Health Bill [H.L.]

House of Lords

Session 1998-99
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Arrangement of Clauses (Contents)

Health Bill [H.L.]

Exercise of powers.     9. - (1) Section 5 of the 1990 Act (NHS trusts) is amended as follows.

    (2) In subsection (9), for the words following "may" there is substituted "only be exercised-

(a) to the extent that its exercise does not to any significant extent interfere with the performance by the NHS trust of its functions or of its obligations under NHS contracts, and

(b) in circumstances specified in directions under section 17 of the principal Act, with the consent of the Secretary of State."

Public dividend capital.     10. - (1) Section 9 of the 1990 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 3 to that Act-

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

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

Existing NHS trusts: conversion of initial loan.     11. - (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 9(5) of the 1990 Act.

Borrowing.     12. - (1) Schedule 3 to the 1990 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 under section 17 of the principal Act, to".

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

    (4) For sub-paragraph (6) of that paragraph 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)."

Quality etc

Duty of quality.     13. - (1) It is the duty of each Primary Care Trust, and each 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) The Secretary of State may by regulations extend the duty in this section to Special Health Authorities of any particular description.

    (4) In this section-

"health care" means services for or in connection with the prevention, diagnosis or treatment of illness,

"illness" has the meaning given by section 128(1) of the 1977 Act.

The Commission for Health Improvement.     14. - (1) There is to be a body corporate known as the Commission for Health Improvement (referred to in this Act as the Commission).

    (2) The Commission is to have the functions conferred on it by or under section 15.

    (3) Schedule 2 makes further provision in relation to the Commission.

Functions of the Commission.     15. - (1) The Commission has the following functions-

(a) the function of providing advice or information with respect to arrangements by Primary Care Trusts or NHS trusts for the purpose of monitoring and improving the quality of health care for which they have responsibility,

(b) the function of conducting reviews of, and making reports on, arrangements by Primary Care Trusts or NHS trusts for the purpose of monitoring and improving the quality of health care for which they have responsibility,

(c) the function of carrying out investigations into, and making reports on, the management, provision or quality of health care for which Health Authorities, Primary Care Trusts or NHS trusts have responsibility,

(d) the function of conducting reviews of, and making reports on, the management, provision or quality of, or access to or availability of, particular types of health care for which NHS bodies or service providers have responsibility, and

(e) such functions as may be prescribed relating to the management, provision or quality of, or access to or availability of, health care for which prescribed NHS bodies or prescribed service providers have responsibility.

    (2) The Secretary of State may by regulations make provision-

(a) as to the times at which, the cases in which, the manner in which, the persons in relation to which or the matters with respect to which any functions of the Commission are to be exercised,

(b) as to the matters to be considered or taken into account in connection with the exercise of any functions of the Commission,

(c) as to the persons to whom any advice, information or reports are to be given or made,

(d) as to the publication of reports and summaries of reports,

(e) as to the recovery from prescribed persons of amounts in respect of the expenditure incurred by the Commission in the exercise of any of its functions, and

(f) for or in connection with the exercise of functions of the Commission in conjunction with the exercise of statutory functions of other persons.

    (3) For the purposes of the law of defamation, the publication of any matter by the Commission shall be absolutely privileged.

    (4) The Secretary of State may give directions with respect to the exercise of any functions of the Commission.

    (5) The Commission must comply with any directions under this section.

    (6) Any directions under this section must be given in writing and may be varied or revoked by subsequent directions.

    (7) For the purposes of this section a person has responsibility for health care-

(a) if he provides or is to provide that care to individuals, or

(b) if another person provides or is to provide that care to individuals-

(i) at his direction,

(ii) on his behalf, or

(iii) in accordance with an agreement or arrangements made by him with that other person.

    (8) References in subsection (7) to the provision of care include references to the provision of care jointly with another person.

    (9) In this section-

"health care" has the meaning given by section 13,

"NHS body" means a Health Authority, Special Health Authority, Primary Care Trust or NHS trust,

"prescribed" means prescribed by regulations made by the Secretary of State,

"service provider" means a person who provides services-

(a) in accordance with arrangements under section 28C of the 1977 Act, or

(b) under Part II of that Act,

"statutory function" means a function conferred by or under any enactment.

