National Health Service (Wales) Bill [HL]

House of Commons

Session 2005 - 06
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Other Bills before Parliament

National Health Service (Wales) Bill [HL]

National Health Service (Wales) Bill [HL]
Part 1 — Promotion and provision of the health service in Wales
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 Wales
The Welsh Ministers and the health service in Wales
1
Welsh Ministers’ duty to promote health service
(1)
The Welsh Ministers must continue the promotion in Wales of a
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comprehensive health service designed to secure improvement—
(a)
in the physical and mental health of the people of Wales, and
(b)
in the prevention, diagnosis and treatment of illness.
(2)
The Welsh Ministers 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
2
Welsh Ministers’ general power
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(1)
The Welsh Ministers may—
(a)
provide such services as they consider appropriate for the purpose of
discharging any duty imposed on them 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 226 54/1

National Health Service (Wales) Bill [HL]
Part 1 — Promotion and provision of the health service in Wales
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(2)
Subsection (1) does not affect—
(a)
the powers of the Welsh Ministers apart from this section,
(b)
Part 6 and Chapter 1 of Part 7 (ophthalmic and pharmaceutical
services).
Provision of particular services
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3
Welsh Ministers’ duty as to provision of certain services
(1)
The Welsh Ministers must provide throughout Wales, to such extent as they
consider necessary to meet all reasonable requirements—
(a)
hospital accommodation,
(b)
other accommodation for the purpose of any service provided under
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this Act,
(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 they consider are
appropriate as part of the health service,
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(e)
such other services or facilities for the prevention of illness, the care of
persons suffering from illness and the after-care of persons who have
suffered from illness as they consider are appropriate as part of the
health service,
(f)
such other services or facilities as are required for the diagnosis and
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treatment of illness.
(2)
For the purposes of the duty in subsection (1), services provided under—
(a)
section 41(2) (primary medical services) or 56(2) (primary dental
services), or
(b)
a general medical services contract or a general dental services contract,
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must be regarded as provided by the Welsh Ministers.
(3)
This section does not affect Part 6 and Chapter 1 of Part 7 (ophthalmic and
pharmaceutical services).
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High security psychiatric services
(1)
The Welsh Ministers’ duty under section 1 includes a duty to provide hospital
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accommodation and services for persons who—
(a)
are liable to be detained under the Mental Health Act 1983 (c. 20), and
(b)
in the opinion of the Welsh Ministers require treatment under
conditions of high security on account of their dangerous, violent or
criminal propensities.
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(2)
The hospital accommodation and services mentioned in subsection (1) are
referred to in this section and paragraph 15 of Schedule 3 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
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(1).
(4)
“Hospital premises” means—
(a)
a hospital, or

National Health Service (Wales) Bill [HL]
Part 1 — Promotion and provision of the health service in Wales
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(b)
any part of a hospital which is treated as a separate unit.
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Other services
Schedule 1 makes further provision about the Welsh Ministers and services
under this Act.
Provision of services otherwise than in Wales
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6
Performance of functions outside Wales
(1)
The Welsh Ministers may provide or secure the provision of anything
mentioned in section 3(1) outside Wales.
(2)
The Welsh Ministers’ functions may be performed outside England and Wales,
in so far as they relate to—
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(a)
holidays for patients,
(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
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for this purpose the Republic of Ireland).
NHS contracts
7
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
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service body (“the provider”) of goods or services which it reasonably requires
for the purposes of its functions.
(2)
Section 97(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).
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(3)
Paragraph 15 of Schedule 3 (NHS trusts and NHS contracts) makes further
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,
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(b)
a Primary Care Trust,
(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
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Service (Scotland) Act 1978 (c. 29),
(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,
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(i)
the Wales Centre for Health,

National Health Service (Wales) Bill [HL]
Part 1 — Promotion and provision of the health service in Wales
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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 (S.I. 1972/1265 (N.I.14)),
(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 to 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 Welsh Ministers for determination under this section.
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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 Welsh Ministers for determination under this section.
(8)
Where a reference is made to the Welsh Ministers under subsection (6) or (7),
they may determine the matter themselves or appoint a person to consider and
determine it in accordance with regulations.
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(9)
“The appropriate person” means the Welsh Ministers 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
45
not affect the generality of the power of determination under subsection (6)).
(13)
Where an arrangement is so varied or brought to an end—

