(1) Before making regulations under section 264A or 264B the Secretary of State must consult any body which appears to the Secretary of State appropriate to represent UK producers.
(2) Nothing in section 264A or 264B requires information to be provided, or authorises information to be disclosed or used, in contravention of the data protection legislation.
(3) Nothing in section 264A or 264B affects any duties, obligations or powers to require or authorise information to be provided, disclosed or used which exist apart from that section.
(4) In this section, “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).
(1) Regulations may provide for a person who contravenes any provision of orders, regulations or directions under sections 260 to 264A to be liable to pay a penalty to the Secretary of State.
(2) The penalty may be—
(a) a single penalty not exceeding £100,000, or
(b) a daily penalty not exceeding £10,000 for every day on which the contravention occurs or continues.
(3) Regulations may provide for any amount required to be paid to the Secretary of State by virtue of section 261(8)(b), 262(1)(b) or 263(4) or (6)(b) to be increased by an amount not exceeding 50 per cent.
(4) Regulations may provide for any amount payable to the Secretary of State by virtue of provision made under section 261(8)(b) or (9), 262(1)(b) or 263(4), (5) , (5A) or (6)(b) (including such an amount as increased under subsection (3)) to carry interest at a rate specified or referred to in the regulations.
(5) Provision may be made by regulations for
(a) conferring on manufacturers and suppliers a right of appeal against enforcement decisions taken in respect of them in pursuance of sections 260 to 264 and this section , and
(b) conferring on UK producers a right of appeal against enforcement decisions taken in respect of them in pursuance of section 264A and this section (other than enforcement decisions falling within subsection (5A)).
(5A) Provision must be made by regulations for conferring on UK producers a right of appeal against enforcement decisions taken in respect of them in pursuance of section 264A and this section if the enforcement decisions relate to information notices given by virtue of section 264A(5).
(6) The provision which may be made by virtue of subsection (5) includes any provision which may be made by model provisions with respect to appeals under section 6 of the Deregulation and Contracting Out Act 1994 (c. 40), reading—
(a) the references in subsections (4) and (5) of that section to enforcement action as references to action taken to implement an enforcement decision,
(b) in subsection (5) of that section, the references to interested persons as references to any persons and the reference to any decision to take enforcement action as a reference to any enforcement decision.
(7) In subsections (5) and (6), “enforcement decision” means a decision of the Secretary of State or any other person to—
(a) require a specific manufacturer or supplier , or other person who is a UK producer, to provide information to him,
(b) limit, in respect of any specific manufacturer or supplier, any price or profit,
(c) refuse to give his approval to a price increase made by a specific manufacturer or supplier,
(d) require a specific manufacturer or supplier , or other person who is a UK producer, to pay any amount (including an amount by way of penalty) to him,
and in this subsection “specific” means specified in the decision.
(8) A requirement or prohibition, or a limit, under sections 260 to 264A, may only be enforced under this section and may not be relied on in any proceedings other than proceedings under this section.
(8A) Subsection (8) does not apply to any action by the Secretary of State to recover as a debt any amount required to be paid to the Secretary of State by virtue of any of sections 261 to 263 or this section.
(9) Before making any regulations under this section the Secretary of State must consult the industry body and any other body which appears to the Secretary of State appropriate to represent UK producers.
(10) The Secretary of State may by order increase (or further increase) either of the sums mentioned in subsection (2).
(11) In this section “UK producer” is to be read in accordance with section 264A.
(1) Any power conferred on the Secretary of State by sections 261(6) to (9) and 262 to 264 may be exercised by—
(a) making regulations, or
(b) giving directions to a specific manufacturer or supplier.
(2) Regulations under subsection (1)(a) may confer power for the Secretary of State to give directions to a specific manufacturer or supplier; and in this subsection “specific” means specified in the direction concerned.
(3) The powers to refuse approval under section 261(8)(a) or 263(6)(a) or to impose a limit under section 262(1)(a) or 263(1)(a) or (b) are exercisable only with a view to limiting by reference to the prices or profits which would be reasonable in all the circumstances—
(a) the prices which may be charged for, or
(b) the profits which may accrue to any manufacturer or supplier in connection with,
the manufacture or supply for the purposes of the health service of health service medicines.
(4) In so exercising those powers (in the case of sections 262(1)(a) and 263(1)(a) and (b) and (6)(a)) the Secretary of State and any other person must bear in mind, in particular—
(a) the need for medicinal products to be available for the health service on reasonable terms, and
(b) the costs of research and development.
(4A) The power under section 263(1)(c) is exercisable only with a view to requiring payments to be made which would be reasonable in all the circumstances, bearing in mind in particular—
(a) the need for medicinal products to be available for the health service on reasonable terms, and
(b) the costs of research and development.
(5) The powers conferred by sections 261 to 264 do not affect any other powers of the Secretary of State to control prices or profits.
(6) In this section and sections 260 to 265—
“health service” includes the health services within the meaning of the National Health Service (Scotland) Act 1978 (c. 29) and the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I.14)),
“health service medicine” means a medicinal product used to any extent for the purposes of the health service,
“the industry body” means any body which appears to the Secretary of State appropriate to represent manufacturers and suppliers,
“manufacture” includes assemble and “manufacturer” means any person who manufactures health service medicines,
“medicinal product” has the meaning given by section 130 of the Medicines Act 1968 (c. 67),
“supplier” means any person who supplies health service medicines,
and contravention of a provision includes a failure to comply with it, and supplying medicines includes selling them.
267 Permission for use of facilities in private practice
(1) A person to whom this section applies who wishes to use any relevant health service accommodation or facilities for the purpose of providing medical, dental, pharmaceutical, ophthalmic or chiropody services to non-resident private patients may apply in writing to the Secretary of State for permission under this section.
(2) Any application for permission under this section must specify—
(a) which of the relevant health service accommodation or facilities the applicant wishes to use for the purpose of providing services to such patients, and
(b) which of the kinds of services mentioned in subsection (1) he wishes the permission to cover.
