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House of Lords
Session 1998-99
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Arrangement of Clauses (Contents)

Health Bill [H.L.]
 
 

 
 
A

B I L L

TO

Amend the law about the national health service; make provision in relation to arrangements and payments between health service bodies and local authorities with respect to health and health-related functions; confer power to regulate any professions concerned (wholly or partly) with the physical or mental health of individuals; and for connected purposes.

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 I
  THE NATIONAL HEALTH SERVICE
 
Fund-holding practices
Repeal of law about fund-holding practices.     1. In the National Health Service and Community Care Act 1990 (referred to in this Act as the 1990 Act), sections 14 to 17 (which make provision in relation to fund-holding practices) are to cease to have effect.
 
 
Local administration
Primary Care Trusts.     2. - (1) After section 16 of the National Health Service Act 1977 (referred to in this Act as the 1977 Act) there is inserted-
 
 
"Primary Care Trusts.     16A. - (1) The Secretary of State may establish bodies to be known as Primary Care Trusts.
 
    (2) Each Primary Care Trust shall be established by an order made by him (referred to in this Act as a PCT order).
 
      (3) A Primary Care Trust shall be established for the area specified in its PCT order and shall exercise its functions in accordance with any prohibitions or restrictions in the order.
 
      (4) If any consultation requirements apply, they must be complied with before a PCT order is made.
 
      (5) In this section, "consultation requirements" means requirements about consultation contained in regulations (and the regulations must impose requirements where a PCT order establishes a Primary Care Trust).
 
      (6) Schedule 5A to this Act (which makes further provision about Primary Care Trusts) shall have effect.
 
Exercise of functions by Primary Care Trusts.     16B. - (1) This section applies to functions which are exercisable by a Primary Care Trust under or by virtue of this Act, the National Health Service and Community Care Act 1990 or any prescribed provision of any other Act.
 
      (2) Regulations may provide for functions to which this section applies-
 
 
    (a) to be exercisable on behalf of the Primary Care Trust-
 
      (i) by another Primary Care Trust;
 
      (ii) by a committee or sub-committee, or an officer, of the Primary Care Trust or another Primary Care Trust; or
 
      (iii) by a joint committee or joint sub-committee of the Primary Care Trust and any one or more Health Authorities or other Primary Care Trusts; or
 
    (b) to be exercisable by the Primary Care Trust jointly with any one or more Health Authorities, NHS trusts or other Primary Care Trusts.".
      (2) Schedule 1 (which inserts the new Schedule 5A in the 1977 Act) is to have effect.
 
Primary Care Trusts: finance.     3. - (1) Before section 98 of the 1977 Act there is inserted-
 
 
"Public funding of Primary Care Trusts.     97C. - (1) It is the duty of every Health Authority, in respect of each financial year, to pay to each Primary Care Trust whose area falls within their area-
 
    (a) sums equal to the trust's general Part II expenditure, and
 
    (b) sums not exceeding the amount allotted by the authority to the trust for that year towards meeting the trust's main expenditure in that year.
      (2) For the purposes of this section "general Part II expenditure" and "main expenditure" have the same meaning in relation to Primary Care Trusts as they have in section 97 above in relation to Health Authorities and, accordingly, a reference in those definitions to a Health Authority shall, for those purposes, have effect as a reference to a Primary Care Trust.
 
      (3) Any payment under subsection (1)(a) above shall be made out of money paid to the Health Authority under subsection (1) of section 97 above and any payment under subsection (1)(b) above shall be made out of money paid to the authority under subsection (3) of that section.
 
      (4) An amount is allotted to a Primary Care Trust for a year under this section when the trust is notified by the Health Authority that the amount is allotted to it for that year; and the Health Authority may make an allotment under this section increasing or reducing an allotment previously so made.
 
      (5) The Secretary of State may give directions to a Primary Care Trust about the payment of sums by the trust to the Health Authority in whose area the area of the trust falls in respect of charges or other sums referable to the valuation or disposal of assets.
 
      (6) Where any part of a sum paid to a Primary Care Trust by a Health Authority under subsection (1) above derives from a sum which was paid to the authority under subsection (1) or (3) of section 97 above subject to a direction (under subsection (6)(a) of that section) that it be applied for a particular purpose, the authority shall direct the trust that the sum paid to the trust shall be applied for the same purpose.
 