Obtaining information etc.     16. - (1) The Secretary of State may by regulations make provision-

(a) conferring a right on persons authorised by the Commission to enter NHS premises at such times, in such cases, for such purposes and on such conditions as may be prescribed in order-

(i) to inspect those premises, or

(ii) to inspect and take copies of prescribed documents held by prescribed persons on those premises,

(b) requiring prescribed persons at such times, at such places, in such cases and for such purposes as may be prescribed to produce prescribed documents or information, or make reports, to the Commission or to persons authorised by the Commission,

(c) requiring prescribed persons at such times, at such places, in such cases and for such purposes as may be prescribed to provide to the Commission, or to persons authorised by the Commission, an explanation of-

(i) any matters relating to the exercise of any functions of the Commission, or

(ii) any documents or information inspected, copied or produced as mentioned in paragraph (a) or (b).

    (2) Regulations under this section may not make provision as to the inspection, copying or production of a confidential document, or confidential information, which relates to or identifies a living individual unless one or more of the following conditions is satisfied-

(a) the document or information is made available or produced in a form in which the identity of the individual cannot be ascertained,

(b) the individual consents to the document or information being made available or produced,

(c) the individual cannot be traced despite the taking of all reasonable steps,

(d) in a case where the Commission is exercising its functions under section 15(1)(c)-

(i) it is not practicable to make available or produce the document or information in a form in which the identity of the individual cannot be ascertained,

(ii) the Commission considers that there is a serious risk to the health or safety of patients arising out of the matters which are the subject of the exercise of those functions, and

(iii) having regard to that risk and the urgency of the exercise of those functions, the Commission considers that the document or information should be made available or produced without the consent of the individual.

    (3) Regulations under this section may not make provision as to the inspection, copying or production of a document or information the disclosure of which is prohibited by or under any other enactment, but where a document or information is held in a form in which the prohibition operates by reason of the fact that the document or information is capable of identifying an individual, regulations under this section may make provision as to the inspection, copying or production of the document or information in a form in which the identity of the individual cannot be ascertained.

    (4) Any person who without reasonable excuse-

(a) obstructs a person authorised by the Commission in the exercise of any right conferred by virtue of subsection (1)(a), or

(b) fails to comply with any requirement imposed by virtue of subsection (1)(b) or (c),

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

    (5) In this section any reference to documents includes a reference to information held by means of a computer or in any other electronic form, and in the case of information so held regulations under this section may make provision for it to be made available or produced in a visible and legible form.

    (6) In this section-

"confidential document" means a document which contains confidential information,

"confidential information" means information which is held in circumstances importing a duty of confidence, and includes information contained in a health record,

"health record" has the meaning given by section 68(2) of the Data Protection Act 1998,

"NHS premises" means premises owned or controlled by a Health Authority, Special Health Authority, Primary Care Trust or NHS trust,

"prescribed" means prescribed by regulations made by the Secretary of State.

Restrictions on disclosure of information.     17. - (1) Confidential information which-

(a) has been obtained by virtue of regulations under section 15, and

(b) relates to or identifies an individual,

must not be disclosed during the lifetime of that individual unless the disclosure is made with lawful authority.

    (2) A person who knowingly or recklessly contravenes this section is guilty of an offence and liable-

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

    (3) It is not an offence under this section-

(a) to disclose information in a form which does not enable information relating to any particular individual to be ascertained from it, or

(b) to disclose information which has previously been disclosed to the public with lawful authority.

    (4) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence-

(a) he believed that he was making the disclosure in question with lawful authority and had no reasonable cause to believe otherwise, or

(b) he believed that the information in question had previously been disclosed to the public with lawful authority and had no reasonable cause to believe otherwise.

    (5) For the purposes of this section a disclosure of information is to be regarded as made with lawful authority if, and only if, it is made-

(a) with the consent of the individual to whom the information relates or any person authorised to act on his behalf,

(b) for the purpose of facilitating the exercise of any functions of the Commission,

(c) for the purpose of facilitating the conduct of any investigation under the Health Service Commissioners Act 1993,

(d) in accordance with any enactment or order of a court,

(e) in connection with the investigation of any criminal offence triable in the United Kingdom or in any part of the United Kingdom,

(f) for the purposes of criminal proceedings in any part of the United Kingdom,

(g) in relation to the assesment of the performance of any health professional in his capacity as such, or

(h) in a case where-

(i) the information relates to a person who is likely to constitute a threat to the health or safety of individuals, and

(ii) the person to whom it is disclosed is a person to whom the Commission considers that the information should be disclosed in the interests of the health and safety of individuals.

