Health Bill [H.L.]

Health Bill [H.L.] - continued	House of Lords

back to previous text

PART II

THE NATIONAL HEALTH SERVICE: SCOTLAND

Fund-holding practices

Repeal of law about fund-holding practices.

36. In the National Health Service (Scotland) Act 1978 (referred to in this Act as the 1978 Act), sections 87A to 87C (which make provision in relation to fund-holding practices in Scotland) are to cease to have effect.

NHS trusts

Establishment orders.

37. - (1) In section 12A of the 1978 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",

(b) for subsection (4) there is substituted-

"(4) The functions which may be specified in an order under subsection (1) include a duty to provide goods or services so specified at, from, or through a hospital or other establishment or facility so specified.".

(2) In section 108(1) (interpretation) after the definition of "property" there is inserted-

""provide" includes manage;".

(3) Any order under section 12A(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 by any NHS trust (including any NHS trust dissolved before the commencement of this section) of land merely because the land did not comprise a hospital or other establishment or facility previously managed or provided by a Health Board or the Agency is to be treated as never having had effect.

(5) An order under section 49 of this Act 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 paragraph 3(2) of Schedule 7A to the 1978 Act (establishment orders), for "assume responsibility for the ownership and management of" there is substituted "provide services at".

(7) In paragraph 3 of Schedule 7B to that Act (borrowing limits), in sub-paragraph (1), for the words from "established" to "manage" there is substituted "which are required to provide services at or from".

(8) The 1978 Act is to be treated as always having had effect subject to the amendments made by this section.

Directions as to delegation of functions.

38. After section 12A of the 1978 Act there is inserted-

"Additional functions of NHS trusts.

12AA. The Secretary of State may direct a Health Board to delegate to an NHS trust or NHS trusts some or all of their functions under section 2(1) of making arrangements on his behalf for the provision of services mentioned in Part II.".

Constitution of NHS trust boards.

39. In section 12A of the 1978 Act (NHS trusts), in subsection (3), for paragraph (a) there is substituted-

"(a) shall be a body corporate having a board of directors consisting of a chairman who is not an employee of the trust, appointed by the Secretary of State; and, subject to paragraph 5(2) of Schedule 7A, executive directors (directors who, subject to subsection (5), are employees of the trust) and non-executive directors (directors who, subject to subsection (5), are not employees of the trust and who shall be known as "trustees");".

Duties of NHS trusts.

40. - (1) Paragraph 6 of Schedule 7A to the 1978 Act is amended as follows.

(2) For sub-paragraph (1) there is substituted-

"(1) In carrying out the functions for the time being conferred on it an NHS trust shall comply with any directions given to it by the Secretary of State, whether of a general or of a particular nature.".

(3) Sub-paragraph (2) is omitted.

Quality

Duty of quality.

41. After section 12G of the 1978 Act there is inserted-

	"Quality
Duty of quality.	12H. - (1) It shall be the duty of each Health Board, Special Health Board and NHS trust to put and keep in place arrangements for the purpose of monitoring and improving the quality of health care which it provides to individuals.
	(2) The reference in subsection (1) to health care which a body there mentioned provides to individuals includes health care which the body provides jointly with another person to individuals.
	(3) In this section "health care" means services for or in connection with the prevention, diagnosis or treatment of illness.".

Finance

Expenditure of Health Boards and other bodies.

