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National Health Service and Community Care Act 1990

1990 CHAPTER 19

An Act to make further provision about health authorities and other bodies constituted in accordance with the National Health Service Act 1977; to provide for the establishment of National Health Service trusts; to make further provision about the financing of the practices of medical practitioners; to amend Part VII of the Local Government (Scotland) Act 1973 and Part III of the Local Government Finance Act 1982; to amend the National Health Service Act 1977 and the National Health Service (Scotland) Act 1978; to amend Part VIII of the Mental Health (Scotland) Act 1984; to make further provision concerning the provision of accommodation and other welfare services by local authorities and the powers of the Secretary of State as respects the social services functions of such authorities; to make provision for and in connection with the establishment of a Clinical Standards Advisory Group; to repeal the Health Services Act 1976; and for connected purposes.

[29th June 1990]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part IE+W+S The National Health Service: England and Wales

Local managementE+W

1 Regional and District Health Authorities.E+W

F1(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F3S. 2 repealed (1.4.1996) by 1995 c. 17, s. 5(1)(2), Sch. 3

3 Primary and other functions of health authorities etc. and exercise of functions.E+W

F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F4S. 3 omitted (the amendment coming into force immediately before the National Health Service Act 2006 (c. 41) which Act came into force on 1.3.2007 in accordance with s. 277(1) (subject to s. 277(2)-(5) of that Act)) by virtue of The National Health Service (Pre-consolidation Amendments) Order 2006, arts. 1(1), 2, Sch. 1 Pt. 2 {para. 2} (with art. 4)

4 NHS contracts.E+W

F5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

[F64A Provision of certain services under NHS contracts.E+W

[F7(1)This section applies to any arrangement under which [F8a Strategic Health Authority,][F9a Primary Care Trust,] a Health Authority or such other health service body as may be prescribed arrange for the provision to them—

(a)by a person on an ophthalmic list, F10. . .

[F11(aa)by a contractor under a general ophthalmic services contract, or]

(b)by a person on a pharmaceutical list,

of goods or services that they reasonably require for the purposes of functions which they are exercising under Part I of the principal Act [F12other than under section 16CD of that Act].

(2)Any such arrangement is to be treated as an NHS contract for the purposes of section 4 (other than subsections (4) and (6)).

(3)In this section—

  • [F13“general ophthalmic services contract” and “contractor” under such a contract have the meanings given by section 28WA of the principal Act;]

  • health service body” means a body which is a health service body for the purposes of section 4;

  • ophthalmic list” means a list published in accordance with regulations made under—

    (a)

    section [F1439(1)(a)] of the principal Act;

    (b)

    section 26(2)(a) of the M1National Health Service (Scotland) Act 1978; or

    (c)

    Article 62(2)(a) of the M2Health and Personal Social Services (Northern Ireland) Order 1972; and

  • pharmaceutical list” means a list published in accordance with regulations made under—

    (a)

    section 42(2)(a) of the principal Act;

    (b)

    section 27(2) of the National Health Service (Scotland) Act 1978; or

    (c)

    Article 63(2A)(a) of the 1972 Order.

[F15(4)In subsection (3), in paragraph (b) of the definition of “ophthalmic list” the reference to a list published in accordance with regulations made under paragraph (a) of section 26(2) of the National Health Service (Scotland) Act 1978 is a reference to the first part of the list (referred to in sub-paragraph (i) of that paragraph) which is published in accordance with regulations under that paragraph.]]]

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Amendments (Textual)

F6S. 4A inserted (1.9.1997) by 1997 c. 46, s. 31(1); S.I. 1997/1780,

F7S. 4A repealed (1.3.2007 for certain purposes, 1.8.2008 for certain purposes and otherwise prosp.) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 6, 8(2)(4)(g)(h)(l)(5)(6), Sch. 4 (with Sch. 2 Pt. 1, Sch. 3 Pt. 1); S.I. 2008/1972, art. 2(b)

F8Words in s. 4A(1) inserted (1.10.2002) by 2002 c. 17, s. 1(3), Sch. 1 Pt. 2 para. 41; S.I. 2002/2478, art. 3(1)(c) (with art. 3(3) and transitional provision in art. 4)

F9Words in s. 4A(1) inserted (1.10.2002) by 2002 c. 17, s. 2(5), Sch. 2 Pt. 2 para. 54; S.I. 2002/2478, art. 3(1)(d) (with art. 3(3) and transitional provision in art. 4)

F13S. 4A(3): definition of "general ophthalmic services contract" and "contractor" inserted (19.7.2006 for specified purposes, otherwise 1.8.2008) by Health Act 2006 (c. 28), ss. 80(1), 83(1)(e)(7), Sch. 8 {para. 29(3)}

F14Words in s. 4A(3) substituted (1.7.2002) by virtue of 2001 c. 15, s. 67, Sch. 5 Pt. 1 para. 8 (with ss. 64(9), 65(4)); S.I. 2002/1475, art. 2, Sch. Pt. 1

F15S. 4A(4) inserted (1.4.2006) by The Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006 (S.I. 2006/1056, arts. 1(2)(c), 2, Sch. para. 5(c) (which came into force in accordance with art. 1(2) of that Order and The National Health Service (General Ophthalmic Services) (Scotland) Regulations 2006 (S.S.I. 2006/135) which were made on 10.3.2006 under substituted s. 26 of the National Health Service (Scotland) Act 1978 (c. 29) and came into force on 1.4.2006)

Marginal Citations

National Health Service trustsE+W

5 NHS trusts.E+W

F16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

6 Transfer of staff to NHS trusts.E+W

F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

7 Supplementary provisions as to transfer of staff.E+W

F18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

8 Transfer of property, rights and liabilities to NHS trust.E+W

F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

9 Originating capital debt of, and other financial provisions relating to NHS trusts.E+W

F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

10 Financial obligations of NHS trusts.E+W

F21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

11 Trust funds and trustees for NHS trusts.E+W

F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Family Health Services AuthoritiesE+W

12 Functions of Family Health Services Authorities.E+W

F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F2413. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F24S. 13 repealed (1.4.1996) by 1995 c. 17, s. 5(1)(2), Sch. 3 (with Sch. 2 paras. 6, 16)

Fund-holding practicesE+W+S

F2514

  • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

[F2615 Payments to recognised fund-holding practices.E+W+S

F26(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F27(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F26(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F28(4)In any case where—

(a)a Health Authority make a payment of, or of any part of, an allotted sum to the members of a recognised fund-holding practice, and

(b)some of the individuals on the list of patients of any of the members of the practice reside in the area of another Health Authority, or in the area of a Health Board,

the Health Authority making the payment shall be entitled to recover from that other Health Authority, or from that Health Board, an amount equal to such portion of the payment as may be determined in accordance with directions given by the Secretary of State.]

(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F26(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F26(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F27(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F26(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F26(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

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Extent Information

E1S. 15 other than s. 15(4) does not extend to Scotland

Amendments (Textual)

F26S. 15 repealed (1.10.1999 for E., 1.4.2000 for W. and otherwise prosp.) by 1999 c. 8, ss. 1, 65, Sch. 5; S.I. 1999/2540, art. 2(1)(a), Sch. 1; S.I. 2000/1026, art. 2(1), Sch.; S.I. 2000/1041, art. 2(d), Sch.

F27S. 15(2)(5) and (8) repealed (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, ss. 2(1)(3), 5(1)(2), Sch. 1 para. 74(b)(e) and (g), Sch. 3 (with Sch. 2 paras. 6, 16)

F28S. 15(4) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 74(a) (with Sch. 2 paras. 6, 16)

Commencement Information

I1S. 15 wholly in force at 1.4.1991 see s. 67(1) and S.I. 1990/1329, art. 2(8), Sch. 3.

F2916

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Amendments (Textual)

F3017

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Amendments (Textual)

Indicative amountsE+W

[F3118 Indicative amounts for doctors’ practices.E+W

(1)Subject to [F32subsections (2) and (8)] below, for each financial year, [F33every Primary Care Trust and] every [F34Local Health Board] shall, by notice in writing given to each practice in relation to the members of which it is the relevant [F35Primary Care Trust or][F34Local Health Board], specify an amount of money (in this Act referred to as an “indicative amount”) representing the basic price of the drugs, medicines and listed appliances which, in the opinion of the [F35Primary Care Trust or][F34Local Health Board], it is reasonable to expect will be supplied in that year pursuant to orders given by or on behalf of the members of that practice.

(2)Subsection (1) above does not apply with respect to a practice which is or forms part of a fund-holding practice recognised under section 14 above.

(3)For the purposes of this section, a “practice” means—

[F36(a)a person or body who has entered into a contract under section 28Q of the principal Act, otherwise than in partnership; or

(b)two or more individuals practising in partnership who together have entered into such a contract,]

and any reference to the members of a practice shall be construed accordingly.

(4)The members of a practice shall seek to secure that, except with the consent of the relevant [F37Primary Care Trust or][F38Local Health Board] or for good cause, the orders for drugs, medicines and listed appliances given by them or on their behalf are such that the basic price of the items supplied pursuant to those orders in any financial year does not exceed the indicative amount notified to the practice for that year under subsection (1) above.

(5)For the purpose of measuring the extent to which a practice is operating within the indicative amount notified to it under subsection (1) above for any financial year, a [F37Primary Care Trust or][F38Local Health Board] shall set against that indicative amount an amount equal to the basic price of the drugs, medicines and listed appliances supplied in that year pursuant to orders given by or on behalf of members of the practice.

(6)For the purposes of this section, regulations may make provision as to the specification of, or means of calculating, the basic price of any drugs, medicines or listed appliances.

(7)F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F40(8)This section does not apply in relation to the performance or provision of personal medical services in accordance with arrangements made under section 28C of the principal Act.]

[F41(9)In this section, references to the “relevant” Primary Care Trust or Local Health Board, in relation to a practice, are to the Primary Care Trust or Local Health Board with which it has entered into a contract under section 28Q of the principal Act.]]

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Amendments (Textual)

F31S. 18 repealed by 1999 c. 8, ss. 65, 67(1), Sch. 4 para. 80, Sch. 5 (the repeal being brought into force: on 1.10.1999 to the extent that Sch. 5 repeals s. 18(2) for E. by S.I. 1999/2540, art. 2(1)(a), Sch. 1; on 1.4.2000 to the extent that Sch. 5 repeals s. 18(2) and is not already in force by S.I. 2000/1041, art. 2(1)(d), Sch.; the repeal being otherwise prosp.)

F32Words in s. 18(1) substituted (1.4.1998) by 1997 c. 46, s. 41(10), (11), Sch. 2 para. 65(8); S.I. 1998/631, art. 2(b), Sch. 2

F33Words in s. 18(1) inserted (1.10.2002 with effect as mentioned in Sch. 2 para. 55(2) of the amending act) by 2002 c. 17, s. 2(5), Sch. 2 Pt. 2 para. 55(1)(a)(i)(2); S.I. 2002/2478, art. 3(1)(d) (with art. 3(3) and transitional provision in art. 4)

F35Words in s. 18(1) inserted (1.10.2002 with effect as mentioned in Sch. 2 para. 55(2) of the amending act) by 2002 c. 17, s. 2(5), Sch. 2 Pt. 2 para. 55(1)(a)(ii)(2); S.I. 2002/2478, art. 3(1)(d) (with art. 3(3) and transitional provision in art. 4)

F37Words in s. 18 inserted (1.10.2002 with effect as mentioned in Sch. 2 para. 55(2) of the amending act) by 2002 c. 17, s. 2(5), Sch. 2 Pt. 2 para. 55(1)(b); S.I. 2002/2478, art. 3(1)(d) (with art. 3(3) and transitional provision in art. 4)

F40S. 18(8) inserted (1.4.1998) by 1997 c. 46, s. 41(10(11), Sch. 2 para. 65(10); S.I. 1998/631, art. 2(b), Sch. 2

Modifications etc. (not altering text)

C1S. 18 modified (1.4.1991) by S.I. 1991/556, reg. 3.

S. 18(2) applied (with modifications) (1.4.1997) by S.I. 1997/980, reg. 3

C2S. 18: functions of local authority may be responsibility of an executive of the authority (1.4.2000) by virtue of S.I. 2000/695, reg. 3(2)(b), Sch. 2

Commencement Information

I2S. 18 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/1329, art. 2(8), Sch. 3.

Funding, audit and liabilitiesE+W

F4219. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F42S. 19 repealed (1.4.1996) by 1995 c. 17, s. 5(1)(2), Sch. 3 (with Sch. 2 paras. 6, 16)

20 Extension of functions etc. of Audit Commission to cover the health service.E+W

F43(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)In section 98 of the principal Act (accounts and audit),—

(a)in subsection (1), in the words following paragraph (e) for the words from “appointed” to “Comptroller” there shall be substituted “appointed by the Audit Commission for Local Authorities and the National Health Service in England and Wales and the Comptroller”;

F44(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F45(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F45(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F43(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F43(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F43(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F43(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F43(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F43(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

21 Schemes for meeting losses and liabilities etc. of certain health service bodies.E+W

F46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Further amendments of the principal ActE+W

22 The Medical Practices Committee.E+W

23 Distribution of general medical services.E+W

F47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F47S. 23 repealed (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 c. 43, ss. 196, 199(1), Sch. 14 Pt. 4; S.I. 2004/288, arts. 1(5), 6(2)(i) (as amended (23.3.2004) by S.I. 2004/866, art. 2(1)); S.I. 2004/480, art. 5(2)(i) (as amended by S.I. 2004/1019, art. 2(5)(a))

24 Limitations on right to be included on list of dental practitioners.E+W

F48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F48S. 24 repealed (1.4.2006) by Health and Social Care (Community Health and Standards) Act 2003 c. 43, ss. 196, 199(1), Sch. 14 Pt. 4; S.I. 2005/2925, arts. 1(3), 11(2)(l); S.I. 2006/345, art. 7(2)(g)

25 Transfer to DHA of certain functions relating to private patients.E+W

F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

InterpretationE+W

26 Interpretation of Part I.E+W

F50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Part IIE+W+S The National Health Service: Scotland

Health Boards and other bodiesS

27 Health Boards, the Common Services Agency and state hospitals.S

(1)Subject to subsection (2) below, at the end of the day appointed for the coming into force of this subsection, any person who is a member of—

(a)a Health Board;

(b)the management committee of the Common Services Agency for the Scottish Health Service; or

(c)a State Hospital Management Committee within the meaning of the M3Mental Health (Scotland) Act 1984,

shall cease to be such a member.

(2)Subsection (1) above does not apply to a person holding office as chairman of a Health Board or of a committee mentioned in subsection (1)(b) or (c) above.

(3)Schedule 1 (Health Boards) and Schedule 5 (Common Services Agency) to the M4National Health Service (Scotland) Act 1978 (in this Part of this Act referred to as “the 1978 Act”) and Schedule 1 to the M5Mental Health (Scotland) Act 1984 (State Hospital Management Committees) shall be amended in accordance with Schedule 5 to this Act.

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Commencement Information

I3S. 27 wholly in force; s. 27 not in force at Royal Assent see s. 67(2); s. 27(3) in force at 17.9.1990 and s. 27(1)(2) in force for certain purposes at 31.3.1991 and at 30.6.1992 insofar as not already in force by S.I. 1990/1793, art. 2(1)(3)(5), Sch. I (art. 2(5) of that S.I. amended (13.3.1992) by S.I. 1992/799, art. 2).

Marginal Citations

28 Special Health Boards.S

In section 2 (Health Boards) of the 1978 Act—

(a)in subsection (1)—

(i)after the words “Secretary of State” there shall be inserted the word “(a)”; and

(ii)after the words “Health Boards” there shall be inserted—

and

(b)subject to subsections (1A) and (1C), may by order constitute boards, either for the whole of Scotland or for such parts of Scotland as he may so determine, for the purpose of exercising such of his functions under this Act as he may so determine; and those boards shall, without prejudice to subsection (1B), be called Special Health Boards.;

(b)after subsection (1) there shall be inserted the following subsections—

(1A)An order made under subsection (1)(b) may determine an area for a Special Health Board constituted under that subsection which is the same as the areas determined—

(a)for any other Special Health Board; or

(b)for any Health Board or Health Boards constituted by an order or orders made under subsection (1)(a).

(1B)An order under subsection (1)(b) may specify the name by which a board constituted by the order shall be known.

(1C)The Secretary of State may by order provide that such of the provisions of this Act or of any other enactment, or of any orders, regulations, schemes or directions made under or by virtue of this Act or of any other enactment, as apply in relation to Health Boards shall, subject to such modifications and limitations as may be specified in the order, so apply in relation to any Special Health Board so specified.; and

(c)in subsection (2), for the word “(1)” there shall be substituted the word “(1)(a)”.

29 Scottish advisory bodies.S

(1)Section 5 of the 1978 Act (Scottish Health Service Planning Council) shall cease to have effect.

(2)Section 6 of that Act (national consultative committees) shall cease to have effect.

(3)In section 7 of that Act (local health councils)—

(a)in subsection (2), the words from “by local authorities” to “and for the appointment” shall cease to have effect;

(b)in subsection (9)(d), after the words “Health Board” there shall be inserted “and from any NHS trust in their area or district”; and

(c)in subsection (9)(e), after the words “Health Board” there shall be inserted “and establishments in their area or district administered by NHS trusts”.

(4)In section 8(1) of that Act (university liaison committees)—

(a)after the words “those Boards” where they first occur there shall be inserted “and any NHS trusts in the area or combined areas”;

(b)for the words “the area or combined” there shall be substituted “that area or those”; and

(c)after the words “those Boards” in the second place where they occur there shall be inserted “, any such NHS trust”.

(5)In section 9 of that Act (local consultative committees)—

(a)for the words from “after consultation” to “is representative” in each of subsections (1), (3) and (4) there shall be substituted “a Health Board is satisfied that a committee formed for its area is representative”;

(b)for the words “Secretary of State” in the second place where they occur in subsection (1) there shall be substituted “Health Board”; and

(c)for the word “he” in each of subsections (3) and (4) there shall be substituted “the Board”.

