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Smoking, Health and Social Care (Scotland) Act 2005

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Prospective

Part 1 SSmoking: prohibition and control

1Offence of permitting others to smoke in no-smoking premisesS

(1)A person who, having the management or control of no-smoking premises, knowingly permits another to smoke there commits an offence.

(2)A person accused of an offence under this section is to be regarded as having knowingly permitted another to smoke in no-smoking premises if that person ought to have known that the other person was smoking there.

(3)It is a defence for an accused charged with an offence under this section to prove—

(a)that the accused (or any employee or agent of the accused) took all reasonable precautions and exercised all due diligence not to commit the offence; or

(b)that there were no lawful and reasonably practicable means by which the accused could prevent the other person from smoking in the no-smoking premises.

(4)A person guilty of an offence under this section is liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

2Offence of smoking in no-smoking premisesS

(1)A person who smokes in no-smoking premises commits an offence.

(2)It is a defence for an accused charged with an offence under this section to prove that the accused did not know, and could not reasonably be expected to have known, that the place in which it is alleged that the accused was smoking was no-smoking premises.

(3)A person guilty of an offence under this section is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

3Display of warning notices in and on no-smoking premisesS

(1)If notices are not conspicuously displayed—

(a)in, on or near no-smoking premises so as to be visible to and legible by persons in and persons approaching the premises; and

(b)stating—

(i)that the premises are no-smoking premises; and

(ii)that it is an offence to smoke there or knowingly to permit smoking there,

the person having the management or control of the premises commits an offence.

(2)It is a defence for an accused charged with an offence under this section to prove that the accused (or any employee or agent of the accused) took all reasonable precautions and exercised all due diligence not to commit the offence.

(3)The Scottish Ministers may, after consulting such persons as they consider appropriate, by regulations provide further as to the manner of display, form and content of the notices referred to in subsection (1) and that any such provision is to be treated, for the purposes of that subsection, as if incorporated in it.

(4)A person guilty of an offence under this section is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

4Meaning of “smoke” and “no-smoking premises”S

(1)In this Part, “smoke” means smoke tobacco, any substance or mixture which includes it or any other substance or mixture; and a person is to be taken as smoking if the person is holding or otherwise in possession or control of lit tobacco, of any lit substance or mixture which includes tobacco or of any other lit substance or mixture which is in a form or in a receptacle in which it can be smoked.

(2)In this Part, “no-smoking premises” means such premises or such classes of premises, being premises of a kind mentioned in subsection (4), as are prescribed by regulations made by the Scottish Ministers after consulting such persons as they consider appropriate on a draft of the regulations.

(3)Regulations under subsection (2) may prescribe premises or parts of premises or classes of premises or parts of premises which are excluded from the definition of “no-smoking premises”.

(4)The kind of premises referred to in subsection (2) is premises which are wholly or substantially enclosed and—

(a)to which the public or a section of the public has access;

(b)which are being used wholly or mainly as a place of work;

(c)which are being used by and for the purposes of a club or other unincorporated association; or

(d)which are being used wholly or mainly for the provision of education or of health or care services.

(5)In subsection (4)(b), the reference to work includes work undertaken for no financial advantage.

(6)Regulations under subsection (2) may, for the purposes of that subsection, define or elaborate the meaning of any of the expressions—

(a)“premises”;

(b)“wholly or substantially enclosed”;

(c)“the public”; and

(d)“has access”.

(7)Regulations under subsection (2) may define or elaborate the meaning of “premises”—

(a)by reference to the person or class of person who owns or occupies them;

(b)so as to include vehicles, vessels, trains and other means of transport (except aircraft), or such, or such classes, of them as are specified in the regulations.

(8)The Scottish Ministers may, by regulations, after consulting such persons as they consider appropriate on a draft of the regulations, modify subsection (4) so as—

(a)to add a kind of premises to; or

(b)remove a kind of premises (but not the kind referred to in paragraph (a) of that subsection) from,

those in that subsection.

(9)Regulations made by virtue of subsection (7)(b) may provide as to how the statement referred to in section 3(1)(b) is to be expressed in the case of each of the means of transport referred to in the regulations and that any such provision is to be treated, for the purposes of that section, as if incorporated in it.

5Proceeding for offences under sections 1 to 3S

(1)Summary proceedings in pursuance of section 1, 2 or 3 may be commenced at any time within the period of 6 months from the date on which evidence sufficient in the opinion of the Lord Advocate to justify the proceedings comes to the Lord Advocate's knowledge.

(2)Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act 1995 (c. 46) (date of commencement of summary proceedings) has effect for the purposes of subsection (1) as it has effect for the purposes of that section.

(3)For the purposes of subsection (1), a certificate of the Lord Advocate as to the date on which the evidence in question came to the Lord Advocate's knowledge is conclusive evidence of the date on which it did so.

6Fixed penaltiesS

(1)Schedule 1 (which provides as to fixed penalties for offences under this Part) has effect.

(2)Schedule 1 does not extend to an offence under section 1 or 3 committed otherwise than by a natural person.

7Powers to enter and require identificationS

(1)An authorised officer of the appropriate council may enter and search any no-smoking premises in order to ascertain whether an offence under section 1, 2 or 3 has been or is being committed there.

(2)A power under this section may be exercised, if need be, by force.

(3)A person who—

(a)an authorised officer of a council reasonably believes—

(i)is committing or has committed an offence under section 1, 2 or 3; or

(ii)has information relating to such an offence; and

(b)fails without reasonable excuse to supply the officer with the person's name and address on being so required by the officer,

commits an offence.

(4)A person guilty of an offence under subsection (3) is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(5)In this section—

  • authorised” means authorised for the purposes of this section by the appropriate council;

  • the appropriate council” means, in relation to no-smoking premises, the council of the area in which those premises are.

8Bodies corporate etc.S

(1)Where an offence under this Part which has been committed by a body corporate other than a council is proved to have been committed with the consent or connivance of, or to be attributable to, any neglect on the part of—

(a)a director, manager or secretary, member or other similar officer of the body corporate; or

(b)any person who was purporting to act in any such capacity,

that person, as well as the body corporate, is guilty of the offence and liable to be proceeded against and punished accordingly.

(2)Where an offence under this Part which has been committed by a council is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a)an officer or member of the council; or

(b)any person who was purporting to act in any such capacity,

that person, as well as the council, is guilty of the offence and liable to be proceeded against and punished accordingly.

(3)Where an offence under this Part which has been committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a)a partner; or

(b)any person who was purporting to act in any such capacity,

that person, as well as the partnership, is guilty of the offence and liable to be proceeded against and punished accordingly.

(4)Where an offence under this Part which has been committed by an unincorporated association other than a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a)a person who is concerned in the management or control of the association; or

(b)any person who was purporting to act in any such capacity,

that person, as well as the unincorporated association, is guilty of the offence and liable to be proceeded against and punished accordingly.

9Sale of tobacco to under-age persons: variation of age limitS

(1)The Scottish Ministers may, by order, modify section 18 of the Children and Young Persons (Scotland) Act 1937 (c. 37) (offence of selling tobacco etc. to under-age persons and other preventative measures) so as to substitute for the age specified in any of its provisions (at the passing of this Act, 16) such other higher age or ages as they consider appropriate.

(2)The Scottish Ministers may make an order under this section only after consulting such persons as they consider appropriate on a draft of the order.

10Crown applicationS

(1)This Part binds the Crown.

(2)No contravention by the Crown of this Part or any regulations under it makes the Crown criminally liable; but the Court of Session may, on the application of a council in the area of which the contravention is alleged to have taken place, declare unlawful any act or omission of the Crown which would, but for this subsection, have been an offence.

(3)Subsection (2) does not extend to persons in the public service of the Crown.

Prospective

Part 2 SGeneral dental services, general ophthalmic services, personal dental services etc.

11Detection of vision problems in childrenS

After section 38A of the 1978 Act, insert—

38BDetection of vision problems in children

(1)It is the duty of the Scottish Ministers, to such extent as they consider necessary to meet all reasonable requirements, to provide for the detection of vision problems in children.

(2)In this section, “children” means persons under the age of 16 years..

12Free oral health assessments and dental examinationsS

(1)Oral health assessments and dental examinations carried out on or after 1st April 2006 in accordance with arrangements made under section 17C of the 1978 Act, arrangements for the provision of general dental services under Part II of that Act or a pilot scheme under Part I of the National Health Service (Primary Care) Act 1997 (c. 46) (the “1997 Act”) are to be free of charge; and accordingly those Acts are amended as follows.

