PART II - THE NATIONAL HEALTH
CLAUSE 36: FUNDHOLDING PRACTICES
148. This clause parallels clause 1, and
serves to repeal the provisions in the National Health Service
(Scotland) Act 1978 (the "1978 Act") about general practice
fundholding. As in England, transitional arrangements will be
made under clause 49, for the same purposes.
CLAUSE 37: NHS TRUSTS ESTABLISHMENT ORDERS
149. This clause amends Section 12A of the
1978 Act and makes a number of consequential amendments, primarily
to change the definition of NHS Trusts' purpose from owning and
managing hospitals and other facilities to providing goods and
services for the National Health Service - a purpose which
more fully reflects the range of activities they are expected
to perform and in particular the range of functions that the new
Primary Care NHS Trusts are to carry out.
150. No new delegated powers are introduced by
virtue of this clause. However, various order-making powers are
amended to reflect the change. Clause 37(1)(b) replaces sub-section
12A(4) of the 1978 Act to reflect the change in the already existent
order making power under Section 12A(1). Clause 37(3)
provides that orders already made under Section 12A(1) of
1978 Act are to be treated as if the amendment to that Section
had always been in force. Clause 37(5) provides that any
order made under clause 49 may have retrospective effect.
These provisions mirror those made for England and Wales in clause
CLAUSE 38: DIRECTIONS AS TO DELEGATION OF FUNCTIONS
151. Clause 38 empowers the Secretary
of State by means of a direction to enable Primary Care NHS Trusts
in Scotland to take over responsibility for "Part II"
functions from Health Boards. Part II functions are broadly
those relating to the family health services, which under the
1978 Act are the responsibility of Health Boards. In most cases,
the relevant Part II functions will be transferred from a
Health Board to the single Primary Care NHS Trust established
to provide services in that Health Board's area. But the island
Health Boards (Orkney, Shetland and Western Isles) do not have
any Primary Care NHS Trusts operating in their areas and will
therefore retain the functions; and in 2 Health Board areas -
Lothian and Argyll and Clyde - there will be 2 Primary
Care NHS Trusts providing services. The direction making power
therefore provides the necessary flexibility to deal with these
CLAUSE 39: CONSTITUTION OF NHS TRUST BOARDS
152. This clause contains no delegated powers.
CLAUSE 40: DUTIES OF NHS TRUSTS
153. Under the 1978 Act, the Secretary of State
has a broad power to direct Health Boards and the Common Services
Agency. Clause 40 extends the existing limited powers that
he has to direct NHS Trusts so that it is similarly broad to that
in respect of Health Boards. This will ensure proper statutory
accountability of NHS Trusts within the National Health Service.
The parallel power in England and Wales will be provided under
CLAUSE 41: DUTY OF QUALITY
154. Clause 41 contains no delegated powers.
CLAUSE 42: EXPENDITURE OF HEALTH BOARDS AND OTHER
155. This clause replaces Section 85 of
the 1978 Act with new Sections 85AA and 85 designed to enable
Health Boards' funding for hospital and community health services
(HCHS) (also known as "Part I" services) and some
family health services (FHS or Part II) to be provided in
a single stream. At present Part I and Part II funding is delivered
in separate funding streams.
156. New subsection 85AA(4) describes the
expenditure which will comprise the single funding stream. Paragraph (b),
(c) and (d) refer to Part II expenditure and services being
"designated". Section 85AA(5) explains that "designated"
means designated in writing by the Secretary of State. The designation
procedure is required because of the detailed nature of the arrangements
which will need to be made for this purpose. New subsections 85AA(8)
and 85(3) re-enact the specific direction making power in
the current Section 85(2A) of the 1978 Act, except that the
former new subsection extends it to cover designated Part II
expenditure in consequence of the other provisions in Section 85AA.
CLAUSE 43: PUBLIC DIVIDEND CAPITAL
CLAUSE 44: EXISTING NHS TRUSTS: CONVERSION OF INITIAL
157. These clauses creates no new delegated powers.
CLAUSE 45: BORROWING
158. This Clause is the Scottish equivalent of
clause 12. As in that clause, subclause (2) makes the ability
of NHS Trusts to borrow subject to the Secretary of State's power
of direction. The power of direction avoids the need to place
detailed administrative provisions on the face of the Bill (which
may be different for different NHS trusts) and provides the flexibility
for the provisions to be changed to reflect changing financial
CLAUSE 46: DISQUALIFICATION OF PART II PRACTITIONERS
159. Clause 46 makes provision comparable
in Scotland to clause 33.