30 NHS contracts.S

After section 17 of the 1978 Act there shall be inserted the following sections—

17A NHS contracts.

(1)The persons or bodies mentioned in paragraphs (a) to (e) of subsection (2) may, for the purpose of carrying out their functions under any enactment, 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 persons or bodies mentioned in paragraphs (f) to (m) of that subsection.

(2)The persons and bodies referred to in subsection (1) are—

(a)Health Boards;

(b)the Agency;

(c)the Scottish Dental Practice Board;

(d)a State Hospital Management Committee constituted under section 91 of the Mental Health (Scotland) Act 1984;

(e)NHS trusts established under section 12A;

(f)health authorities within the meaning of section 128(1) (interpretation) of the National Health Service Act 1977;

(g)the Dental Practice Board;

(h)the Public Health Laboratory Service Board;

(i)Family Health Services Authorities within the meaning of section 10 of the National Health Service Act 1977;

(j)recognised fund-holding practices;

(k)NHS trusts established under section 5 of the National Health Service and Community Care Act 1990;

(l)Health and Social Services Boards constituted under the Health and Personal Social Services (Northern Ireland) Order 1972; and

(m)the Secretary of State.

(3)In subsection (1)—

(a)goods” includes accommodation; and

(b)services” includes services of any description,

and in this Act an arrangement falling within that subsection is referred to as an “NHS contract”.

(4)Whether or not an arrangement which constitutes an NHS contract would, apart from this subsection, 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 Secretary of State for determination under the following provisions of this section.

(5)If, in the course of negotiations intending to lead to an arrangement which will be an NHS 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 arrangements cannot be agreed,

that party may refer the terms of the proposed arrangement to the Secretary of State for determination under the following provisions of this section.

(6)Where a reference is made to the Secretary of State under subsection (4) or (5), the Secretary of State may determine the matter himself or, if he considers it appropriate, appoint a person to consider and determine it in accordance with regulations.

(7)By his determination of a reference under subsection (5), the Secretary of State or, as the case may be, the person appointed by him under subsection (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 subsection (4) may contain such directions (including directions as to payment) as the Secretary of State or, as the case may be, the person appointed under subsection (6) considers appropriate to resolve the matter in dispute; and it shall be the duty of the parties to the NHS contract in question to comply with any such directions.

(9)Without prejudice to the generality of his powers on a reference under subsection (4), the Secretary of State or, as the case may be, the person appointed by him under subsection (6) may by his determination in relation to an arrangement constituting an NHS 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 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 subsection (8) may contain such provisions as the Secretary of State or, as the case may be, the person appointed by him under subsection (6) considers appropriate in order satisfactorily to give effect to the variation or to bring the arrangement to an end.

17B Reimbursement of Health Boards’ costs.

(1)Where a Health Board provide goods or services under this Act for an individual for whose health care it is not their function to provide by virtue of section 2(1), in circumstances where the condition of the individual is such that he needs those goods or services and, having regard to his condition, it is not practicable, before providing them, to enter into an NHS contract for their provision, that Health Board shall be remunerated in respect of that provision by the Health Board or Health and Social Services Board which has the function, or the District or Special Health Authority which has the primary functions, of providing those goods or services to that individual.

(2)The rate of any remuneration payable by virtue of subsection (1) shall be calculated in such manner or on such basis as may be determined by the Secretary of State.

(3)In any case where—

(a)a Health Board provide goods or services for the benefit of an individual; and

(b)the provision of those goods and services is not pursuant to an NHS contract; and

(c)the individual is resident outside the United Kingdom and is of a description (being a description associating the individual with another country) specified for the purposes of this subsection by a direction made by the Secretary of State,

the Health Board shall be remunerated by the Secretary of State in respect of the provision of the goods or services at such rate or rates as he considers appropriate.

(4)In subsection (1), “Health and Social Services Board” means such a Board constituted under the Health and Personal Social Services (Northern Ireland) Order 1972.

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Commencement Information

I4S. 30 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/1793, art. 2(4), Sch. II.

National Health Service trustsS

31 National Health Service trusts.S

After section 12 of the 1978 Act there shall be inserted the following sections—

12A National Health Service trusts.

(1)Subject to subsection (2), the Secretary of State may by order establish bodies, to be known as National Health Service trusts (in this Act referred to as “NHS trusts”)—

(a)to assume responsibility, in accordance with this Act, for the ownership and management of hospitals or other establishments or facilities which were previously managed or provided by Health Boards or the Agency; or

(b)to provide and manage hospitals or other establishments or facilities.

(2)The Secretary of State shall by regulations provide for such consultation as may be so prescribed to be carried out by a Health Board or the Agency, before he makes an order under subsection (1).

(3)Every NHS trust—

(a)shall be a body corporate having a board of directors consisting of a chairman appointed by the Secretary of State and, subject to paragraph 5(2) of Schedule 7A, executive and non-executive directors (that is to say, directors who, subject to subsection (5), respectively are and are not employees of the trust); and

(b)shall have the functions conferred on it by an order under subsection (1) and by Schedule 7A.

(4)The functions specified in an order under subsection (1) shall include such functions as the Secretary of State considers appropriate in relation to the provision of services by the trust for one or more of the following—

(a)Health Boards; and

(b)the Agency.

(5)Regulations may make general provision with respect to—

(a)the qualifications for and the tenure of office of the chairman and directors of an NHS trust (including the circumstances in which they shall cease to hold, or may be removed from, office or may be suspended from performing the functions of the office);

(b)the persons by whom the directors and any of the officers are to be appointed and the manner of their appointment;

(c)the maximum and minimum numbers of the directors;

(d)the circumstances in which a person who is not an employee of the trust is nevertheless, on appointment as a director, to be regarded as an executive rather than as a non-executive director;

(e)the proceedings of the trust (including the validation of proceedings in the event of a vacancy or defect in appointment);

(f)the appointment, constitution and exercise of functions by committees and sub-committees of the trust (whether or not consisting of or including any members of the board); and

(g)the application of the seal of the trust and the constitution and proof of instruments.

(6)Part I of Schedule 7A shall have effect with respect to orders under subsection (1); Part II of that Schedule shall have effect, subject to subsection (7), with respect to the general duties and the powers and status of NHS trusts; the supplementary provisions of Part III of that Schedule shall have effect; and Part IV of that Schedule shall have effect with respect to the dissolution of NHS trusts.

(7)The specific powers conferred by paragraphs 14 and 15 in Part II of Schedule 7A may be exercised only to the extent that the exercise will not—

(a)interfere with the duty of the trust to comply with directions under paragraph 6 of that Schedule; and

(b)to any significant extent interfere with the performance by the trust of its obligations under any NHS contract or any obligations imposed by an order under subsection (1).

(8)The Secretary of State may by order confer on NHS trusts specific powers additional to those contained in paragraphs 10 to 15 of Schedule 7A.

12B Transfer of staff to NHS trusts.

(1)Subject to subsection (5), this section applies to any person who, immediately before an NHS trust’s operational date—

(a)is employed by a Health Board or the Agency (in this section and section 12C referred to as a “transferor authority”) to work solely at, or for the purposes of, a hospital or other establishment or facility which is to become the responsibility of the trust; or

(b)is employed by a transferor authority to work at, or for the purposes of, any such hospital, establishment or facility and is designated for the purposes of this section by a scheme made by the body specified as mentioned in paragraph 3(1)(f) of Schedule 7A.

(2)A scheme under this section shall not have effect unless approved by the Secretary of State.

(3)Subject to section 12C, the contract of employment between a person to whom this section applies and the transferor authority shall have effect from the operational date as if originally made between him and the NHS trust.

(4)Without prejudice to subsection (3)—

(a)all the transferor authority’s rights, powers, duties and liabilities under or in connection with a contract to which that subsection applies shall by virtue of this section be transferred to the NHS trust on its operational date; and

(b)anything done before that date by or in relation to the transferor authority in respect of that contract or the employee shall be deemed from that date to have been done by or in relation to the NHS trust.

(5)In any case where—

(a)an order under section 12A(1) provides for the establishment of an NHS trust with effect from a date earlier than the operational date of the trust; and

(b)on or after that earlier date but before its operational date the NHS trust makes an offer of employment by the trust to a person who at that time is employed by a Health Board or the Agency to work, whether solely or otherwise, at, or for the purposes of, the hospital or other establishment or facility which is to become the responsibility of the trust; and

(c)as a result of the acceptance of the offer, the person to whom it was made becomes an employee of the NHS trust,

subsections (3) and (4) shall have effect in relation to that person’s contract of employment as if he were a person to whom this section applies and any reference in those subsections to the operational date of the trust were a reference to the date on which he takes up employment with the trust.

(6)Subsections (3) and (4) are without prejudice to any right of an employee to terminate his contract of employment if a substantial change is made to his detriment in his working conditions; but no such right shall arise by reason only of the change in employer effected by this section.

(7)A scheme under this section may designate a person either individually or as a member of a class or description of employees.

12C Supplementary provisions as to transfer of staff.

(1)In the case of a person who falls within subsection (1)(b) of section 12B, a scheme under that section may provide that, with effect from the NHS trust’s operational date, his contract of employment (in this section referred to as “his original contract”) shall be treated in accordance with the scheme as divided so as to constitute—

(a)a contract of employment with the NHS trust; and

(b)a contract of employment with the transferor authority by whom he was employed before that date.

(2)Where a scheme makes provision as mentioned in subsection (1)—

(a)the scheme shall secure that the benefits to the employee under the two contracts referred to in that subsection, when taken together, are not less favourable than the benefits under his original contract;

(b)section 12B shall apply in relation to the contract referred to in subsection (1)(a) as if it were a contract transferred under that section from the transferor authority to the NHS trust;

(c)so far as necessary to preserve any rights and obligations, the contract referred to in subsection (1)(b) shall be regarded as a continuation of the employee’s original contract; and

(d)for the purposes of section 146 of and Schedule 13 to the Employment Protection (Consolidation) Act 1978, the number of hours normally worked, or, as the case may be, the hours for which the employee is employed in any week under either of those contracts shall be taken to be the total of the hours normally worked or, as the case may be, for which he is employed under the two contracts taken together.

(3)Where, as a result of the provisions of section 12B, by virtue of his employment during any period after the NHS trust’s operational date—

(a)an employee has contractual rights against an NHS trust to benefits in the event of his redundancy, and

(b)he also has statutory rights against the NHS trust under Part VI of the Employment Protection (Consolidation) Act 1978 (redundancy payments),

any benefits provided to him by virtue of the contractual rights referred to in paragraph (a) shall be taken as satisfying his entitlement to benefits under Part VI of that Act.

12D Transfer of property rights and liabilities to NHS trusts.

(1)The Secretary of State may by order provide for the transfer to an NHS trust, with effect from such date as may be specified in the order, of such of the property, liabilities and obligations of a Health Board, the Agency or the Secretary of State as, in his opinion, need to be transferred to the NHS trust for the purpose of enabling it to carry out its functions.

(2)An order under this section may create or impose, or provide for the creation or imposition of, such new rights, liabilities or obligations in respect of what is transferred or what is retained by a Health Board or the Agency as appear to the Secretary of State to be necessary or expedient.

(3)Nothing in this section affects the power of the Secretary of State or any power of a Health Board or the Agency to transfer property, liabilities or obligations to an NHS trust otherwise than under subsection (1).

(4)Stamp duty shall not be chargeable in respect of any transfer to an NHS trust effected by virtue of an order under this section.

(5)Where an order under this section provides for the transfer—

(a)of land held on lease from a third party, that is to say, a person other than the Secretary of State; or

(b)of any other asset leased or hired from a third party or in which a third party has an interest,

the transfer shall be binding on the third party notwithstanding that, apart from this subsection, it would have required his consent or concurrence, or would have required to be intimated to him.

(6)Any property, liabilities and obligations which are to be transferred to an NHS trust shall be identified by agreement between, on the one hand, the NHS trust and, on the other hand, a Health Board or the Agency; or, in default of agreement, by direction of the Secretary of State.

(7)Where, for the purpose of a transfer pursuant to an order under this section, it becomes necessary to apportion any property, liabilities and obligations, the order may contain such provisions as appear to the Secretary of State to be appropriate for the purpose; and where any such property falls within subsection (5), the order shall contain such provisions as appear to the Secretary of State to be appropriate to safeguard the interests of third parties, including, where appropriate, provision for the payment of compensation of an amount to be determined in accordance with the order.

(8)Without prejudice to section 105(7), an order under this section may include provision for matters to be settled by arbitration by a person determined in accordance with the order.

12E Originating capital debt of, and other financial provisions relating to NHS trusts.

(1)Each NHS trust shall have an originating capital debt of an amount specified in an order made by the Secretary of State with the consent of the Treasury, being an amount representing, subject to subsection (2), the excess of the valuation of the assets which, on or in connection with the establishment of the trust, are or are to be transferred to it (whether before, on or after its operational date) over the amounts of the liabilities which are or are to be so transferred.

(2)In determining the originating capital debt of an NHS trust, there shall be left out of account such assets or, as the case may be, such liabilities as are, or are of a class, determined for the purposes of this section by the Secretary of State, with the consent of the Treasury.

(3)An NHS trust’s originating capital debt shall be deemed to have been issued out of moneys provided by Parliament and shall constitute an asset of the Consolidated Fund.

(4)In accordance with an order under subsection (1), an NHS trust’s originating capital debt shall be divided between—

(a)a loan on which interest shall be paid at such variable or fixed rates and at such times as the Treasury may determine; and

(b)public dividend capital.

(5)The loan specified in subsection (4)(a) is in this Part of this Act referred to as an NHS trust’s “initial loan” and a rate of interest on the initial loan shall be determined as if section 5 of the National Loans Act 1968 had effect in respect of it and subsections (5) to (5B) of that section shall apply accordingly.

(6)Subject to subsections (4)(a) and (5), the terms of the initial loan shall be such as the Secretary of State, with the consent of the Treasury, may determine; and, in the event of the early repayment of the initial loan, the terms may require the payment of a premium or allow a discount.

(7)With the consent of the Treasury, the Secretary of State may determine the terms on which any public dividend capital forming part of an NHS trust’s originating capital debt is to be treated as having been issued, and, in particular, may determine the dividend which is to be payable at any time on any public dividend capital.

(8)Schedule 7B shall have effect with respect to—

(a)borrowing by NHS trusts;

(b)the limits on their indebtedness;

(c)the payment of additional public dividend capital to them; and

(d)the application of any surplus funds of NHS trusts.

12F Financial obligations of NHS trusts.

(1)Every NHS trust shall ensure that its revenue is not less than sufficient, taking one financial year with another, to meet outgoings properly chargeable to revenue account.

(2)It shall be the duty of every NHS trust to achieve such financial objectives as may from time to time be set by the Secretary of State with the consent of the Treasury and as are applicable to it; and any such objectives may be made applicable to NHS trusts generally, or to a particular NHS trust or to NHS trusts of a particular description.

32 Further provision relating to NHS trusts.S

After Schedule 7 to the 1978 Act there shall be inserted the Schedules set out in Schedule 6 to this Act.

33 Trust property of NHS trusts.S

After section 12F of the 1978 Act (as inserted by section 31 of this Act) there shall be inserted the following section—

12G Trust property of NHS trusts.

(1)Subject to subsection (2), an NHS trust shall have power to accept, hold and administer any property on trust for purposes relating to any service which it is their function to make arrangements for, administer or provide.

(2)The Secretary of State may by order make such provision as he thinks appropriate in relation to the appointment of trustees in respect of an NHS trust for the purpose of holding in trust any property which is to be so held on behalf of the trust; and any such order may include provision as to the persons by whom, the manner in which, the conditions on which and the time within which, such trustees are to be appointed.

(3)Where—

(a)section 82 applies in relation to any endowment or property which is held on trust by a Health Board; and

(b)that endowment or property is, by virtue of an order under section 12D, transferred to an NHS trust,

section 82 shall apply to the use of that endowment or property by the trust as it applied to the use thereof by the Health Board.

(4)Trustees appointed by virtue of subsection (2) shall cause proper accounts to be kept of the capital, income and expenditure vested in, received by and expended by them; and shall cause such accounts to be audited and an abstract thereof to be published in such manner as the Secretary of State may approve.

Fund-holding practicesE+W+S

34 Fund-holding practices.E+W+S

After section 87 of the 1978 Act there shall be inserted the following sections—

Fund-holding practicesE+W+S
87A Recognition of fund-holding practices of doctors.

(1)Any one or more medical practitioners who are providing general medical services in accordance with arrangements under section 19 may apply to the relevant Health Board for recognition as a fund-holding practice.

(2)The relevant Health Board shall not grant recognition as a fund-holding practice unless the medical practitioner or, as the case may be, each of the medical practitioners concerned fulfils such conditions as may be prescribed.

(3)Where two or more medical practitioners who wish to make an application under subsection (1) are not partners in a single partnership, section 19(8)(a) (construction of “relevant Health Board”) shall apply as if the medical practitioners were practising in a single partnership.

(4)Regulations may make provision with respect to—

(a)the making of applications under subsection (1);

(b)the granting and refusal of recognition as a fund-holding practice;

(c)the conditions to be fulfilled for obtaining and continuing to be entitled to such recognition;

(d)appeals against any refusal of such recognition by a Health Board;

(e)withdrawing from, or becoming a member of, an existing recognised fund-holding practice;

(f)the continuity or otherwise of a recognised fund-holding practice in the event of the death or withdrawal of a member or the addition of a new member; and

(g)the operation of this section in a case where one or more of the medical practitioners wishing to make an application under subsection (1) is also on the medical list of a Family Health Services Authority established under section 10 of the National Health Service Act 1977,

and regulations making the provision referred to in paragraph (g) may make such modifications of the preceding provisions of this section as the Secretary of State considers appropriate.

87B Payments to recognised fund-holding practices.

(1)In respect of each financial year, every Health Board shall be liable to pay to the members of each recognised fund-holding practice in relation to which it is the relevant Health Board a sum determined in such manner and by reference to such factors as the Secretary of State may direct (in this section referred to as an “allotted sum”).