(2)In the 1978 Act—

(a)in section 70A(2) (personal dental services as respects which regulations under section 70A(1) may provide for the making and recovery of charges), for the words “other than those” substitute except—

(a)oral health assessments and dental examinations carried out on or after 1st April 2006; and

(b)those services;

(b)in section 71 (charges for general dental services under Part II)—

(i)in subsection (1), after the words “not being—” insert—

(a)oral health assessments and dental examinations carried out on or after 1st April 2006;;

(ii)in subsection (2), after “services” where it first occurs insert “ (but not being oral health assessments or dental examinations carried out on or after 1st April 2006) ”.

(3)In the 1997 Act, in section 20 (charges for dental treatment in accordance with pilot schemes)—

(a)in subsection (1), for the words from “dental” to the end substitute personal dental services provided in accordance with pilot schemes except—

(a)those services to which section 78(1A) of the 1977 Act or (as the case may be) section 70(1A) of the 1978 Act applies; and

(b)oral health assessments and dental examinations carried out on or after 1st April 2006.;

(b)subsection (2) is repealed.

13Free eye examinations and sight testsS

(1)Arrangements under section 26(1) of the 1978 Act for the provision of general ophthalmic services are to include eye examinations and the provision of free eye examinations and sight tests in accordance with such arrangements is to be extended on and after 1st April 2006; and accordingly that Act is amended as follows.

(2)In section 26 (arrangements for the provision of general ophthalmic services)—

(a)in subsection (1), for the words from “the testing” to the end substitute “ the carrying out of eye examinations including where clinically necessary testing of sight. ”;

(b)subsections (1A) to (1E) are repealed.

(3)In paragraph 2A of Schedule 11 (additional provision as to regulations under section 70(1) on charges for optical appliances), sub-paragraph (3)(a) is repealed.

14Charges for certain dental appliances and general dental servicesS

(1)The 1978 Act is amended as follows.

(2)In section 70 (regulations as to charges for dental or optical appliances)—

(a)in subsection (1), for the words “optical appliances” substitute “ dental or optical appliances ”;

(b)subsection (1A) is repealed;

(c)in subsection (2), for the words “(1A)” substitute “ (1) ”.

(3)In section 70A(2) (personal dental services as respects which regulations under section 70A(1) may provide for the making and recovery of charges), for the words “70(1A)” substitute “ 70(1) ”.

(4)In section 71(1) (charges for certain general dental services), for the words “an amount calculated in accordance with section 71A” substitute “ the amount authorised by this section ”.

(5)Section 71A (regulations as respects amount of any charge authorised by section 70(1A) for supply of dental appliances or by section 71 for certain general dental services) is repealed.

(6)In paragraph 2 of Schedule 11 (additional provision as to regulations under section 70)—

(a)after sub-paragraph (1), insert—

(1A)The dental appliances referred to in that section are dentures, bridges, crowns and orthodontic appliances.;

(b)in sub-paragraph (2)(a), for the words “optical appliance” substitute “ dental or optical appliance ”;

(c)in sub-paragraph (3), the words “or (1A)” are repealed;

(d)in sub-paragraph (4), for the words “70(1A)” substitute “ 70(1) ”.

15Arrangements for provision of general dental servicesS

In section 25 of the 1978 Act (arrangements for provision of general dental services) in subsection (1)—

(a)after the words “dental practitioners” insert “ or bodies corporate entitled, by virtue of section 43 of the Dentists Act 1984 (c. 24), to carry on the business of dentistry ”;

(b)after the words “dental practitioner” insert “ or body corporate ”.

16Assistance and support: general dental servicesS

After section 28C of the 1978 Act, insert—

Assistance and support: general dental servicesS

28DAssistance and support: general dental services

(1)A Health Board may provide assistance and support to any person providing, or proposing to provide, general dental services.

(2)Assistance and support provided by a Health Board under subsection (1) is to be provided on such terms, including terms as to payment, as the Board think fit.

(3)In this section, “assistance” includes financial assistance..

17Lists of persons undertaking to provide or approved to assist in the provision of general dental servicesS

In section 25 of the 1978 Act (arrangements for provision of general dental services), for subsections (2) to (2B), substitute—

(2)Regulations may make provision as to the arrangements to be made under subsection (1), and shall include provision as to the preparation, maintenance and publication by every Health Board of a list—

(a)the first part of which shall be of dental practitioners who, and bodies corporate referred to in that subsection which, undertake to provide general dental services under arrangements with the Board;

(b)the second part of which shall be of persons who do not undertake to provide such services under such arrangements but who are approved by the Board to assist in the provision of such services provided under such arrangements.

(2A)In making provision as to the preparation, maintenance and publication of a list referred to in subsection (2), the regulations may include in particular provision as to—

(a)the division of either part (or both parts) of a list into further sub-parts;

(b)eligibility for inclusion in a list;

(c)applications for inclusion (including provision for the procedure for applications to be made and dealt with and the documents to be supplied on application);

(d)the grounds on which an application for inclusion must be granted or refused;

(e)requirements with which a person included in a list must comply (including requirements as to standards of performance and patient care and as to declarations, consents or undertakings);

(f)suspension or removal from a list (including the grounds for and consequences of suspension or removal);

(g)circumstances in which a person included in a list may not withdraw from it;

(h)payments to be made by a Health Board in respect of a person suspended from a list (including provision for the amount of, or the method of calculating, the payment to be determined by the Scottish Ministers);

(i)criteria to be applied in making decisions under the regulations;

(j)disclosure of information about applicants for inclusion, refusals of applications, or suspensions, removals or references to the Tribunal, including in particular the disclosure of information about any such matter by a Health Board to the Scottish Ministers and by the Scottish Ministers to a Health Board.

(2B)Regulations may provide that—

(a)a dental practitioner who, and a body corporate referred to in subsection (1) which, undertakes to provide general dental services under arrangements with a Health Board may not provide such services unless his name or, as the case may be, the body corporate's name is included in the first part of the Board's list referred to in subsection (2)(a);

(b)a person who does not undertake to provide general dental services under arrangements with a Health Board may not assist in the provision of such services provided under arrangements with the Board unless his name is included in the second part of the Board's list referred to in subsection (2)(b)..

18Lists of persons performing personal dental services under section 17C arrangements or pilot schemesS

After section 17E of the 1978 Act, insert—

17FLists of persons performing personal dental services

(1)Regulations may provide that a person may not perform personal dental services under section 17C arrangements or a pilot scheme with a Health Board unless his name is included in a list maintained under the regulations by the Board.

(2)Regulations under subsection (1) may make provision in relation to such lists and in particular as to—

(a)the preparation, maintenance and publication of a list;

(b)eligibility for inclusion in a list;

(c)applications for inclusion (including provision for the procedure for applications to be made and dealt with and the documents to be supplied on application);

(d)the grounds on which an application for inclusion must be granted or refused;

(e)requirements with which a person included in a list must comply (including requirements as to standards of performance and patient care and as to declarations, consents or undertakings);

(f)suspension or removal from a list (including the grounds for and consequences of suspension or removal);

(g)circumstances in which a person included in a list may not withdraw from it;

(h)payments to be made by a Health Board in respect of a person suspended from a list (including provision for the amount of, or the method of calculating, the payment to be determined by the Scottish Ministers);

(i)criteria to be applied in making decisions under the regulations;

(j)disclosure of information about applicants for inclusion, refusals of applications, or suspensions, removals or references to the Tribunal, including in particular the disclosure of information about any such matter by a Health Board to the Scottish Ministers and by the Scottish Ministers to a Health Board..

19Lists of persons undertaking to provide or approved to assist in the provision of general ophthalmic servicesS

In section 26 of the 1978 Act (arrangements for provision of general ophthalmic services), for subsection (2), substitute—

(2)Regulations may make provision as to the arrangements to be made under subsection (1), and shall include provision—

(a)as to the preparation, maintenance and publication by every Health Board of a list—

(i)the first part of which shall be of medical practitioners and ophthalmic opticians who undertake to provide general ophthalmic services under arrangements with the Board;

(ii)the second part of which shall be of persons who do not undertake to provide such services under such arrangements but who are approved by the Board to assist in the provision of such services provided under such arrangements;

(b)conferring on any person a right to choose in accordance with the prescribed procedure the medical practitioner or ophthalmic optician by whom his eyes are to be examined, his sight is to be tested or from whom any prescription for the supply of optical appliances is to be obtained.