(3) On receiving an application under this section the Secretary of State—
(a) must consider whether anything for which permission is sought would interfere with the giving of full and proper attention to persons seeking or afforded access otherwise than as private patients to any services provided under this Act, and
(b) must grant the permission applied for unless in his opinion anything for which permission is sought would so interfere.
(4) Any grant of permission under this section is on such terms (including terms as to the payment of charges for the use of the relevant health service accommodation or facilities pursuant to the permission) as the Secretary of State may from time to time determine.
(5) The persons to whom this section applies are—
(a) medical practitioners, registered pharmacists or other persons who provide pharmaceutical services under Chapter 1 of Part 7,
(b) chiropodists who provide services under this Act at premises where services are provided under that Chapter,
(c) persons providing primary medical services, primary dental services or primary ophthalmic services under a general medical services contract, a general dental services contract or a general ophthalmic services contract, or in accordance with section 92 arrangements or section 107 arrangements.
(6) “Relevant health service accommodation or facilities”, in relation to a person to whom this section applies, means—
(a) any accommodation or facilities available at premises provided by the Secretary of State by virtue of this Act, being accommodation or facilities which that person is authorised to use for purposes of this Act, or
(b) in the case of a person to whom this section applies by virtue of subsection (5)(b), accommodation or facilities which that person is authorised to use for purposes of this Act at premises where services are provided under Chapter 1 of Part 7.
(1) The requirements of this section with respect to the notification of births and deaths are in addition to, and not in substitution for, the requirements of any Act relating to the registration of births and deaths.
(2) Each registrar of births and deaths must furnish to such relevant body or bodies as may be determined in accordance with regulations the particulars of such births or deaths entered in a register of births or deaths kept for the registrar's sub-district as may be prescribed.
(3) Regulations may provide as to the manner in which and the times at which particulars must be furnished under subsection (2).
(4) In the case of each child born—
(a) the child's father, if at the time of the birth he is residing on the premises where the birth takes place, and
(b) any person in attendance upon the mother at the time of, or within six hours after, the birth,
must give notice of the birth to such relevant body or bodies as may be determined in accordance with regulations.
(5) Subsection (4) applies to any child which is born after the expiry of the twenty-fourth week of pregnancy whether alive or dead.
(6) Notice under subsection (4) to a relevant body must be given either—
(a) by posting within 36 hours after the birth a prepaid letter or postcard addressed to the body at its offices and containing the required information, or
(b) by delivering within that period at the offices of the body a written notice containing the required information.
(7) A relevant body to whom notice is required to be given under subsection (4) must, upon application to it, supply without charge to such descriptions of medical practitioners or midwives as may be prescribed prepaid addressed envelopes together with the forms of notice.
(8) Any person who fails to give notice of a birth in accordance with subsection (4) is liable on summary conviction to a fine not exceeding level 1 on the standard scale, unless he satisfies the court that he believed, and had reasonable grounds for believing, that notice had been duly given by some other person.
(9) Proceedings in respect of an offence under subsection (8) must not, without the Attorney-General's written consent, be taken by any person other than a party aggrieved or the relevant body or bodies to whom the failure relates.
(10) A registrar of births and deaths must, for the purpose of obtaining information concerning births which have occurred in his sub-district, have access at all reasonable times to—
(a) notices of births received by a relevant body under this section, or
(b) any book in which those notices may be recorded.
(11) For the purposes of this section, the following are relevant bodies—
(a) NHS England,
(b) integrated care boards,
(c) local authorities.
(12) Information received by a local authority by virtue of this section may be used by it only for the purposes of functions exercisable by it in relation to the health service.
(13) In this section, “local authority” has the same meaning as in section 2B.
(1) The Registrar General may provide to any of the following persons any information to which this section applies—
(a) the Secretary of State,
(b) NHS England,
(c) an integrated care board,
(d) a local authority,
(e) the National Institute for Health and Care Excellence,
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) a Special Health Authority which has functions that are exercisable in relation to England,
(h) the Care Quality Commission, and
(i) such other persons as the Secretary of State may specify in a direction.
(2) Any information provided under subsection (1) must be provided in such form as appears to the Registrar General appropriate for the purpose of assisting the person to whom the information is provided in the performance of functions exercisable by the person in relation to the health service.
(3) This section applies to any information—
(a) entered in any register kept under the Births and Deaths Registration Act 1953 (c. 20),
(b) entered in the Adopted Children Register maintained by the Registrar General under the Adoption and Children Act 2002 (c. 38), or
(c) which is kept by the Registrar General under any other enactment and relates to any birth or death.
(4) “Enactment” includes an enactment contained in subordinate legislation.
(5) In this section, “local authority” has the same meaning as in section 2B.
(1) The functions of a Minister of the Crown under this Act are exercisable only in relation to England.
(2) “Minister of the Crown” includes the Treasury.
(3) Subsection (1) does not apply in relation to—
(a) section 8(1) (directions to certain health service bodies) to such extent as it allows directions to be given in respect of matters concerning xenotransplantation, surrogacy agreements, embryology or human genetics,
(b) Chapter 5 of Part 2 (NHS foundation trusts),
(c) section 169(3) (power of the Secretary of State to direct that the First-tier Tribunal exercise functions in relation to appeals),
(d) section 235 (superannuation of officers of certain hospitals),
(da) section 247B (co-operation in relation to public health functions),
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(fa) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) section 251 (control of patient information) ... ,
(h) Schedule 21 (prohibition as to the sale of medical practices),
(i) section 260 ... (control of maximum price of medical supplies other than health service medicines) and sections 261 to 266 (control of prices of medicines and profits),
and section 272(7) and (8), to the extent that they apply in relation to a provision mentioned in any of paragraphs (a) to (i).
(4) Subsection (1) does not apply in relation to the exercise of functions by a Minister of the Crown in relation to NHS England so far as concerns its relevant data functions (as defined by section 253(3) of the Health and Social Care Act 2012).
