National Health Service (Wales) Bill [HL]

House of Commons

Session 2005 - 06
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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.