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National Health Service (Wales) Bill [HL]


National Health Service (Wales) Bill [HL]
Schedule 2 — Local Health Boards
Part 1 — Constitution and membership

139

 

(b)   

otherwise in connection with the employment of its officers,

           

act in accordance with regulations, and any directions given by the Welsh

Ministers.

      (4)  

Before making any regulations under sub-paragraph (3), the Welsh

Ministers must consult such bodies as they may recognise as representing

5

persons who, in their opinion, are likely to be affected by the regulations.

8     (1)  

The Welsh Ministers may direct a Local Health Board—

(a)   

to make the services of any of its officers available to another Local

Health Board, or

(b)   

to employ any person who is or was employed by another Local

10

Health Board and is specified in the direction.

      (2)  

Sub-paragraph (1) does not affect the generality of section 12.

      (3)  

Before they give a direction under sub-paragraph (1) the Welsh Ministers

must—

(a)   

consult the person whose services will be made available or who will

15

be employed,

(b)   

satisfy themselves that the Local Health Board has consulted that

person, or

(c)   

consult any such body as the Welsh Ministers may recognise as

representing that person.

20

      (4)  

Sub-paragraph (2) does not apply in relation to a direction under sub-

paragraph (1)(a) if the Welsh Ministers—

(a)   

consider it necessary to give the direction for the purpose of

dealing temporarily with an emergency, and

(b)   

have previously consulted bodies recognised by the Welsh Ministers

25

as representing the person whose services are to be made available

about the giving of directions for that purpose.

9          

In addition to making provision in relation to Strategic Health Authorities

and Special Health Authorities, regulations under paragraph 7(8) of

Schedule 2 to the National Health Service Act 2006 (c. 00) and under

30

paragraph 3(8) of Schedule 6 to that Act may also provide—

(a)   

for the transfer of officers of one Local Health Board to another, and

(b)   

for arrangements under which the officers of a Local Health Board

are placed at the disposal of another Local Health Board or a local

authority.

35

Remuneration, pensions etc of members

10    (1)  

A Local Health Board may pay the chairman, the vice-chairman (if any) and

any other members of the Board such remuneration and such travelling and

other allowances as may be determined by the Welsh Ministers.

      (2)  

A Local Health Board may pay the chairman or any person who has been

40

chairman of the Board such pension, allowance or gratuity as may be

determined by the Welsh Ministers.

      (3)  

A Local Health Board may pay the members of any committee of a Board

such travelling and other allowances as may be determined by the Welsh

Ministers.

45

 

 

National Health Service (Wales) Bill [HL]
Schedule 2 — Local Health Boards
Part 3 — Other Matters

140

 

      (4)  

If, when a person ceases to be chairman of a Local Health Board, the Welsh

Ministers determine that there are special circumstances which make it right

that that person should receive compensation, the Board must pay to him a

sum by way of compensation of such amount as the Welsh Ministers may

determine.

5

Part 2

LHB orders

11    (1)  

An LHB order must specify—

(a)   

the name of the Local Health Board, and

(b)   

the operational date of the Local Health Board.

10

      (2)  

The operational date of a Local Health Board is the date on which functions

exercisable by it may be undertaken fully by the Board.

12    (1)  

An LHB order may provide for the establishment of a Local Health Board

with effect from a date earlier than the operational date.

      (2)  

During the period beginning with that earlier date and ending with the day

15

immediately preceding the operational date (referred to in this Schedule as

the preparatory period), the exercise of any functions by the Board must be

limited to such exercise as may be specified in the LHB order for the purpose

of enabling it to begin to operate satisfactorily with effect from the

operational date.

20

Part 3

Other Matters

General power

13    (1)  

Subject to sub-paragraph (3), a Local Health Board may do anything which

appears to it to be necessary or expedient for the purposes of or in

25

connection with its functions.

      (2)  

In particular it may—

(a)   

acquire and dispose of property,

(b)   

enter into contracts,

(c)   

accept gifts of property (including property to be held on trust, either

30

for the general or any specific purposes of the Local Health Board or

for any purposes relating to the health service).

      (3)  

A Local Health Board may not do anything mentioned in sub-paragraph (2)

without the consent of the Welsh Ministers (which may be given in general

terms covering one or more descriptions of case).

35

Rights and liabilities

14    (1)  

Any rights acquired, or liabilities (including liabilities in tort) incurred, in

respect of the exercise by a Local Health Board of any function exercisable

by it by virtue of section 12 or 13 are enforceable by or against that Local

Health Board (and not against any other body or the Welsh Ministers).

40

 

 

National Health Service (Wales) Bill [HL]
Schedule 2 — Local Health Boards
Part 3 — Other Matters

141

 

      (2)  

This paragraph does not apply in relation to the joint exercise of any

functions by a Local Health Board with another body under section 13(2)(c).

Making accommodation or services available

15    (1)  

A Local Health Board may—

(a)   

make available at a hospital for which it has responsibility

5

accommodation or services for patients who give undertakings (or

for whom undertakings are given) to pay any charges imposed by

the Local Health Board in respect of the accommodation or services,

and

(b)   

make and recover charges in respect of such accommodation or

10

services and calculate them on any basis that it considers to be the

appropriate commercial basis.