42. For section 85 of the 1978 Act there is substituted-

"Means of meeting expenditure of Health Boards out of public funds.	85AA. - (1) The Secretary of State shall pay to each Health Board sums equal to their general Part II expenditure.
	(2) "General Part II expenditure" is expenditure which-
	(a) is attributable to the payment of remuneration to persons providing services in pursuance of Part II; but
	(b) does not fall within paragraphs (b) to (d) of subsection (4).
	(3) The Secretary of State shall pay to each Health Board, in respect of each financial year, sums not exceeding the amount allotted for that year by the Secretary of State to the Board towards meeting their main expenditure.
	(4) In subsection (3) "main expenditure" means expenditure which is attributable to-
	(a) the performance by the Board of their functions in that year, but-
	(i) is not general Part II expenditure; and
	(ii) does not fall within paragraphs (b) to (d);
	(b) the reimbursement of expenses of persons providing services in pursuance of Part II which are designated expenses incurred in connection with the provision of the services (or in giving instruction in matters relating to the services);
	(c) remuneration which is paid to persons providing additional pharmaceutical services (in accordance with directions under section 27A) in respect of such of those services as are designated; or
	(d) remuneration which is-
	(i) paid to persons providing general medical services under Part II;
	(ii) determined by the Health Board concerned; and
	(iii) of a designated description.
	(5) In paragraph (b), (c) or (d) of subsection (4), "designated" means designated in writing by the Secretary of State for the purposes of that paragraph and in relation to the allotment in question.
	(6) An amount is allotted to a Health Board for a year under this section when they are notified by the Secretary of State that it is allotted to them for that year; and the Secretary of State may make an allotment under this section increasing or reducing an allotment previously so made.
	(7) Where the Secretary of State proposes to pay any sum to a Health Board, he may, with the consent of the Treasury, instead pay that sum to an NHS trust in discharge of the whole or any part of any liability of the Health Board to the NHS trust.
	(8) The Secretary of State may give directions to a Health Board with respect to the application of sums paid to them and a Board to whom directions have been given under this subsection shall comply with the directions.
	(9) The expenditure of a University Liaison Committee shall, for the purposes of this section, be deemed to be the expenditure of the Health Board for whose area it is constituted, and, where a University Liaison Committee is constituted for the areas of more than one Health Board, its expenditure shall be apportioned between the Boards concerned in such manner as may be determined by the Secretary of State.
	(10) Payments under this section shall be made at such times and in such manner, and subject to such conditions as to records, certificates or otherwise, as the Secretary of State may determine.
Expenses of certain bodies.	85. - (1) There shall, in respect of each financial year, be paid by the Secretary of State sums not exceeding the amount allotted by him for that year to each of the following bodies towards meeting the expenditure attributable to the performance by that body of their functions in that year-
	(a) the Agency;
	(b) every Special Health Board;
	(c) the Medical Practices Committee;
	(d) the Dental Estimates Board;
	(e) the tribunal;
	(f) every local health council.
	(2) The date on which an allotment under subsection (1) (including an allotment increasing or reducing an allotment previously made) takes effect is the date on which the body receiving the allotment are notified of its amount by the Secretary of State.
	(3) The Secretary of State may give directions to a body referred to in subsection (1) with respect to the application of the sums paid to them under that subsection and it shall be the duty of any body to whom directions have been given under this subsection to comply with the directions..
	(4) Payments under subsection (1) shall be made at such times and in such manner, and subject to such conditions as to records, certificates or otherwise, as the Secretary of State may determine.".

Public dividend capital.

43. - (1) Section 12E of the 1978 Act (originating capital debt of, and other financial provisions relating to, NHS trusts) is amended as provided in subsections (2) to (5).

(2) In subsections (1), (2) and (3), for "originating capital debt" there is substituted "originating capital".

(3) For subsection (4) there is substituted-

"(4) An NHS trust's originating capital shall be public dividend capital.".

(4) Subsections (5) and (6) are omitted.

(5) In subsection (7), for the words from "the terms" to the end there is substituted-

	"(a) the dividend which is to be payable at any time on any public dividend capital issued, or treated as issued, under this Act;
	(b) the amount of any such public dividend capital which is to be repaid at any time;
	(c) any other terms on which any public dividend capital is so issued, or treated as issued.".

(6) In Schedule 7B to that Act-

(a) in paragraph 3 (limits on indebtedness), sub-paragraph (2) is omitted,

(b) in paragraph 5 (additional public dividend capital), sub-paragraph (2) is omitted.