271A Services to be treated as services of the Crown for certain purposes
(1) Services to which this section applies are to be treated as services of the Crown for the purposes of—
(a) Schedule 1 to the Registered 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 Patents Act 1977 (use of patented inventions for the services of the Crown).
(2) This section applies to services provided in pursuance of—
(a) the functions of NHS England or an integrated care board under section 3, 3A, 3B or 4 or Schedule 1, or
(b) the public health functions of a local authority.
(1) This section does not apply to—
(za) section 14Z25(2),
(zb) section 14Z31(1),
(a) Chapter 5 of Part 2 (as to which, see section 64), and
(b) Part 10 (as to which, see section 209).
(2) Subject to subsection (3), any power under this Act to make an order, rules or regulations is exercisable by statutory instrument.
(3) Subsection (2) does not apply to an order under—
(a) section 66(2),
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) section 211(4),
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) paragraph 9, 27 or 29 of Schedule 4, or
(f) paragraph 2 of Schedule 18.
(4) Subject to subsections (4A), (5) , (6) and (6A), a statutory instrument made by virtue of this Act is subject to annulment in pursuance of a resolution of either House of Parliament.
(4A) A statutory instrument containing regulations under section 7E(1) is subject to annulment in pursuance of a resolution of the House of Commons.
(5) Subsection (4) does not apply to a statutory instrument containing ... an order under—
(za) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) section 25,
(aa) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ab) section 65B(1), 65D(2), ... 65J(2), 65KC(3), 65L(2) , (2B) or (7), 65LA(3) , or 65V(2),
(b) Schedule 4, or
(c) paragraph 1(1) of Schedule 5.
(6) A statutory instrument containing—
(zza) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(zzb) regulations under section 6C(1) or (2),
(zzc) regulations under section 6E, except where they do not include provision by virtue of subsection (7)(c) of that section,
(zzd) regulations under section 7(1C),
(zze) regulations under section 12ZB,
(zzf) regulations under section 12ZC,
(za) an order under section 12C(8) or (10),
(zb) regulations under section 13Z1,
(zba) regulations under section 14Z31(3),
(zc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(zd) regulations under section 186A(4),
(a) regulations under section 251, except where they are made by virtue of subsection (5)(b) of that section,
(aa) the first order under section 260,
(b) an order under section 265(10), ...
(c) an order under section 193(4),
(d) regulations under paragraph 9A(5) of Schedule A1, or
(e) regulations under paragraph 19(5) of Schedule 1B.
may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.
(6ZA) The Statutory Instruments Act 1946 applies in relation to the power of NHS England to make an order under Chapter 5A as if NHS England were a Minister of the Crown.
(6A) A statutory instrument containing an order under section ... 65B(1), 65D(2), ... 65J(2), 65KC(3), 65L(2) or (7) , 65LA(3) or 65V(2) must be laid before Parliament after it is made.
(7) Any power under this Act to make orders, rules, regulations or schemes, and any power to give directions—
(a) may be exercised either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case,
(b) may be exercised so as to make, as respects the cases in relation to which it is exercised—
(i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise),
(ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case, or different provision as respects the same case or class of case for different purposes of this Act,
(iii) any such provision either unconditionally or subject to any specified condition, and
(c) may, in particular, except where the power is a power to make rules, make different provision for different areas.
(8) Any such power includes power—
(a) to make such incidental, supplementary, consequential, saving or transitional provision (including, in the case of a power to make an order or regulations, provision amending, repealing or revoking enactments) as the person or body exercising the power considers to be expedient, and
(b) to provide for a person to exercise a discretion in dealing with any matter.
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
273 Further provision about orders and directions under this Act
(1) Where under or by virtue of any provision of this Act—
(a) an order may be made, or
(b) directions may be given,
that provision includes power to vary or revoke the order or directions by subsequent order or by subsequent directions.
(2) Subsection (1) does not affect section 14(b) of the Interpretation Act 1978 (c. 30).
(3) A direction under this Act by NHS England must be given by an instrument in writing.
(4) A direction under this Act by the Secretary of State must be given—
(a) (subject to paragraphs (b) and (c)) by an instrument in writing,
(b) in the case of a direction under—
(zi) section 7 about a function of a person other than the Secretary of State,
(i) section 7 about a function of the Secretary of State under section 4, 197 or 198, or
(ii) section 169(3) or 199(2),
by regulations,
(c) in the case of—
(i) any other direction under section 7, or
(ii) a direction under section 8, 13Z1, ... 87, 94(4), 103, 109(4) , 120 or 253,
by regulations or an instrument in writing.
(5) Subsection (4) does not apply to a direction under section 88 (as to which, see that section).
Regulations may provide for—
(a) prescribing the forms and manner of service of notices and other documents,
(b) prescribing the manner in which documents may be executed or proved,
(c) exempting judges and justices of the peace from disqualification by their liability to rates.
(1) In this Act (except where the context otherwise requires)—
...
...
“combined authority” means a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009,
“combined county authority” means a combined county authority established under section 9(1) of the Levelling-up and Regeneration Act 2023;
“dental practitioner” means a person registered in the dentists register under the Dentists Act 1984 (c. 24),
“education and training functions”, in relation to NHS England, means the functions conferred on it—
by section 296A of the Health and Social Care Act 2012 or under arrangements made under that section, or
by or under Chapter 1 of Part 3 of the Care Act 2014.
