Health and Social Care Bill

Session 2010 - 11
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Health and Social Care Bill

Health and Social Care Bill
Schedule 2 — Commissioning consortia
255

Schedule 2
Section 21(2)

Commissioning consortia
“Schedule 1A
Sections 14B(6), 14D(2) and 14I(4)

Commissioning consortia
Part 1
5
Constitution of commissioning consortia
1
A commissioning consortium must have a constitution.
2
The constitution must specify—
(a)
the name of the consortium,
(b)
the members of the consortium, and
10
(c)
the area of the consortium.
3     (1)
The constitution must specify the arrangements made by the
commissioning consortium for the discharge of its functions
(including its functions in determining the remuneration and the
other terms and conditions of its employees).
15
      (2)
The arrangements may include provision for—
(a)
the appointment of committees or sub-committees of the
commissioning consortium, and
(b)
for any such committees to consist of or include persons
other than members or employees of the commissioning
20
consortium.
      (3)
The arrangements may include provision for any functions of the
commissioning consortium to be exercised on its behalf by—
(a)
any of its members or employees, or
(b)
a committee or sub-committee of the consortium.
25
4     (1)
The constitution must specify the procedure to be followed by the
commissioning consortium in making decisions.
      (2)
The constitution must, in particular, make provision for dealing
with conflicts of interests of members or employees of the
commissioning consortium.
30
5
The provision made by paragraphs 3 and 4 must secure that there
is effective participation by each member of the commissioning
consortium in the exercise of the consortium’s functions.
6
In addition to the provision authorised or required to be included
under this Part of this Schedule, the constitution may make further
35
provision.

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Schedule 2 — Commissioning consortia
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Part 2
Further provision about commissioning consortia
Status
7     (1)
A commissioning consortium is a body corporate.
      (2)
A commissioning consortium is not to be regarded as a servant or
5
agent of the Crown or as enjoying any status, privilege or
immunity of the Crown.
      (3)
The property of a commissioning consortium is not to be regarded
as property of, or property held on behalf of, the Crown.
Staff
10
8     (1)
A commissioning consortium may appoint such persons to be
employees of the consortium as it considers appropriate.
      (2)
A commissioning consortium must—
(a)
pay its employees such remuneration as it may determine,
and
15
(b)
employ them on such other terms and conditions as it may
determine.
      (3)
Regulations may make provision requiring a commissioning
consortium to publish, in accordance with the regulations,
prescribed information relating to the remuneration determined
20
by it under sub-paragraph (2)(a).
      (4)
The Board may publish guidance for commissioning consortia on
the determination of remuneration under sub-paragraph (2)(a).
      (5)
A commissioning consortium may, for or in respect of such of its
employees as it may determine, make arrangements for providing
25
pensions, allowances or gratuities.
      (6)
Such arrangements may include the establishment and
administration, by the consortium or otherwise, of one or more
pension schemes.
      (7)
The arrangements that may be made under sub-paragraph (5)
30
include arrangements for the provision of pensions, allowances or
gratuities by way of compensation to or in respect of any of the
consortium’s employees who suffer loss of office or employment
or loss or diminution of emoluments.
Accountable officer
35
9     (1)
A commissioning consortium must have an accountable officer.
      (2)
The accountable officer is to be appointed by the Board.
      (3)
The Board may appoint a person to be the accountable officer for
more than one consortium (and in the following provisions of this
paragraph such an appointment is referred to as a “joint
40
appointment”).