      (2)  

A Local Health Board 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

15

the Local Health Board of any function conferred on it under 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

or services at health service hospitals (whether as resident or non-

20

resident patients) otherwise than under this section.

      (3)  

Before a Local Health Board 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.

      (4)  

A Local Health Board may allow accommodation or services which are

25

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

service hospital,

30

(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 275 of the National Health

Service Act 2006 (c. 00), but do not include references to a hospital vested in

an NHS trust or an NHS foundation trust.

35

Powers of Local Health Boards to enter into externally financed development agreements

16    (1)  

The powers of a Local Health Board include power to enter into externally

financed development agreements.

      (2)  

For the purposes of this paragraph, an agreement is an externally financed

development agreement if it is certified as such in writing by the Welsh

40

Ministers.

      (3)  

The Welsh Ministers may give a certificate under this paragraph if—

(a)   

in their opinion the purpose or main purpose of the agreement is the

provision of facilities or services in connection with the discharge by

the Local Health Board of any of its functions, and

45

 

 

National Health Service (Wales) Bill [HL]
Schedule 2 — Local Health Boards
Part 3 — Other Matters

142

 

(b)   

a person proposes to make a loan to, or provide any other form of

finance for, another party in connection with the agreement.

      (4)  

If a Local Health Board enters into an externally financed development

agreement it may also, in connection with that agreement, enter into an

agreement with a person who falls within sub-paragraph (3)(b) in relation to

5

the externally financed development agreement.

      (5)  

“Another party” means any party to the agreement other than the Local

Health Board.

      (6)  

The fact that an agreement made by a Local Health Board has not been

certified under this paragraph does not affect its validity.

10

Research

17    (1)  

A Local Health Board may conduct, commission or assist the conduct of

research.

      (2)  

A Local Health Board may, in particular, make officers available or provide

facilities under sub-paragraph (1).

15

Training

18         

A Local Health Board may—

(a)   

make officers available in connection with any instruction provided

under section 63 of the Health Services and Public Health Act 1968

(c. 46),

20

(b)   

make officers and facilities available in connection with training

by a university or any other body providing training in connection

with the health service.

Regulations about duties

19         

Regulations may make provision in relation to—

25

(a)   

reports to be prepared by Local Health Boards,

(b)   

information to be supplied by them,

(c)   

their accounts, and the audit and publication of their accounts,

(d)   

the publication of any other document.

Compulsory acquisition

30

20    (1)  

A Local Health Board may be authorised to purchase land compulsorily for

the purposes of its functions by means of an order made by the Local Health

Board and confirmed by the Welsh Ministers.

      (2)  

The Acquisition of Land Act 1981 (c. 67) applies to the compulsory purchase

of land under this paragraph.

35

      (3)  

No order may be made by a Local Health Board under Part 2 of the

Acquisition of Land Act 1981 in respect of any land unless the proposal to

acquire the land compulsorily—

(a)   

has been submitted to the Welsh Ministers in the form, and with the

information, required by them, and

40

(b)   

has been approved by the Welsh Ministers.

 

 

National Health Service (Wales) Bill [HL]
Schedule 2 — Local Health Boards
Part 3 — Other Matters

143

 

Dissolution

21    (1)  

The Welsh Ministers may, if a Local Health Board is dissolved, by order

transfer (or provide for the transfer) to themselves or to another Local Health

Board any property or liabilities of the dissolved Board.

      (2)  

The liabilities which may be transferred by virtue of sub-paragraph (1) to

5

another Local Health Board include criminal liabilities.

      (3)  

If any consultation requirements apply, they must be complied with before

the order is made.

      (4)  

“Consultation requirements” means requirements about consultation

contained in regulations.

10

Transfer of property

22    (1)  

The Welsh Ministers may by order (referred to in this paragraph and

paragraph 23 as a transfer order)—

(a)   

transfer (or provide for the transfer of) any of the property and

liabilities of a health service authority to a Local Health Board,

15

(b)   

create or impose (or provide for the creation or imposition of) new

rights or liabilities in respect of property transferred or retained.

      (2)  

Any property and liabilities which—

(a)   

belong to a health service authority other than the Welsh Ministers

or are used or managed by a Local Health Board, and

20

(b)   

will be transferred to a Local Health Board by or under a transfer

order,

           

must be identified by agreement between the health service authority and

the Local Health Board or, in default of agreement, by direction of the Welsh

Ministers.

25

      (3)  

Where a transfer order transfers (or provides for the transfer of)—

(a)   

land held on lease from a third party, or

(b)   

any other asset leased or hired from a third party or in which a

third party has an interest,

           

the transfer is binding on the third party despite the fact that, apart from this

30

sub-paragraph, the transfer would have required the third party’s consent

or concurrence.

      (4)  

“Third party” means a person other than a health service authority.