“facilities” includes the provision of (or the use of) premises, goods, materials, vehicles, plant or apparatus,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“financial year” means a period of 12 months ending with 31st March in any year (except that in relation to an integrated care board it has the meaning given by section 14Z52(8)),
“functions” includes powers and duties,
“goods” include accommodation,
“health” includes mental health;
“the health service” means the health service continued under section 1(1) and under section 1(1) of the National Health Service (Wales) Act 2006 (c. 42),
“health service hospital” means a hospital vested in the Secretary of State for the purposes of his functions under this Act or vested in ... an NHS trust or an NHS foundation trust,
“hospital” means—
any institution for the reception and treatment of persons suffering from illness,
any maternity home, and
any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation,
and includes clinics, dispensaries and out-patient departments maintained in connection with any such home or institution, and “hospital accommodation” must be construed accordingly,
“illness” includes any disorder or disability of the mind and any injury or disability requiring medical or dental treatment or nursing,
“information” includes documents or records,
“integrated care board” means a body established under section 14Z25,
“local authority” means a county council, a county borough council, a district council, a London borough council, and the Common Council of the City of London,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Local Health Board” means a body established under section 11 of the National Health Service (Wales) Act 2006 (c. 42),
“local pharmaceutical services” means such services as are prescribed under section 134(7) or paragraph 1(7) of Schedule 12,
“local social services authority” means the council of a non-metropolitan county, of a county borough or of a metropolitan district or London borough, or the Common Council of the City of London,
“medical” includes surgical,
“medical practitioner” means a registered medical practitioner within the meaning of Schedule 1 to the Interpretation Act 1978 (c. 30),
“medicine” includes such chemical re-agents as are included in a list approved by the Secretary of State for the purposes of section 126,
“modifications” includes additions, omissions and amendments,
“NHS body” means—
NHS England,
an integrated care board,
a Special Health Authority,
an NHS trust,
an NHS foundation trust, and
a Local Health Board.
“NHS trust” includes an NHS trust established under the National Health Service (Wales) Act 2006 ...
“NICE” means the National Institute for Health and Care Excellence;
“officer” includes servant,
“optometrist” means a person registered in the register of optometrists maintained under section 7 of the Opticians Act 1989 (c. 44) , ... or a body corporate registered in the register of bodies corporate maintained under section 9 of that Act carrying on business as an optometrist,
“patient” includes a woman who is pregnant or breast-feeding or who has recently given birth,
“prescribed” means prescribed by regulations made by the Secretary of State,
“property” includes rights,
“registered pharmacist” means a person registered as a pharmacist in Part 1 or 4 of the register maintained under article 19 of the Pharmacy Order 2010,
...
“regulations” means regulations made by the Secretary of State,
...
“regulatory functions”, in relation to NHS England, has the meaning given by section 13SB,
“Special Health Authority” includes a Special Health Authority established under the National Health Service (Wales) Act 2006,
“university” includes a university college,
“voluntary organisation” means a body the activities of which are carried on otherwise than for profit, but does not include any public or local authority.
“Welsh new towns residuary body” means the Welsh Ministers so far as exercising functions in relation to anything transferred (or to be transferred) to them as mentioned in section 36(1)(a) (i) to (iii) of the New Towns Act 1981.
(2) In this Act (except where the context otherwise requires) any reference to a body established under this Act or the National Health Service (Wales) Act 2006 (c. 42) includes a reference to a body continued in existence by virtue of this Act or that Act.
(3) So far as is necessary or expedient in consequence of a direction under section 7 ... providing for the exercise by a ... ... Special Health Authority of a function exercisable by another person or body, any reference in any enactment, instrument or other document to that other person or body must be read as a reference to the ... ... Special Health Authority.
(4) Any reference in this Act to the purposes of a hospital is a reference to its general purposes and to any specific purpose.
(5) In each of the following, the reference to section 3 includes a reference to section 117 of the Mental Health Act 1983 (after-care)—
(a) in section 223K(8), paragraph (a) of the definition of “relevant services”,
(b) in section 244(3), paragraph (a)(i) of the definition of “relevant health service provider”,
(c) in section 252A(10), the definition of “service arrangements”,
(d) section 253(1A)(d)(ii).
(1) A reference in this Act to the functions of a person includes functions of others that are exercisable by the person by virtue of any provision of any enactment (unless the context otherwise requires).
(2) Regulations may create exceptions to subsection (1).
In this Act the following expressions are defined or otherwise explained by the provisions indicated—
body established under this Act | section 275(2)
combined authority | section 275(1)
combined county authority | section 275(1)
commissioner, in relation to an NHS contract | section 9(1)
contractor, in relation to a general dental services contract | section 100(4)
contractor, in relation to a general medical services contract | section 84(5)
contractor, in relation to a general ophthalmic services contract | section 117(5)
fraud case | section 151(3)
general dental services contract | section 100(2)
general medical services contract | section 84(2)
general ophthalmic services contract | section 117(2)
group of people for whom an integrated care board has core responsibility | section 14Z31
. . . | . . .
LPS scheme | paragraph 1(2) of Schedule 12
NHS constitution | section 1B(2)
NHS contract | section 9(1)
NHS trust order | section 25(2)
optical appliances | section 179(5)
partner, in relation to an NHS trust or NHS foundation trust and an integrated care board | section 14Z48
. . . | . . .
pharmaceutical list | section 129(11)
pharmaceutical services | section 126(8)
. . . | . . .
practitioner | section 151(9)
primary dental services | section 99
primary medical services | section 83
primary ophthalmic services | section 115
provider, in relation to an NHS contract | section 9(1)
public health functions of the Secretary of State | section 1H(5)(a)
public health functions of local authorities | section 1H(5)(b)
purposes of a hospital | section 275(4)
. . . | . . .
relevant dental service | section 176(4)
section 92 arrangements | section 92(8)
section 107 arrangements | section 107(8)
. . . | . . .
. . . | . . .
terms of service | section 148(7)
unsuitability case | section 151(4)
(1) Subject to this section, this Act comes into force on 1st March 2007.
(2) In this section—
“the 1977 Act” means the National Health Service Act 1977 (c. 49), and
“the 2006 Act” means the Health Act 2006 (c. 28).