      (7) Sums falling to be paid to Primary Care Trusts under this section shall be payable subject to compliance with such conditions as to records, certificates or otherwise as the Secretary of State may determine.
 
Financial duties of Primary Care Trusts.     97D. - (1) It is the duty of every Primary Care Trust, in respect of each financial year, to perform its functions so as to secure that the expenditure of the trust which is attributable to the performance by the trust of its functions in that year (not including expenditure within subsection (1)(a) of section 97C above) does not exceed the aggregate of-
 
 
    (a) the amount allotted to it for that year under subsection (1)(b) of that section;
 
    (b) any sums received by it in that year under any provision of this Act (other than sums received by it under that section); and
 
    (c) any sums received by it in that year otherwise than under this Act for the purpose of enabling it to defray any such expenditure.
      (2) The Secretary of State may give such directions to a Primary Care Trust as appear to be requisite to secure that the trust complies with the duty imposed on it by subsection (1) above.
 
      (3) Directions under subsection (2) above may be specific in character.
 
      (4) To the extent to which-
 
 
    (a) any expenditure is defrayed by a Primary Care Trust as trustee or on behalf of a Primary Care Trust by special trustees, or
 
    (b) any sums are received by a Primary Care Trust as trustee or under section 96A above,
  that expenditure and, subject to subsection (6) below, those sums shall be disregarded for the purposes of this section.
 
      (5) For the purposes of this section sums which, in the hands of a Primary Care Trust, cease to be trust funds and become applicable by the Primary Care Trust otherwise than as trustee shall be treated, on their becoming so applicable, as having been received by the Primary Care Trust otherwise than as trustee.
 
      (6) Of the sums received by a Primary Care Trust under section 96A above so much only as accrues to the Primary Care Trust after defraying any expenses incurred in obtaining them shall be disregarded under subsection (4) above.
 
      (7) Subject to subsection (4) above, the Secretary of State may by directions determine-
 
 
    (a) whether specified sums are, or are not, to be treated for the purposes of this section as received under this Act by a specified Primary Care Trust;
 
    (b) whether specified expenditure is, or is not, to be treated for those purposes as expenditure within subsection (1) above of a specified Primary Care Trust; or
 
    (c) the extent to which, and the circumstances in which, sums received by a Primary Care Trust under section 97C above but not yet spent are to be treated for the purposes of this section as part of the expenditure of the Primary Care Trust and to which financial year's expenditure they are to be attributed.
      (8) In subsection (7) above, "specified" means of a description specified in the directions."
 
Primary Care Trusts: provision of services etc.     4. - (1) After section 18 of the 1977 Act there is inserted-
 
 

"Primary Care Trusts: further functions
Provision of services etc.     18A. - (1) A Primary Care Trust may provide services under an agreement made under section 28C below, and may do so as a member of a qualifying body (within the meaning of section 28D).
 
      (2) A Primary Care Trust may arrange for the provision by the trust to another health service body of goods or services which are of the same description as those which, at the time of making the arrangement, the trust has power to provide in carrying out its other functions.
 
      (3) A Primary Care Trust may provide premises for the use of persons-
 
 
    (a) providing general medical, general dental, general ophthalmic or pharmaceutical services, or
 
    (b) performing personal medical or personal dental services under an agreement made under section 28C below,
  on any terms it thinks fit.
 
      (4) A Primary Care Trust which manages any hospital may make accommodation available there for patients who give undertakings (or for whom undertakings are given) to pay any charges imposed by the trust in respect of the accommodation.
 
      (5) A Primary Care Trust has power to do anything specified in section 7(2) of the Health and Medicines Act 1988 (provision of goods, services etc.), other than make accommodation available for patients at any hospital it manages, for the purpose of making additional income available for improving the health service.
 
      (6) A Primary Care Trust may only exercise a power conferred by subsection (4) or (5) above-
 
 
    (a) to the extent that its exercise does not to any significant extent interfere with the performance by the trust of its functions or of its obligations under NHS contracts, and
 
    (b) in circumstances specified in directions under section 17 above, with the Secretary of State's consent.
      (7) In this section-
 
 
    "accommodation" includes services,
 
    "hospital" means a health service hospital and includes any establishment or facility managed for the purposes of the health service."
Primary Care Trusts: trust-funds and trustees.     5. - (1) After section 96A of the 1977 Act there is inserted-
 
 
"Trust-funds and trustees for Primary Care Trusts.     96B. - (1) The Secretary of State may by order provide for the appointment of trustees for any Primary Care Trust.
 