(2A)In making provision as to the matters referred to in subsection (2)(a), the regulations may include in particular provision as to—

(a)the division of either part (or both parts) of a list into further sub-parts;

(b)eligibility for inclusion in a list;

(c)applications for inclusion (including provision for the procedure for applications to be made and dealt with and the documents to be supplied on application);

(d)the grounds on which an application for inclusion must be granted or refused;

(e)requirements with which a person included in a list must comply (including requirements as to standards of performance and patient care and as to declarations, consents or undertakings);

(f)suspension or removal from a list (including the grounds for and consequences of suspension or removal);

(g)circumstances in which a person included in a list may not withdraw from it;

(h)payments to be made by a Health Board in respect of a person suspended from a list (including provision for the amount of, or the method of calculating, the payment to be determined by the Scottish Ministers);

(i)criteria to be applied in making decisions under the regulations;

(j)disclosure of information about applicants for inclusion, refusals of applications, or suspensions, removals or references to the Tribunal, including in particular the disclosure of information about any such matter by a Health Board to the Scottish Ministers and by the Scottish Ministers to a Health Board.

(2B)Regulations may provide that—

(a)a medical practitioner or ophthalmic optician who undertakes to provide general ophthalmic services under arrangements with a Health Board may not provide such services unless his name is included in the first part of the Board's list referred to in subsection (2)(a)(i);

(b)a person who does not undertake to provide general ophthalmic services under arrangements with a Health Board may not assist in the provision of such services provided under arrangements with the Board unless his name is included in the second part of the Board's list referred to in subsection (2)(a)(ii)..

Prospective

Part 3 SPharmaceutical care services etc.

20Health Boards' functions: provision and planning of pharmaceutical care servicesS

(1)The 1978 Act is amended as follows.

(2)After section 2C (functions of Health Boards: primary medical services), insert—

2CAFunctions of Health Boards: pharmaceutical care services

(1)Every Health Board—

(a)must, to the extent that they consider necessary to meet all reasonable requirements, provide or secure the provision of pharmaceutical care services as respects the Board's area; and

(b)may, to such extent, provide or secure the provision of pharmaceutical care services as respects the area of another Health Board,

and pharmaceutical care services provided, or the provision of which is secured, by a Health Board under or by virtue of this subsection may be performed outside their area.

(2)For the purpose of securing the provision of pharmaceutical care services under subsection (1), a Health Board may make such arrangements for the provision of the services as they think fit (and may in particular make contractual arrangements with any person).

(3)A Health Board must publish information about such matters as may be prescribed in relation to the pharmaceutical care services provided under this Part.

(4)Without prejudice to section 13, Health Boards must co-operate with one another in discharging their respective functions relating to the provision of pharmaceutical care services under this Part.

(5)Regulations may provide that services of a prescribed description are, or are not, to be regarded as pharmaceutical care services for the purposes of this Act.

(6)Regulations under subsection (5) may in particular—

(a)classify services as services which are to be regarded as essential services or which are to be regarded as additional services;

(b)describe services by reference to the manner or circumstances in which they are provided;

(c)provide that pharmaceutical care services for the purposes of this Act include the provision, in circumstances specified in directions given by the Scottish Ministers, of drugs, medicines and appliances included in a list specified in such directions;

(d)describe services which involve the ordering of a drug, medicine or appliance included in such a list by reference to the description of person by whom the drug, medicine or appliance is ordered.

(7)The Scottish Ministers must publish directions given by them under regulations under subsection (5) in the Drug Tariff or in such other manner as they consider appropriate.

(8)Arrangements made under this Part by a Health Board for the provision of pharmaceutical care services may provide for such services to be performed outside Scotland.

(9)Anything done by a Health Board in pursuance of subsection (1) or (2) is to be regarded as done in exercise of functions of the Scottish Ministers conferred on the Health Board by an order under section 2(1)(a).

2CBFunctions of Health Boards: planning of pharmaceutical care services

(1)Regulations may make provision requiring every Health Board, in accordance with the regulations, to—

(a)prepare a plan for the discharge of their duty under section 2CA(1);

(b)keep a plan prepared under paragraph (a) under review;

(c)prepare a revised plan; and

(d)without prejudice to section 2CA(3), publish a plan so prepared or revised.

(2)Regulations under subsection (1) may in particular make provision as to—

(a)identification by a Health Board in any such plan prepared by them of—

(i)what pharmaceutical care services they consider are necessary in order to discharge their duty under section 2CA(1);

(ii)whether as respects their area there is convenient access (as regards location and opening hours) to pharmaceutical care services; and

(iii)any under-provision of pharmaceutical care services as respects their area;

(b)the period within which a plan is to be prepared and published;

(c)consultation which a Health Board must undertake in relation to the preparation of a plan;

(d)the duration of a plan;

(e)the frequency with which a plan must be reviewed and revised by a Health Board;

(f)the availability and accessibility of a plan to persons who are resident in a Health Board's area; and

(g)such other matters as the Scottish Ministers consider appropriate.

(3)Regulations making provision as to a matter referred to in subsection (2)(a) may provide that the matter is to be identified in accordance with such criteria as may be specified in directions given by the Scottish Ministers..

(3)In section 18 (duty of the Scottish Ministers), the words “, and of pharmaceutical services,” are repealed.

21Pharmaceutical care services contractsS

For section 17Q of the 1978 Act (assistance and support), substitute—

Pharmaceutical care services contractsS

17QHealth Boards' power to enter into pharmaceutical care services contracts

(1)A Health Board may enter into a contract under which pharmaceutical care services are provided (whether directly or indirectly) by a contractor in accordance with the provisions of this Part.

(2)A contract under this section is referred to in this Act as a “pharmaceutical care services contract”.

(3)Subject to any provision made by or under this Part, a pharmaceutical care services contract may make such provision as may be agreed between the Health Board and the contractor as respects—

(a)the services to be provided under the contract;

(b)the remuneration to be paid under the contract; and

(c)any other matters.

(4)The services to be provided under a pharmaceutical care services contract may include services which are not pharmaceutical care services; and the contract may provide for such other services to be performed in any place where, by virtue of section 2CA(1), pharmaceutical care services may be performed.

(5)In this Part, “contractor”, in relation to a pharmaceutical care services contract with a Health Board, means the other party to the contract.

17RMandatory contract term: provision of prescribed pharmaceutical care services

(1)A pharmaceutical care services contract must require the contractor to provide as respects the area of the Health Board pharmaceutical care services of such descriptions as may be prescribed.

(2)Regulations under subsection (1) may in particular describe the pharmaceutical care services by reference to the manner or circumstances in which they are provided.

17SEligibility to be contractor under pharmaceutical care services contract

(1)A Health Board may, subject to such conditions as may be prescribed, enter into a pharmaceutical care services contract with—

(a)a registered pharmacist; or

(b)a person other than a registered pharmacist who, by virtue of section 69 of the Medicines Act 1968 (c. 67), is taken to be a person lawfully conducting a retail pharmacy business in accordance with that section,

who undertakes that all pharmaceutical care services provided under the contract will be provided by, or under the supervision of, a registered pharmacist.

(2)Regulations may make provision as to the effect on a pharmaceutical care services contract entered into with a partnership of a change in the membership of the partnership.

17TPayments by Health Boards under pharmaceutical care services contracts

(1)The Scottish Ministers may give directions as to payments to be made under pharmaceutical care services contracts.

(2)A pharmaceutical care services contract must require payments to be made under it in accordance with directions for the time being in force under this section.

(3)A direction under subsection (1) may in particular—

(a)provide for payments to be made by reference to compliance with standards or the achievement of levels of performance;

(b)provide for payments to be made by reference to—

(i)any scheme or scale specified in the direction;

(ii)a determination made by any person in accordance with factors specified in the direction;

(c)provide that the whole or any part of a payment is subject to conditions (including a condition that the whole or any part of a payment is liable to be paid by a Health Board only if they are satisfied as to such conditions as may be specified in the direction);

(d)make provision having effect from a date before the date of the direction, provided that, having regard to the direction as a whole, the provision is not detrimental to the persons to whose remuneration it relates.

(4)Before giving a direction under subsection (1), the Scottish Ministers—

(a)must consult any body appearing to them to be representative of persons to whose remuneration the direction would relate; and

(b)may consult such other persons as they think appropriate.

(5)The Scottish Ministers must publish directions given by them under subsection (1) in the Drug Tariff or in such other manner as they consider appropriate.

(6)References in this section to payments include fees, allowances and reimbursements.