    (6) In this section-

"confidential information" has the same meaning as in section 16,

"health professional" has meaning given by section 69(1) of the Data Protection Act 1998.

Abolition of Clinical Standards Advisory Group.     18. The Clinical Standards Advisory Group is to cease to exist.

Partnership

Co-operation between NHS bodies.     19. It is the duty of Health Authorities, Special Health Authorities, Primary Care Trusts and NHS trusts to co-operate with each other in exercising their functions.

Co-operation between NHS bodies and local authorities.     20. - (1) Section 22 of the 1977 Act (co-operation between health authorities and local authorities) is amended as follows.

    (2) For subsection (1) (co-operation between Health Authorities and Special Health Authorities on the one hand and local authorities on the other) there is substituted-

    "(1) In exercising their respective functions NHS bodies (on the one hand) and local authorities (on the other) shall co-operate with one another in order to secure and advance the health and welfare of the people of England and Wales.

    (1A) In this section "NHS body" means-

(a) a Health Authority;

(b) a Special Health Authority;

(c) a Primary Care Trust; or

(d) an NHS trust."

Plans for improving health etc.     21. - (1) It is the duty of each Health Authority, at such times as the Secretary of State may direct, to prepare a plan which sets out a strategy for improving-

(a) the health of the people for whom they are responsible, and

(b) the provision of health care to such people.

    (2) It is the duty of each Health Authority to keep under review any plan prepared by them under this section.

    (3) It is the duty of the bodies specified in subsection (4) to participate in the preparation or review by a Health Authority of any plan under this section.

    (4) Those bodies are-

(a) any Primary Care Trust whose area falls within the area of the Health Authority,

(b) any NHS trust which provides services at or from a hospital or other establishment or facility which falls within the area of the Health Authority, and

(c) any local authority whose area falls wholly or partly within the area of the Health Authority.

    (5) In preparing or reviewing any plan under this section, a Health Authority-

(a) must consult, or seek the participation of, such persons as the Secretary of State may direct, and

(b) may consult, or seek the participation of, such other persons as they consider appropriate.

    (6) The Secretary of State may give directions-

(a) as to the periods to be covered by plans under this section,

(b) as to the action to be taken by Health Authorities, Primary Care Trusts, NHS trusts and local authorities in connection with the preparation or review of plans under this section,

(c) as to the matters to be taken into account in connection with the preparation or review of plans under this section,

(d) as to the matters to be dealt with by plans under this section,

(e) as to the form and content of plans under this section,

(f) as to the publication of plans prepared or reviewed under this section,

(g) as to the sharing of information between Health Authorities, Primary Care Trusts, NHS trusts and local authorities in connection with the preparation or review of plans under this section,

(h) as to the provision by Health Authorities of reports or other information to the Secretary of State in connection with plans under this section.

    (7) In exercising their respective functions-

(a) Health Authorities must have regard to any plan prepared or reviewed by them under this section, and

(b) Primary Care Trusts, NHS trusts and local authorities must have regard to any plan under this section in relation to which they have participated.

    (8) For the purposes of this section, the persons for whom a Health Authority are responsible are-

(a) the people in the Authority's area, and

(b) such of the people outside the Authority's area as may be specified in directions given by the Secretary of State.

    (9) It is the duty of Health Authorities, Primary Care Trusts, NHS trusts and local authorities to comply with any directions under this section which relate to them.

    (10) Any directions under this section-

(a) may make different provision for different cases or descriptions of case,

(b) must be given in writing, and

(c) may be varied or revoked by subsequent directions.

    (11) In this section-

"health care" has the meaning given by section 13,

"local authority" means a county council, a county borough council, a district council, a London borough council and the Common Council of the City of London.

Payments by NHS bodies to local authorities.     22. - (1) Section 28A of the 1977 Act (power to make payments towards expenditure on community services) is amended as follows.

    (2) In subsection (1) (authorities to which section applies)-

(a) for "authorities" there is substituted "bodies";

(b) for paragraph (b) (which specifies a Special Health Authority established for a London Post-Graduate Teaching Hospital) there is substituted-

"(b) a Primary Care Trust."

    (3) After subsection (2) there is inserted-

    "(2A) A body to which this section applies may, if they think fit, make payments to a local authority towards expenditure incurred or to be incurred by the authority in connection with the performance of any of the authority's functions which, in the opinion of the body,-

(a) have an effect on the health of any individuals,

(b) have an effect on, or are affected by, any NHS functions, or

(c) are connected with any NHS functions.