(2)The liability to pay an allotted sum under subsection (1) may be discharged, in whole or in part, in either of the following ways—

(a)by making payments on account of the allotted sum at such times and in such manner as the Secretary of State may direct; and

(b)by discharging liabilities of the members of the practice to any other person (including, in particular, liabilities under NHS contracts);

and any reference in this section and section 87C to payment of or of a part of an allotted sum includes a reference to the discharge, in accordance with this subsection, of the whole or part of the liability to pay that sum.

(3)In any case where—

(a)a Health Board makes a payment of, or of any part of, an allotted sum to the members of a recognised fund-holding practice, and

(b)some of the individuals on the lists of patients of any of the members of the practice reside in the area of another Health Board, or in the region of a Regional Health Authority established under section 8 of the National Health Service Act 1977,

the Board making the payment shall be entitled to recover from that other Board or the Authority an amount equal to such portion of the payment as may be determined in accordance with directions given by the Secretary of State.

(4)The members of a recognised fund-holding practice may apply allotted sums only for purposes specified in regulations under subsection (5).

(5)Regulations shall make provision with respect to the purposes for which allotted sums are to be or may be applied and may make provision generally with respect to the operation of recognised fund-holding practices in relation to allotted sums; and the regulations may, in particular,—

(a)require the members of a practice to pay to the relevant Health Board out of allotted sums paid to them an amount determined in accordance with the regulations as the basic cost of the drugs, medicines and listed appliances supplied pursuant to orders given by or on behalf of members of the practice;

(b)provide that the goods and services, other than general medical services, which may be purchased by or on behalf of the members of such a practice out of allotted sums for the individuals on the lists of patients of the members of the practice shall be such as may be specified in a list approved for the purpose under the regulations; and

(c)impose a limit on the amount which may be spent out of an allotted sum on the provision of goods and services for any one individual, being a limit above which the cost of any goods and services for that individual in the financial year in question will fall to be met by the Health Board whose functions include the provision of goods and services (not necessarily the goods and services in question) to the individual concerned.

(6)In accordance with directions given by the Secretary of State, the relevant Health Board shall monitor the expenditure of the members of a recognised fund-holding practice and may institute an audit and review in any case where the Board consider it necessary to do so.

87C Renunciation and removal of recognition as a fund-holding practice and withholding of funds.

(1)Regulations may make provision as to the circumstances in which the members of a recognised fund-holding practice may renounce that status and such regulations may, in particular, make provision as to—

(a)the notice to be given and the number of members of the practice by whom it is to be given;

(b)the procedure to be followed; and

(c)the consequences of such a renunciation.

(2)Regulations may make provision as to the circumstances in which and the grounds on which the relevant Health Board may remove recognition from the members of a fund-holding practice,—

(a)with immediate effect; or

(b)with effect from the end of a particular financial year; or

(c)with effect from such other date as may be specified by the Health Board.

(3)Where provision is made as mentioned in subsection (2), regulations shall make provision with respect to—

(a)the procedure for removal of recognition;

(b)appeals against the removal of recognition by a Health Board; and

(c)the consequences of the removal of recognition.

(4)Without prejudice to the generality of the powers conferred by subsection (3), regulations making provision as mentioned in paragraph (c) of that subsection may—

(a)provide for the transfer of rights and obligations from the members of the fund-holding practice to one or more Health Boards determined in accordance with the regulations;

(b)provide for the recovery of sums from members of the practice; and

(c)require the members of the practice to furnish such information as may reasonably be required by the Health Board.

(5)The bringing of an appeal against the removal of recognition by a Health Board shall not be regarded as preserving the recognised status of the members of the fund-holding practice and, accordingly, subject to the outcome of the appeal, the relevant Health Board shall not be required, after the removal takes effect, to make any (or, as the case may be, any further) payment to the members of the practice of any part of the allotted sum for the financial year in question or, as the case may be, to determine and pay any allotted sum for a future financial year.

(6)Where any part of an allotted sum has been applied by the members of a recognised fund-holding practice (or any one or more of them) for purposes other than those specified in regulations under section 87B(5), regulations may make provision for and in connection with the recovery by the relevant Health Board of an amount equal to that part.

(7)Where provision is made as mentioned in subsection (6), regulations shall make provision with respect to appeals against the recovery of any amount by a Health Board.

Indicative amountsS

35 Indicative amounts for doctors’ practices.S

After the sections inserted in the 1978 Act by section 34 above there shall be inserted the following section—

Indicative amountsS
87D Indicative amounts for doctors’ practices.

(1)Subject to subsection (2), for each financial year every Health Board shall, by notice in writing given to each practice in relation to the members of which it is the relevant Health Board, specify an amount of money (in this Act referred to as an “indicative amount”) representing the basic price of the drugs, medicines and listed appliances which, in the opinion of the Board, it is reasonable to expect will be supplied in that year pursuant to orders given by or on behalf of the members of that practice.

(2)Subsection (1) does not apply with respect to a practice which is or forms part of a fund-holding practice recognised under section 87A.

(3)For the purposes of this section, a “practice” means—

(a)a single medical practitioner who practises otherwise than in partnership; or

(b)any two or more medical practitioners who practise in partnership;

and any reference to the members of a practice shall be construed accordingly.

(4)The members of a practice shall seek to secure that, except with the consent of the relevant Health Board or for good cause, the orders for drugs, medicines and listed appliances given by them or on their behalf are such that the basic price of the items supplied pursuant to those orders in any financial year does not exceed the indicative amount notified to the practice for that year under subsection (1).

(5)For the purpose of measuring the extent to which a practice is operating within the indicative amount notified to it under subsection (1) for any financial year, a Health Board shall set against that indicative amount an amount equal to the basic price of the drugs, medicines and listed appliances supplied in that year pursuant to orders given by or on behalf of members of the practice.

(6)For the purposes of this section, regulations may make provision as to the specification of, or means of calculating, the basic price of any drugs, medicines and listed appliances.

(7)If, in the case of any practice, a member is on the medical list of a Family Health Services Authority established under section 10 of the National Health Service Act 1977 (as well as on that of a Health Board), any question whether this section applies in relation to the members of the practice shall be determined in accordance with regulations; and any such regulations may modify the preceding provisions of this section in their application to such a practice.

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Commencement Information

I5S. 35 wholly in force at 1.4.1992 see s. 67(2) and S.I. 1990/1793, art. 2(6).

AuditS

36 Accounts and audit of NHS trusts and fund-holding practices.S

(1)The enactments specified in Schedule 7 to this Act shall have effect subject to the amendments set out in that Schedule, being amendments—

(a)to extend the functions of the Commission for Local Authority Accounts in Scotland (in this section referred to as “the Commission”) to cover Health Boards and other bodies established under the 1978 Act, the Mental Welfare Commission for Scotland and State Hospital Management Committees constituted under the M6Mental Health (Scotland) Act 1984;

(b)to alter the title and constitution of the Commission to reflect its wider role; and

(c)to make provision consequential on or supplemental to the amendments referred to in paragraphs (a) and (b) above.

(2)Section 86 of the 1978 Act (keeping and audit of accounts of certain Scottish health bodies) shall be amended in accordance with the following provisions of this section.

(3)In subsection (1), for the words from the beginning to “Agency” there shall be substituted—

(1)The following bodies, that is to say—

(a)every Health Board;

(b)the Agency; and

(c)every NHS trust,.

(4)After subsection (1) there shall be inserted the following subsections—

(1A)So far as relates to allotted sums paid to the members of a recognised fund-holding practice—

(a)accounts shall be kept in such form as the Secretary of State may with the approval of the Treasury direct and shall be audited by auditors appointed by the Secretary of State;

(b)the Comptroller and Auditor General may examine the accounts and the records relating to them and any report of the auditor on them;

(c)in respect of each financial year, annual accounts in such form as the Secretary of State may with the approval of the Treasury direct shall be prepared and submitted to the relevant Health Board; and

(d)in respect of each financial year, each Health Board shall prepare, in such form as the Secretary of State may with the approval of the Treasury direct, and include in its own accounts, a summarised version of the accounts submitted to the Board under paragraph (c).

(1B)In preparing its annual accounts in pursuance of subsection (1), an NHS trust shall comply with any directions given by the Secretary of State with the approval of the Treasury as to—

(a)the methods and principles according to which the accounts are to be prepared; and

(b)the information to be given in the accounts.

F51(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)In subsection (3), for the words “Health Board and the Agency” there shall be substituted “body mentioned in paragraphs (a) to (c) of subsection (1)”.

(7)In subsection (4), for the words “Health Boards and the Agency” there shall be substituted “bodies mentioned in paragraphs (a) to (c) of subsection (1)”.

(8)After subsection (4) there shall be added the following subsection—

(5)In this section “recognised fund-holding practice” and “allotted sum” have the same meaning as in section 87B.

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Amendments (Textual)

Commencement Information

I6S. 36 wholly in force; s. 36 not in force at Royal Assent, see s. 67(2); s. 36 in force at 24.10.1994, 1.12.1994 by S.I. 1994/2658, arts. 2, 3

Marginal Citations

MiscellaneousS

37 Relationship of Health Boards and medical practitioners.S

After subsection (7) of section 19 of the 1978 Act (arrangements and regulations for general medical services) there shall be inserted the following subsection—

(8)In relation to a medical practitioner, any reference in this Act to the relevant Health Board shall be construed as follows—

(a)if he practises in partnership with other medical practitioners, the relevant Health Board is the Board on whose medical list the members of the practice are included and, if some are included on one Board’s medical list and some on another’s or if any of the members is included on the medical lists of two or more Boards, the relevant Health Board is the Board in whose area resides the largest number of individuals who are on the lists of patients of members of the practice; and

(b)in any other case, the relevant Health Board is the Board on whose medical list he is included and, if there is more than one, the Board in whose area resides the largest number of individuals who are on his list of patients.

38 Scottish Medical Practices Committee.S

(1)In section 3 of the 1978 Act (the Scottish Medical Practices Committee), after subsection (1) there shall be inserted the following subsection—

(1A)After consulting the Medical Practices Committee, the Secretary of State may give the Committee directions with respect to the exercise of its functions; and it shall be the duty of the Committee to comply with any such directions.

(2)In Schedule 2 to the 1978 Act (constitution etc of Scottish Medical Practices Committee), after paragraph 2 there shall be inserted—

2AThe Secretary of State may by order make such modifications as he considers appropriate of paragraphs 1 and 2.

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Commencement Information

I7S. 38 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1991/607, art.2

39 Distribution of general medical services.S

(1)In section 23 of the 1978 Act (distribution of general medical services), after subsection (1) there shall be inserted the following subsections—

(1A)The Secretary of State may by order specify the maximum number of medical practitioners with whom, in any year, all Health Boards taken as a whole may enter into arrangements under section 19 for the provision of general medical services.

(1B)An order under subsection (1A) may contain such incidental and consequential provisions (including provisions amending this Part of this Act) as appear to the Secretary of State to be appropriate including, in particular, provisions as to the basis on which the Medical Practices Committee are to refuse applications under section 20 in order to secure that any maximum number specified in the order is not exceeded.

(2)At the beginning of subsection (2) of that section (the Medical Practices Committee to select the person whose applications are to be granted) there shall be inserted “Subject to subsection (2A)” and after that subsection there shall be inserted the following subsection—

(2A)If, in the opinion of the Medical Practices Committee, a medical practitioner is required for a particular part of the area of a Health Board, then, in such circumstances as may be prescribed,—

(a)the Board shall, in accordance with regulations, select the medical practitioner whose application they wish to be considered by the Committee; and

(b)the Committee shall not consider any application from a medical practitioner who is not so selected; and

(c)any medical practitioner who has made an application but is not so selected may appeal to the Secretary of State on a point of law;

and if the Secretary of State allows an appeal under paragraph (c) he shall remit the application to the Board for reconsideration.

(3)In subsection (4) of that section (applications under section 20 may be granted subject to certain conditions), after the word “but” there shall be inserted—

(a)in granting an application shall specify, by reference to one or more prescribed conditions relating to hours or the sharing of work, the provision of general medical services for which the applicant will be entitled to be remunerated; and

(b);

and at the end of the subsection there shall be inserted the words “and an order under subsection (1A) may make provision as to the extent to which account is to be taken under the order of medical practitioners whose ability to carry out remunerated work is limited by virtue of conditions imposed under paragraph (a)”.

(4)In subsection (5) of that section (appeals to the Secretary of State) for the words “such conditions” there shall be substituted “conditions under paragraph (a) or (b) of subsection (4)” and for the words following “Secretary of State”, in the first place where those words occur, there shall be substituted “on a point of law; and, if the Secretary of State allows such an appeal, he shall remit the application to the Medical Practices Committee for reconsideration”.

(5)Subsection (7) of that section (directions on a successful appeal) shall be omitted.

(6)In subsection (8) of that section (matters to be taken into account) for the words from the beginning to “in any such case” there shall be substituted “In any case where medical practitioners have to be selected from a number of applicants, the Medical Practices Committee or, where subsection (2A) applies, the Health Board shall”.

(7)F52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)In the case of a medical practitioner who, on the day appointed for the coming into force of this section, is providing general medical services in accordance with arrangements under section 19 of the 1978 Act, regulations may make transitional provisions by virtue of which those services shall be treated for the purposes of that Act as provided subject to such of the prescribed conditions referred to in section 23(4)(a) of that Act as are determined under the regulations and, accordingly, for enabling any such condition to be varied in accordance with regulations under section 24(2) of that Act.

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Amendments (Textual)

Commencement Information

I8S. 39 partly in force; s. 39 (except 39(4)) in force for certain purposes at 1.4.1991, see s. 67(2) and S.I. 1991/607, art. 2, (art. 3(1) of S.I. 1991/607 contains transitional provisions relating to s. 39(2))

40 Limitations on right to be included on list of dental practitioners.S

F53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

41 Schemes for meeting losses and liabilities etc. of certain health service bodies.S

After section 85A of the 1978 Act there shall be inserted the following section—

85B Schemes for meeting losses and liabilities etc. of certain health service bodies.

(1)The Secretary of State may by regulations made with the consent of the Treasury establish a scheme whereby any of the bodies mentioned in subsection (2) may make provision to meet—

(a)expenses arising from any loss of or damage to their property; and

(b)liabilities to third parties for loss, damage (including solatium) or injury arising out of the carrying out of the functions of the bodies concerned.

(2)The bodies referred to in subsection (1) are—

(a)Health Boards;

(b)the Agency;

(c)a State Hospital Management Committee constituted under section 91 of the Mental Health (Scotland) Act 1984; and

(d)NHS trusts,

but a scheme under this section may limit the class or description of bodies which are eligible to participate in it.

(3)Without prejudice to the generality of the power conferred by subsection (1), a scheme under this section may—

(a)provide for the scheme to be administered by the Secretary of State, the Agency, or a Health Board or NHS trust specified in the scheme;

(b)require any body which participates in the scheme to make payments in accordance with the scheme; and

(c)provide for the making of payments for the purposes of the scheme by the Secretary of State.

(4)Without prejudice to any other power of direction conferred on the Secretary of State,—

(a)if the Secretary of State so directs, any body which is eligible to participate in a scheme shall do so; and

(b)where a scheme provides for it to be administered by the Secretary of State, the Agency or a Health Board or NHS trust shall carry out such functions in connection with the administration of the scheme as the Secretary of State may direct.

(5)Neither the Secretary of State nor any body administering a scheme under this section shall, by virtue of their activities under the scheme, be regarded as carrying on insurance business for the purposes of the Insurance Companies Act 1982.

Part IIIE+W+S Community Care: England and Wales

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Modifications etc. (not altering text)

C5Pt. III (ss. 42-50) applied (with modifications) (1.4.1993) by S.I. 1993/570, art. 2(2)(a)

Provision of accommodation and welfare servicesE+W+S

42 Provision of accommodation and welfare services: agency arrangements.E+W+S

(1)In section 21(1) of the M7National Assistance Act 1948 (duties of local authorities to provide accommodation for persons aged 18 or over who are in need of care and attention by reason of age, infirmity or other circumstances)—

(a)in paragraph (a) for the word “infirmity” there shall be substituted “illness, disability”; and

(b)at the end of that paragraph there shall be added and

(aa)residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.

F54(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)[F55In section 26 of that Act (arrangements for provision of accommodation in premises maintained by voluntary organisations etc.), at the end of subsection (2)] (under which the arrangements must provide for the local authority to make payments in respect of accommodation provided) there shall be added “and subject to subsection (3A) below the local authority shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with the following provisions of this section”.

(4)At the beginning of subsection (3) of that section (liability of persons for whom accommodation is provided to make refunds to the local authority) there shall be inserted “Subject to subsection (3A) below” and after that subsection there shall be inserted the following subsection—

(3A)Where accommodation in any premises is provided for any person under arrangements made by virtue of this section and the local authority, the person concerned and the voluntary organisation or other person managing the premises (in this subsection referred to as “the provider”) agree that this subsection shall apply—

(a)so long as the person concerned makes the payments for which he is liable under paragraph (b) below, he shall not be liable to make any refund under subsection (3) above and the local authority shall not be liable to make any payment under subsection (2) above in respect of the accommodation provided for him;

(b)the person concerned shall be liable to pay to the provider such sums as he would otherwise (under subsection (3) above) be liable to pay by way of refund to the local authority; and

(c)the local authority shall be liable to pay to the provider the difference between the sums paid by virtue of paragraph (b) above and the payments which, but for paragraph (a) above, the authority would be liable to pay under subsection (2) above.

(5)At the end of subsection (7) of that section (interpretation) there shall be added

small home” means an establishment falling within section 1(4) of the Registered Homes Act 1984 and “exempt body” means an authority or body constituted by an Act of Parliament or incorporated by Royal Charter.

(6)In section 30(1) of that Act (under which a local authority may employ certain voluntary organisations as their agents for the provision of welfare services for disabled persons) for the words from “any voluntary organisation” onwards there shall be substituted “any voluntary organisation or any person carrying on, professionally or by way of trade or business, activities which consist of or include the provision of services for any of the persons to whom section 29 above applies, being an organisation or person appearing to the authority to be capable of providing the service to which the arrangements apply”.