17UOther mandatory contract terms: pharmaceutical care services contracts

(1)A pharmaceutical care services contract must include (in addition to provisions required by or under other provisions of this Part) such provision as may be prescribed.

(2)Regulations under subsection (1) may in particular—

(a)make provision as to the manner in which, and the standards to which, services must be provided;

(b)provide that the Scottish Ministers may give directions as to the manner in which, and the standards to which, services must be provided;

(c)make provision as to—

(i)the persons who are to perform services;

(ii)the area in which services are to be provided;

(iii)the persons to whom services are to be provided;

(iv)requirements to be complied with where a contractor provides any pharmaceutical care services indirectly (including requirements as to the pharmaceutical care services which may or may not be so provided);

(v)the variation of terms of the contract (except terms required by or under this Part);

(vi)rights of entry and inspection (including inspection of clinical records and other documents);

(vii)the circumstances in which, and the manner in which, the contract may be terminated;

(viii)enforcement;

(ix)the adjudication of disputes.

(3)Regulations making provision in pursuance of subsection (2)(c)(iii) may make provision as to the circumstances in which a contractor—

(a)must, or may, accept a person as a person to whom services are provided under the contract;

(b)may decline to accept a person as such a person; or

(c)may terminate the contractor's responsibility for a person.

(4)Regulations making provision in pursuance of subsection (2)(c)(v) may—

(a)make provision as to the circumstances in which a Health Board may unilaterally vary the terms of a contract;

(b)make provision suspending or terminating any duty under the contract to provide services of a prescribed description.

(5)Regulations making provision of the kind described in subsection (4)(b) may prescribe services by reference to the manner or circumstances in which they are provided.

(6)A pharmaceutical care services contract must contain provision requiring the contractor to comply with directions for the time being in force given by the Scottish Ministers under regulations under subsection (1).

17VResolution of disputes and entry into NHS contracts: pharmaceutical care services contracts

(1)Regulations may make provision for the resolution of disputes as to the terms of a proposed pharmaceutical care services contract, including, without prejudice to that generality, provision for—

(a)the referral of the terms of the proposed contract to the Scottish Ministers; and

(b)the Scottish Ministers, or a person or panel of persons appointed by them, to determine the terms on which the contract may be entered into.

(2)Regulations may make provision for any person entering, or who has entered, into a pharmaceutical care services contract to be regarded as a health service body for any purposes of section 17A, in circumstances where the person so elects.

(3)Where a person is to be regarded as a health service body for any purposes of section 17A by reason only of an election by virtue of subsection (2) of this section, that section has effect in relation to that person with the omission of the words “under any enactment” in subsection (1) and with such other modifications (if any) as may be prescribed.

(4)Regulations under subsection (2) may include provision as to the application of section 17A in cases where—

(a)a partnership is to be regarded as a health service body; and

(b)there is a change in the membership of the partnership..

22Drug TariffS

After section 17V of the 1978 Act (as inserted by section 21 above), insert—

Drug TariffS

17WDrug Tariff

(1)The Scottish Ministers must prepare, maintain and publish a document (to be known as the “Drug Tariff”).

(2)The Scottish Ministers—

(a)must include in the Drug Tariff, such information relating to pharmaceutical care services as may be prescribed;

(b)may include in it such other information relating to such services as they consider appropriate..

23Persons performing pharmaceutical care servicesS

After section 17W of the 1978 Act (as inserted by section 22 above), insert—

Persons performing pharmaceutical care servicesS

17XPersons performing pharmaceutical care services

(1)Regulations may provide that a registered pharmacist may not perform any pharmaceutical care service which a Health Board is, under section 2CA(1), under a duty to provide or secure the provision of unless that pharmacist is included in a list maintained under the regulations by the Health Board.

(2)Regulations under subsection (1) may make provision in relation to such lists and in particular as to—

(a)the preparation, maintenance and publication of a list;

(b)eligibility for inclusion in a list;

(c)applications for inclusion (including provision for the procedure for applications to be made and dealt with and documents to be supplied on application);

(d)the grounds on which an application for inclusion must be granted or refused;

(e)requirements with which a person included in a list must comply (including requirements as to standards of performance and patient care and as to declarations, consents or undertakings);

(f)suspension or removal from a list (including the grounds for and consequences of suspension or removal);

(g)circumstances in which a person included in a list may not withdraw from it;

(h)payments to be made by a Health Board in respect of a person suspended from the list (including provision for the amount of, or the method of calculating, the payment to be determined by the Scottish Ministers);

(i)criteria to be applied in making decisions under the regulations;

(j)disclosure of information about applicants for inclusion, refusals of applications, or suspensions, removals or references to the Tribunal.

(3)Regulations making provision as to the matters referred to in subsection (2)(j) may in particular authorise the disclosure of information—

(a)by a Health Board to the Scottish Ministers; and

(b)by the Scottish Ministers to a Health Board..

24Assistance and support: primary medical services and pharmaceutical care servicesS

After section 17X of the 1978 Act (as inserted by section 23 above), insert—

Assistance and support: primary medical services and pharmaceutical care servicesS

17YAssistance and support: primary medical services and pharmaceutical care services

(1)A Health Board may provide assistance and support to—

(a)any person providing, or proposing to provide, primary medical services under a general medical services contract;

(b)any person providing, or proposing to provide, such services in accordance with section 17C arrangements;

(c)any person providing, or proposing to provide, pharmaceutical care services under a pharmaceutical care services contract.

(2)Assistance and support provided by a Health Board under subsection (1) is to be provided on such terms, including terms as to payment, as the Board think fit.

(3)In this section, “assistance” includes financial assistance..

Prospective

Part 4 SProvision of services under NHS contracts

25Provision of certain services under NHS contractsS

(1)Section 17AA of the 1978 Act (arrangements for provision of certain services to be treated as NHS contract for certain purposes) is amended as follows.

(2)In subsection (1), for the words from “to”, where it first occurs, to the end of paragraph (b) substitute to—

(a)any arrangement under which a Health Board or such other health service body as may be prescribed arrange for the provision to them by a person on an ophthalmic list, or

(b)any arrangement under which a Health Board arrange for the provision to them by a person on a dental list,.

(3)In subsection (3)—

(a)after the word “section—” insert—

dental list” means, in relation to a list published in accordance with regulations made under subsection (2) of section 25 of this Act, the first part of the list which is referred to in paragraph (a) of that subsection;;

(b)the definition of “pharmaceutical list”, and the immediately preceding “and”, are repealed.

Prospective

Part 5 SDiscipline

26Disqualification by the NHS TribunalS

(1)The 1978 Act is amended as follows.

(2)In section 29 (conditions of disqualification and persons subject to jurisdiction of NHS Tribunal)—

(a)for subsection (2) substitute—

(2)If the Tribunal receive from a Health Board representations that a person—

(a)who has applied to be included; or

(b)who is included,

in any list meets any of the conditions for disqualification, the Tribunal shall inquire into the case.;

(b)in subsection (4)(b), the words “the representations are that the second condition for disqualification is met and” are repealed;

(c)in subsection (6)—

(i)for the word “continued” substitute “ inclusion or continued ”;

(ii)for the words from “list”, where it second occurs, to the end substitute list—

(a)in relation to a list referred to in subsection (8)(a), (cc) or (e), perform;

(b)in relation to a list referred to in subsection (8)(c) or (d), undertake to provide or are approved to assist in providing;;

(d)after subsection (7), insert—

(7A)The third condition for disqualification is that the person concerned is unsuitable (by virtue of professional or personal conduct) to be included, or to continue to be included, in the list.;

(e)in subsection (8)—

(i)paragraph (b) is repealed;

(ii)for paragraphs (c) to (e) substitute—

(c)a list of dental practitioners and bodies corporate referred to in section 25(1) undertaking to provide, and of persons who are approved to assist in providing, general dental services;

(cc)a list of persons performing personal dental services;

(d)a list of medical practitioners and ophthalmic opticians undertaking to provide, and of persons who are approved to assist in providing, general ophthalmic services; or

(e)a list of registered pharmacists performing pharmaceutical care services,;

(f)in subsection (11)—

(i)the word “and” is repealed;

(ii)at the end insert “ ; and cases in which representations are made that the third condition for disqualification is met are referred to below as unsuitability cases ”.