    (2) Trustees for a Primary Care Trust may accept, hold and administer any property on trust-
 
 
    (a) for the general or any specific purposes of the Primary Care Trust (including the purposes of any specific hospital or other establishment or facility which is managed by the trust), or
 
    (b) for all or any purposes relating to the health service.
      (3) An order under subsection (1) above may-
 
 
    (a) make provision as to the persons by whom trustees are to be appointed and generally as to the method of their appointment,
 
    (b) provide for any appointment to be subject to any conditions specified in the order (including conditions requiring the consent of the Secretary of State),
 
    (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 any persons he considers appropriate, and
 
    (d) make provision about the term of office of any trustee and his removal from office.
      (4) Where trustees have been appointed for a Primary Care Trust under subsection (1) above, the Secretary of State may by order provide for the transfer of any trust property from the Primary Care Trust to the trustees so appointed."
 
Payments relating to past performance.     6. - (1) Section 97 of the 1977 Act (means of meeting expenditure of Health Authorities etc. out of public funds) is amended as follows.
 
      (2) After subsection (3B) there is inserted-
 
 
    "(3C) Where the Secretary of State has made an initial determination of the amount ("the initial amount") to be allotted for any year to a Health Authority under subsection (3) above, he may, if it appears to him that the authority satisfied in any preceding year any objectives notified as objectives to be met by Health Authorities for the purposes of this subsection in performing their functions, increase the initial amount by a further sum.
 
      (3D) In subsection (3C) above, "notified" means specified or referred to in a notice given to Health Authorities by the Secretary of State.
 
      (3E) In making any increase under subsection (3C) above, the Secretary of State may (whether by directions under subsection (6) below or otherwise) impose any conditions he thinks fit on the application or retention by the authority of the sum in question.
 
      (3F) Where the Secretary of State has, under subsection (3C) above, increased by any sum the amount to be allotted for any year to a Health Authority and notified the authority of the allotment and it subsequently appears to him that the authority have failed (wholly or in part) to satisfy any conditions imposed in making that increase, he may-
 
 
    (a) reduce the allotment made to that authority for that year, or
 
    (b) when he has made an initial determination of the amount ("the initial amount") to be allotted for any subsequent year to the authority under subsection (3) above, reduce the initial amount by an amount not exceeding that sum".
      (3) In subsection (5)-
 
 
    (a) after "reducing" there is inserted "(subject to subsection (3F) above)",
 
    (b) at the end there is inserted "and the reference to a determination in subsection (3C) above includes a determination made with a view to increasing or reducing an allotment previously so made".
Directions.     7. - (1) For section 17 of the 1977 Act (Secretary of State's directions) there is substituted-
 
 

"Directions as to distribution and exercise of functions
Secretary of State's directions: distribution of functions.     16C. - (1) The Secretary of State may direct a Health Authority or Special Health Authority to exercise any of his functions relating to the health service which are specified in the directions.
 
      (2) The functions which may be specified include functions under enactments relating to mental health and nursing homes.
 
Secretary of State's directions: exercise of functions.     17. - (1) The Secretary of State may give directions to any of the bodies mentioned in subsection (2) below about their exercise of any functions.
 
      (2) The bodies are-
 
 
    (a) Health Authorities;
 
    (b) Special Health Authorities;
 
    (c) Primary Care Trusts;
 
    (d) NHS trusts.
      (3) The power conferred by subsection (1) above shall not be exercised so as to give any directions which may be given under-
 
 
    (a) section 27, 28A, 97, 97A or 99 of or paragraph 10 of Schedule 5, or paragraph 9 of Schedule 5A, to this Act;
 
    (b) section 7(3)(ii) of the Health and Medicines Act 1988 (directions about the exercise of powers for financing the health service); or
 
    (c) section 21 of the Health Act 1999 (plans for improving health etc.).
Health Authority's directions: distribution of functions.     17A. - (1) A Health Authority may direct a Primary Care Trust whose area falls within their area to exercise any specified delegable functions.
 
      (2) A function is a delegable function for the purposes of this section if it is a function exercisable by the Health Authority which is not an excepted function.
 