Existing NHS trusts: conversion of initial loan.

44. - (1) This section applies to any NHS trust in existence immediately before commencement.

(2) On commencement so much of the originating capital debt of the NHS trust as remains outstanding immediately before commencement is to be treated as the originating capital of the NHS trust and accordingly is public dividend capital.

(3) Any reference in any enactment, instrument or other document to the originating capital debt of the NHS trust is to be construed (except where the context otherwise requires) as a reference to its originating capital.

(4) The Secretary of State may with the consent of the Treasury determine the amount and time for payment of interest on the NHS trust's initial loan in respect of the period ending with commencement.

(5) In this section-

"commencement" means the coming into force of this section,

"initial loan" has the meaning given by section 12E(5) of the 1978 Act.

Borrowing.

45. - (1) Schedule 7B to the 1978 Act is amended as follows.

(2) In paragraph 1 (borrowing powers of NHS trusts), in sub-paragraph (1), after "Subject to" there is inserted "any direction given by the Secretary of State, to".

(3) Sub-paragraphs (3) to (5) of that paragraph are omitted.

(4) For sub-paragraph (6) there is substituted-

"(6) It shall be for the Secretary of State, with the consent of the Treasury, to determine the terms of any loan made by him to an NHS trust (including terms as to the payment of interest, if any).".

Fraud

Disqualification of Part II practitioners.

46. - (1) For section 29 of the 1978 Act (disqualification of persons providing services) there is substituted-

"The NHS tribunal.	29. - (1) The tribunal constituted in accordance with Schedule 8 shall continue under the name of "the NHS Tribunal" and that Schedule shall continue to have effect in relation to the Tribunal.
	(2) If the Tribunal receive representations from a Health Board-
	(a) that the continued inclusion of a person in any list of those undertaking to provide any services to which the list relates would be prejudicial to the efficiency of those services; or
	(b) that a person who is included, or who has applied to be included, in any such list has fraudulently acted in a way detrimental to any health service,
	the Tribunal shall inquire into the case.
	(3) If the Tribunal receive representations within subsection (2)(a) from any other person, they may inquire into the case.
	(4) Representations under this section shall be made-
	(a) in the prescribed manner, and
	(b) in a case in which representations within subsection (2)(b) above are made relating to a person who has applied to be included in a list, within the time allowed by regulations (subject to prescribed exceptions).
	(5) In this group of sections, a "list" means-
	(a) a list of medical practitioners undertaking to provide general medical services,
	(b) a list of medical practitioners undertaking to provide general ophthalmic services,
	(c) a list of dental practitioners undertaking to provide general dental services,
	(d) a list of ophthalmic opticians undertaking to provide general ophthalmic services, or
	(e) a list of persons undertaking to provide pharmaceutical services,
	prepared (in each case) under this Part.
	(6) In this section and sections 29A to 29E-
	(a) "this group of sections" means this and those sections, and
	(b) the NHS Tribunal is referred to as the Tribunal.
The NHS Tribunal supplementary.	29A. - (1) For the purposes of this group of sections-
	(a) acting in a way which is detrimental to a health service includes acting in a way which is detrimental to any patient of that service.
	(b) "health service" means any of the health services continued under section 1(1) or the corresponding enactments extending to England, Wales and Northern Ireland and any prescribed service.
	(2) Regulations may prescribe any service for the purposes of subsection (1)(b) which appears to the Secretary of State to be a health or medical service paid for out of public funds.
	(3) Below in this group of sections-
	(a) cases in which representations within section 29(2)(a) are made are referred to as efficiency cases.
	(b) cases in which representations within section 29(2)(b) are made are referred to as fraud cases.
	(4) In a fraud case-
	(a) in spite of any provisions of this Part, the person subject to the inquiry has no right to be added to any list until proceedings in that case have been finally disposed of.
	(b) any inquiry is not affected by the person subject to the inquiry withdrawing any application to be included in any list or his removal from any list.
Powers of NHS Tribunal.	29B. - (1) If the Tribunal are of the opinion, on inquiring into an efficiency case, that the continued inclusion of the person subject to the inquiry in any list to which the case relates would be prejudicial to the efficiency of the services to which the list relates, the Tribunal shall disqualify him from inclusion in the list.
	(2) If the Tribunal are of the opinion, on inquiring into a fraud case, that the person subject to the inquiry has fraudulently acted in a way detrimental to any health service, the Tribunal shall disqualify him from inclusion in any list to which the case relates.
	(3) The Tribunal may also (in either case) disqualify the person from inclusion in any corresponding list kept by any other Health Board under this Part.
	(4) If the Tribunal disqualify a person under subsection (3) (but not conditionally), they may also declare that the person is not fit to be engaged in any capacity in the provision of the services in question (referred to in this group of sections as a declaration of unfitness).
	(5) The Tribunal shall not make any disqualification or declaration under this section if they are of the opinion that it would be unjust to do so.
	(6) A disqualification under this section which is not conditional shall have effect-
	(a) where no appeal is brought against the disqualification, from the end of the period for bringing an appeal, and
	(b) where an appeal is brought against the disqualification, from the time when the appeal process is exhausted.
	(7) If a person is disqualified (but not conditionally) from inclusion in any list prepared by a Health Board, the Board must not enter him in the list and (if he is already included in the list) must remove him from the list.
Conditional disqualification etc.	29C. - (1) The Tribunal may make a conditional disqualification under section 29B above, that is, a disqualification which is to come into effect only if they determine (on a review under section 30) that the person subject to the inquiry has failed to comply with any conditions imposed by them.
	(2) Conditions may be imposed under subsection (1) with a view to-
	(a) removing any prejudice to the efficiency of the services in question, or
	(b) preventing any fraudulent acts which are detrimental to the health service,
	(as the case may be).
	(3) The Tribunal may by directions in writing-
	(a) vary the terms of service of the person subject to the inquiry (including terms imposed by regulations under this Part), or
	(b) confer functions on any Health Board,
	for the purpose of or in connection with the imposition of any conditions under this section.
	(4) References below in this group of sections to a disqualification do not include a conditional disqualification".