(3)In section 29A (cases before Tribunal: supplementary provision)—

(a)in subsection (1), after “the second condition for disqualification” insert “ or, as the case may be, the third condition for disqualification ”;

(b)after subsection (1), insert—

(1A)A body corporate entitled, by virtue of section 43 of the Dentists Act 1984 (c. 24), to carry on the business of dentistry is to be treated for the purposes of this group of sections as meeting the second condition for disqualification or, as the case may be, the third condition for disqualification if any director meets that condition (whether or not he first met that condition when he was a director).;

(c)in subsection (3)—

(i)in paragraph (a), after the word “providing,” insert “ assisting in providing, ”;

(ii)in paragraph (b), after the word “provision,” insert “ assistance in provision, ”;

(d)in subsection (5), for the words “a fraud case” substitute “ an unsuitability case, a fraud case or an efficiency case ”;

(e)in subsection (6), after the word “in” insert “ an unsuitability, ”.

(4)In section 29B (disqualification by Tribunal)—

(a)in subsection (1), after paragraph (b) insert ;

(c)on inquiring into an unsuitability case, that the person meets the third condition for disqualification;

(b)for subsection (2), substitute—

(2)The Tribunal shall disqualify him for inclusion in—

(a)the list to which the case relates;

(b)all lists within the same paragraph of subsection (8) of section 29 as that list; and

(c)where the list to which the case relates is a list referred to in—

(i)paragraph (c) of that subsection, all lists within paragraph (cc) of that subsection;

(ii)that paragraph (cc), all lists within that paragraph (c).;

(c)in subsection (4), for the word “any” substitute “ a ”.

(5)In section 29C (conditional disqualification)—

(a)in subsection (2)—

(i)the word “or” following paragraph (a) is repealed;

(ii)after paragraph (b), insert ;

(c)ensuring that the person—

(i)performs, undertakes to provide or assists in providing only services specified (or of a description specified) in the condition;

(ii)undertakes an activity (or course of activity) of a personal or professional nature, or refrains from conduct of a personal or professional nature, so specified (or of a description so specified);

(b)in subsection (5)(aa), for the words “17P” substitute “ 17F, 17P or 17X or this Part ”.

(6)In section 32(2) (regulations: inquiry into more than one category of case), for the words “both an efficiency case and a fraud case” substitute “ an efficiency case and a fraud case or an unsuitability case or any other combination of more than one such category of case ”.

(7)In section 32A (interim suspension by the Tribunal)—

(a)in subsection (2), for the words from “services” to the end substitute

(a)services of the kind to which the case in question, or the case to which the review in question, relates; and

(b)if the services are either general dental services or personal dental services, both general dental services and personal dental services.;

(b)in subsection (2A)—

(i)in paragraph (a), after the words “primary medical services” insert “ , pharmaceutical care services ”;

(ii)for paragraph (b), substitute or

(b)that it is otherwise in the public interest to do so.;

(c)in subsection (6)(a), for the words from “a list” to “services” substitute—

(i)a list of persons performing;

(ii)a list of persons undertaking to provide and of persons approved to assist in providing,

services ;

(d)after subsection (6), insert—

(7)Regulations may provide that where a Health Board, in accordance with regulations made under section 17F, 17P, 17X, 25(2) or 26(2), suspend a person from a list prepared under regulations made under the section in question and the Board apply to the Tribunal for a direction to be made under subsection (2) in relation to the person to whom the suspension applies, the suspension may continue until the Tribunal determine the application..

27Corresponding provision in England or Wales or Northern IrelandS

For section 32D of the 1978 Act (suspension provisions in England and Wales or Northern Ireland), substitute—

32DCorresponding provision in England or Wales or Northern Ireland

(1)This section applies where it appears to the Scottish Ministers that there is provision in England or Wales or Northern Ireland under which a person may be dealt with in any way which corresponds (whether or not exactly) with a way in which a person may be dealt with under sections 29 to 32B.

(2)A decision in England or Wales or Northern Ireland to deal with such a person in such a way is referred to in this section as a “corresponding decision”.

(3)If this section applies, the Scottish Ministers may make regulations providing for the effect to be given in Scotland to a corresponding decision; and where the decision corresponds (whether or not exactly) with a decision which may be made under section 29C or (so far as relating to conditional disqualification) 30 the regulations may provide for the effect to be given to be determined in the prescribed manner by the Scottish Ministers.

(4)That effect need not be the same as the effect of the corresponding decision in the place where it was made..

Part 6 SMiscellaneous

Prospective

Infection with hepatitis C as a result of NHS treatment etc.S

28Payments to certain persons infected with hepatitis C as a result of NHS treatment etc.S

(1)The Scottish Ministers may make a scheme for the making of payments by them, or out of money provided by them, to, or in respect of—

(a)persons who—

(i)before 1st September 1991, were treated anywhere in the United Kingdom under the National Health Service by way of the receipt of blood, tissue or a blood product;

(ii)as a result of that treatment, became infected with the hepatitis C virus; and

(iii)did not die before 29th August 2003;

(b)persons who—

(i)became infected with the hepatitis C virus by transmission of the virus by means specified in the scheme from a person who before 1st September 1991 was treated anywhere in the United Kingdom under the National Health Service by way of the receipt of blood, tissue or a blood product and as a result of that treatment became infected with the hepatitis C virus;

(ii)were at the time of transmission in a relationship mentioned in subsection (2) with the person from whom the virus was transmitted; and

(iii)did not die before 29th August 2003.

(2)The relationships referred to in subsection (1)(b)(ii) are—

(a)spouse or civil partner;

(b)person who was living with the person from whom the virus was transmitted as husband or wife or in a relationship which had the characteristics of the relationship between civil partners (or if the person from whom the virus was transmitted was in hospital immediately before death, had been so living when that person was admitted to hospital);

(c)other cohabitant (whether or not of the same sex as the person from whom the virus was transmitted);

(d)where the person from whom the virus was transmitted was a mother, a son or daughter of the mother;

(e)such other relationship as the scheme may specify; and the scheme may specify or elaborate the meaning of relationship for this purpose.

(3)A scheme under this section must—

(a)provide that the questions of whether—

(i)a person became infected with the hepatitis C virus as a result of treatment such as is mentioned in subsection (1)(a)(i) before the date mentioned there; and

(ii)a person became infected with the virus by transmission of it by means specified in the scheme from a person who became infected as mentioned in sub-paragraph (i),

are to be determined on the balance of probabilities;

(b)provide that a person is not eligible for the making of a payment under the scheme unless, when the claim for the payment is made or, in the case of a claim made in respect of a dead person, when the person died either—

(i)the person's sole or main residence is or was in Scotland; or

(ii)the person's sole or main residence is or was outside the United Kingdom but, immediately before acquiring such sole or main residence, the person's sole or main residence is or was in Scotland;

(c)provide for the procedure to be followed in relation to claims under the scheme (including the time within which claims must be made and matters relating to the provision of information) and the determination of such claims;

(d)provide for a right of appeal against a decision refusing a claim under the scheme; and

(e)provide that a claim may be made in respect of a dead person, without such a claim having to have been made prior to that person's death.

(4)Without prejudice to the generality of subsection (1), a scheme under this section may—

(a)specify conditions for eligibility for the making of a claim by another person under the scheme in respect of a person falling within subsection (1) who has died without having made a claim under the scheme;

(b)specify conditions for eligibility for the making of a payment under the scheme (and may specify different conditions in relation to different payments);

(c)provide that the making of a claim, or the receipt of a payment, under the scheme is not to prejudice the right of any person to institute or carry on proceedings in relation to the matter which is the subject of the claim or payment;

(d)appoint a person (other than a Minister of the Crown) to manage the scheme on behalf of the Scottish Ministers;

(e)confer functions on the Scottish Ministers or any person appointed under paragraph (d);

(f)provide for any function so conferred on the Scottish Ministers to be carried out on their behalf by any person appointed under paragraph (d); and

(g)make transitional, transitory or saving provision.

(5)Provision such as is mentioned in subsection (4)(d) or (f) does not affect the responsibility of the Scottish Ministers for the management of the scheme or the carrying out of the functions.

(6)The Scottish Ministers may revoke or amend a scheme under this section.

(7)The Scottish Ministers must publish a scheme under this section in such manner as they consider appropriate.

Prospective

Amendment of Regulation of Care (Scotland) Act 2001S

29Independent health care servicesS

In section 2(5) of the 2001 Act (meaning of “independent health care service”), after paragraph (d) insert “ , but a service may be excepted from this definition by regulations ”.

30Implementation of certain decisions under the 2001 ActS

(1)The 2001 Act is amended as follows.