(7)In section 45(3) of the M8Health Services and Public Health Act 1968 (under which a local authority may employ certain voluntary organisations as their agents for promoting the welfare of old people) for the words from “any voluntary organisation” onwards there shall be substituted “any voluntary organisation or any person carrying on, professionally or by way of trade or business, activities which consist of or include the provision of services for old people, being an organisation or person appearing to the authority to be capable of promoting the welfare of old people”.

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Amendments (Textual)

Commencement Information

I9S. 42 wholly in force at 1.4.1993; s. 42 not in force at Royal Assent see s. 67(2); s. 42(6)(7) in force at 1.4.1991 by S.I. 1990/2218, art. 2; s. 42(1)-(5) in force at 1.4.1993 by S.I. 1992/2975, art. 2(2), Sch.

Marginal Citations

[F5643 Exclusion of powers to provide accommodation in certain cases.E+W

After section 26 of the M9National Assistance Act 1948 there shall be inserted—

26A Exclusion of powers to provide accommodation under this Part in certain cases.

(1)Subject to subsection (3) of this section, no accommodation may be provided under section 21 or 26 of this Act for any person who immediately before the date on which this section comes into force was ordinarily resident in relevant premises.

(2)In subsection (1) “relevant premises” means—

(a)premises in respect of which any person is registered under the Registered Homes Act 1984;

(b)premises in respect of which such registration is not required by virtue of their being managed or provided by an exempt body;

(c)premises which do not fall within the definition of a nursing home in section 21 of that Act by reason only of their being maintained or controlled by an exempt body; and

(d)such other premises as the Secretary of State may by regulations prescribe;

and in this subsection “exempt body” has the same meaning as in section 26 of this Act.

(3)The Secretary of State may by regulations provide that, in such cases and subject to such conditions as may be prescribed, subsection (1) of this section shall not apply in relation to such classes of persons as may be prescribed in the regulations.

(4)The Secretary of State shall by regulations prescribe the circumstances in which persons are to be treated as being ordinarily resident in any premises for the purposes of subsection (1) of this section.

(5)This section does not affect the validity of any contract made before the date on which this section comes into force for the provision of accommodation on or after that date or anything done in pursuance of such a contract.]

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Amendments (Textual)

Commencement Information

I10S. 43 wholly in force at 1.4.1993 see s. 67(2) and S.I. 1992/2975, art. 2(2), Sch.

Marginal Citations

44 Charges for accommodation provided by local authorities.E+W+S

(1)Section 22 of the M10National Assistance Act 1948 (charges for accommodation provided under Part III of that Act to be made at a standard rate fixed by the local authority subject to a minimum weekly rate prescribed under subsection (3)) shall have effect subject to the amendments specified in subsections (2) to (6) below.

(2)In subsection (1) (which relates to a person’s liability to pay for accommodation) for the words from the beginning to “the accommodation" there shall be substituted “ Subject to section 26 of this Act, where a person is provided with accommodation under this Part of this Act the local authority providing the accommodation shall recover from him the amount of the payment which he is liable to make ”.

(3)In subsection (2) (which requires the authority managing premises to fix the standard rate) after the word “payment" there shall be inserted “ which a person is liable to make ” and at the end of that subsection there shall be added the words “ and that standard rate shall represent the full cost to the authority of providing that accommodation ”

(4)In subsection (3) (which makes provision for people who are unable to pay at the standard rate)—

(a)the words “(disregarding income support)", and

(b)the words from “Provided that" to the end of the subsection,

shall be omitted.

(5)After subsection (4) (under which the Secretary of State may prescribe the minimum sum assumed to be required for a resident’s personal needs in determining the rate payable by him) there shall be inserted—

(4A)Regulations made for the purposes of subsection (4) of this section may prescribe different sums for different circumstances.

(6)In subsection (5A) (under which a local authority managing premises in which accommodation is provided for a person may limit the payments required from him for a certain period to the minimum rate prescribed under subsection (3)) for the words “the minimum weekly rate prescribed under subsection (3) above" there shall be substituted “ such amount as appears to them reasonable for him to pay ”.

(7)In section 29 of that Act (under subsection (4)(c) of which arrangements may be made for the provision of hostels where persons for whom welfare services are provided under that section may live) after subsection (4) there shall be inserted—

(4A)Where accommodation in a hostel is provided under paragraph (c) of subsection (4) of this section—

(a)if the hostel is managed by a local authority, section 22 of this Act shall apply as it applies where accommodation is provided under section 21;

(b)if the accommodation is provided in a hostel managed by a person other than a local authority under arrangements made with that person, subsections (2) to (4A) of section 26 of this Act shall apply as they apply where accommodation is provided under arrangements made by virtue of that section; and

(c)sections 32 and 43 of this Act shall apply as they apply where accommodation is provided under sections 21 to 26;

and in this subsection references to “accommodation” include references to board and other services, amenities and requisites provided in connection with the accommodation, except where in the opinion of the authority managing the premises or, in the case mentioned in paragraph (b) above, the authority making the arrangements their provision is unnecessary.

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Commencement Information

I11S. 44 wholly in force at 1.4.1993 see s. 67(2) and S.I. 1992/2975, art. 2(2), Sch.

Marginal Citations

45 Recovery of charges due to local authorities for accommodation.E+W+S

(1)In section 21 of the M11Health and Social Services and Social Security Adjudication Act 1983 (recovery of sums due to local authority where persons in residential accommodation have disposed of assets) after subsection (3) there shall be inserted—

(3A)If the Secretary of State so directs, subsection (1) above shall not apply in such cases as may be specified in the direction.

(2)In sections 22 and 23 of that Act (which make provision as to arrears of contributions charged on interests in land in England and Wales and in Scotland respectively) after subsection (2) there shall be inserted—

(2A)In determining whether to exercise their power under subsection (1) above and in making any determination under subsection (2) above, the local authority shall comply with any directions given to them by the Secretary of State as to the exercise of those functions.

(3)In section 24 of that Act (interest on sums charged on or secured over interests in land) for subsection (2) there shall be substituted—

(2)The rate of interest shall be such reasonable rate as the Secretary of State may direct or, if no such direction is given, as the local authority may determine.

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Commencement Information

I12S. 45 wholly in force at 12.4.1993 see s. 67(2) and S.I. 1992/2975, art. 2(3)(a).

Marginal Citations

General provisions concerning community care servicesE+W

46 Local authority plans for community care services.E+W

(1)Each local authority—

(a)shall, within such period after the day appointed for the coming into force of this section as the Secretary of State may direct, prepare and publish a plan for the provision of community care services in their area;

(b)shall keep the plan prepared by them under paragraph (a) above and any further plans prepared by them under this section under review; and

(c)shall, at such intervals as the Secretary of State may direct, prepare and publish modifications to the current plan, or if the case requires, a new plan.

(2)In carrying out any of their functions under paragraphs (a) to (c) of subsection (1) above, a local authority shall consult—

(a)any [F57Health Authority [F58and any Local Health Board] the whole or any part of whose area] lies within the area of the local authority;

F59(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)in so far as any proposed plan, review or modifications of a plan may affect or be affected by the provision or availability of housing and the local authority is not itself a local housing authority, within the meaning of the M12Housing Act 1985, every such local housing authority whose area is within the area of the local authority;

(d)such voluntary organisations as appear to the authority to represent the interests of persons who use or are likely to use any community care services within the area of the authority or the interests of private carers who, within that area, provide care to persons for whom, in the exercise of their social services functions, the local authority have a power or a duty to provide a service.

(e)such voluntary housing agencies and other bodies as appear to the local authority to provide housing or community care services in their area; and

(f)such other persons as the Secretary of State may direct.

(3)In this section—

  • local authority” means the council of a county, [F60a county borough,]a metropolitan district or a London borough or the Common Council of the City of London;

  • community care services” means services which a local authority may provide or arrange to be provided under any of the following provisions—

(a)Part III of the M13National Assistance Act 1948;

(b)section 45 of the M14Health Services and Public Health Act 1968;

[F61(c)section 254 of, and Schedule 20 to, the National Health Service Act 2006, and section 192 of, and Schedule 15 to, the National Health Service (Wales) Act 2006]

(d)section 117 of the M15Mental Health Act 1983; and

  • private carer” means a person who is not employed to provide the care in question by any body in the exercise of its functions under any enactment.

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Amendments (Textual)

F57Words in s. 46(2)(a) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 80(a) (with Sch. 2 paras. 6, 16)

F58Words in s. 46(2)(a) inserted (W.) (31.3.2003) by The Health, Social Care and Well-being Strategies (Wales) Regulations 2003 (S.I. 2003/154), reg. 7(6), Sch. para. 4

F59S. 46(2)(b) repealed (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, ss. 2(1)(3), 5, Sch. 1 Pt. II para. 80(b), Sch. 3 (with Sch. 2 paras. 6, 16)

F60Words in definition in s. 46(3) inserted (3.4.1995) by 1994 c. 19, s. 22(4), Sch. 10 para. 14 (with ss. 54(5)(7), 55(5), Sch. 17 para. 22(1), 23(2)); S.I. 1995/852, art. 4(1), Sch. 2

F61S. 46(3): definition of "community care services" para. (c) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 129

Modifications etc. (not altering text)

C6S. 46; functions of local authority not to be sole responsibility of an executive of the authority (E.) (16.11.2000) by virtue of S.I. 2000/2853, reg. 4(1), Sch. 3

Commencement Information

I13S. 46 wholly in force at 1.4.1991 see s. 67(2)(3) and S.I. 1990/2218, art. 2, Sch. .

Marginal Citations

47 Assessment of needs for community care services.E+W

(1)Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority—

(a)shall carry out an assessment of his needs for those services; and

(b)having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.

(2)If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority—

(a)shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the M16Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and

(b)shall inform him that they will be doing so and of his rights under that Act.

(3)If at any time during the assessment of the needs of any person under subsection (1)(a) above, it appears to a local authority—

(a)that there may be a need for the provision to that person by such [F62Primary Care Trust or][F63Health Authority] as may be determined in accordance with regulations of any services under the [F64National Health Service Act 2006 or the National Health Service (Wales) Act 2006], or

(b)that there may be a need for the provision to him of any services which fall within the functions of a local housing authority (within the meaning of the M17Housing Act 1985) which is not the local authority carrying out the assessment,

the local authority shall notify that [F62Primary Care Trust,][F63Health Authority] or local housing authority and invite them to assist, to such extent as is reasonable in the circumstances, in the making of the assessment; and, in making their decision as to the provision of the services needed for the person in question, the local authority shall take into account any services which are likely to be made available for him by that [F62Primary Care Trust,][F63Health Authority] or local housing authority.

(4)The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions and to subsection (7) below, it shall be carried out in such manner and take such form as the local authority consider appropriate.

(5)Nothing in this section shall prevent a local authority from temporarily providing or arranging for the provision of community care services for any person without carrying out a prior assessment of his needs in accordance with the preceding provisions of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency.

(6)If, by virtue of subsection (5) above, community care services have been provided temporarily for any person as a matter of urgency, then, as soon as practicable thereafter, an assessment of his needs shall be made in accordance with the preceding provisions of this section.

(7)This section is without prejudice to section 3 of the M18Disabled Persons (Services, Consultation and Representation) Act 1986.

(8)In this section—

  • disabled person” has the same meaning as in that Act; and

  • local authority” and “community care services” have the same meanings as in section 46 above.

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Amendments (Textual)

F62Words in s. 47(3) inserted (1.10.2002) by 2002 c. 17, s. 2(5), Sch. 2 Pt. 2 para. 56; S.I. 2002/2478, art. 3(1)(d) (with art. 3(3) and transitional provision in art. 4)

F63Words in s. 47(3) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 81 (with Sch. 2 paras. 6, 16)

Commencement Information

I14S. 47 wholly in force at 1.4.1993 see s. 67(2) and S.I. 1992/2975, art. 2(2), Sch.

Marginal Citations

48 Inspection of premises used for provision of community care services.E+W

(1)Any person authorised by the Secretary of State may at any reasonable time enter and inspect any premises [F65(other than regulated premises)] in which community care services are or are proposed to be provided by a local authority, whether directly or under arrangements made with another person.

[F66(1A)In subsection (1) “regulated premises” means—

(a)in relation to England, premises used for the carrying on of a regulated activity within the meaning of Part 1 of the Health and Social Care Act 2008 by a person who is registered under Chapter 2 of that Part in respect of the activity; and

(b)in relation to Wales, premises in respect of which a person is registered under Part 2 of the Care Standards Act 2000.]

(2)Any person inspecting any premises under this section may—

(a)make such examination into the state and management of the premises and the facilities and services provided therein as he thinks fit;

(b)inspect any records (in whatever form they are held) relating to the premises, or any person for whom community care services have been or are to be provided there; and

(c)require the owner of, or any person employed in, the premises to furnish him with such information as he may request.

(3)Any person exercising the power to inspect records conferred by subsection (2)(b) above—

(a)shall be entitled at any reasonable time to have access to, and inspect and check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the records in question; and

(b)may require—

(i)the person by whom or on whose behalf the computer is or has been so used; or

(ii)any person having charge of or otherwise concerned with the operation of the computer, apparatus or material,

to give him such reasonable assistance as he may require.

(4)Any person inspecting any premises under this section—

(a)may interview any person residing there in private—

(i)for the purpose of investigating any complaint as to those premises or the community care services provided there, or

(ii)if he has reason to believe that the community care services being provided there for that person are not satisfactory; and

(b)may examine any such person in private.

(5)No person may—

(a)exercise the power conferred by subsection (2)(b) above so as to inspect medical records; or

(b)exercise the power conferred by subsection (4)(b) above,

unless he is a registered medical practitioner and, in the case of the power conferred by subsection (2)(b) above, the records relate to medical treatment given at the premises in question.

(6)Any person exercising the power of entry under subsection (1) above shall, if so required, produce some duly authenticated document showing his authority to do so.

(7)Any person who intentionally obstructs another in the exercise of that power shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(8)In this section “local authority” and “community care services” have the same meanings as in section 46 above.

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Amendments (Textual)

Commencement Information

I15S. 48 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/2218, art. 2, Sch.

49 Transfer of staff from health service to local authorities.E+W

(1)In connection with arrangements relating to community care services made by virtue of this Part of this Act, the Secretary of State may make regulations with respect to the transfer to employment by a local authority of persons previously employed by a National Health Service body.

(2)Regulations under this section may also make provision with respect to the return to employment by a National Health Service body of a person to whom the regulations previously applied on his transfer (whether from that or another National Health Service body) to employment by a local authority.

(3)Without prejudice to the generality of subsections (1) and (2) above, regulations under this section may make provision with respect to—

(a)the terms on which a person is to be employed by a local authority or National Health Service body;

(b)the period and continuity of a person’s employment for the purposes of [F67the Employment Rights Act 1996];

(c)superannuation benefits; and

(d)the circumstances in which, if a person declines an offer of employment made with a view to such a transfer or return as is referred to in subsection (1) or subsection (2) above and then ceases to be employed by a National Health Service body or local authority, he is not to be regarded as entitled to benefits in connection with redundancy.

(4)In this section—

(a)local authority” and “community care services” have the same meaning as in section 46 above; and

(b)National Health Service body” means a [F68Strategic Health Authority,][F69Primary Care Trust,][F70Health Authority [F71, Local Health Board] or Special Health Authority] or a National Health Service trust.

(5)Regulations under this section may make different provision with respect to different cases or descriptions of case, including different provision for different areas.

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Amendments (Textual)

F67Words in s. 49(3)(b) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 45(3)(b) (with ss. 191-200, 202)

F68Words in s. 49(4)(b) inserted (1.10.2002) by 2002 c. 17, s. 1(3), Sch. 1 Pt. 2 para. 44; S.I. 2002/2478, art. 3(1)(c) (with transitional provision in art. 4)

F69Words in s. 49(4)(b) inserted (1.10.2002) by 2002 c. 17, s. 2(5), Sch. 2 Pt. 2 para. 57; S.I. 2002/2478, art. 3(1)(d) (with transitional provision in art. 4)

F70Words in s. 49(4)(b) substituted (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 82 (with Sch. 2 paras. 6, 16)

F71Words in s. 49(4)(b) inserted (10.10.2002 for W. and otherwise in force immediately before the National Health Service Act 2006 (c. 41) (which Act came into force on 1.3.2007 in accordance with s. 227(1) (subject to s. 277(2)-(5) of that Act))) by National Health Service Reform and Health Care Profession Act 2002 (c. 17), ss. 6(2), 42(3), Sch. 5 para. 34; S.I. 2002/2532, art. 2, Sch; S.I. 2006/1407, art. 1(1), Sch. 1. Pt. 2 {para. 12(c)}

Commencement Information

I16S. 49 wholly in force at 10.12.1992 see s. 67(2) and S.I. 1992/2975, art. 2(1)(a).

50 Powers of the Secretary of State as respects social services functions of local authorities.E+W

After section 7 of the M19Local Authority Social Services Act 1970 (local authorities to exercise social services functions under guidance of the Secretary of State) there shall be inserted the following sections—

7A Directions by the Secretary of State as to exercise of social services functions.

(1)Without prejudice to section 7 of this Act, every local authority shall exercise their social services functions in accordance with such directions as may be given to them under this section by the Secretary of State.

(2)Directions under this section—

(a)shall be given in writing; and

(b)may be given to a particular authority, or to authorities of a particular class, or to authorities generally.

7B Complaints procedure.

(1)The Secretary of State may by order require local authorities to establish a procedure for considering any representations (including any complaints) which are made to them by a qualifying individual, or anyone acting on his behalf, in relation to the discharge of, or any failure to discharge, any of their social services functions in respect of that individual.

(2)In relation to a particular local authority, an individual is a qualifying individual for the purposes of subsection (1) above if—

(a)the authority have a power or a duty to provide, or to secure the provision of, a service for him; and

(b)his need or possible need for such a service has (by whatever means) come to the attention of the authority.

(3)A local authority shall comply with any directions given by the Secretary of State as to the procedure to be adopted in considering representations made as mentioned in subsection (1) above and as to the taking of such action as may be necessary in consequence of such representations.