(3) Subsection (4) applies to—
(a) sections 33 and 35 to 38 of the Health Act 1999 (c. 8) (see sections 261 and 263 to 266 of this Act),
(b) subsection (7) of section 45 of the Nationality, Immigration and Asylum Act 2002 (c. 41) and paragraph 2(2B) of Schedule 8 to the 1977 Act as substituted by that subsection (see paragraph 2(7) of Schedule 20 to this Act),
(c) section 21 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43) (see section 50 of this Act),
(d) paragraph 3 of the Schedule to the Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006 (S.I. 2006/1056) and section 41B(2) and (6)(b) of the 1977 Act as amended by that paragraph (see section 128 of this Act),
(e) sub-paragraphs (a) and (b) of paragraph 5 of that Schedule and section 4A(1) and (3) of the National Health Service and Community Care Act 1990 (c. 19) as amended by those sub-paragraphs (see section 11 of this Act),
(f) sub-paragraph (c) of paragraph 5 of that Schedule and section 4A(4) of the National Health Service and Community Care Act 1990 as added by that sub-paragraph (see section 11 of this Act),
(g) section 34 of the 2006 Act, and section 42A of the 1977 Act as inserted by that section (see section 131 of this Act),
(h) section 35 of the 2006 Act, and subsections (2B) and (2C) of section 42 of the 1977 Act as inserted by that section (see section 129 of this Act),
(i) subsection (1) of section 36 of the 2006 Act, and section 43(2) of the 1977 Act as substituted by that subsection (see section 132 of this Act),
(j) sections 37 to 41 of, and paragraphs 7 to 9, 11, 12(a), 13(2), (5) and (6), 15, 16, 17, 21(b), 22, 29, 46 and 50 of Schedule 8 to, the 2006 Act (which relate to primary ophthalmic services) and—
(i) the 1977 Act,
(ii) section 4A of the National Health Service and Community Care Act 1990,
(iii) Schedule 1 to the Health and Social Care Act 2001 (c. 15), and
(iv) section 17(1) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17),
to the extent that a provision mentioned in any of sub-paragraphs (i) to (iv), as amended by any of those provisions of the 2006 Act, relates to primary ophthalmic services,
(k) subsection (2) of section 42 of the 2006 Act, and paragraph 2A(1)(b) and (ba) of Schedule 12 to the 1977 Act as substituted by that subsection (see section 180 of this Act),
(l) subsection (3) of section 42 of the 2006 Act, and paragraph 2B of Schedule 12 to the 1977 Act as inserted by that subsection (see section 181 of this Act),
(m) sections 44 to 55 of the 2006 Act, and sections 76 to 78 of that Act so far as relating to those sections (see Part 10 of this Act),
(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(o) paragraphs 14, 24(b) and 25 of Schedule 8 to the 2006 Act (which relate to the substitution of “optometrist” for “ophthalmic optician”) and the 1977 Act as amended by those paragraphs.
(4) To the extent that—
(a) this Act re-enacts a provision to which this subsection applies, and
(b) the provision has not come into force before the commencement of this Act,
the re-enactment by this Act of the provision does not come into force until the provision which is re-enacted comes into force; and the re-enactment comes into force immediately after, and to the extent that, the provision which is re-enacted comes into force.
(5) Accordingly, the re-enactment by this Act of the provision does not affect any power to bring the provision into force.
(1) This Act may be cited as the National Health Service Act 2006.
(2) Subject to this section, this Act extends to England and Wales only.
(3) Sections 260 to 266 in Part 13 (price of medical supplies) , and this Part to the extent that it applies to those sections, extend also to Scotland and Northern Ireland.
(4) The Secretary of State may by order provide that this Act, in its application to the Isles of Scilly, has effect with such modifications as may be specified in the order.
Section 1H(4)
Status
1 (1) NHS England is not to be regarded as a servant or agent of the Crown, or as enjoying any status, privilege or immunity of the Crown.
(2) NHS England’s property is not to be regarded as property of, or property held on behalf of, the Crown.
Membership
2 (1) NHS England is to consist of—
(a) a chair appointed by the Secretary of State,
(b) at least five other members so appointed, and
(c) the chief executive and other members appointed in accordance with paragraph 3.
(2) In this Schedule—
(a) references to non-executive members of NHS England are references to the members appointed in accordance with sub-paragraph (1)(a) and (b), and
(b) references to executive members of NHS England are references to the other members.
(3) The number of executive members must be less than the number of non-executive members.
The chief executive and other executive members: appointment and status
3 (1) The chief executive and the other executive members of NHS England are to be appointed by the non-executive members.
(2) A person may not be appointed as chief executive without the consent of the Secretary of State.
(3) The chief executive and the other executive members are to be employees of NHS England.
(4) The first chief executive of NHS England is to be appointed by the Secretary of State.
Non-executive members: tenure
4 (1) A person holds and vacates office as a non-executive member of NHS England in accordance with that person’s terms of appointment.
(2) A person may at any time resign from office as a non-executive member by giving notice to the Secretary of State.
(3) The Secretary of State may at any time remove a person from office as a non-executive member on any of the following grounds—
(a) incapacity,
(b) misbehaviour, or
(c) failure to carry out his or her duties as a non-executive member.
(4) The Secretary of State may suspend a person from office as a non-executive member if it appears to the Secretary of State that there are or may be grounds to remove that person from office under sub-paragraph (3).
(5) A person may not be appointed as a non-executive member for a period of more than four years.
(6) A person who ceases to be a non-executive member is eligible for re-appointment.
Suspension of non-executive members
5 (1) This paragraph applies where a person is suspended under paragraph 4(4).
(2) The Secretary of State must give notice of the decision to the person; and the suspension takes effect on receipt by the person of the notice.
(3) The notice may be—
(a) delivered in person (in which case the person is taken to receive it when it is delivered), or
(b) sent by first class post to the person’s last known address (in which case, the person is taken to receive it on the third day after the day on which it is posted).
(4) The initial period of suspension must not exceed six months.
(5) The Secretary of State may at any time review the suspension.
(6) The Secretary of State—
(a) must review the suspension if requested in writing by the person to do so, but
(b) need not review the suspension less than three months after the beginning of the initial period of suspension.
(7) Following a review during a period of suspension, the Secretary of State may—
(a) revoke the suspension, or
(b) suspend the person for another period of not more than six months from the expiry of the current period.
(8) The Secretary of State must revoke the suspension if the Secretary of State —
(a) decides that there are no grounds to remove the person from office under paragraph 4(3), or
(b) decides that there are grounds to do so but does not remove the person from office under that provision.