(2)In section 16 (right to make representations to Scottish Commission for the Regulation of Care as respects proposals under Part 1), for subsection (2) substitute—

(2)Where such a notice has been given—

(a)the Commission may not decide to implement the proposal until (whichever first occurs)—

(i)where the person to whom the notice was given makes such representations as are mentioned in subsection (1) above, it has considered those representations;

(ii)that person notifies the Commission in writing that such representations will not be made;

(iii)the period of fourteen days mentioned in that subsection elapses without such representations being made and without the Commission receiving such notification; and

(b)where the circumstances are as mentioned in paragraph (a)(ii) or (iii) above, the Commission shall implement the proposal unless it appears to it that it would be inappropriate to do so..

(3)In section 37 (right to make representations to Commission under Part 2 as respects conditions), for subsection (2) substitute—

(2)Where a notice to which this section applies has been given—

(a)the Commission may not decide to implement the proposal until (whichever first occurs)—

(i)where the local authority to whom the notice was given make such representations as are mentioned in subsection (1) above, it has considered those representations;

(ii)the local authority notify the Commission that such representations will not be made;

(iii)the period of fourteen days mentioned in that subsection elapses without such representations being made and without the Commission receiving such notification; and

(b)where the circumstances are as mentioned in paragraph (a)(ii) or (iii) above, the Commission shall implement the proposal unless it appears to it that it would be inappropriate to do so..

(4)In section 48 (right to make representations to Scottish Social Services Council as respects proposal in notice under section 46(2) or 47(1)), for subsection (2) substitute—

(2)Where such a notice has been given—

(a)the Council may not decide to implement the proposal until (whichever first occurs)—

(i)where the person to whom the notice was given makes such representations as are mentioned in subsection (1) above, it has considered those representations;

(ii)that person notifies the Council in writing that such representations will not be made;

(iii)the period of fourteen days mentioned in that subsection elapses without such representations being made and without the Council receiving such notification; and

(b)where the circumstances are as mentioned in paragraph (a)(ii) or (iii) above, the Council shall implement the proposal unless it appears to it that it would be inappropriate to do so..

(5)In section 51(1) (appeal against decision of Council), for the words from “section” to “proposal” substitute “ subsection (2) of section 50 of this Act of a decision mentioned in that subsection ”.

31Frequency of inspection of care services under the 2001 ActS

(1)The 2001 Act is amended as follows.

(2)In section 25 (inspection of registered care services), after subsection (5) insert—

(5A)The Scottish Ministers may, after consulting the Commission and thereafter such other persons (or groups of persons) as they consider appropriate, by order amend—

(a)subsection (3)(a) above by substituting for “twelve months” in either or both sub-paragraphs (i) and (ii) a different period (being a period which is not less than twelve months);

(b)subsection (5) above by substituting for “twelve months” in either or both paragraphs (a) and (b) a different period (being a period which is not less than twelve months).

(5B)An order under subsection (5A) above may make different provision for different purposes..

(3)In section 78 (orders and regulations), in subsection (2)(b), after the word “3” insert “ or 25(5A) ”.

32Provision of information to the Scottish Social Services CouncilS

After section 57 of the 2001 Act, insert—

Notification of dismissal etc. for misconduct and provision of other information to CouncilS
57ANotification of dismissal etc. to Council

The employer of a social service worker shall—

(a)on dismissing the social service worker on grounds of misconduct; or

(b)on the social service worker resigning or abandoning the worker's position in circumstances where, but for the resignation or abandonment—

(i)the worker would have been dismissed on grounds of misconduct; or

(ii)dismissal on such grounds would have been considered by the employer,

forthwith notify the Council of the dismissal, resignation or abandonment; and the employer shall in doing so provide the Council with an account of the circumstances which led to the dismissal or which were present when the resignation or abandonment took place.

57BProvision of other information to Council by employer

The employer of a social service worker shall, when requested to do so by the Council, provide it with such information as respects the worker as it may reasonably require in connection with the exercise of the functions assigned to it under this Act or any other enactment..

Child care agencies and housing support servicesS

33Registration of child care agencies and housing support servicesS

(1)Subsections (2) to (4) apply where—

(a)on 1st April 2003 a person was providing a care service to which the 2003 Order applies;

(b)the service—

(i)was, by virtue of article 3(1) of the 2003 Order, treated as if it were registered on that date; and

(ii)by virtue of article 3(2) of that Order, ceased on 1st October 2003 or on 1st April 2004 to be treated as if it were registered; and

(c)the person continued (or continues) to provide the service after it ceased to be so treated as if it were registered at any time during which it was not registered.

(2)If any of the circumstances mentioned in subsection (3) apply, the service is, subject to subsection (4), to be treated for all purposes as if it were registered—

(a)on 1st October 2003 or, as the case may be, 1st April 2004; and

(b)for the period during which there was (or is) a continuation of service as mentioned in subsection (1)(c).

(3)The circumstances are—

(a)that an application for registration of the service was made by the person before 30th September 2004;

(b)that—

(i)no application for registration of the service was made by the person before that date; and

(ii)the person ceased to provide the service before that date.

(4)The service ceases to be so treated as registered by virtue of subsection (2) on whichever of the following first occurs—

(a)where the Commission decides to refuse the application and—

(i)no appeal is made under section 20(1) of the 2001 Act against the decision, the fifteenth day after the day on which notice of the decision is given under section 17(3) of that Act;

(ii)such an appeal is made timeously and the sheriff confirms the decision, the day on which the sheriff does so;

(iii)such an appeal is made timeously but is abandoned, the day on which abandonment of the appeal is intimated to the sheriff clerk or if abandonment is not so intimated the day on which the sheriff deems the appeal to have been abandoned;

(b)where the Commission decides (other than in accordance with an application under section 14(1)(b) of the 2001 Act) to cancel the registration of the service effected by virtue of subsection (2) and—

(i)no appeal is made under section 20(1) of the 2001 Act against the decision, the fifteenth day after the day on which notice of the decision is given under section 17(3) of that Act;

(ii)such an appeal is made timeously and the sheriff confirms the decision, the day on which the sheriff does so;

(iii)such an appeal is made timeously but is abandoned, the day on which abandonment of the appeal is intimated to the sheriff clerk or if abandonment is not so intimated the day on which the sheriff deems the appeal to have been abandoned;

(c)where the sheriff grants an application by the Commission under section 18 of that Act for cancellation of the registration of the service, the day on which the sheriff does so;

(d)the day on which the person ceases to provide the service;

(e)1st April 2006 or such later day as may be substituted for it by order made by the Scottish Ministers.

(5)In this section—

  • the 2003 Order” means the Regulation of Care (Scotland) Act 2001 (Commencement No. 3 and Transitional Provisions) Order 2003 (SSI 2003 No. 205 (C.9));

  • the Commission” means the Scottish Commission for the Regulation of Care;

  • registered” means registered under Part 1 of the 2001 Act; and references to “registration” are to be construed accordingly.

34Grants in respect of housing support servicesS

Payments by a local authority—

(a)made out of sums, or descriptions of sum, received by it from the Scottish Ministers under section 91(1) of the Housing (Scotland) Act 2001 (asp 10); and

(b)purportedly made in compliance with the condition specified in paragraph 2 of the Schedule to the Housing (Scotland) Act 2001 (Payments out of Grants for Housing Support Services) Order 2003 (SSI 2003 No. 140),

which were not validly made merely by virtue of the condition not having been complied with are to be treated as having been validly made notwithstanding the non-compliance with the condition.

Prospective

Authorisation of medical treatmentS

35Amendment of Adults with Incapacity (Scotland) Act 2000: authorisation of medical treatmentS

(1)The Adults with Incapacity (Scotland) Act 2000 (asp 4) is amended as follows.