    (2B) In this section "NHS functions" means functions exercised by a Health Authority, Special Health Authority, Primary Care Trust or NHS trust."

Payments by local authorities to NHS bodies.     23. After section 28B of the 1977 Act there is inserted-

"Power of local authorities to make payments to NHS bodies.     28BB. - (1) A local authority may, if they think fit, make payments to a relevant NHS body towards expenditure incurred or to be incurred by the body in connection with the performance by the body of prescribed functions of the NHS body.

    (2) In this section-

"prescribed" means prescribed to any extent by regulations made by the Secretary of State;

"relevant NHS body" means a Health Authority or a Primary Care Trust.

    (3) A payment under this section may be made in respect of expenditure of a capital or of a revenue nature or in respect of both kinds of expenditure.

    (4) The Secretary of State may by directions prescribe conditions relating to payments under this section.

    (5) The power to give such directions may be exercised so as to make, as respects the cases in relation to which it is exercised, the same provision for all cases, or different provision for different cases or different classes of case, or different provision as respects the same case or class of case for different purposes.

    (6) Without prejudice to the generality of subsection (4) above, the power may be exercised-

(a) so as to make different provision for England and Wales and different provision for different areas in either; and

(b) so as to require, in such circumstances as may be specified-

(i) repayment of the whole or any part of a payment under this section; or

(ii) payment, in respect of property acquired with money paid under this section, of an amount representing the whole or part of an increase in the value of the property which has occurred since its acquisition.

    (7) No payment shall be made under this section in respect of any expenditure unless the conditions relating to it conform with the conditions prescribed for payments of that description under subsection (4) above."

Arrangements between NHS bodies and local authorities.     24. - (1) The Secretary of State may by regulations make provision for or in connection with enabling prescribed NHS bodies (on the one hand) and prescribed local authorities (on the other) to enter into prescribed arrangements in relation to the exercise of-

(a) prescribed functions of the NHS bodies, and

(b) prescribed health-related functions of the local authorities,

if the arrangements are likely to lead to an improvement in the way in which those functions are exercised.

    (2) The arrangements which may be prescribed include arrangements-

(a) for or in connection with the establishment and maintenance of a fund-

(i) which is made up of contributions by one or more NHS bodies and one or more local authorities, and

(ii) out of which payments may be made towards expenditure incurred in the exercise of both prescribed functions of the NHS body or bodies and prescribed health-related functions of the authority or authorities,

(b) for or in connection with the exercise by an NHS body on behalf of a local authority of prescribed health-related functions of the authority in conjunction with the exercise by the NHS body of prescribed functions of theirs,

(c) for or in connection with the exercise by a local authority on behalf of an NHS body of prescribed functions of the NHS body in conjunction with the exercise by the authority of prescribed health-related functions of theirs,

(d) as to the provision of staff, goods, services or accommodation in connection with any arrangements mentioned in paragraph (a), (b) or (c),

(e) as to the making of payments by a local authority to an NHS body in connection with any arrangements mentioned in paragraph (b),

(f) as to the making of payments by an NHS body to a local authority in connection with any arrangements mentioned in paragraph (c).

    (3) Regulations under this section may make provision-

(a) as to the cases in which NHS bodies and local authorities may enter into prescribed arrangements,

(b) as to the conditions which must be satisfied in relation to prescribed arrangements (including conditions in relation to consultation),

(c) for or in connection with requiring the consent of the Secretary of State to the operation of prescribed arrangements (including provision in relation to applications for consent, the approval or refusal of such applications and the variation or withdrawal of approval),

(d) in relation to the duration of prescribed arrangements,

(e) for or in connection with the variation or termination of prescribed arrangements,

(f) as to the responsibility for, and the operation and management of, prescribed arrangements,

(g) as to the sharing of information between NHS bodies and local authorities.

    (4) The provision which may be made by virtue of subsection (3)(f) includes provision in relation to-

(a) the formation and operation of joint committees of NHS bodies and local authorities,

(b) the exercise of functions which are the subject of prescribed arrangements (including provision in relation to the exercise of such functions by joint committees or employees of NHS bodies and local authorities),

(c) the drawing up and implementation of plans in respect of prescribed arrangements,

(d) the monitoring of prescribed arrangements,

(e) the provision of reports on, and information about, prescribed arrangements,

(f) complaints and disputes about prescribed arrangements,

(g) accounts and audit in respect of prescribed arrangements.