6 (1) Where a person is suspended from office as the chair under paragraph 4(4), the Secretary of State may appoint a non-executive member as interim chair to exercise the chair’s functions.
(2) Appointment as interim chair is for a term not exceeding the shorter of—
(a) the period ending with either—
(i) the appointment of a new chair, or
(ii) the revocation or expiry of the existing chair’s suspension, and
(b) the remainder of the interim chair’s term as a non-executive member.
(3) A person who ceases to be the interim chair is eligible for re-appointment.
Payment of non-executive members
7 (1) NHS England must pay to its non-executive members such remuneration as the Secretary of State may determine.
(2) NHS England must pay or make provision for the payment of such pensions, allowances or gratuities as the Secretary of State may determine to or in respect of any person who is or has been a non-executive member of NHS England.
(3) If a person ceases to be a non-executive member and the Secretary of State decides that there are exceptional circumstances which mean that the person should be compensated, NHS England must pay compensation to the person of such amount as the Secretary of State may, with the approval of the Treasury, determine.
Staff
8 NHS England may appoint such persons to be employees of NHS England as it considers appropriate.
9 (1) Employees of NHS England are to be paid such remuneration and allowances as NHS England may determine.
(2) Employees of NHS England are to be appointed on such other terms and conditions as NHS England may determine.
(3) NHS England may pay or make provision for the payment of such pensions, allowances or gratuities as it may determine to or in respect of any person who is or has been an employee of NHS England.
(4) Before making a determination as to remuneration, pensions, allowances or gratuities for the purposes of this paragraph, NHS England must obtain the approval of the Secretary of State to its policy on the matter.
9A (1) NHS England may make arrangements for a person to be seconded to NHS England to serve as a member of NHS England’s staff.
(2) A period of secondment to NHS England does not affect the continuity of a person’s employment with the employer from whose service the person is seconded.
(3) In paragraphs 9, 10, and 13 a reference to an employee of NHS England includes a person seconded to NHS England.
(4) In paragraph 3(3) the reference to an employee of NHS England includes any of the following seconded to NHS England—
(a) a person employed in the civil service of the State, or
(b) a person employed by—
(i) an integrated care board,
(ii) an NHS trust established under section 25,
(iii) an NHS foundation trust,
(iv) a Special Health Authority performing functions only or mainly in respect of England,
(v) the Care Quality Commission,
(vi) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(vii) the Health Services Safety Investigations Body,
(viii) the Human Tissue Authority,
(ix) the Human Fertilisation and Embryology Authority, or
(x) NICE.
(5) The Secretary of State may by regulations amend this paragraph so as to provide that other references in this Act to an employee of NHS England include persons, or persons of a prescribed description, seconded to NHS England.
Committees
10 (1) NHS England may appoint such committees and sub-committees as it considers appropriate.
(2) A committee or sub-committee may consist of or include persons who are not members or employees of NHS England.
(3) NHS England may pay such remuneration and allowances as it determines to any person who—
(a) is a member of a committee or a sub-committee, but
(b) is not an employee of NHS England,
whether or not that person is a non-executive member of NHS England.
Trust funds and trustees
11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Procedure
12 (1) NHS England may regulate its own procedure.
(2) The validity of any act of NHS England is not affected by any vacancy among the members or by any defect in the appointment of any member.
Exercise of functions
13 NHS England may arrange for the exercise of any of its functions on its behalf by—
(a) any non-executive member,
(b) any employee (including any executive member), or
(c) a committee or sub-committee.
...
14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Accounts
15 (1) NHS England must keep proper accounts and proper records in relation to the accounts.
(2) The Secretary of State may, with the approval of the Treasury, give directions to NHS England as to—
(a) the content and form of its accounts, and
(b) the methods and principles to be applied in the preparation of its accounts.
(3) In sub-paragraph (2) the reference to accounts includes a reference to NHS England’s consolidated annual accounts prepared under paragraph 16 and any interim accounts prepared by virtue of paragraph 17.
(4) The chief executive of NHS England is to be its accounting officer.
Annual accounts
16 (1) NHS England must prepare consolidated annual accounts in respect of each financial year.
(2) The consolidated annual accounts must contain—
(a) NHS England’s annual accounts, and
(b) a consolidation of NHS England’s annual accounts and the annual accounts of each integrated care board.
(3) NHS England must send copies of the consolidated annual accounts to—
(a) the Secretary of State, and
(b) the Comptroller and Auditor General,
within such period after the end of the financial year to which the accounts relate as the Secretary of State may direct.
(4) The Comptroller and Auditor General must—
(a) examine, certify and report on the consolidated annual accounts, and
(b) lay copies of the accounts and the report on them before Parliament.
(5) In this paragraph, “financial year” includes the period which begins with the day on which NHS England is established and ends on the following 31 March.
Interim Accounts
17 (1) The Secretary of State may, with the approval of the Treasury, direct NHS England to prepare accounts in respect of such period or periods as may be specified in the direction (“interim accounts”).
(2) The interim accounts in respect of any period must contain—
(a) NHS England’s accounts in respect of that period, and
(b) a consolidation of NHS England’s accounts in respect of that period and any accounts of integrated care boards in respect of that period which are prepared by virtue of paragraph 22(3) of Schedule 1B.
(3) NHS England must send copies of any interim accounts to—
(a) the Secretary of State, and
(b) if the Secretary of State so directs, the Comptroller and Auditor General,
within such period as the Secretary of State may direct.
(4) The Comptroller and Auditor General must—
(a) examine, certify and report on any interim accounts sent by virtue of sub-paragraph (3)(b),
(b) if the Secretary of State so directs, send a copy of the report on the accounts to the Secretary of State, and
(c) if the Secretary of State so directs, lay copies of the accounts and the report on them before Parliament.
Seal and evidence
18 (1) The application of NHS England’s seal must be authenticated by the signature of any member of NHS England or any other person who has been authorised (generally or specially) for that purpose.