(4)Local authorities shall give such publicity to any procedure established pursuant to this section as they consider appropriate.

7C Inquiries.

(1)The Secretary of State may cause an inquiry to be held in any case where, whether on representations made to him or otherwise, he considers it advisable to do so in connection with the exercise by any local authority of any of their social services functions (except in so far as those functions relate to persons under the age of eighteen).

(2)Subsections (2) to (5) of section 250 of the Local Government Act 1972 (powers in relation to local inquiries) shall apply in relation to an inquiry under this section as they apply in relation to an inquiry under that section.

7D Default powers of Secretary of State as respects social services functions of local authorities.

(1)If the Secretary of State is satisfied that any local authority have failed, without reasonable excuse, to comply with any of their duties which are social services functions (other than a duty imposed by or under the Children Act 1989), he may make an order declaring that authority to be in default with respect to the duty in question.

(2)An order under subsection (1) may contain such directions for the purpose of ensuring that the duty is complied with within such period as may be specified in the order as appear to the Secretary of State to be necessary.

(3)Any such direction shall, on the application of the Secretary of State, be enforceable by mandamus.

7E Grants to local authorities in respect of social services for the mentally ill.

The Secretary of State may, with the approval of the Treasury, make grants out of money provided by Parliament towards any expenses of local authorities incurred— (a) in connection with the exercise of their social services functions in relation to persons suffering from mental illness; or (b) in making payments in accordance with directions given by the Secretary of State to voluntary organisations which provide care and services to persons who are, have been, or are likely to become dependant upon alcohol or drugs.

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Commencement Information

I17S. 50 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/2218, art. 2, Sch.

Marginal Citations

Part IVS Community Care: Scotland

51 Power of Secretary of State to give directions.S

After subsection (1) of section 5 (powers of Secretary of State) of the M20Social Work (Scotland) Act 1968 (in this Part of this Act referred to as “the 1968 Act”) there shall be inserted the following subsection—

(1A)Without prejudice to subsection (1) above, the Secretary of State may issue directions to local authorities, either individually or collectively, as to the manner in which they are to exercise any of their functions under this Act or any of the enactments mentioned in section 2(2) of this Act; and a local authority shall comply with any direction made under this subsection.

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Commencement Information

I18S. 51 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/2510, art. 2, Sch.

Marginal Citations

52 Local authority plans for, and complaints in relation to, community care services in Scotland.S

After section 5 of the 1968 Act there shall be inserted the following sections—

5A Local authority plans for community care services.

(1)Within such period after the day appointed for the coming into force of this section as the Secretary of State may direct, and in accordance with the provisions of this section, each local authority shall prepare and publish a plan for the provision of community care services in their area.

(2)Each local authority shall from time to time review any plan prepared by them under subsection (1) above, and shall, in the light of any such review, prepare and publish—

(a)any modifications to the plan under review; or

(b)if the case requires, a new plan.

(3)In preparing any plan or carrying out any review under subsection (1) or, as the case may be, subsection (2) above the authority shall consult—

(a)any Health Board providing services under the National Health Service (Scotland) Act 1978 in the area of the authority;

(b)in so far as the plan or, as the case may be, the review may affect or be affected by the provision or availability of housing, every district council in the area of the authority;

(c)such voluntary organisations as appear to the authority to represent the interests of persons who use or are likely to use any community care services within the area of the authority or the interests of private carers who, within that area, provide care to persons for whom, in the exercise of their functions under this Act or any of the enactments mentioned in section 2(2) of this Act, the local authority have a power or a duty to provide, or to secure the provision of, a service;

(d)such voluntary housing agencies and other bodies as appear to the authority to provide housing or community care services in their area; and

(e)such other persons as the Secretary of State may direct.

(4)In this section—

  • community care services” means services, other than services for children, which a local authority are under a duty or have a power to provide, or to secure the provision of, under Part II of this Act or section 7 (functions of local authorities), 8 (provision of after-care services) or 11 (training and occupation of the mentally handicapped) of the Mental Health (Scotland) Act 1984; and

  • private carer” means a person who is not employed to provide the care in question by any body in the exercise of its functions under any enactment.

5B Complaints procedure.

(1)Subject to the provisions of this section, the Secretary of State may by order require local authorities to establish a procedure whereby a person, or anyone acting on his behalf, may make representations (including complaints) in relation to the authority’s discharge of, or failure to discharge, any of their functions under this Act, or any of the enactments referred to in section 2(2) of this Act, in respect of that person.

(2)For the purposes of subsection (1) of this section, “person” means any person for whom the local authority have a power or a duty to provide, or to secure the provision of, a service, and whose need or possible need for such a service has (by whatever means) come to the attention of the authority.

(3)An order under subsection (1) of this section may be commenced at different times in respect of such different classes of person as may be specified in the order.

(4)In relation to a child, representations may be made by virtue of subsection (1) above by the child, or on his behalf by—

(a)his parent;

(b)any person having parental rights in respect of him;

(c)any local authority foster parent; or

(d)any other person appearing to the authority to have a sufficient interest in the child’s wellbeing to warrant his making representations on the child’s behalf.

(5)In this section—

  • child” means a child under the age of 18 years; and

  • parent” and “parental rights” have the same meaning as in section 8 (interpretation) of the Law Reform (Parent and Child) (Scotland) Act 1986.

(6)A local authority shall comply with any directions given by the Secretary of State as to the procedure to be adopted in considering representations made as mentioned in subsection (1) of this section and as to the taking of such action as may be necessary in consequence of such representations.

(7)Every local authority shall give such publicity to the procedure established under this section as they consider appropriate.

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Commencement Information

I19S. 52 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/2510, art. 2, Sch.

53 Inspection of premises providing accommodation.S

F72. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Commencement Information

I20S. 53 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/2510, art. 2, Sch.

54 Inquiries.S

After section 6 of the 1968 Act there shall be inserted the following section—

6A Inquiries.

(1)The Secretary of State may cause an inquiry to be held into the functions of a local authority under this Act or any of the enactments mentioned in section 2(2) of this Act, except in so far as those functions relate to persons under the age of 18.

(2)The Secretary of State may, before an inquiry is commenced, direct that it shall be held in private, but where no such direction has been given the person holding the inquiry may if he thinks fit hold it or any part of it in private.

(3)Subsections (2) to (8) of section 210 of the Local Government (Scotland) Act 1973 (powers in relation to local inquiries) shall apply in relation to an inquiry under this section as they apply in relation to a local inquiry under that section.

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Commencement Information

I21S. 54 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/2510, art. 2, Sch.

55 Duty of local authority to make assessment of needs.S

After section 12 of the 1968 Act there shall be inserted the following section—

12A Duty of local authority to assess needs.

(1)Subject to the provisions of this section, where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority—

(a)shall make an assessment of the needs of that person for those services; and

(b)having regard to the results of that assessment, shall then decide whether the needs of that person call for the provision of any such services.

(2)Before deciding, under subsection (1)(b) of this section, that the needs of any person call for the provision of nursing care, a local authority shall consult a medical practitioner.

(3)If, while they are carrying out their duty under subsection (1) of this section, it appears to a local authority that there may be a need for the provision to any person to whom that subsection applies—

(a)of any services under the National Health Service (Scotland) Act 1978 by the Health Board—

(i)in whose area he is ordinarily resident; or

(ii)in whose area the services to be supplied by the local authority are, or are likely, to be provided; or

(b)of any services which fall within the functions of a housing authority (within the meaning of section 130 (housing) of the Local Government (Scotland) Act 1973) which is not the local authority carrying out the assessment,

the local authority shall so notify that Health Board or housing authority, and shall request information from them as to what services are likely to be made available to that person by that Health Board or housing authority; and, thereafter, in carrying out their said duty, the local authority shall take into account any information received by them in response to that request.

(4)Where a local authority are making an assessment under this section and it appears to them that the person concerned is a disabled person, they shall—

(a)proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and

(b)inform him that they will be doing so and of his rights under that Act.

(5)Nothing in this section shall prevent a local authority from providing or arranging for the provision of community care services for any person without carrying out a prior assessment of his needs in accordance with the preceding provisions of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency.

(6)If, by virtue of subsection (5) of this section, community care services have been provided for any person as a matter of urgency, then, as soon as practicable thereafter, an assessment of his needs shall be made in accordance with the preceding provisions of this section.

(7)This section is without prejudice to section 3 of the said Act of 1986.

(8)In this section—

  • community care services” has the same meaning as in section 5A of this Act;

  • disabled person” has the same meaning as in the said Act of 1986; and

  • medical practitioner” means a fully registered person within the meaning of section 55 (interpretation) of the Medical Act 1983.

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Commencement Information

I22S. 55 wholly in force at 1.4.1993 see s. 67(2) and S.I. 1992/2975, art. 2(2), Sch.

56 Residential accommodation with nursing and provision of care and after-care.S

After section 13 of the 1968 Act there shall be inserted the following sections—

Residential accommodation with nursingS

13A Residential accommodation with nursing.

(1)Without prejudice to section 12 of this Act, a local authority shall make such arrangements as they consider appropriate and adequate for the provision of suitable residential accommodation where nursing is provided for persons who appear to them to be in need of such accommodation by reason of infirmity, age, illness or mental disorder, dependency on drugs or alcohol or being substantially handicapped by any deformity or disability.

(2)The arrangements made by virtue of subsection (1) above shall be made with a voluntary or other organisation or other person, being an organisation or person managing premises which are—

(a)a nursing home within the meaning of section 10(2)(a) of the Nursing Homes Registration (Scotland) Act 1938 in respect of which that organisation or person is registered or exempt from registration under that Act; or

(b)a private hospital registered under section 12 of the Mental Health (Scotland) Act 1984,

for the provision of accommodation in those premises.

(3)The provisions of section 6 of this Act apply in relation to premises where accommodation is provided for the purposes of this section as they apply in relation to establishments provided for the purposes of this Act.

Provision of care and after-careS

13B Provision of care and after-care.

(1)Subject to subsection (2) below, a local authority may, with the approval of the Secretary of State, and shall, if and to the extent that the Secretary of State so directs, make arrangements for the purpose of the prevention of illness, the care of persons suffering from illness, and the after-care of such persons.

(2)The arrangements which may be made under subsection (1) above do not include arrangements in respect of medical, dental or nursing care, or health visiting.

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Commencement Information

I23S. 56 wholly in force at 1.4.1993; S. 56 not in force at Royal Assent see s. 67(2); s. 56 in force for certain purposes at 1.4.1991 by S.I. 1990/2510, art. 2, Sch.; s. 56 in force at 1.4.1993 so far as not already in force by S.I. 1992/2975, art. 2(2), Sch.

[F7357 Exclusion of powers to provide accommodation in certain cases.S

After section 86 of the 1968 Act there shall be inserted the following section—

86A Exclusion of powers to provide accommodation in certain cases.

(1)Subject to subsection (3) below, no accommodation may be provided under this Act for any person who, immediately before the date on which this section comes into force, was ordinarily resident in relevant premises.

(2)In subsection (1) above “relevant premises” means—

(a)any establishment in respect of which a person is registered under section 62 of this Act;

(b)any nursing home within the meaning of the Nursing Homes Registration (Scotland) Act 1938 in respect of which a person is registered or exempt from registration under that Act;

(c)any private hospital registered under section 12 of the Mental Health (Scotland) Act 1984; and

(d)such other premises as the Secretary of State may by regulations prescribe.

(3)The Secretary of State may by regulations provide that in such cases and subject to such conditions as may be prescribed subsection (1) above shall not apply in relation to such classes of persons as may be prescribed in the regulations.

(4)The Secretary of State shall by regulations prescribe the circumstances in which persons are to be treated as being ordinarily resident in any premises for the purposes of subsection (1) above.

(5)This section does not affect the validity of any contract made before the date on which this section comes into force for the provision of accommodation on or after that date or anything done in pursuance of such a contract.]

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Amendments (Textual)

Commencement Information

I24S. 57 wholly in force at 1.4.1993 see s. 67(2) and S.I. 1992/2975, art. 2(2), Sch.

58 Power of Secretary of State to make grants.S

After section 92 of the 1968 Act there shall be inserted the following section—

92A Power of the Secretary of State to make grants.

The Secretary of State may, with the approval of the Treasury, make grants out of money provided by Parliament towards any expenses of local authorities in respect of their functions under—

(a)Part II of this Act; and

(b)sections 7 and 8 of the Mental Health (Scotland) Act 1984,

in relation to persons suffering from mental illness.

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Commencement Information

I25S. 58 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/2510, art. 2, Sch.

Part VE+W+S+N.I. Miscellaneous and General

59 Parliamentary disqualification.E+W+S+N.I.

F74(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)In the said Part III there shall be inserted (at the appropriate place) the following entry—

Chairman or non-executive member of a National Health Service trust established under the National Health Service and Community Care Act 1990 or the National Health Service (Scotland) Act 1978.

(3)In the said Part III—

(a)in the entry which begins “Paid Chairman of a Health Board”, for the words “Paid Chairman” there shall be substituted “Chairman or any member, not being also an employee,”;

(b)in the entry which begins “Chairman of the Management Committee of the Common Services Agency” after the word “Chairman” there shall be inserted “or any member, not being also an employee,”; and

(c)in the entry relating to the Chairman of a committee constituted under section 91 of the M21Mental Health (Scotland) Act 1984, after the word “Chairman” there shall be inserted “or any member, not being also an employee”.

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Amendments (Textual)

F74S. 59(1) repealed (1.4.1996) by 1995 c. 17, s. 5(1)(2), Sch. 3 (with Sch. 2 para. 6)

Commencement Information

I26S. 59 wholly in force; s. 59(3) in force at 1.4.1991 by s. 67(2) and S.I. 1991/607, art. 2(c)

Marginal Citations

60 Removal of Crown immunities.E+W+S

(1)Subject to the following provisions of this section, on and after the day appointed for the coming into force of this subsection, no health service body shall be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and so far as concerns land in which the Secretary of State has an interest, at any time when—

(a)by virtue of directions under any provision of the [F75National Health Service Act 2006, the National Health Service (Wales) Act 2006,][F76the Mental Health (Scotland) Act 1984] or the M22Health and Medicines Act 1988 or by virtue of orders under section 2 or section 10 of the M23National Health Service (Scotland) Act 1978, powers of disposal or management with respect to the land are conferred on a health service body, or

(b)the land is otherwise held, used or occupied by a health service body,

the interest of the Secretary of State shall be treated for the purposes of any enactment or rule of law relating to Crown land or interests as if it were an interest held otherwise than by the Secretary of State (or any other emanation of the Crown).

(2)In Schedule 8 to this Act—

(a)Part I has effect to continue certain exemptions for health service bodies and property held, used or occupied by such bodies;

(b)the amendments in Part II have effect, being amendments consequential on subsection (1) above; and

(c)the transitional provisions in Part III have effect in connection with the operation of subsection (1) above.

(3)Where, as a result of the provisions of subsection (1) above, by virtue of his employment during any period after the day appointed for the coming into force of that subsection—

(a)an employee has contractual rights against a health service body to benefits in the event of his redundancy, and

(b)he also has statutory rights against the health service body under [F77Part XI of the Employment Rights Act 1996] (redundancy payments),

any benefits provided to him by virtue of the contractual rights referred to in paragraph (a) above shall be taken as satisfying his entitlement to benefits under [F77that Part of that Act].

(4)Nothing in subsection (1) above affects the extent of the expression “the services of the Crown” where it appears in—

(a)Schedule 1 to the M24Registered Designs Act 1949 (provisions as to the use of registered designs for the services of the Crown etc.); and

(b)sections 55 to 59 of the M25Patents Act 1977 (use of patented inventions for the services of the Crown);

and, accordingly, services provided in pursuance of any power or duty of the Secretary of State under [F78the National Health Service Act 2006] or Part I or Part III of the M26National Health Service (Scotland) Act 1978 shall continue to be regarded as included in that expression, whether the services are in fact provided by a health service body, a National Health Service trust or any other person.

(5)The Secretary of State may by order made by statutory instrument provide that, in relation to any enactment contained in a local Act and specified in the order, the operation of subsection (1) above shall be excluded or modified to the extent specified in the order.

(6)No order shall be made under subsection (5) above unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.

(7)In this section “health service body” means—

[F79(a)[F80a Strategic Health Authority [F81established under section 13 of the National Health Service Act 2006] or] a Health Authority F82. . . ;

(aa)a Special Health Authority established under [F83section 28 of that Act or section 22 of the National Health Service (Wales) Act 2006];]

(b)a Health Board or Special Health Board constituted under section 2 of the M27National Health Service (Scotland) Act 1978;

[F84(ba)Healthcare Improvement Scotland established under section 10A of that Act;]

(c)

[F85a State Hospital Management Committee constituted under section 91 of the M28Mental Health (Scotland) Act 1984;]

F86(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)the Common Services Agency for the Scottish Health Service;

(f)F87. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)the Scottish Dental Practice Board; F88. . .

(h)F88. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F77Words in s. 60(3) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 45(4)

F79S. 60(7)(a)(aa) substituted (1.4.1996 subject to s. 8 of the amending Act) for s. 60(7)(a) by 1995 c. 17, s. 2(1)(3), Sch. 1 Pt. II para. 83(a) (with Sch. 2 paras. 6, 16)

F80Words in s. 60(7)(a) inserted (E.W.) (1.10.2002) by 2002 c. 17, s. 1(3), Sch. 1 Pt. 2 para. 45; S.I. 2002/2478, art. 3(1)(c) (with art. 3(3) and transitional provision in art. 4)

F86S. 60(7)(d) repealed (1.4.1996 subject to s. 8 of the amending Act) by 1995 c. 17, ss. 2(1)(3), 5, Sch. 1 Pt. II para. 83(b), Sch. 3 (with Sch. 2 paras. 6, 16)

Commencement Information

I27S. 60 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/1329, art. 2(8), Sch. 3.