National Health Service (Wales) Bill [HL]
Part 1 — Promotion and provision of the health service in Wales
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(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)
may contain such provisions as the appropriate person considers
appropriate in order to give effect to the variation or to bring the
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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
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
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section 7(4) is a party or prospective party to an arrangement or proposed
arrangement which—
(a)
falls within the definition of NHS contract in section 7(1), and
(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.
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1991/194 (N.I.1)).
(2)
Subsections (5) to (13) of section 7 apply in relation to the arrangement or
proposed arrangement with the substitution for references to the Welsh
Ministers of references to the Welsh Ministers and the Department of Health,
Social Services and Public Safety acting jointly.
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9
Arrangements to be treated as NHS contracts
(1)
This section applies to any arrangement under which a Local Health Board or
such other health service body as may be prescribed arranges for the provision
to it—
(a)
by a contractor under a general ophthalmic services contract,
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(b)
by a person on an ophthalmic list,
(c)
by a person on a pharmaceutical list, or
(d)
by a person who has entered into a pharmaceutical care services
contract under section 17Q of the National Health Service (Scotland)
Act 1978 (c. 29),
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of the goods or services mentioned in subsection (2).
(2)
The goods or services are those that the body reasonably requires for the
purposes of its functions, other than functions under—
(a)
Part 6 (general ophthalmic services),
(b)
Chapter 1 or 2 of Part 7 (pharmaceutical services and local
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pharmaceutical services under pilot schemes), or
(c)
section 115 of, or Chapter 1 or 2 of Part 7 of, the National Health Service
Act 2006 (c. 00) (primary ophthalmic services and pharmaceutical
services and local pharmaceutical services under pilot schemes).
(3)
Any such arrangement is to be treated as an NHS contract for the purposes of
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section 7 (other than subsections (7) and (10)).
(4)
In this section—
“general ophthalmic services contract” and “contractor” under such a
contract have the meanings given by section 117 of the National Health
Service Act 2006,
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National Health Service (Wales) Bill [HL]
Part 1 — Promotion and provision of the health service in Wales
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“health service body” means a body which is a health service body for the
purposes of section 7,
“ophthalmic list” includes a list published in accordance with regulations
made under—
(a)
section 26(2)(a) of the National Health Service (Scotland) Act
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1978 (c. 29), or
(b)
Article 62(2)(a) of the Health and Personal Social Services
(Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I.14)), and
“pharmaceutical list” includes a list published in accordance with
regulations made under—
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(a)
section 129(2)(a) of the National Health Service Act 2006 (c. 00),
or
(b)
Article 63(2A)(a) of the Health and Personal Social Services
(Northern Ireland) Order 1972.
(5)
The reference to a list published in accordance with regulations made under
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paragraph (a) of section 26(2) of the National Health Service (Scotland) Act
1978 is a reference to the first part of the list (referred to in sub-paragraph (i) of
that paragraph) which is published in accordance with regulations under that
paragraph.
Provision of services otherwise than by the Welsh Ministers
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Welsh Ministers’ arrangements with other bodies
(1)
The Welsh Ministers may arrange with any person or body to provide, or assist
in providing, any service under this Act.
(2)
Arrangements may be made under subsection (1) with voluntary
organisations.
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(3)
The Welsh Ministers may make available any facilities provided by them for
any service under this Act—
(a)
to any person or body carrying out any arrangements under subsection
(1), or
(b)
to any voluntary organisation eligible for assistance under section 64 or
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section 65 of the Health Services and Public Health Act 1968 (c. 46).
(4)
Where facilities are made available under subsection (3) the Welsh Ministers
may make available the services of any person employed in connection with
the facilities by—
(a)
the Welsh Ministers,
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(b)
a Primary Care Trust,
(c)
a Special Health Authority, or
(d)
a Local Health Board.
(5)
Powers under this section may be exercised on such terms as may be agreed,
including terms as to the making of payments by or to the Welsh Ministers.
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(6)
Goods or materials may be made available either temporarily or permanently.
(7)
Any power to supply goods or materials under this section includes—
(a)
a power to purchase and store them, and

National Health Service (Wales) Bill [HL]
Part 2 — Health service bodies
Chapter 1 — Local Health Boards
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(b)
a power to arrange with third parties for the supply of goods or
materials by those third parties.
Part 2
Health service bodies
Chapter 1
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Local Health Boards
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Local Health Boards
(1)
The Welsh Ministers may establish bodies to be known as Local Health Boards.
(2)
Each Local Health Board is established by order made by the Welsh Ministers
(referred to in this Act as an LHB order), and an order may establish more than
10
one Local Health Board.
(3)
A Local Health Board is established for the area of Wales specified in its LHB
order.
(4)
If any consultation requirements apply, they must be complied with before an
LHB order is varied or revoked.
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(5)
“Consultation requirements” means requirements about consultation
contained in regulations.
(6)
Schedule 2 makes further provision about Local Health Boards.
12
Functions of Local Health Boards
(1)
The Welsh Ministers may direct a Local Health Board to exercise in relation to
20
its area—
(a)
functions which were transferred to the National Assembly for Wales
by the Health Authorities (Transfer of Functions, Staff, Property, Rights
and Liabilities and Abolition) (Wales) Order 2003 (S.I. 2003/813
(W.98)),
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(b)
such other of their functions relating to the health service as are
specified in the direction.
(2)
The functions which may be specified in directions under subsection (1)
include functions under enactments relating to mental health and care homes.
(3)
The Welsh Ministers may give directions to a Local Health Board about its
30
exercise of any functions.
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Exercise of Local Health Board functions
(1)
This section applies to functions exercisable by a Local Health Board under or
by virtue of this Act (including this section) or any prescribed provision of any
other Act.
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(2)
The Welsh Ministers may give directions providing for any functions to which
this section applies to be exercised—
(a)
by another Local Health Board,
(b)
by a Special Health Authority, or