      (3) In subsection (2) above "excepted function" means a function under-
 
 
    (a) section 4 above;
 
    (b) section 15 above (except in so far as it relates to general medical services);
 
    (c) section 44 or 45(2) or (3) below; or
 
    (d) any of the other provisions of Part II of this Act-
 
      (i) unless it is a function under section 51, 52 or 53; or
 
      (ii) in relation to the remaining provisions of Part II, except in so far as the function relates to general medical services.
      (4) The Secretary of State may direct Health Authorities that specified delegable functions-
 
 
    (a) are to be exercisable, or exercisable to (or only to) any specified extent, by Primary Care Trusts; or
 
    (b) are not to be exercisable by Primary Care Trusts,
  and that the power under subsection (1) above is to be exercised accordingly.
 
      (5) In this section "specified" means specified in directions.
 
Health Authority's directions: exercise of functions.     17B. - (1) A Health Authority may give directions to a Primary Care Trust about its exercise of any functions which the authority have directed the trust to exercise under section 17A above.
 
      (2) Directions under this section have effect subject to any directions given under section 17 above".
 
      (2) For section 18 of the 1977 Act down to the end of subsection (1) there is substituted-
 
 

"Directions and regulations: general
Directions and regulations under preceding provisions.     18. - (1) Any directions given by the Secretary of State under section 11, 16C, 17 or 17A above shall be given by regulations or by an instrument in writing.
 
      (1A) But any directions given by him-
 
 
    (a) under section 16C above about functions under section 4 above;
 
    (b) under section 17A(4) above about functions relating to general medical services; or
 
    (c) under section 11, 16C, 17 or 17A above about functions conferred on the Secretary of State by section 20(1) or (2) below,
  shall be given by regulations.
 
      (1B) Directions given by a Health Authority under section 17A or 17B above shall be given by an instrument in writing".
 
      (3) In subsection (3) of that section, for "17" there is substituted "17B above".
 
      (4) Section 13 of the 1977 Act (Secretary of State's directions) is to cease to have effect.
 
 
NHS trusts
Establishment orders.     8. - (1) In section 5 of the 1990 Act (NHS trusts)-
 
 
    (a) in subsection (1), for paragraphs (a) and (b) there is substituted "to provide goods and services for the purposes of the health service", and
 
    (b) for subsection (6) there is substituted-
 
    "(6) The functions which may be specified in an order under subsection (1) above include a duty to provide goods or services so specified at or from a hospital or other establishment or facility so specified".
 
      (2) In section 26(3) of that Act (interpretation of Part I), after the definition of "health board" there is inserted-
 
 
    ""provide" includes manage;".
      (3) Any order under section 5(1) of that Act-
 
 
    (a) is to be treated as always having had effect with the omission of any obligation for the NHS trust to which the order relates to own land specified in the order, and
 
    (b) so far as any functions specified in it could have been specified under that provision as amended by this Act, is to be treated as having been made under that provision as so amended.
      (4) Any restriction preventing the acquisition of any land by any NHS trust (including an NHS trust dissolved before the commencement of this section) merely because the land did not comprise a hospital or other establishment or facility previously managed or provided by a Health Authority, a Special Health Authority, a Regional Health Authority or a District Health Authority is to be treated as never having had effect.
 
      (5) An order under section 49 may-
 
 
    (a) provide for any provision made by it for the purposes of, in consequence of or for giving full effect to this section to be treated as having had effect from a time before the commencement of this section,
 
    (b) make such provision about an NHS trust dissolved before that commencement.
      (6) In section 11(1) of the 1990 Act (trust funds and trustees for NHS trusts), for "which is owned and managed" there is substituted "at or from which services are provided".
 
      (7) In paragraph 3(2) of Schedule 2 to that Act (establishment orders), for "assume responsibility for the ownership and management of" there is substituted "provide services at".
 
      (8) In paragraph 3 of Schedule 3 to that Act (borrowing limits), in sub-paragraphs (1) and (2), for the words from "established" to "manage" there is substituted "which are required to provide services at or from".
 
      (9) The 1990 Act is to be treated as always having had effect subject to the amendments made by this section.
 
      (10) Paragraphs (aa) and (ab) of section 91(3) of the 1977 Act (private trusts for hospitals) are to be treated as always having had effect (until their replacement by paragraph 16(a) of Schedule 4 to this Act) with the omission of "owned and".
 
 
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