      (5)  

In this paragraph and paragraph 23, “health service authority” means the

Welsh Ministers, a Local Health Board or an NHS trust in Wales.

35

23    (1)  

Stamp duty is not chargeable in respect of any transfer to a Local Health

Board effected by or under a transfer order.

      (2)  

Where it becomes necessary, for the purpose of a transfer by or under a

transfer order, to apportion any property or liabilities, the order may contain

such provisions as appear to the Welsh Ministers to be appropriate for the

40

purpose.

      (3)  

Where a transfer order transfers (or provides for the transfer of) any

property or rights to which paragraph 22(3) applies, the order must contain

such provisions as appear to the Welsh Ministers to be appropriate to

 

 

National Health Service (Wales) Bill [HL]
Schedule 2 — Local Health Boards
Part 3 — Other Matters

144

 

safeguard the interests of third parties (within the meaning of that sub-

paragraph), including, where appropriate, provision for the payment of

compensation of an amount to be determined in accordance with the order.

      (4)  

A certificate issued by the Welsh Ministers that—

(a)   

any specified property,

5

(b)   

any specified interest in or right over any property, or

(c)   

any specified right or liability,

           

has been vested in a Local Health Board by or under a transfer order is

conclusive evidence of that fact for all purposes.

      (5)  

“Specified” means specified in the certificate.

10

      (6)  

A transfer order may include provision for matters to be settled by

arbitration by a person determined in accordance with the order.

      (7)  

Paragraph 22 and this paragraph do not affect—

(a)   

any existing power of a health service authority to transfer

property or liabilities to a Local Health Board,

15

(b)   

the extent of the power conferred by section 203(10).

Transfer of staff

24    (1)  

The Welsh Ministers may by order transfer to a Local Health Board any

specified description of employees to which this paragraph applies.

      (2)  

This paragraph applies to employees of—

20

(a)   

an NHS trust in Wales,

(b)   

a Local Health Board.

      (3)  

An order may be made under this paragraph only if any prescribed

requirements about consultation have been complied with in relation to

each of the employees to be transferred.

25

25    (1)  

The contract of employment of an employee transferred under paragraph

24—

(a)   

is not terminated by the transfer, and

(b)   

has effect from the date of the transfer as if originally made

between the employee and the Local Health Board to which he is

30

transferred.

      (2)  

In particular—

(a)   

all the rights, powers, duties and liabilities of the body from which

an employee is transferred under paragraph 24 under or in

connection with his contract of employment are by virtue of this sub-

35

paragraph transferred to the Local Health Board to which the

employee is transferred under that paragraph, and

(b)   

anything done before the date of the transfer by or in relation to

the body from which he is so transferred in respect of the employee

or the contract of employment is deemed from that date to have been

40

done by or in relation to the Local Health Board to which he is

transferred.

      (3)  

Sub-paragraphs (1) and (2) do not transfer an employee’s contract of

employment, or the rights, powers, duties and liabilities under or in

connection with it, if he informs the body from which they would be

45

 

 

National Health Service (Wales) Bill [HL]
Schedule 3 — NHS trusts established under section 18
Part 1 — Constitution, establishment, etc

145

 

transferred, or the Local Health Board to which they would be transferred,

that he objects to the transfer.

      (4)  

Where an employee objects as mentioned in sub-paragraph (3) his contract

of employment with the body from which he would be transferred is

terminated immediately before the date on which the transfer would occur;

5

but he must not be treated, for any purpose, as having been dismissed by

that body.

      (5)  

This paragraph does not affect any right of an employee to which paragraph

24 applies to terminate his contract of employment if a substantial change is

made to his detriment in his working conditions.

10

      (6)  

But no such right arises by reason only that under this paragraph the

identity of his employer changes, unless the employee shows that, in all the

circumstances, the change is a significant change and is to his detriment.

26    (1)  

Where an employee will be transferred by an order under paragraph 24 but

will continue to be employed for certain purposes by the transferor, the

15

order may provide that the contract of employment of the employee is, on

the date on which the employee is transferred, divided so as to constitute

two separate contracts of employment between the employee and the

transferor and the employee and the Local Health Board in question.

      (2)  

Where an employee’s contract of employment is divided as provided under

20

sub-paragraph (1), the order must provide for paragraph 25 to have effect in

the case of the employee and his contract of employment subject to

appropriate modifications.

27         

Where a Local Health Board is dissolved, an order under paragraph 21

includes power to transfer employees of the Local Health Board and the

25

order may make any provision in relation to the transfer of those employees

which is or may be made in relation to the transfer of employees under

paragraph 24.

Interpretation

28         

In this Schedule, “NHS trust in Wales” means an NHS trust all or most of

30

whose hospitals, establishments and facilities are situated in Wales.

Schedule 3

Section 18

 

NHS trusts established under section 18

Part 1

Constitution, establishment, etc

35

Status

1          

Each NHS trust is a body corporate.

2     (1)  

An NHS trust must not be regarded as the servant or agent of the Crown or

as enjoying any status, immunity or privilege of the Crown.

 

 

 
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