(2) A document purporting to be duly executed under NHS England’s seal or to be signed on its behalf must be received in evidence and, unless the contrary is proved, taken to be so executed or signed.
SCHEDULE 1 Further provision about the Secretary of State and services under this Act
Section 5
Medical inspection of pupils
1 A local authority must provide for the medical inspection at appropriate intervals of pupils in attendance at schools maintained by the local authority and for the medical treatment of such pupils.
2 (1) A local authority may ... provide for any medical inspection or treatment of—
(a) senior pupils in attendance at any educational establishment, other than a school, which is maintained by the authority and at which full-time further education is provided, or
(b) any child or young person who, in pursuance of section 19 or 19A or 319 of the Education Act 1996 (c. 56) or section 53 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018, is receiving primary or secondary education otherwise than at a school.
(2) A local authority may, by arrangement with the proprietor of any educational establishment in its area which is not maintained by the local authority, provide for any medical inspection or treatment of junior or senior pupils in attendance at the establishment.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3 An arrangement under paragraph 2(2) may provide for payments by the proprietor in question.
4 A local authority may not provide for any medical inspection or treatment under paragraph 2(1)(a) unless the governing body of the educational establishment agrees to the inspection or (as the case may be) treatment.
5 (1) Sub-paragraph (2) applies to—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) each governing body of a foundation, voluntary or foundation special school, in respect of the school.
(2) The ... governing body must make available to a local authority such accommodation as is appropriate for the purpose of assisting it to make provision under paragraph 1 in relation to the pupils in attendance at the schools or school in question.
6 In paragraphs 1 to 5 any expression to which a meaning is given for the purposes of the Education Act 1996 (c. 56) or the School Standards and Framework Act 1998 (c. 31) has that meaning.
7 Any charge made under regulations under this Act in respect of the supply of drugs, medicines or appliances must be disregarded for the purposes of paragraphs 1 and 2.
Weighing and measuring of children
7A (1) A local authority may ... provide for the weighing and measuring of junior pupils in attendance at any school which is maintained by the authority.
(2) A local authority may, by arrangement with the proprietor of any school in its area which is not maintained by the local authority, provide for the weighing and measuring of junior pupils in attendance at that school.
(3) A local authority may, by arrangement with any person who is registered under Chapter 2 of Part 3 of the Childcare Act 2006 in respect of early years provision, provide for the weighing and measuring of young children for whom childcare is provided by that person.
(4) In sub-paragraphs (1) and (2) any expression to which a meaning is given for the purposes of the Education Act 1996 or the School Standards and Framework Act 1998 has the same meaning as in that Act; and in sub-paragraph (3) any expression to which a meaning is given for the purposes of Part 3 of the Childcare Act 2006 has the same meaning as in that Part.
7B (1) The Secretary of State may by regulations—
(a) authorise the disclosure by any person with whom arrangements under paragraph 7A are made, to any person carrying out the weighing or measuring, of prescribed information relating to the children concerned,
(b) require any weighing and measuring provided for by a local authority under paragraph 7A to be carried out in a prescribed manner and after compliance with any prescribed requirements,
(c) make provision authorising any resulting information relating to a child, together with any advisory material authorised by or under the regulations, to be communicated in a prescribed manner to a person who is, or is treated by the regulations as being, a parent of the child, and
(d) make other provision regulating the processing of information resulting from any weighing or measuring provided for by a local authority under paragraph 7A and of any other prescribed information relating to the children concerned.
(2) Regulations made under sub-paragraph (1) may require any person exercising functions in relation to any weighing or measuring to which the regulations apply or in relation to information resulting from such weighing or measuring or in relation to information prescribed under sub-paragraph (1) to have regard to any guidance given from time to time by the Secretary of State.
(3) In sub-paragraph (1)(d), “ processing ”, in relation to information, has the same meaning as in Parts 5 to 7 of the Data Protection Act 2018 (see section 3(4) and (14) of that Act).
(4) Regulations under this paragraph cannot include provision by virtue of section 272(8)(a) amending or repealing an Act.
Supply of blood and other human tissues
7C The Secretary of State must for the purposes of the health service make arrangements for—
(a) collecting, screening, analysing, processing and supplying blood or other tissues,
(b) preparing blood components and reagents, and
(c) facilitating tissue and organ transplantation.
Contraceptive services
8 The Secretary of State must arrange, to such extent as he considers necessary to meet all reasonable requirements, for—
(a) the giving of advice on contraception,
(b) the medical examination of persons seeking advice on contraception,
(c) the treatment of such persons, and
(d) the supply of contraceptive substances and appliances.
Provision of vehicles for disabled persons
9 (1) An integrated care board may make arrangements for the provision of vehicles (including wheelchairs) for people for whom the board has responsibility and who appear to it to have a physical impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
(2) For the purposes of this paragraph an integrated care board has responsibility for—
(a) the group of people for whom it has core responsibility (see section 14Z31), and
(b) such other people as may be prescribed (whether generally or in relation to a prescribed vehicle).
10 (1) Sub-paragraphs (2) and (3) apply in respect of—
(a) a vehicle provided in pursuance of arrangements made under paragraph 9, and
(b) a vehicle belonging to a person mentioned in that paragraph.
(2) The integrated care board may make arrangements for —
(a) the adaptation of the vehicle to make it suitable for the circumstances of the person in question,
(b) the maintenance and repair of the vehicle,
(c) the taking out of insurance policies relating to the vehicle and the payment of any duty with which the vehicle is chargeable under the Vehicle Excise and Registration Act 1994 (c. 22),
(d) the provision of a structure in which the vehicle may be kept, and the provision of all material and the execution of all works necessary to erect the structure.
(3) An integrated care board may make payments by way of grant towards costs incurred by a person mentioned in paragraph 9 in respect of any matter mentioned in sub-paragraph (4) in relation to the vehicle.
(4) The matters are—
(a) the taking of action referred to in sub-paragraph (2),
(b) the purchase of fuel for the purposes of the vehicle, so far as the cost of the purchase is attributable to duties of excise payable in respect of the fuel, and
(c) the taking of instruction in the driving of the vehicle.