    (5) Any arrangements made by virtue of this section shall not affect-

(a) the liability of NHS bodies for the exercise of any of their functions,

(b) the liability of local authorities for the exercise of any their functions, or

(c) any power or duty to recover charges in respect of services provided in the exercise of any local authority functions.

    (6) The Secretary of State may issue guidance to NHS bodies and local authorities in relation to consultation or applications for consent in respect of prescribed arrangements.

    (7) The reference in subsection (1) to an improvement in the way in which functions are exercised includes an improvement in the provision to any individuals of any services to which those functions relate.

    (8) In this section-

"health-related functions", in relation to a local authority, means functions of the authority which, in the opinion of the Secretary of State-

(i) have an effect on the health of any individuals,

(ii) have an effect on, or are affected by, any functions of NHS bodies, or

(iii) are connected with any functions of NHS bodies,

"local authority" means a district council, county council, county borough council, London borough council or the Common Council of the City of London,

"NHS body" means a Health Authority, Primary Care Trust or NHS trust,

"prescribed" means prescribed to any extent by regulations made by the Secretary of State.

Joint consultative committees.     25. In section 22 of the 1977 Act (co-operation between health authorities and local authorities), subsections (2) to (6) (which make provision in relation to joint consultative committees) are omitted.

Control of prices of medicines and profits

Powers relating to voluntary schemes.     26. - (1) The powers conferred by this section may be exercised where there is in existence a scheme (referred to in this section as a voluntary scheme) made by the Secretary of State and the industry body for the purpose of-

(a) limiting the prices which may be charged by any manufacturer or supplier to whom the scheme relates for the supply of any health service medicines, or

(b) limiting the profits which may accrue to any manufacturer or supplier to whom the scheme relates in connection with the manufacture or supply of any health service medicines.

    (2) For the purposes of this section-

(a) a voluntary scheme is to be treated for the purposes of this section as applying to a manufacturer or supplier to whom it relates if he has given his consent in the manner required by the Secretary of State, and

(b) a voluntary scheme has effect, in relation to a manufacturer or supplier to whom it applies, with any additions or modifications made by him and the Secretary of State.

    (3) The Secretary of State may require any manufacturer or supplier to whom a voluntary scheme applies to-

(a) record and keep any information, and

(b) provide any information to the Secretary of State,

which the Secretary of State may require for the purpose of enabling the scheme to operate or facilitating its operation or for the purpose of giving full effect to any provision made under subsection (4).

    (4) The Secretary of State may-

(a) prohibit any manufacturer or supplier to whom a voluntary scheme applies from increasing any price charged by him for the supply of any health service medicine covered by the scheme without the approval of the Secretary of State, and

(b) provide for any amount representing any increase in contravention of that prohibition in the sums charged by that person for that medicine, so far as the increase is attributable to supplies to the health service, to be paid to the Secretary of State within a specified period.

Power to control prices.     27. The Secretary of State may, after consultation with the industry body-

(a) limit any price which may be charged by any manufacturer or supplier for the supply of any health service medicine, and

(b) provide for any amount representing sums charged by that person for that medicine in excess of the limit, so far as those sums are attributable to supplies to the health service, to be paid to the Secretary of State within a specified period.

Statutory schemes.     28. - (1) The Secretary of State may, after consultation with the industry body, make a scheme (referred to in this section and section 29 as a statutory scheme) for the purpose of-

(a) limiting the prices which may be charged by any manufacturer or supplier for the supply of any health service medicines, or

(b) limiting the profits which may accrue to any manufacturer or supplier in connection with the manufacture or supply of any health service medicines.

    (2) A statutory scheme may, in particular, make any provision mentioned in subsections (3) to (6).

    (3) The scheme may require any manufacturer or supplier to whom it applies to-

(a) record and keep information, and

(b) provide information to the Secretary of State.

    (4) The scheme may provide for any amount representing sums charged by any manufacturer or supplier to whom the scheme applies, in excess of the limits determined under the scheme, for health service medicines covered by the scheme, so far as those sums are attributable to supplies to the health service, to be paid by that person to the Secretary of State within a specified period.

    (5) The scheme may provide for any amount representing the profits, in excess of the limits determined under the scheme, accruing to any manufacturer or supplier to whom the scheme applies in connection with the manufacture or supply of health service medicines covered by the scheme, so far as those profits are attributable to supplies to the health service, to be paid by that person to the Secretary of State within a specified period.

© Parliamentary copyright 1999
Prepared 29 January 1999