(2)In section 47 (authorisation of medical treatment)—

(a)in subsection (1)—

(i)for the words “the medical practitioner primarily responsible for the medical treatment of an adult” substitute “ any of the persons mentioned in subsection (1A) ”;

(ii)in paragraph (a), for the words “the adult” substitute “ an adult ”;

(b)after that subsection, insert—

(1A)The persons are—

(a)the medical practitioner primarily responsible for the medical treatment of the adult;

(b)a person who is—

(i)a dental practitioner;

(ii)an ophthalmic optician;

(iii)a registered nurse; or

(iv)an individual who falls within such description of persons as may be prescribed by the Scottish Ministers,

who satisfies such requirements as may be so prescribed and who is primarily responsible for medical treatment of the kind in question.;

(c)in subsection (2)—

(i)for the words “medical practitioner primarily responsible for the medical treatment of the adult” substitute “ person who by virtue of subsection (1) has issued a certificate for the purposes of that subsection ”;

(ii)for the words “medical treatment” where they second occur substitute “ the medical treatment in question ”;

(d)in subsection (3)—

(i)for the words “medical practitioner primarily responsible for the medical treatment of the adult” substitute “ person on whom that authority is conferred ”;

(ii)for the words “medical treatment”, where they second occur, substitute “ the medical treatment in question ”;

(e)in subsection (5)—

(i)in paragraph (a), for the words “medical practitioner primarily responsible for the medical treatment of the adult” substitute “ person who issues the certificate ”;

(ii)in paragraph (b), for the words “does not exceed one year from” substitute does not exceed—

(i)one year; or

(ii)if, in the opinion of the person issuing the certificate any of the conditions or circumstances prescribed by the Scottish Ministers applies as respects the adult, 3 years,

from ;

(f)in subsection (6)—

(i)for the words “medical practitioner primarily responsible for the medical treatment of the adult” substitute “ person who issued it ”;

(ii)in paragraph (b), for the words “not exceeding one year from” substitute not exceeding—

(i)one year; or

(ii)if, in the opinion of that person any of the conditions or circumstances prescribed by the Scottish Ministers apply as respects the adult, 3 years,

from ;

(g)after subsection (10) insert—

(11)In subsection (1A)—

dental practitioner” has the same meaning as in section 108(1) of the National Health Service (Scotland) Act 1978 (c. 29);

ophthalmic optician” means a person registered in either of the registers kept under section 7 of the Opticians Act 1989 (c. 44) of ophthalmic opticians..

(3)In section 49(1) (medical treatment where there is an application for intervention or guardianship order)—

(a)for the words “Section 47(2)” substitute “ Subsection (2) of section 47 ”;

(b)for the words “medical practitioner primarily responsible for the medical treatment of the adult” substitute “ person on whom authority is conferred by that subsection ”.

(4)In section 50 (medical treatment where guardian etc. has been appointed)—

(a)in subsection (2)—

(i)in paragraph (b), for the words “medical practitioner primarily responsible for the medical treatment of the adult” substitute “ person who issued the certificate for the purposes of section 47(1) ”;

(ii)in paragraph (c), for the words “medical practitioner” substitute “ person ”;

(b)in subsection (3)—

(i)for the words “medical practitioner primarily responsible for the medical treatment of the adult” substitute “ person who issued the certificate for the purposes of section 47(1) ”;

(ii)for the words “any person having an interest” substitute “ the medical practitioner primarily responsible for the medical treatment of the adult (in a case where the person who so issued the certificate was someone other than that practitioner) or any person having an interest ”;

(c)in subsection (4)—

(i)for the words “medical practitioner primarily responsible for the medical treatment of the adult” substitute “ person who issued the certificate for the purposes of section 47(1) ”;

(ii)for the words “medical practitioner”, where they second occur, substitute “ person who issued the certificate ”;

(iii)for the words “a medical practitioner (the “nominated medical practitioner”)” substitute “ a practitioner who the Commission consider has professional knowledge or expertise relevant to medical treatment of the kind in question (the “nominated practitioner”) ”;

(d)in subsection (5)—

(i)for the words “nominated medical practitioner” substitute “ nominated practitioner ”;

(ii)for the words “medical practitioner primarily responsible for the medical treatment of the adult” substitute “ person who issued the certificate for the purposes of section 47(1) ”;

(e)in subsection (6)—

(i)for the words “nominated medical practitioner” substitute “ nominated practitioner ”;

(ii)after the words “personal welfare of the adult” insert “ (including, where the certificate issued for the purposes of section 47(1) was issued by another person, that person) ”;

(f)in subsection (9)—

(i)for the words “medical practitioners” substitute “ practitioners ”;

(ii)for the words “medical practitioner” substitute “ practitioner ”.

Prospective

Appeals under Public Health (Scotland) Act 1897S

36Amendment of Public Health (Scotland) Act 1897: appeal against certain orders etc.S

After section 156 of the Public Health (Scotland) Act 1897 (c. 38), insert—

156AAppeal to sheriff or sheriff principal in certain cases: sections 54, 55 and 96

(1)Any person in respect of whom—

(a)an order under section 54(1) (for removal to a hospital) or under section 54(3) (for transfer to another hospital) (referred to in this section and section 156C as a “section 54 order”);

(b)a direction under section 55(1) (for detention in a hospital) or under section 55(3) (for removal to another hospital) (referred to in this section and section 156C as a “section 55 direction”); or

(c)a decision under section 96 (for removal to a hospital) (referred to in this section and sections 156B and 156C as a “section 96 decision”),

is made, or any person having an interest in the welfare of the person in respect of whom the order, the direction or, as the case may be, the decision is made, may appeal under this section against the order, the direction or, as the case may be, the decision.

(2)An appeal under this section against—

(a)a section 54 order or a section 55 direction by a sheriff may be made to the sheriff principal;

(b)a section 54 order or a section 55 direction by a justice may be made to the sheriff principal of either of the sheriffdoms mentioned in subsection (3);

(c)a section 96 decision may be made to the sheriff of either of those sheriffdoms.

(3)The sheriffdoms are—

(a)the sheriffdom in which the person (in respect of whom the section 54 order, section 55 direction or section 96 decision in question is made) is resident immediately before it is made;

(b)the sheriffdom in which the hospital (in which that person is detained pursuant to the section 54 order, section 55 direction or section 96 decision in question) is situated.

(4)An appeal under this section may be made on either or both of the following grounds—

(a)that the section 54 order, section 55 direction or section 96 decision in question was based on an error of law;

(b)that the section 54 order, section 55 direction or section 96 decision in question was not supported by the facts found to be established by the sheriff or justice who made the order or direction or, as the case may be, the local authority who made the decision.

(5)An appeal against a section 54 order, section 55 direction or section 96 decision may be made before the expiry of the period of 21 days beginning with the day on which the order, the direction or, as the case may be, the decision is made.

(6)An appeal against a section 54 order or section 55 direction by a justice or a section 96 decision is to be made by way of summary application.

(7)In an appeal under this section against a section 54 order, section 55 direction or section 96 decision, the sheriff principal or, as the case may be, the sheriff may—

(a)confirm the order, the direction or, as the case may be, the decision;

(b)direct that the order, the direction or, as the case may be, the decision ceases to have effect;

(c)make such other order or direction as the sheriff principal or, as the case may be, the sheriff thinks fit.

156BFurther appeal to sheriff principal: section 96 decision

(1)Where, in an appeal under section 156A against a section 96 decision, the sheriff confirms the decision, the person in respect of whom the section 96 decision was made, or any person having an interest in the welfare of that person, may appeal to the sheriff principal against the decision of the sheriff in the appeal on either or both of the grounds mentioned in subsection (2).

(2)The grounds are—

(a)that the decision of the sheriff in the appeal under section 156A was based on an error of law;

(b)that that decision was not supported by the facts found to be established by the sheriff in the appeal.

(3)An appeal under this section may be made before the expiry of the period of 21 days beginning with the day on which the decision of the sheriff in the appeal under section 156A is made.

(4)In an appeal under this section, the sheriff principal—

(a)may allow the appeal and when doing so must direct that the section 96 decision ceases to have effect;

(b)may refuse the appeal and confirm the decision of the sheriff;

(c)may make such other order or direction as the sheriff principal thinks fit.

156CFurther appeal to Court of Session: sections 54, 55 and 96

(1)Where, in an appeal under section 156A against a section 54 order or section 55 direction, the sheriff principal confirms the order or, as the case may be, the direction, the person in respect of whom the decision in the appeal is made or any person having an interest in the welfare of that person may, with the leave of the sheriff principal, appeal to the Court of Session against the decision of the sheriff principal on either or both of the following grounds—

(a)that the decision of the sheriff principal in the appeal under section 156A was based on an error of law;

(b)that that decision was not supported by the facts found to be established by the sheriff principal in the appeal.

(2)Where, in an appeal under section 156B against a decision of the sheriff in an appeal under section 156A, the sheriff principal confirms the decision of the sheriff in the appeal under section 156A, the person in respect of whom the decision of the sheriff principal is made or any person having an interest in the welfare of that person may, with the leave of the sheriff principal, appeal to the Court of Session against the decision of the sheriff principal on either or both of the following grounds—

(a)that the decision of the sheriff principal in the appeal under section 156B was based on an error of law;

(b)that that decision was not supported by the facts found to be established by the sheriff principal in the appeal.