Marginal Citations

61 Health service bodies: taxation.E+W+S+N.I.

(1)F89. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)

[F90F91F92(3)In the case of a body falling within subsection (3A) below—

(a)where any conveyance, transfer or lease is made or agreed to be made to the body, no stamp duty shall be chargeable under Part 1 or 2, or paragraph 16, of Schedule 13 to the Finance Act 1999 on the instrument by which the conveyance, transfer, lease, or the agreement for it, is effected;

(b)where the body is the purchaser in relation to a land transaction, the land transaction is exempt from charge for the purposes of stamp duty land tax.

(3A)The bodies are—

(a)a National Health Service trust established under Part 1 of this Act or Part 1 of the National Health Service (Scotland) Act 1978;

(b)a Health and Social Services trust established under the Health and Personal Social Services (Northern Ireland) Order 1991;

(c)a Primary Care Trust;

(d)a Local Health Board.

(3B)Relief under subsection (3)(b) above must be claimed in a land transaction return or an amendment of such a return.

(3C)In this section—

  • land transaction” has the same meaning as in Part 4 of the Finance Act 2003 (see section 43(1) of that Act);

  • land transaction return” shall be construed in accordance with section 76(1) of that Act;

  • purchaser” has the same meaning as in Part 4 of that Act (see section 43(4) of that Act).]

F93(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)At the end of Schedule 3 to the Inheritance Tax Act 1984 (gifts for national purposes) there shall be added—

A health service body, within the meaning of section 519A of the Income and Corporation Taxes Act 1988.

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Amendments (Textual)

F89S. 61(1) repealed (1.10.2010 with effect as mentioned in s. 1184(1) of the repealing Act) by Corporation Tax Act 2010 (c. 4), ss. 1181(1), 1184(1), Sch. 3 Pt. 1 (with Sch. 2)

F92S. 61(3): words "the National Health Service Act 2006, the National Health Service (Wales) Act 2006" expressed to be substituted for "Part 1 of the National Health Service and Community Care Act 1990" (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 132 (with Sch. 3 Pt. 1)

F93S. 61(4) repealed (1.9.1994) by 1994 c. 23, ss. 100(2), 101(1), Sch. 15

Modifications etc. (not altering text)

[F9461AHealth service bodies: stamp duty land taxE+W+S+N.I.

F95. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

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Amendments (Textual)

F9662. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S+N.I.

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Amendments (Textual)

63 Repeal of remaining provisions of Health Services Act 1976.E+W+S

(1)Part III (control of hospital building outside National Health Service) and Part IV (supplementary and general) of the M29Health Services Act 1976 shall cease to have effect.

(2)Notwithstanding the repeal of Part III of the Health Services Act 1976 by this Act,—

(a)that Part shall continue to have effect in relation to any authorisation granted by the Secretary of State under section 13(2) of that Act which is in force when that repeal takes effect; [F97and

(b)the amendment made by section 19(4)(b) of that Act shall continue to have effect.]

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Amendments (Textual)

F97S. 63(2)(b) and word “and” immediately preceding it repealed (S.) (1.4.2002) by 2001 asp 8, s. 80(1), Sch. 4; S.S.I. 2002/162, art. 2(i)

Commencement Information

I28S. 63 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/1329, art. 2(8), Sch. 3.

Marginal Citations

64 Financial provisions.E+W+S

(1)There shall be paid out of moneys provided by Parliament—

(a)any sums required by the Secretary of State for making loans to a National Health Service trust;

(b)any sums required by the Secretary of State for fulfilling a guarantee of a sum borrowed by a National Health Service trust;

(c)any amount paid as public dividend capital under paragraph 5 of Schedule 3 to this Act;

(d)any expenses of the Secretary of State under this Act; and

(e)any increase attributable to this Act in the sums so payable under any other enactment.

(2)Any sums received by the Secretary of State under this Act shall be paid into the Consolidated Fund.

65 Regulations, orders and directions.E+W+S

(1)Any power to make regulations conferred by this Act shall be exercisable by statutory instrument, and any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(2)F98. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

66 Amendments and repeals.E+W+S

(1)Schedule 9 to this Act, which contains minor amendments and amendments consequential on the provisions of this Act, shall have effect.

(2)The enactments specified in Schedule 10 to this Act, which include some that are spent, are hereby repealed to the extent specified in the third column of that Schedule.

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Commencement Information

I29S. 66 partly in force; s. 66 not in force at Royal Assent see s. 67(2); s. 66 partly in force at 5.7.1990, 17.9.1990, 1.1.1991 and 1.4.1991 by S.I. 1990/1329; at 24.7.1990 by S.I. 1990/1520; at 17.9.1990, 1.1.1991 and 1.4.1991 by S.I. 1990/1793; at 1.4.1991 by S.I. 1990/2218; at 1.4.1991 by S.I. 1990/2510; at 6.4.1992 by S.I. 1992/567, art. 2; at 10.12.1992, 1.4.1993 and 12.4.1993 by S.I. 1992/2975, art. 2, Sch.; at 1.4.1995 by S.I. 1994/2658, art. 4(b)

67 Short title, commencement and extent.E+W+S

(1)This Act may be cited as the National Health Service and Community Care Act 1990.

(2)This Act, other than this section, shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be so appointed for different provisions or for different purposes and for different areas or descriptions of areas.

(3)An order under subsection (2) above may contain such transitional provisions and savings (whether or not involving the modification of any statutory provision) as appear to the Secretary of State necessary or expedient in connection with the provisions brought into force.

(4)F99. . . Part II, other than section 34, and Part IV of this Act do not extend to England and Wales; and Part III of this Act, other than subsections (3) and (4) of section 42, subsections (1) and (3) to (6) of section 44 and section 45, does not extend to Scotland.

(5)This Act, other than sections 59 [F100,61 and 62] , does not extend to Northern Ireland.

(6)The Secretary of State may by order made by statutory instrument provide that so much of this Act as extends to England and Wales shall apply to the Isles of Scilly with such modifications, if any, as are specified in the order and, except as provided in pursuance of this subsection, Parts I and III of this Act do not apply to the Isles of Scilly.

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Subordinate Legislation Made

P1S. 67(2) power of appointment conferred by s. 67(2) partly exercised: S.I. 1990/1329, 1520, 1793 (as amended (13.3.1992) by S.I. 1992/799, art. 2), 2218, 2510, 2511

P2S. 67(2) power partly exercised: 6.3.1991 appointed for specified provisions by S.I. 1991/388, art. 2

S.67(2)(3) power partly exercised : 1.4.1991 appointed for specified provisions by S.I. 1991/607, art. 2

s. 67(2) power partly exercised (9.3.1992): 6.4.1992 appointed day for specified provisions by S.I. 1992/567, art. 2.

s. 67(2) power partly exercised (30.11.1992): different dates appointed for specified provisions by S.I. 1992/2975, art. 2, Sch.

s. 67(2) power partly exercised (10.10.1994): different dates appointed for specified provisions by S.I. 1994/2658, arts. 2-4

P3S. 67(6) power exercised by S.I.1991/552.

Amendments (Textual)

F100Words in s. 67(5) substituted (1.4.1991) by S.I. 1991/195, art. 7(8)

SCHEDULES

Sections 1 and 2.

SCHEDULE 1E+W Health Authorities and Family Health Services Authorities

F101Part IE+W

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Amendments (Textual)

F102Part IIE+W

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Amendments (Textual)

Part IIIE+W Amendments of Part III of Schedule 5 to the Principal Act

F1036. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

7(1)F104. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

(2)F105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F105Sch. 1 para. 7(2) repealed by The National Health Service (Pre-consolidation Amendments) Order 2006 (S.I. 2006/1407), arts. 1(1), 3, Sch. 2 (with art. 4) the amendment coming into force immediately before the National Health Service Act 2006 (which Act came into force on 1.3.2007 in accordance with s. 227(1) (subject to s. 277(2)-(5) of that Act))

8F106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

9F107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

10F108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F109F109SCHEDULE 2E+W

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Amendments (Textual)

F110F110Part IE+W Orders Under Section 5(1)

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Amendments (Textual)

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1F111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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2F112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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3F113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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4F114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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5F115. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F116F116Part IIE+W Duties, Powers and Status

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Amendments (Textual)

Specific dutiesE+W

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6F117. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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7F118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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8F119. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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9F120. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Specific powersE+W

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10F121. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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11F122. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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12F123. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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13F124. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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14F125. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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15F126. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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15AF127. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

General powersE+W

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16F128. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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17F129. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

StatusE+W

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18F130. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F131F131Part IIIE+W Supplementary Provisions

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Amendments (Textual)

Re-imbursement for health services work carried out otherwise than under NHS contractE+W

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19F132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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20F133. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Supply of goods and services by local authoritiesE+W

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21F134. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Making of chargesE+W

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22F135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Power to raise money by appeals etc.E+W

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23F136. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Accounts and auditE+W

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24F137. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Protection of members and officersE+W

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25F138. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Compulsory acquisitionE+W

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26F139. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Use and development of consecrated land and burial groundsE+W

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27F140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Instruments etc.E+W

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28F141. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F142F142Part IVE+W Dissolution

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Amendments (Textual)

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29F143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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30F144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

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31F145. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

32F146. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F147F147SCHEDULE 3E+W

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Amendments (Textual)

BorrowingE+W

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1F148. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Guarantees of borrowingE+W

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2F149. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Limits on indebtednessE+W

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3F150. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

4F151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Additional public dividend capitalE+W

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5F152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Modifications etc. (not altering text)

C10Sch. 3 para. 5: Treasury consent requirement continued (W.) (1.7.1999) by S.I. 1999/672, arts. 1(2), 2, Sch. 1

Supplementary paymentsE+W

5AF153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Surplus fundsE+W

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6F154. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

InvestmentE+W

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7F155. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

8F156. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F157SCHEDULE 4E+W

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Amendments (Textual)

F157Sch. 4 repealed (11.9.1998) by 1998 c. 18, ss. 54(3), 55(2), Sch. 5

Section 27.

SCHEDULE 5S Health Boards, the Common Services Agency and State Hospitals

Health BoardsS

1Schedule 1 to the 1978 Act shall be amended in accordance with paragraphs 2 to 7 below.S

2After paragraph 2 of that Schedule (membership of Health Boards) there shall be inserted the following paragraph—S

2AIn the case of a prescribed Health Board at least one of the persons appointed under paragraph 2 above must hold a post in a university with a medical or dental school.

3In paragraph 4 of that Schedule (remuneration), after the words “Health Board” there shall be inserted “and to such other members of a Health Board as may be prescribed”.S

4At the end of paragraph 5A of that Schedule there shall be added the words “and a direction under that paragraph may relate to a particular officer or servant or class of officer or servant specified in the direction”.S

5After paragraph 7 of that Schedule there shall be inserted the following paragraphs—S

7ARegulations may provide for the transfer of officers and servants from a Health Board to—

(a)another Health Board;

(b)the Agency; or

(c)a state hospital,

and for arrangements under which the services of an officer or servant of a Health Board are placed at the disposal of a body mentioned in sub-paragraphs (a) to (c).

7BDirections may be given by the Secretary of State—

(a)to a Health Board to place services of any of its officers or servants at the disposal of a body mentioned in sub-paragraphs (a) to (c) of paragraph 7A; and

(b)to any such body to employ as an officer or servant any person who is or was employed by a Health Board and is specified in the direction,

and a Board or body to which such directions are given shall comply with the directions.

7CBefore making regulations under paragraph 7A or 8A, the Secretary of State shall consult such bodies and organisations as appear to him to be concerned.

6After paragraph 8 of that Schedule there shall be inserted the following paragraph—S

8AIn connection with arrangements relating to community care services (within the meaning of section 5A(4) (local authority plans for community care services) of the Social Work (Scotland) Act 1968), regulations may make provision with respect to—

(a)the transfer to employment by a local authority of officers or servants employed by a Health Board; and

(b)the transfer to employment by a National Health Service body of officers and servants transferred to employment by a local authority by virtue of this paragraph,

and for the purposes of this paragraph “National Health Service body” means a Health Board, the Agency or an NHS trust..

7In paragraph 11(b) of that Schedule (delegation to committees etc), for the words “composed, as to a majority, by members of Health Boards” there shall be substituted “constituted in accordance with the regulations”.S

Common Services AgencyS

8Schedule 5 to the 1978 Act shall be amended in accordance with paragraphs 9 to 12 below.S

9In paragraph 3 of that Schedule (appointment of chairman and members) for the words from “other members appointed” to the end there shall be substituted “such other members as the Secretary of State may, after consultation with the Health Boards, appoint.”S

10In paragraph 3A of that Schedule (remuneration), after the words “management committee” there shall be inserted “and to such other members of the management committee as may be prescribed”.S

11After paragraph 7A of that Schedule there shall be inserted the following paragraphs—S

7BRegulations may provide for the transfer of officers and servants from the Agency to a Health Board or state hospital, and for arrangements under which the services of an officer or servant of the Agency are placed at the disposal of a Health Board or state hospital.

7CDirections may be given by the Secretary of State—

(a)to the Agency to place services of any of its officers or servants at the disposal of a Health Board or state hospital; and

(b)to a Health Board or state hospital to employ as an officer or servant any person who is or was employed by the Agency and is specified in the direction,

and it shall be the duty of the Agency, a Health Board or a state hospital to comply with any such directions given to it.

12After paragraph 8 of that Schedule there shall be inserted the following paragraphs—S

8AIn connection with arrangements relating to community care services (within the meaning of section 5A(4) (local authority plans for community care services) of the Social Work (Scotland) Act 1968), regulations may make provision with respect to—

(a)the transfer to employment by a local authority of officers or servants employed by the Agency; and

(b)the transfer to employment by a National Health Service body of officers and servants transferred to employment by a local authority by virtue of this paragraph,

and for the purposes of this paragraph “National Health Service body” means the Agency, a Health Board or an NHS trust.

8BBefore making regulations under paragraph 7B or 8A, the Secretary of State shall consult such bodies and organisations as appear to him to be concerned..

State hospitalsS

13F158. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

Section 32.

SCHEDULE 6S Schedules to be inserted after Schedule 7 to the National Health Service (Scotland) Act 1978

Schedule 7AS National Health Service Trusts

Part IS Orders Establishing NHS Trusts etc.

1Any reference in this Part of this Schedule to an order is a reference to an order under section 12A(1) establishing an NHS trust or any subsequent order under that provision amending or revoking a previous order.

2The provisions made by an order shall be in conformity with any general provision made by regulations under section 12A(5).

3(1)Without prejudice to any amendment made by a subsequent order, the first order to be made in relation to any NHS trust shall specify—

(a)the name of the trust;

(b)the functions of the trust;

(c)the number of executive directors and non-executive directors;

(d)where the trust is to be regarded as having a significant teaching commitment, a provision to secure the inclusion in the non-executive directors referred to in paragraph (c) of a person appointed from a university with a medical or dental school specified in the order;

(e)the operational date of the trust, that is to say, the date on which the trust is to begin to undertake the whole of the functions conferred on it; and

(f)if a scheme is to be made under section 12B, the body (being a Health Board or the Agency) which is to make the scheme.

(2)For the purposes of sub-paragraph (1)(d), an NHS trust is to be regarded as having a significant teaching commitment in the following cases—

(a)if the trust is established to assume responsibility for the ownership and management of a hospital or other establishment or facility which, in the opinion of the Secretary of State, has a significant teaching and research commitment; and

(b)in any other case, if the Secretary of State so provides in the order.

(3)In a case where the order contains a provision made by virtue of sub-paragraph (1)(d) and a person who is being considered for appointment by virtue of that provision—

(a)is employed by the university in question; and

(b)would also, apart from this sub-paragraph, be regarded as employed by the trust,

his employment by the trust shall be disregarded in determining whether, if appointed, he will be a non-executive director of the trust.

(4)An order shall specify the accounting date of the trust.

4(1)An order may require a Health Board and the Agency to make staff, premises and other facilities available to an NHS trust pending the transfer or appointment of staff to or by the trust and the transfer of premises or other facilities to the trust.

(2)An order making provision under this paragraph may make provision with respect to the time when the Health Board’s functions under the provision are to come to an end.

5(1)An order may provide for the establishment of an NHS trust with effect from a date earlier than the operational date of the trust and, during the period between that earlier date and the operational date, the trust shall have such limited functions for the purposes of enabling it to begin to operate satisfactorily with effect from the operational date as may be specified in the order.

(2)If an order makes the provision referred to in sub-paragraph (1), then, at any time during the period referred to in that sub-paragraph, the NHS trust shall be regarded as properly constituted (and may carry out its limited functions accordingly) notwithstanding that, at that time, all or any of the executive officers have not yet been appointed.

(3)If an order makes the provision referred to in sub-paragraph (1) above, the order may require a Health Board to discharge such liabilities of the NHS trust as—

(a)may be incurred during the period referred to in that sub-paragraph; and

(b)are of a description specified in the order.

Part IIS Duties, Powers and Status of NHS Trusts

Specific dutiesS

6(1)An NHS trust shall carry out effectively, efficiently and economically the functions for the time being conferred on it by an order under section 12A(1) and by the provisions of this Schedule and, with respect to the exercise of the powers conferred by an order under section 12A(8) or paragraphs 10 to 15, shall comply with any directions given to it by the Secretary of State, whether of a general or a particular nature.

(2)An NHS trust shall comply with any directions given to it by the Secretary of State with respect to all or any of the following matters—

(a)the qualifications of persons who may be appointed as officers of the trust;

(b)the employment, for the purpose of performing functions specified in the direction, of officers having qualifications or experience of a description so specified;

(c)the manner in which officers of the trust are to be appointed;

(d)prohibiting or restricting the disposal of, or of any interest in, any asset which, at the time the direction is given, the Secretary of State reasonably considers to have a value in excess of such sum as may be specified in an order under section 12A(1) and in respect of which the Secretary of State considers that the interests of the National Health Service require that the asset should not be disposed of;

(e)compliance with guidance or directions given (by circular or otherwise) to Health Boards or particular descriptions of Health Boards, or the Agency; and

(f)the implementation of awards relating to the distinction or merit of medical practitioners or dental practitioners or any class or classes of such practitioners.