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Schedule 2 — Commissioning consortia
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      (4)
The accountable officer may be—
(a)
an individual who is a member of the consortium or of any
body that is a member of the consortium or, in the case of
a joint appointment, an individual who is a member of any
of the consortia in question or of any body that is a member
5
of any of those consortia, or
(b)
an employee of the consortium or of any member of the
consortium or, in the case of a joint appointment, an
employee of any of the consortia in question or of any
member of those consortia.
10
      (5)
If the accountable officer is not an employee of the consortium or,
in the case of a joint appointment, of any of the consortia in
question, the consortium or any of the consortia may pay such
remuneration to the accountable officer as it may determine.
      (6)
The accountable officer is responsible for ensuring that the
15
consortium or, in the case of a joint appointment, each of the
consortia in question—
(a)
complies with its obligations under—
(i)
sections 14K and 14L,
(ii)
sections 223I to 223K,
20
(iii)
paragraphs 12 to 14 of this Schedule, and
(iv)
any other provision of this Act specified in a
document published by the Board for the purposes
of this sub-paragraph, and
(b)
exercises its functions in a way which provides good value
25
for money.
Trust funds and trustees
10    (1)
The Secretary of State may by order provide for the appointment
of trustees for a commissioning consortium to hold property on
trust—
30
(a)
for the general or any specific purposes of the consortium,
or
(b)
for any purposes relating to the health service in England.
      (2)
An order under sub-paragraph (1) may—
(a)
make provision as to the persons by whom trustees must
35
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),
40
(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 the Secretary
of State considers appropriate, and
45
(d)
make provision with respect to the term of office of any
trustee and his or her removal from office.

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Schedule 2 — Commissioning consortia
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      (3)
Where trustees have been appointed by virtue of sub-paragraph
(1), the Secretary of State may by order provide for the transfer of
any trust property from the consortium to the trustees.
Externally financed development agreements
11    (1)
The powers of a consortium include power to enter into externally
5
financed development agreements.
      (2)
For the purposes of this paragraph, an agreement is an externally
financed agreement if it is certified as such in writing by the
Secretary of State.
      (3)
The Secretary of State may give a certificate under this paragraph
10
if—
(a)
in the Secretary of State’s opinion the purpose or main
purpose of the agreement is the provision of services or
facilities in connection with the discharge by a consortium
of any of its functions, and
15
(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 consortium enters into an externally financed development
agreement it may also, in connection with that agreement, enter
20
into an agreement with a person who falls within sub-paragraph
(3)(b) in relation to the externally financed development
agreement.
      (5)
In sub-paragraph (3)(b) “another party” means any party to the
agreement other than the consortium.
25
      (6)
The fact that an agreement made by a consortium has not been
certified under this paragraph does not affect its validity.
Accounts and audits
12    (1)
A commissioning consortium must keep proper accounts and
proper records in relation to the accounts.
30
      (2)
A commissioning consortium must prepare annual accounts in
respect of each financial year.
      (3)
The Board may, with the approval of the Secretary of State, direct
a commissioning consortium to prepare accounts in respect of
such period or periods as may be specified in the direction.
35
      (4)
The Board may, with the approval of the Secretary of State, give
directions to a commissioning consortium as to—
(a)
the methods and principles according to which its annual
or other accounts must be prepared, and
(b)
the form and content of such accounts.
40
      (5)
The annual accounts and, if the Board so directs, accounts
prepared by virtue of sub-paragraph (3) must be audited in
accordance with the Audit Commission Act 1998 by an auditor or

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Schedule 2 — Commissioning consortia
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auditors appointed in accordance with arrangements made by the
Board for the purposes of this paragraph.
      (6)
The Comptroller and Auditor General may examine—
(a)
the annual accounts and any records relating to them, and
(b)
any report on them by the auditor or auditors.
5
      (7)
A commissioning consortium must send its audited annual
accounts, and any audited accounts prepared by it by virtue of
sub-paragraph (3), to the Board by no later than the date specified
in a direction by the Board.
      (8)
The Board may direct a commissioning consortium to send its
10
unaudited annual accounts, and any unaudited accounts
prepared by it by virtue of sub-paragraph (3), to the Board by no
later than the date specified in a direction by the Board.
      (9)
Nothing in this paragraph requires a commissioning consortium
to keep accounts or records, or to prepare annual accounts, in
15
respect of anything done by it as trustee.
     (10)
For the purposes of this paragraph “financial year” includes the
period which begins on the day the consortium is established and
ends on the following 31 March.
Provision of financial information to Board
20
13    (1)
The Board may direct a commissioning consortium to supply it
with such information relating to its accounts or to its income or
expenditure, or its use of resources, as may be specified in the
direction.
      (2)
The power conferred by sub-paragraph (1) includes power to
25
direct a commissioning consortium to supply the Board with—
(a)
estimates of its future income or expenditure or its future
use of resources;
(b)
any information which the Board considers is necessary to
enable it to verify any other information supplied to it
30
under sub-paragraph (1).
      (3)
A commissioning consortium must supply the Board with any
information specified in a direction under sub-paragraph (1)
within such period as may be specified in the direction.
      (4)
In this paragraph, a reference to the use of resources is a reference
35
to their expenditure, consumption or reduction in value.
Provision of information required by the Secretary of State
14    (1)
The Secretary of State may require each commissioning
consortium to provide the Board with such information as the
Secretary of State considers it necessary to have for the purposes
40
of the functions of the Secretary of State in relation to the health
service.
      (2)
The information must be provided in such form, and at such time
or within such period, as the Secretary of State may require.