(2) For section 30 of the 1978 Act (removal of disqualification) there is substituted-

"Review etc. of disqualification.	30. - (1) The Tribunal may review any disqualification (whether or not conditional) or declaration of unfitness-
	(a) if the disqualified person requests a review, or
	(b) in any other circumstances in which they consider it appropriate.
	(2) On a review under subsection (1), the Tribunal may-
	(a) remove a disqualification or provide that a declaration of unfitness is to cease to have effect,
	(b) make a disqualification conditional,
	(c) in the case of a conditional disqualification, remove it, vary the conditions or make it unconditional,
	(d) in a fraud case where there is a disqualification (or conditional disqualification) under section 29B(2), make a disqualification (or conditional disqualification) under section 29B(3),
	(e) in a fraud case where there is a disqualification under section 29B(3), or the Tribunal on the review make such a disqualification or make a conditional disqualification under section 29B(3) unconditional, make a declaration of unfitness.
	(3) The Tribunal shall review any conditional disqualification if any Health Board requests a review.
	(4) On a review under subsection (3) of a conditional disqualification, the Tribunal may-
	(a) remove it, vary the conditions or make it unconditional,
	(b) in a fraud case where there is a conditional disqualification under section 29B(2), make a disqualification (or conditional disqualification) under section 29B(3),
	(c) in a fraud case where the Tribunal on the review make a conditional disqualification under section 29B(3) unconditional, make a declaration of unfitness.
	(5) The Tribunal may hold an inquiry for the purposes of any review under this section.".

Prepared 29 January 1999