7(1)For each accounting year an NHS trust shall prepare and send to the Secretary of State an annual report in such form as may be determined by the Secretary of State.

(2)At such time or times as may be prescribed, an NHS trust shall hold a public meeting at which its audited accounts, its annual report, and such other documents as may be prescribed shall be presented.

(3)In such circumstances and at such time or times as may be prescribed, an NHS trust shall hold a public meeting at which such documents as may be prescribed shall be presented.

8An NHS trust shall furnish to the Secretary of State such reports, returns and other information, including information as to its forward planning as, and in such form as, he may require.

9(1)An NHS trust shall be liable to pay—

(a)to the chairman and any non-executive director of the trust—

(i)remuneration of an amount determined by the Secretary of State, not exceeding such amount as may be approved by the Treasury; and

(ii)such travelling and other allowances as may be determined by the Secretary of State with the approval of the Treasury; and

(b)to any member of a committee or sub-committee of the trust who is not also a director such travelling and other allowances as may be so determined.

(2)If an NHS trust so determines in the case of a person who is or has been a chairman of the trust, the trust shall be liable to pay such pension, allowances or gratuities to or in respect of him as may be determined by the Secretary of State with the approval of the Treasury.

(3)Different determinations may be made under sub-paragraph (1) or (2) in relation to different cases or description of cases.

Specific powersS

10An NHS trust may enter into NHS contracts.

11An NHS trust may undertake and commission research and make available staff and provide facilities for research by other persons.

12An NHS trust may—

(a)provide training for persons employed or likely to be employed by the trust or otherwise in the provision of services under this Act; and

(b)make facilities and staff available in connection with training by a university or any other body providing training in connection with the health service.

13An NHS trust may enter into arrangements for the carrying out, on such terms as seem to it to be appropriate, of any of its functions jointly with any Health Board, with the Agency, with another NHS trust or with any other body or individual.

14According to the nature of its functions, an NHS trust may make accommodation or services or both available for patients who give undertakings (or for whom undertakings are given) to pay, in respect of the accommodation or services (or both) such charges as the trust may determine.

15For the purpose of making additional income available in order better to perform its functions, an NHS trust shall have the powers specified in section 7(2) of the Health and Medicines Act 1988 (extension of powers of Secretary of State for financing the Health Service).

General powersS

16Subject to Schedule 7B, an NHS trust shall have power to do anything which appears to it to be necessary or expedient for the purpose of or in connection with the discharge of its functions, including in particular power—

(a)to acquire and dispose of land and other property;

(b)to enter into such contracts as seem to the trust to be appropriate;

(c)to accept gifts of money, land or other property, including money, land or other property to be held on trust, for purposes relating to any service which it is their function to provide, administer, or make arrangements for, which purposes shall include any purposes relating to a hospital or other establishment or facility which is provided or managed by the trust; and

(d)to employ staff on such terms as the trust thinks fit.

17In connection with arrangements relating to community care services (within the meaning of section 5A(4) (local authority plans for community care services) of the Social Work (Scotland) Act 1968), the Secretary of State may by regulations make provision with respect to—

(a)the transfer to employment by a local authority of staff employed by an NHS trust; and

(b)the transfer to employment by a National Health Service body of staff transferred to employment by a local authority by virtue of this paragraph,

and for the purposes of this paragraph “National Health Service body” means an NHS trust, a Health Board or the Agency.

18Regulations made under paragraph 17 may make such incidental and consequential provision in relation to staff transferred by virtue of that paragraph as may be made in relation to officers and servants of a Health Board transferred by virtue of regulations made under paragraph 8A of Schedule 1.

19Before making regulations under paragraph 17, the Secretary of State shall consult such bodies and organisations as appear to him to be concerned.

20(1)Without prejudice to the generality of paragraph 16, to or in respect of such of its employees as it may determine, an NHS trust may make such arrangements for providing pensions, allowances or gratuities as it may determine; and such arrangements may include the establishment and administration, by the trust or otherwise, of one or more pension schemes.

(2)The reference in sub-paragraph (1) to pensions, allowances or gratuities to or in respect of employees of an NHS trust includes a reference to pensions, allowances or gratuities by way of compensation to or in respect of any of the trust’s employees who suffer loss of office or employment or loss or diminution of emoluments.

StatusS

21An NHS trust shall not be regarded as the servant or agent of the Crown or, except as provided by this Act, as enjoying any status, immunity or privilege of the Crown; and an NHS trust’s property shall not be regarded as property of, or property held on behalf of, the Crown.

Part IIIS Supplementary Provisions

Reimbursement for health services work carried out otherwise than under contractS

22(1)In any case where an NHS trust provides goods or services for the benefit of an individual and—

(a)those goods or services are not provided pursuant to an NHS contract; and

(b)the condition of the individual is such that he needs those goods or services and, having regard to his condition, it is not practicable before providing them to enter into an NHS contract for their provision, and

(c)the provision of those goods or services is a function of a Health Board or is within the primary functions of a District Health Authority within the meaning of the National Health Service Act 1977,

the trust shall be remunerated by that Board or Authority in respect of the provision of the goods or services in question.

(2)The rate of any remuneration payable by virtue of sub-paragraph (1) shall be calculated in such manner or on such basis as may be determined by the Secretary of State.

23In any case where an NHS trust provides goods or services for the benefit of an individual and—

(a)paragraph 22(1)(a) applies but paragraph 22(1)(c) does not apply; and

(b)the individual is resident outside the United Kingdom and is of a description (being a description associating the individual with another country) specified for the purposes of this paragraph by a direction made by the Secretary of State,

the trust shall be remunerated by the Secretary of State in respect of the provision of the goods or services in question at such rate or rates as he considers appropriate.

Use and development of land used for religious purposes and burial groundsS

24Where land consisting of a church or other building used or formerly used for religious worship, or the site thereof, or a burial ground, within the meaning of [F159section 197 of the Town and County Planning (Scotland) 1997] (provisions as to churches and burial grounds), is held by an NHS trust for any of its purposes, that section applies to the land as if—

(a)the land had been acquired by the trust as mentioned in subsection (1) of that section; and

(b)the trust were a statutory undertaker, within the meaning of that Act.

Part IVS Dissolution

25(1)The Secretary of State may by order dissolve an NHS trust.

(2)An order under this paragraph may be made—

(a)on the application of the NHS trust concerned; or

(b)if the Secretary of State considers it appropriate in the interests of the health service as a whole.

(3)Except where it appears to the Secretary of State necessary to make an order under this paragraph as a matter of urgency, no such order shall be made until after the completion of such consultation as may be prescribed.

26(1)If an NHS trust is dissolved under this Part of this Schedule, the Secretary of State may by order transfer or provide for the transfer to—

(a)the Secretary of State, or

(b)a Health Board, or

(c)the Agency, or

(d)another NHS trust,

of such of the property, rights and liabilities of the NHS trust which is dissolved as in his opinion is appropriate and any such order may include provisions corresponding to those of section 12D.

(2)An order under this paragraph may make provision in connection with the transfer of staff employed by or for the purposes of the NHS trust which is dissolved; and such an order may include provisions corresponding to those of sections 12B and 12C, including provision for the making of a scheme by such body (being a Health Board or the Agency) as may be specified in the order.

(3)No order shall be made under this paragraph until after completion of such consultation as may be prescribed.

27If an NHS trust is dissolved under this Part of this Schedule, the Secretary of State or such other NHS trust or Health Board as he may direct or, if he so directs, the Agency shall undertake the responsibility for the continued payment of any such pension, allowances or gratuities as, by virtue of paragraph 9(2) or paragraph 20 above, would otherwise have been the responsibility of the trust which has been dissolved.

28An NHS trust may not be dissolved or wound up except in accordance with this Part of this Schedule.

Schedule 7BS Financial Provisions relating to NHS Trusts

BorrowingS

1(1)Subject to the provisions of this paragraph and to any limit imposed under the following provisions of this Schedule, for the purpose of its functions an NHS trust may borrow (both temporarily, by way of overdraft, and longer term) from the Secretary of State or from any other person.

(2)An NHS trust may not grant any security over any of its assets or in any other way use any of its assets as security for a loan.

(3)Except with the consent of the Secretary of State, an NHS trust may not borrow in any currency other than sterling; and the Secretary of State shall not give his consent to any such borrowing except with the approval of the Treasury.

(4)Interest on any sums borrowed from the Secretary of State by an NHS trust shall be paid at such variable or fixed rates and at such times as the Treasury may determine.

(5)A rate of interest under sub-paragraph (4) shall be determined as if section 5 of the National Loans Act 1968 had effect in respect of it and subsections (5) to (5B) of that section shall apply accordingly.

(6)Subject to sub-paragraphs (4) and (5), the terms on which any sums are borrowed from the Secretary of State by an NHS trust shall be such as he may determine; and, in the event of the early repayment of any sums so borrowed, such terms may require the payment of a premium or allow a discount.

Guarantees of borrowingS

2(1)The Secretary of State may guarantee, in such manner and on such conditions as, with the approval of the Treasury, he considers appropriate, the repayments of the principal of and the payment of interest on any sums which an NHS trust borrows from a person other than the Secretary of State.

(2)Immediately after a guarantee is given under this paragraph, the Secretary of State shall lay a statement of the guarantee before each House of Parliament.

(3)Where any sum is issued for fulfilling a guarantee so given, the Secretary of State shall lay before each House of Parliament a statement relating to that sum as soon as possible after the end of each financial year beginning with that in which the sum is issued and ending with that in which all liability in respect of the principal of the sum and in respect of interest on it is finally discharged.

(4)If any sums are issued in fulfilment of a guarantee given under this paragraph, the NHS trust concerned shall make to the Secretary of State, at such times and in such manner as the Secretary of State may from time to time direct,—

(a)payments of such amounts as the Secretary of State with the consent of the Treasury so directs in or towards repayment of the sums so issued; and

(b)payments of interest, at such rates as the Secretary of State with the consent of the Treasury so directs, on what is outstanding for the time being in respect of sums so issued.

Limits on indebtednessS

3(1)The aggregate of all sums borrowed by NHS trusts established to assume responsibility for the ownership and management of, or to provide and manage, hospitals or other establishments or facilities which are situated in Scotland shall not exceed £500 million or such other sum not exceeding £1,000 million as may be specified by order made by the Secretary of State with the consent of the Treasury.

(2)The reference in sub-paragraph (1) to sums borrowed does not include a reference to the initial loan of NHS trusts.

4Any power to make an order under paragraph 3 shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of the House of Commons.

Additional public dividend capitalS

5(1)If the Secretary of State, with the consent of the Treasury, considers it appropriate to do so, he may, instead of making a loan to an NHS trust under paragraph 1, pay an amount to the trust as public dividend capital.

(2)Section 12E shall apply to public dividend capital paid to an NHS trust under this paragraph as it applies to public dividend capital forming part of the trust’s originating capital debt.

Surplus fundsS

6If it appears to the Secretary of State that any amount standing in the reserves of an NHS trust is surplus to its foreseeable requirements, the trust shall, if the Secretary of State with the approval of the Treasury and after consultation with the trust so directs, pay that amount into the Consolidated Fund.

InvestmentS

7An NHS trust may not invest any money held by it except in securities of the Government of the United Kingdom or in such other manner as the Secretary of State may with the consent of the Treasury approve.

Section 36.

SCHEDULE 7S Amendments relating to Audit of Accounts of Scottish Health Service Bodies

The Local Government (Scotland) Act 1973S

1Part VII of the M30Local Government (Scotland) Act 1973 (finance) shall be amended in accordance with paragraphs 2 to 13 below.S

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Commencement Information

I30Sch. 7 para. 1 wholly in force; Sch. 7 para. 1 not in force at Royal Assent, see s. 67(2); Sch. 7 para. 1 in force for certain purposes at 24.10.1994 and 1.12.1994 and 1.4.1995 so far as not already in force by S.I. 1994/2658, arts. 2, 3, 4

Marginal Citations

F1602. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

3(1)Section 97 (establishment of Commission for Local Authority Accounts in Scotland) shall be amended as follows.S

(2)In subsection (1)—

(a)for the words “Commission for Local Authority Accounts in Scotland” there shall be substituted “Accounts Commission for Scotland”;

F161(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F161(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F161(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F161(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F161(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F161(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F161(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F161(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Commencement Information

I31Sch. 7 para. 3 wholly in force; Sch. 7 para. 3 not in force at Royal Assent see s.67(2); Sch. 7 para. 3 in force for certain purposes at 24.10.1994 and 1.12.1994 and and 1.4.1995 so far as not already in force by S.I. 1994/2658, arts. 2, 3, 4

F1624. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

F1635. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

F1646. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

7(1)Section 100 (auditor’s right of access to documents) shall be amended as follows.S

F165(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)After subsection (1) there shall be inserted the following subsection—

(1A)In the case of a recognised fund-holding practice, the reference in subsection (1) above to documents includes a reference to documents relating to all the accounts and records of the members of the practice, whether or not relating to an allotted sum.

F165(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F1668. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

F1679. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

F16810. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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F16911. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

F17012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

13In Schedule 8 (provisions as to the Commission), for the words “Commission for Local Authority Accounts in Scotland” in both places where they occur there shall be substituted “Accounts Commission for Scotland”.S

The National Health Service (Scotland) Act 1978S

14(1)Section 86 of the M31National Health Service (Scotland) Act 1978 (keeping and audit of accounts of certain Scottish health bodies) shall be amended as follows.S

(2)In subsections (1) and (1A), for the words “by auditors appointed by the Secretary of State” there shall be substituted “in accordance with Part VII of the Local Government (Scotland) Act 1973 by auditors appointed by the Accounts Commission for Scotland”.

(3)After subsection (1B) there shall be inserted the following subsection—

(1C)In such circumstances and to such extent as regulations made by the Secretary of State so provide, the requirement in subsection (1A)(a) to have accounts audited shall not apply to the accounts for any year of a recognised fund-holding practice if those accounts are submitted to a Health Board and summarised in the Board’s accounts.

(4)Subsection (2) shall cease to have effect.

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Marginal Citations

General amendmentS

15Without prejudice to any express amendment made by this Act, for any reference in any enactment (including an enactment comprised in subordinate legislation) to the Commission for Local Authority Accounts in Scotland there shall be substituted a reference to the Accounts Commission for Scotland.S

Section 60.

SCHEDULE 8E+W+S Provisions arising out of removal of Crown Immunities from Health Service Bodies

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Commencement Information

I32Sch. 8 wholly in force at 1.4.1991 see s. 67(2) and S.I. 1990/1329, art. 2(8), Sch. 3.

Part IE+W+S Amendments Continuing Certain Statutory Exemptions

The Employers’ Liability (Compulsory Insurance) Act 1969E+W+S

1In section 3 of the M32Employers’ Liability (Compulsory Insurance) Act 1969 (employers exempted from insurance), in subsection (2) after the words “sub-section (1)(a) above” there shall be inserted—E+W+S

(a)a health service body, as defined in section 60(7) of the National Health Service and Community Care Act 1990, and a National Health Service trust established under Part I of that Act or the National Health Service (Scotland) Act 1978; and

(b).

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The Vehicles (Excise) Act 1971E+W+S

F1712. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

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Amendments (Textual)

The Copyright, Designs and Patents Act 1988E+W+S

3At the end of section 48 of the M33Copyright, Designs and Patents Act 1988 (material communicated to the Crown in the course of public business) there shall be added the following subsection—E+W+S

(6)In this section “the Crown” includes a health service body, as defined in section 60(7) of the National Health Service and Community Care Act 1990, and a National Health Service trust established under Part I of that Act or the National Health Service (Scotland) Act 1978; and the reference in subsection (1) above to public business shall be construed accordingly.

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Marginal Citations

The Road Traffic Act 1988E+W+S

4In section 144 of the M34Road Traffic Act 1988 (exceptions from requirement of third-party insurance or security) in subsection (2) after paragraph (d) there shall be inserted the following paragraphs—E+W+S

(da)to a vehicle owned by a health service body, as defined in section 60(7) of the National Health Service and Community Care Act 1990, at a time when the vehicle is being driven under the owner’s control,

(db)to an ambulance owned by a National Health Service trust established under Part I of the National Health Service and Community Care Act 1990 or the National Health Service (Scotland) Act 1978, at a time when a vehicle is being driven under the owner’s control.

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Part IIE+W+S Consequential Amendments

The Acquisition of Land (Authorisation Procedure)(Scotland) Act 1947E+W+S

5In the First Schedule to the M35Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (procedure for authorising compulsory purchases), after paragraph 10 there shall be inserted the following paragraph—E+W+S

10AIn paragraphs 9 and 10 of this Schedule “statutory undertakers” include—

(a)a health service body, as defined in section 60(7) of the National Health Service and Community Care Act 1990; and

(b)a National Health Service trust established under Part I of that Act or the National Health Service (Scotland) Act 1978;

but in relation to a health service body, as so defined, any reference in those paragraphs to land acquired or available for acquisition by the statutory undertakers shall be construed as a reference to land acquired or available for use by the Secretary of State for use or occupation by that body.

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The Town and Country Planning Act 1971E+W+S

6In section 128 of the M36Town and Country Planning Act 1971 (use and development of consecrated land and burial grounds) after subsection (4) there shall be inserted the following subsection—E+W+S

(4A)In the case of land—

(a)which has been acquired by the Secretary of State under subsection (1) of section 87 of the National Health Service Act 1977 or to which, by virtue of subsection (6) of that section, this section applies as if it had been so acquired, and

(b)which is held, used or occupied by a health service body, as defined in section 60(7) of the National Health Service and Community Care Act 1990,

subsection (1) or, as the case may be, subsection (4) above shall apply with the omission of paragraph (a) and, in paragraph (b), of the words “in any other case”.

