Health and social services contracts
8.—(1) The bodies mentioned in sub-paragraphs (a) to (e) of paragraph (2) may, for the purpose of carrying out their functions and without prejudice to any other power they may have in that regard, enter into arrangements for the provision of goods or services to or by them with—
(a)one another; or
(b)any of the bodies or persons mentioned in sub-paragraphs (f) to (j) of that paragraph.
(2) The bodies and persons referred to in paragraph (1) are—
(a)Health and Social Services Boards;
(b)the Agency;
(c)special agencies;
(d)Health and Social Services trusts;
(e)the Department;
(f)recognised fund-holding practices;
(g)any of the following within the meaning of the National Health Service Act 1977(1)—
(i)health authorities;
(ii)Family Health Services Authorities;
(iii)NHS trusts;
(iv)recognised fund-holding practices;
(v)the Dental Practice Board;
(vi)the Public Health Laboratory Service Board;
(h)any of the following within the meaning of the National Health Service (Scotland) Act 1978(2)—
(i)Health Boards;
(ii)the Common Services Agency for the Scottish Health Service;
(iii)the Scottish Dental Practice Board;
(iv)NHS trusts;
(v)recognised fund-holding practices;
(i)a State Hospital Management Committee constituted under section 91 of the Mental Health (Scotland) Act 1984(3);
(j)the Secretaries of State respectively concerned with health in England, in Wales and in Scotland.
(3) An arrangement falling within paragraph (1) shall be known as a health and social services contract and is referred to in this Order as an “HSS contract”.
(4) Whether or not an arrangement which constitutes an HSS contract would, apart from this paragraph, be a contract in law, it shall not be regarded for any purpose as giving rise to contractual rights or liabilities, but if any dispute arises with respect to such an arrangement, either party may refer the matter to the Department for determination under the following provisions of this Article.
(5) If, in the course of negotiations intending to lead to an arrangement which will be an HSS contract, it appears to either of the prospective parties that—
(a)the terms proposed by the other party are unfair by reason that that party is seeking to take advantage of its position as the only, or the only practicable, provider of the goods or services concerned or by reason of any other unequal bargaining position as between the prospective parties to the proposed arrangement; or
(b)for any other reason arising out of the relative bargaining positions of the prospective parties any of the terms of the proposed arrangement cannot be agreed, that party may refer the terms of the proposed arrangement to the Department for determination under the following provisions of this Article.
(6) Where a reference is made to the Department under paragraph (4) or (5), the Department may determine the matter itself or, if the Department considers it appropriate, appoint a person to consider and determine it in accordance with regulations.
(7) In the determination of a reference under paragraph (5), the Department or, as the case may be, the person appointed under paragraph
(6) may specify terms to be included in the proposed arrangement and may direct that it be proceeded with; and it shall be the duty of the prospective parties to the proposed arrangement to comply with any such directions.
(8) A determination of a reference under paragraph (4) may contain such directions (including directions as to payment) as the Department or, as the case may be, the person appointed under paragraph (6) considers appropriate to resolve the matter in dispute; and it shall be the duty of the parties to the HSS contract in question to comply with any such directions.
(9) Without prejudice to the generality of the powers exercisable on a reference under paragraph (4), the Department or, as the case may be, the person appointed under paragraph (6) may in a determination in relation to an arrangement constituting an HSS contract vary the terms of the arrangement or bring it to an end; and where the arrangement is so varied or brought to an end—
(a)subject to sub-paragraph (b), the variation or termination shall be treated as being effected by agreement between the parties; and
(b)directions included in the determination by virtue of paragraph (8) may contain such provisions as the Department or, as the case may be, the person appointed under paragraph (6) considers appropriate in order satisfactorily to give effect to the variation or to bring the arrangement to an end.
(10) Where a body or person mentioned in paragraph (2)(g), (h), (i) or (j) is a party or prospective party to an arrangement or proposed arrangement which—
(a)falls within paragraph (1); and
(b)also falls within the definition of NHS contract in section 4 of the National Health Service and Community Care Act 1990(4) or section 17A of the National Health Service (Scotland) Act 1978(5) , paragraphs (4) to (9) shall apply in relation to that arrangement or proposed arrangement with the substitution for references to the Department of references to the Department and the Secretary of State acting jointly.