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      (3)
The powers conferred by this paragraph must be exercised in the
same way in relation to each commissioning consortium.
      (4)
The Board must give any information obtained by it under sub-
paragraph (1) to the Secretary of State, in such form, and at such
time or within such period, as the Secretary of State may require.
5
Incidental powers
15
The power conferred on a commissioning consortium by section 2
includes in particular power to—
(a)
enter into agreements,
(b)
acquire and dispose of property, and
10
(c)
accept gifts (including property to be held on trust for the
purposes of the commissioning consortium).
Part 3
Transfer schemes
16
The things that may be transferred under a property transfer
15
scheme or a staff transfer scheme under section 14I include—
(a)
property, rights and liabilities that could not otherwise be
transferred;
(b)
property acquired, and rights and liabilities arising, after
the making of the scheme;
20
(c)
criminal liabilities.
17
A property transfer scheme or a staff transfer scheme may make
supplementary, incidental, transitional and consequential
provision and may in particular—
(a)
create rights, or impose liabilities, in relation to property or
25
rights transferred;
(b)
make provision about the continuing effect of things done
by the transferor in respect of anything transferred;
(c)
make provision about the continuation of things
(including legal proceedings) in the process of being done
30
by, on behalf of or in relation to the transferor in respect of
anything transferred;
(d)
make provision for references to the transferor in an
instrument or other document in respect of anything
transferred to be treated as references to the transferee.
35
18
A property transfer scheme may make provision for the shared
ownership or use of property.
19
A staff transfer scheme may make provision which is the same or
similar to the Transfer of Undertakings (Protection of
Employment) Regulations 2006 (SI 2006/246).
40
20
A property transfer scheme or a staff transfer scheme may
provide—
(a)
for the scheme to be modified by agreement after it comes
into effect, and

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Schedule 3 — Pharmaceutical remuneration
261

(b)
for any such modifications to have effect from the date
when the original scheme comes into effect.”
Schedule 3
Section 46

Pharmaceutical remuneration
“Schedule 12A
5
Section 165A

Pharmaceutical remuneration
Interpretation
1
In this Schedule—
(a)
“drugs” includes medicines and listed appliances (within
the meaning of section 126), and
10
(b)
“pharmaceutical remuneration” means remuneration paid
by the Board to persons providing pharmaceutical services
or local pharmaceutical services.
Pharmaceutical remuneration to be apportioned among consortia
2     (1)
The Board must determine the elements of pharmaceutical
15
remuneration in respect of which apportionments are to be made
in relation to a financial year in accordance with this paragraph.
      (2)
In this Schedule, those elements of pharmaceutical remuneration
are referred to as “designated elements”.
      (3)
The Board must notify each commissioning consortium of a
20
determination under sub-paragraph (1).
      (4)
The Board must apportion the sums paid by it in respect of each
designated element during the financial year among all
commissioning consortia, in such manner as the Board thinks
appropriate.
25
      (5)
In apportioning sums under sub-paragraph (4), the Board may, in
particular, take into account the financial consequences of orders
for the provision of drugs that are attributable to the members of
each consortium.
      (6)
Where an amount of pharmaceutical remuneration is apportioned
30
to a commissioning consortium, the Board—
(a)
may deduct that amount from the sums that it would
otherwise pay to the consortium under section 223H(1),
and
(b)
if it does so, must notify the consortium accordingly.
35
      (7)
The Secretary of State may direct the Board that an element of
pharmaceutical remuneration specified in the direction is not to be
included in a determination under sub-paragraph (1).