156DEffect of appeal in relation to section 54 order, section 55 direction or section 96 decision

A section 54 order, a section 55 direction or a section 96 decision may be given effect notwithstanding that an appeal may be or is made against, or in relation to, it under this Act..

Prospective

Joint venturesS

37Joint venturesS

(1)After section 84A of the 1978 Act, insert—

Joint venturesS
84BJoint ventures

(1)The Scottish Ministers may do any (or all) of the following—

(a)form or participate in forming companies to provide facilities or services for persons or groups of persons exercising functions, or otherwise providing services, under this Act;

(b)participate in companies providing facilities or services for persons or groups of persons falling within paragraph (a);

(c)with a view to securing or facilitating the provision by companies of facilities or services for persons or groups of persons falling within paragraph (a)—

(i)invest in the companies (whether by acquiring assets, securities or rights or otherwise);

(ii)provide loans and guarantees and make other kinds of financial provision to or in respect of them.

(2)For the purpose of subsection (1), it is immaterial that the facilities or services provided or to be provided by a company are not provided or to be provided—

(a)only to persons or groups of persons exercising functions, or otherwise providing services, under this Act; or

(b)to such persons or groups of persons only in that capacity.

(3)In this section—

  • companies” means companies within the meaning of the Companies Act 1985 (c. 6);

  • facilities” includes the provision of (or the use of) premises, goods, equipment, materials, vehicles, plant or apparatus..

(2)After section 7(7B) of the Health and Medicines Act 1988 (c. 49) (powers of the Secretary of State for financing the health service), insert—

(7C)The power specified in paragraph (g) of subsection (2) above includes power for the Scottish Ministers—

(a)to form or participate in forming companies,

(b)to—

(i)participate in companies,

(ii)invest in companies (whether by acquiring assets, securities or rights or otherwise),

(iii)provide loans and guarantees and make other kinds of financial provision to or in respect of companies,

where it appears to them that to do so is calculated to facilitate, or to be conducive or incidental to, the exercise of any power conferred by that subsection.

(7D)In subsection (7C) above “companies” means companies within the meaning of the Companies Act 1985; and that subsection is without prejudice to the generality of subsection (2) above..

Prospective

Scottish Hospital Endowments Research TrustS

38Scottish Hospital Endowments Research TrustS

(1)The 1978 Act is amended as follows.

(2)In section 12 (establishment and functions of the Trust)—

(a)subsections (1) and (2) are repealed;

(b)in subsection (3), for the words “the Research Trust” substitute “the Scottish Hospital Endowments Research Trust (referred to in this Act as “the Research Trust”)”;

(c)in subsection (4B), the words from “Subject to” to “activity,” are repealed;

(d)subsection (5) is repealed;

(e)in subsection (6), the words from “, and shall send” to the end are repealed;

(f)subsection (6A) is repealed;

(g)for subsection (7), substitute—

(7)The Research Trust shall prepare an annual report of their proceedings which shall include an abstract of their accounts.;

(h)after that subsection, insert—

(8)Schedule 7 shall have effect in relation to the Research Trust..

(3)In Schedule 7 (further provision as respects the Trust)—

(a)paragraph 1 is repealed;

(b)for paragraph 3, substitute—

3Members

Subject to paragraph 3A, the Research Trust shall consist of such number of members appointed by the Trust as the Trust may determine.

3A(1)The persons who are the members of the Research Trust immediately before the day on which section 38 of the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13) comes into force shall, on that day, continue to be members (the “continuing members”).

(2)The terms and conditions of appointment of the continuing members shall, on the 90th day after whichever of the following occurs first—

(a)the day on which that section comes into force; or

(b)the day on which the Research Trust first make standing orders under paragraph 3F,

be the terms and conditions of appointment the Research Trust determine for the members appointed by them under paragraph 3B(1).

(3)The provisions of paragraphs 3B(2) and (3) to 3D and 3F shall apply to the continuing members as they apply to members appointed under paragraph 3; and in the application of paragraph 3C any period of appointment of a continuing member as a member (before he became a continuing member by virtue of sub-paragraph (1)) shall count for the purposes of determining eligibility for re-appointment in accordance with paragraph 3C.

3BTerms of office etc.

(1)Subject to the provisions of this Schedule, the appointment of a member under paragraph 3 shall be on such terms and conditions as the Research Trust may determine, but shall not be for a period exceeding 4 years.

(2)A person holds and vacates office as member in accordance with the person's terms of appointment.

(3)A person may resign office as member at any time by notice in writing to the Research Trust.

3CEligibility for re-appointment

A person who ceases to be a member of the Research Trust shall be eligible for re-appointment, but only once.

3DPayments to members

The Research Trust may make payments from their funds to their members in respect of any loss of earnings the members would otherwise have made or any additional expenses to which they would not otherwise have been subject, being loss of expenses necessarily suffered or incurred for the purpose of enabling the members to discharge their duties as members of the Trust.

3EStaff

(1)The Research Trust may appoint such staff, on such terms and conditions (including as to remuneration and allowances), as they consider appropriate.

(2)The Research Trust may—

(a)pay, or make arrangements for the payment of;

(b)make payments towards the provision of; and

(c)provide and maintain schemes (whether contributory or not) for the payment of,

such pensions, allowances and gratuities to or in respect of such of their employees, or former employees, as they may determine.

(3)The reference in sub-paragraph (1) to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of employment or reduction in remuneration.

3FStanding orders

(1)The Research Trust—

(a)shall make and maintain standing orders regulating—

(i)the appointment by them of members;

(ii)the appointment of a member as convener;

(iii)the terms and conditions of office of members and convener;

(iv)their procedure;

(v)such other matters as the Research Trust consider appropriate;

(b)may, subject to sub-sub-paragraph (a), amend such standing orders from time to time.

(2)The first set of standing orders under this paragraph shall be made before the expiry of the period of 90 days beginning with the day on which section 38 of the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13) comes into force.

(3)Subject to the provisions of this Schedule, the Research Trust may regulate their own procedure.

(4)The validity of any proceedings of the Research Trust shall not be affected by any vacancy in membership nor by any defect in the appointment of a member.

3GPowers etc.

The Research Trust may do anything which appears to them to be necessary or expedient for the purpose of, or in connection with, the exercise of their functions.;

(c)in paragraph 6, the words from “, unless” to “case,”, where it first occurs, are repealed;

(d)paragraph 7 is repealed.

Part 7 SGeneral

Prospective

39Ancillary provisionS

(1)The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes, or in consequence, of this Act.

(2)An order under this section may—

(a)make different provision for different purposes;

(b)modify any enactment, instrument or document.

40Regulations or ordersS

(1)Any power conferred by this Act on the Scottish Ministers to make orders or regulations—

(a)must be exercised by statutory instrument;

(b)may be exercised so as to make different provision for different purposes.

(2)A statutory instrument containing an order or regulations made under this Act (except an order under section 43(3)) is, subject to subsection (3), subject to annulment in pursuance of a resolution of the Parliament.

(3)A statutory instrument containing—

(a)regulations under section 3(3) or 4(2) or (8) or paragraph 2, 4(1), 5(2), 12 or 13 of schedule 1 or an order under section 9 or 33(4)(e);

(b)an order under section 39 containing provisions which add to, replace or omit any part of the text of an Act,

is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

41InterpretationS

In this Act—

  • the 1978 Act” means the National Health Service (Scotland) Act 1978 (c. 29);

  • the 2001 Act” means the Regulation of Care (Scotland) Act 2001 (asp 8);

  • council” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);

  • prescribed” means prescribed by regulations made by the Scottish Ministers.

42Minor and consequential amendments and repealsS

(1)Schedule 2 contains minor amendments and amendments consequential on the provisions of this Act.

(2)The enactments specified in column 1 of schedule 3 are repealed to the extent specified in column 2.

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Commencement Information

I1S. 42 partly in force; s. 42 not in force at Royal Assent see s. 43; s. 42 in force for specified purposes at 6.8.2005

43Short title and commencementS

(1)This Act may be cited as the Smoking, Health and Social Care (Scotland) Act 2005.

(2)Sections 33, 34, 41 and (in so far as it relates to paragraph 2(2) and (4) of schedule 2) 42 and paragraph 2(2) and (4) of schedule 2 come into force on the day after Royal Assent.

(3)The remaining provisions of this Act, except this section and sections 39 and 40, come into force on such day as the Scottish Ministers may by order appoint, and an order under this section appointing a day for sections 1 to 10 or schedule 1 may specify the time in the day for the commencement of those provisions.

(4)Different days may be appointed under subsection (3) for different purposes.

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