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The Town and Country Planning (Scotland) Act 1972E+W+S

F1727. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F172Sch. 8 para. 7 repealed (27.5.1997) by 1997 c. 11, ss. 3, 6(2), Sch. 1 Pt. I (with s. 5, Sch. 3)

The Acquisition of Land Act 1981E+W+S

8(1)At the end of section 16 of the M37Acquisition of Land Act 1981 (statutory undertakers’ land excluded from compulsory purchase) there shall be added the following subsection—E+W+S

(3)In the preceding provisions of this section “statutory undertakers” include—

(a)a health service body, as defined in section 60(7) of the National Health Service and Community Care Act 1990; and

(b)a National Health Service trust established under Part I of that Act or the National Health Service (Scotland) Act 1978;

but in relation to a health service body, as so defined, any reference in those provisions to land acquired or available for acquisition by the statutory undertakers shall be construed as a reference to land acquired or available for acquisition by the Secretary of State for use or occupation by that body.

(2)In section 17 of that Act (local authority and statutory undertakers’ land) at the end of subsection (2) there shall be inserted the following subsection—

(2A)Subsection (3) of section 16 above applies in relation to subsections (1) and (2) above as it applies in relation to the preceding provisions of that section.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Value Added Tax Act 1983E+W+S

F1739. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

The Housing Act 1988E+W+S

10In Schedule 2 to the M38Housing Act 1988 (grounds for possession of dwelling-houses let on assured tenancies), at the end of Ground 16 (dwelling-house let in consequence of employment by the landlord) there shall be added the following paragraph—E+W+S

For the purposes of this ground, at a time when the landlord is or was the Secretary of State, employment by a health service body, as defined in section 60(7) of the National Health Service and Community Care Act 1990, shall be regarded as employment by the Secretary of State.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Housing (Scotland) Act 1988E+W+S

11In Schedule 5 to the M39Housing (Scotland) Act 1988 (grounds for possession of houses let on assured tenancies) at the end of Ground 17 (house let in consequence of employment by the landlord) there shall be added the following paragraph—E+W+S

For the purposes of this ground, at a time when the landlord is or was the Secretary of State, employment by a health service body, as defined in section 60(7) of the National Health Service and Community Care Act 1990, shall be regarded as employment by the Secretary of State.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

PART IIIE+W+S Transitional Provisions

12In this Part of this Schedule—E+W+S

(a)the appointed day” means the day appointed for the coming into force of subsection (1) of section 60 of this Act;

(b)functional health service land” means land which for the time being falls within paragraph (a) or paragraph (b) of that subsection;

(c)health service body” has the same meaning as in that section; and

(d)NHS trust” means such a trust established under Part I of this Act or the M40National Health Service (Scotland) Act 1978.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Building (Scotland) Act 1959E+W+S

13(1)Notwithstanding section 60(1) of this Act, where, on or after the appointed day, relevant work is carried out by or on behalf of a health service body or an NHS trust—E+W+S

(a)in relation to a building which is, immediately before the appointed day, a Crown building within the meaning of section 26(3) of the M41Building (Scotland) Act 1959 (application to the Crown); or

(b)in constructing a building which, if it had been constructed before the appointed day, would have been a Crown building within the meaning of that provision,

Part II of that Act shall apply to the relevant work as if it were being carried out before the appointed day.

(2)In sub-paragraph (1) above, “relevant work” means work in respect of which, before the appointed day, a health service body has granted a certificate that the detail design has been completed.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Medicines Act 1968E+W+S

14(1)In any case where—E+W+S

(a)before the appointed day, a health service body or an NHS trust has made an application for a licence under Part II of the M42Medicines Act 1968 or any such application as is referred to in section 36 of that Act (applications for clinical trial and animal test certificates), and

(b)the application was accompanied by a declaration under paragraph (a) or paragraph (b) of sub-paragraph (2) below, and

(c)the application has not been determined before the appointed day,

then, on and after the appointed day and until the application is determined, the health service body or NHS trust concerned shall be treated for all purposes as if it held a licence or, as the case may be, a certificate of the description applied for.

(2)The declarations referred to in sub-paragraph (1)(b) above are,—

(a)in the case of a health service body, that, at the date of the application, the body was carrying on activities which, after the appointed day, it would be unlawful to carry on except in accordance with a licence or certificate of the description applied for; and

(b)in the case of an NHS trust, that the trust has been established to assume responsibility for the ownership and management of a hospital or other establishment or facility and, at the date of the application, a health service body was carrying on at that hospital, establishment or facility activities which it is unlawful for the NHS trust to carry on except in accordance with a licence or certificate of the description applied for.

(3)For the purposes of sub-paragraph (1) above, an application is determined when the licensing authority—

(a)grant a licence or, as the case may be, certificate to the applicant (whether or not in accordance with the application); or

(b)notify the applicant of their refusal to grant a licence or certificate on the application.

(4)Expressions used in sub-paragraphs (1) to (3) above have the same meaning as in sections 18 to 22 of the Medicines Act 1968 (applications for, and grant of, licences), including, where applicable, any of those sections as applied by subsection (3) of section 36 of that Act in relation to applications falling within subsection (1) of that section.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Fire Precautions Act 1971E+W+S

15F174. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

The Town and Country Planning Act 1971E+W+S

16(1)This paragraph applies if—E+W+S

(a)before the appointed day, notice of any proposed development has been given to a local planning authority in accordance with arrangements relating to development by government departments; and

(b)the development relates to land which, at the time the notice was given, was functional health service land; and

(c)the proposed development has not been carried out before the appointed day.

(2)So far as relates to the carrying out of the development of which notice was given as mentioned in sub-paragraph (1)(a) above, for the purposes of the arrangements referred to in that paragraph and of the M43Town and Country Planning Act 1971,—

(a)the carrying out of the development shall continue to be regarded as being by or on behalf of the Crown; and

(b)so long as the interest of the Secretary of State in the land referred to in sub-paragraph (1)(b) above continues on and after the appointed day to be held in fact by the Secretary of State or an NHS trust, that interest shall be regarded as continuing to be an interest of, or held on behalf of, the Crown.

(3)Subject to paragraph 12 above, expressions used in sub-paragraphs (1) and (2) above have the same meaning as in the Town and Country Planning Act 1971.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Town and Country Planning (Scotland) Act 1972E+W+S

17(1)This paragraph applies if—E+W+S

(a)before the appointed day, notice of any proposed development has been given to a planning authority in accordance with arrangements relating to development by government departments; and

(b)the development relates to land which, at the time the notice was given, was functional health service land; and

(c)the proposed development has not been carried out before the appointed day.

(2)So far as relates to the carrying out of the development of which notice was given as mentioned in sub-paragraph (1)(a) above, for the purposes of the arrangements referred to in that paragraph and of [F175the Town and Country Planning (Scotland) Act 1997]

(a)the carrying out of the development shall continue to be regarded as being by or on behalf of the Crown; and

(b)so long as the interest of the Secretary of State in the land referred to in sub-paragraph (1)(b) above continues on and after the appointed day to be held in fact by the Secretary of State or an NHS trust, that interest shall be regarded as continuing to be an interest of, or held on behalf of, the Crown.

(3)Subject to paragraph 12 above, expressions used in sub-paragraphs (1) and (2) above have the same meaning as in [F175the Town and Country Planning (Scotland) Act 1997].

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F175Words in Sch. 8 para. 17(2)(3) substituted (27.5.1997) by 1997 c. 11, ss. 4, 6(2), Sch. 2 para. 46(2)

The Building Act 1984E+W+S

18(1)If, immediately before the appointed day, approved work is proposed to be carried out by or on behalf of a Crown authority (whether or not in relation to a Crown building) the fact that, on or after the appointed day, the work may be carried out by or on behalf of a health service body or an NHS trust shall not prevent it continuing to be regarded for the purposes of Part I of the M44Building Act 1984 as work carried out by a Crown authority.E+W+S

(2)Subject to sub-paragraph (3) below, expressions used in sub-paragraph (1) above have the same meaning as in section 44 of the M45Building Act 1984 (application of Part I to Crown).

(3)Any reference in sub-paragraph (1) above to approved work is a reference to work in respect of which, before the appointed day, either a contract for carrying it out was entered into or all necessary design certificates were signed in accordance with arrangements relating to compliance with the substantive requirements of building regulations by Regional and District Health Authorities and certain Special Health Authorities.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Housing Act 1988 and the Rent Act 1977E+W+S

19(1)This paragraph applies to a tenancy—E+W+S

(a)which was entered into before the appointed day; and

(b)which is of land in England or Wales which, immediately before the appointed day, was functional health service land.

(2)If and so long as the interest of the landlord under a tenancy to which this paragraph applies continues on and after the appointed day to belong in fact either to the Secretary of State or to an NHS trust, it shall be taken to belong to a government department for the purposes of—

(a)paragraph 11 of Schedule 1 to the M46Housing Act 1988 (Crown tenancies entered into after the commencement of Part I of that Act not to be assured tenancies); or

(b)section 13 of the M47Rent Act 1977 (earlier Crown tenancies not to be protected tenancies).

(3)Expressions used in sub-paragraphs (1) and (2) above have the same meaning as in Part I of the Housing Act 1988 or, as the case may require, the Rent Act 1977.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Housing (Scotland) Act 1988 and the Rent (Scotland) Act 1984E+W+S

20(1)This paragraph applies to a tenancy—E+W+S

(a)which was entered into before the appointed day; and

(b)which is of land in Scotland which, immediately before the appointed day, was functional health service land.

(2)If and so long as the interest of the landlord under a tenancy to which this paragraph applies continues on and after the appointed day to belong in fact either to the Secretary of State or to an NHS trust, it shall be taken to belong to a government department for the purposes of—

(a)paragraph 10 of Schedule 4 to the M48Housing (Scotland) Act 1988 (Crown tenancies entered into after the commencement of that Schedule not to be assured tenancies); or

(b)section 4 of the M49Rent (Scotland) Act 1984 (earlier Crown tenancies not to be protected tenancies).

(3)Expressions used in sub-paragraphs (1) and (2) above have the same meaning as in Part II of the Housing (Scotland) Act 1988 or, as the case may be, the Rent (Scotland) Act 1984.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Section 66(1).

SCHEDULE 9E+W+S Minor and Consequential Amendments

The Public Health (Scotland) Act 1897E+W+S

1F176. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

The Voluntary Hospitals (Paying Patients) Act 1936E+W+S

2In section 1 of the M50Voluntary Hospitals (Paying Patients) Act 1936 (definitions)—E+W+S

(a)in the definition of “voluntary hospital”, after the words “of the rates” there shall be inserted “or which is vested in an NHS trust”; and

(b)after the definition of “committee of management” there shall be inserted—

NHS trust” means a National Health Service trust established under Part I of the National Health Service and Community Care Act 1990.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Nursing Homes Registration (Scotland) Act 1938E+W+S

[F1773In section 10(3)(a) (interpretation) of the M51Nursing Homes Registration (Scotland) Act 1938, after the words “local authority” there shall be inserted the words “or a National Health Service trust established under section 12A of the National Health Service (Scotland) Act 1978.”.]E+W+S

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Marginal Citations

The Public Health (Scotland) Act 1945E+W+S

4In section 1(3) of the M52Public Health (Scotland) Act 1945 (regulations with regard to treatment and prevention of spread of certain diseases)—E+W+S

(a)after the words “Health Boards” there shall be inserted the words “or National Health Service trusts established under section 12A of the National Health Service (Scotland) Act 1978”; and

(b)in the proviso to that subsection, after the word “Board” there shall be inserted the words “National Health Service trust,”.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

M521945 c. 15. (9 & 10 Geo. 6).

The National Assistance Act 1948E+W+S

5(1)At the beginning of subsection (4) of section 21 of the M53National Assistance Act 1948 (accommodation provided under section 21 to be provided in premises managed by a local authority) there shall be inserted “Subject to the provisions of section 26 of this Act”.E+W+S

(2)For paragraphs (b) and (c) of subsection (7) of that section (which enable health services to be provided on premises where accommodation is provided under that section) there shall be substituted—

(b)make arrangements for the provision on the premises in which the accommodation is being provided of such other services as appear to the authority to be required.

(3)At the end of subsection (8) of that section (which excludes from that section provision required to be made by a local authority under other enactments) there shall be inserted “or authorised or required to be provided under the National Health Service Act 1977”.

(4)In section 24 of that Act (authority liable for provision of accommodation)—

(a)in subsection (6) for the words from “patient” to “shall” there shall be substituted “patient in a hospital vested in the Secretary of State or an NHS trust shall”; and

(b)at the end there shall be added—

(7)In subsection (6) above “NHS trust” means a National Health Service trust established under Part I of the National Health Service and Community Care Act 1990 or under the National Health Service (Scotland) Act 1978.

(5)In section 26 of that Act (provision of accommodation in premises maintained by voluntary organisations etc.)—

(a)in subsection (2) the words “subsection (1) of” shall be omitted;

(b)after subsection (4) there shall be inserted—

(4A)Section 21(5) of this Act shall have effect as respects accommodation provided under arrangements made by virtue of this section with the substitution for the reference to the authority managing the premises of a reference to the authority making the arrangements.;

(c)in subsection (5) the words “subsection (1) of” shall be omitted.

(6)Subsections (2) and (3) of section 35 of that Act (duty of authorities to exercise functions under Part III of that Act in accordance with regulations) shall cease to have effect.

(7)Section 36 of that Act (default powers of Minister) shall cease to have effect.

(8)Section 54 of that Act (which enables inquiries to be held for the purposes of that Act) shall cease to have effect.

(9)In paragraph (f) of section 65 of that Act (application to Scotland)—

(a)the words “Part IV of” shall cease to have effect;

(b)at the end there shall be inserted “or section 7 (functions of local authorities) of the Mental Health (Scotland) Act 1984,”.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I33Sch. 9 para. 5 wholly in force at 1.4.1993; Sch. 9 para. 5 not in force at Royal Assent see s. 67(2); Sch. 9 para. 5(4) in force at 5.7.1990 by S.I. 1990/1329, art. 2(1), Sch. 1; Sch. 9 para. 5(6)(7)(8)(9)(b) in force at 1.4.1991 by S.I. 1990/2218, art. 2, Sch. and 1990/2510, art. 2, Sch.; Sch. 9 para. 5(1)-(3)(5)(9)(a) in force at 1.4.1993 by S.I. 1992/2975, art. 2(2), Sch.

Marginal Citations

The Public Records Act 1958E+W+S

6In Schedule 1 to the M54Public Records Act 1958 (definition of public records), in the Table in Part I, in the entry relating to the Department of Health, in the second column—E+W+S

(a)after the words “National Health Service Authorities” there shall be inserted “including National Health Service trusts”; and

(b)for the words “National health service hospitals” there shall be substituted “health service hospitals, within the meaning of the National Health Service Act 1977”.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Human Tissue Act 1961E+W+S

7F178. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F178Sch. 9 para 7 repealed (1.9.2006) by Human Tissue Act 2004 (c. 30), ss. 57, 60(2), Sch. 7 Pt. 1 (with s. 58); S.I. 2006/1997, art. 3(1)(2) (subject to transitional provisions in arts. 4, 7, 8) (as amended by S.I. 2006/2169, art. 2)

The Abortion Act 1967E+W+S

8In section 1 of the M55Abortion Act 1967 (medical termination of pregnancy), in subsection (3) after the words “National Health Service (Scotland) Act 1978” there shall be inserted “or in a hospital vested in a National Health Service trust”.E+W+S

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Leasehold Reform Act 1967E+W+S

9In section 28 of the M56Leasehold Reform Act 1967 (retention or resumption of land required for public purposes)—E+W+S

(a)in subsection (5)(d) for the words “and any special health authority” there shall be substituted “any special health authority and any National Health Service trust”; and

(b)in subsection (6)(c) for the words “or special health authority” there shall be substituted “special health authority or National Health Service trust”.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

The Social Work (Scotland) Act 1968E+W+S

10(1)The M57Social Work (Scotland) Act 1968 shall be amended as follows.E+W+S

(2)In section 2 (the social work committee), in subsection (2) after paragraph (k) there shall be inserted—

(l)sections 21 to 23 of the Health and Social Services and Social Security Adjudications Act 1983;

(m)the Access to Personal Files Act 1987.

(3)In section 4 (provisions relating to performance of functions by local authorities), after the word “Act”, there shall be inserted the words “or section 7 (functions of local authorities) or 8 (provision of after-care services) of the Mental Health (Scotland) Act 1984,”.

(4)F179. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)In section 12 (general social welfare services of local authorities) at the end there shall be inserted—

(6)For the purposes of subsection (2) of this section “person in need” includes a person who is in need of care and attention arising out of drug or alcohol dependency or release from prison or other form of detention.

(6)In section 14 (home help), for the words—

(a)“home help”, where they first occur there shall be substituted the words “domiciliary services”;

(b)“help is”, there shall be substituted the words “services are”; and

(c)“home help is”, there shall be substituted the words “domiciliary services are”.

(7)In section 59(1) (provision of residential and other establishments), at the beginning there shall be inserted the words “Subject to section 13A of this Act,”.

[F180(8)In section 61(1A) (definition of “establishment”)—

(a)after the word “include” there shall be inserted “(a)”; and

(b)at the end of the definition of “establishment” there shall be inserted—

; or

(b)any establishment providing residential accommodation with nursing falling within section 13A of this Act;.

(9)In subsection (1) of section 67 (inspection of establishments by local authorities)—

(a)for the words “duly authorised officer of” there shall be substituted the words “person duly authorised by”;

(b)for the words “required to be kept therein by virtue of this Part of this Act” there shall be substituted the words “(in whatever form they are held) relating to the place or to any person for whom services have been or are provided there by virtue of this Act or section 7 (functions of local authorities) or 8 (provision of after-care services) of the Mental Health (Scotland) Act 1984”;

(c)after the words “subsections (2)”, there shall be inserted the words “to (2D)”;

(d)for the words “an officer”, where they first occur, there shall be substituted the words “a person”; and

(e)for the words “an officer of” there shall be substituted the words “a person authorised by”.

(10)In subsection (2) of the said section 67, for the word “officer”, in both places where it occurs, there shall be substituted the word “person”.]

(11)In subsection (1)(d) of section 86 (adjustments between authority providing accommodation etc., and authority of area of residence), at the end there shall be inserted—

or

(e)in the provision of accommodation, services or facilities for persons ordinarily so resident under section 7 (functions of local authorities) or 8 (provision of after-care services) of the Mental Health (Scotla