b)
invited by the corporation to become a member of that constituency
(and, where there are classes within the constituency, a member of
15
the appropriate class),

to become a member of the corporation as a member of that constituency
(and class) without an application being made, unless he informs the
corporation that he does not wish to do so.
      (3)
The constitution may provide for any individual who is—
20
(a)
eligible to become a member of the patients’ constituency (otherwise
than as the carer of a patient), and
(b)
invited by the corporation to become a member of a specified
constituency (and where there are classes within the constituency, a
member of the specified class),
25

to become a member of the corporation as a member of that constituency
(and class) without an application being made, unless he informs the
corporation that he does not wish to do so.
      (4)
The constituency and, where applicable, class to be specified—
(a)
if he is eligible to be a member of any public constituency, is that
30
constituency,
(b)
otherwise, is the patients’ constituency and, where applicable, the
class of which he is eligible to become a member.
Board of Governors
7     (1)
A public benefit corporation has a board of governors.
35
      (2)
Only members of the corporation and persons appointed under the
following provisions may become or continue as members of the board.
      (3)
The members of the board other than the appointed members must be
chosen by election.
      (4)
Members of a constituency or, where there are classes within it, members of
40
each class may elect any of their number to be a member of the board.
8     (1)
The following may not become or continue as members of the board of
governors—