(5) The powers under sub-paragraph (2) and sub-paragraph (3) may be exercised on such terms and subject to such conditions as the integrated care board may determine.
11 Regulations may provide for any incidental or supplementary matter for which it appears to the Secretary of State necessary or expedient to provide in connection with—
(a) the taking of action under paragraph 10(2), or
(b) the making of any payment under paragraph 10(3).
Provision of a microbiological service by the Secretary of State
12 (1) The Secretary of State may—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) carry on such ... activities as in his opinion can conveniently be carried on in conjunction with a microbiological service provided under section 2A.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Charges may be made for services or materials supplied.
(4) A power under this paragraph may be exercised both for the purposes of the health service and for other purposes.
Powers in relation to research etc.
13 (1) The Secretary of State, NHS England or an integrated care board may conduct, commission or assist the conduct of research into—
(a) any matters relating to the causation, prevention, diagnosis or treatment of illness, and
(b) any such other matters connected with any service provided under this Act as the Secretary of State, NHS England or the integrated care board (as the case may be) considers appropriate.
(2) A local authority may conduct, commission or assist the conduct of research for any purpose connected with the exercise of its functions in relation to the health service.
(3) The Secretary of State, NHS England, an integrated care board or a local authority may for any purpose connected with the exercise of its functions in relation to the health service—
(a) obtain and analyse data or other information;
(b) obtain advice from persons with appropriate professional expertise.
(4) The power under sub-paragraph (1) or (2) to assist any person to conduct research includes power to do so by providing financial assistance or making the services of any person or other resources available.
(5) In this paragraph, “local authority” has the same meaning as in section 2B.
SCHEDULE 1ZA Patient choice: undertakings by integrated care boards
Section 6F
Introductory
1 This Schedule makes further provision about undertakings under section 6F.
Procedure
2 (1) NHS England must publish a procedure for entering into undertakings.
(2) NHS England may revise the procedure and, if it does so, NHS England must publish the procedure as revised.
(3) NHS England must consult such persons as it considers appropriate before publishing or revising the procedure.
3 (1) Where NHS England accepts an undertaking, NHS England must publish the undertaking.
(2) But NHS England must not under sub-paragraph (1) publish any part of an undertaking which contains information which it is satisfied is—
(a) commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of the person to whom it relates;
(b) information relating to the private affairs of an individual the disclosure of which would, or might, significantly harm that person’s interests.
Variation of terms
4 The terms of an undertaking (including, in particular, the action specified under it and the period so specified within which the action must be taken) may be varied if both the integrated care board giving the undertaking and NHS England agree.
Compliance certificates
5 (1) Where NHS England is satisfied that an undertaking has been complied with, NHS England must issue a certificate to that effect (referred to in this Schedule as a “compliance certificate”).
(2) An integrated care board which has given an undertaking may at any time make an application to NHS England for a compliance certificate.
(3) The application must be made in such form, and accompanied by such information, as NHS England requires.
(4) NHS England must decide whether or not to issue a compliance certificate, and give notice to the applicant of its decision, before the end of the period of 14 days beginning with the day after that on which the application is received.
6 (1) An appeal lies to the First-tier Tribunal against a decision of NHS England to refuse an application for a compliance certificate.
(2) The grounds for an appeal under this paragraph are that the decision was—
(a) based on an error of fact,
(b) wrong in law, or
(c) unfair or unreasonable.
(3) On an appeal under this paragraph, the Tribunal may confirm NHS England’s decision or direct that it is not to have effect.
Inaccurate, incomplete or misleading information
7 Where NHS England is satisfied that an integrated care board which has given an undertaking has supplied NHS England with inaccurate, misleading or incorrect information in relation to the undertaking—
(a) NHS England may treat the integrated care board as having failed to comply with the undertaking, and
(b) if NHS England decides so to treat the integrated care board, NHS England must by notice revoke any certificate of compliance given to that integrated care board.
PART 1 Constitution of integrated care boards
Introduction
1 An integrated care board must have a constitution.
Name and area
2 The constitution must specify—
(a) the name of the integrated care board, and
(b) the area for which it is established.
Membership: general
3 (1) The constitution must provide for the integrated care board to consist of—
(a) a chair (see paragraphs 5 and 6),
(b) a chief executive (see paragraph 7), and
(c) at least three other members (see paragraph 8).
(2) In this Part of this Schedule a reference to an “ordinary member” is to a member other than the chair or chief executive.
4 The constitution must prohibit a person from appointing someone as a member (“the candidate”) if they consider that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise.
Chair
5 The constitution must provide for the chair to be appointed by NHS England, with the approval of the Secretary of State.
6 The constitution may not confer power to remove the chair from office on any person other than NHS England, and any such power must be expressed to be subject to the approval of the Secretary of State.
Chief executive
7 (1) The constitution must provide for the chief executive to be appointed by the chair, with the approval of NHS England.
(2) The constitution must provide that a person is eligible to become or remain the chief executive only if the person is an employee of the integrated care board.
Ordinary members
8 (1) The constitution must—
(a) specify who is to appoint the ordinary members, and
(b) provide that the appointment of an ordinary member is subject to the approval of the chair.
(2) The constitution must provide for the ordinary members to include—
(a) at least one member nominated jointly by the NHS trusts and NHS foundation trusts that—
(i) provide services for the purposes of the health service within the integrated care board’s area, and
(ii) are of a prescribed description,
(b) at least one member nominated jointly by persons who—
(i) provide primary medical services for the purposes of the health service within the integrated care board’s area, and
(ii) are of a prescribed description,
(c) at least one member nominated jointly by the local authorities whose areas coincide with, or include the whole or any part of, the integrated care board’s area.
(3) The constitution must set out the process for nominating the ordinary members mentioned in sub-paragraph (2).
(4) A person participating in the process for nominating the ordinary members mentioned in sub-paragraph (2) must have regard to any guidance published by NHS England in relation to the selection of candidates.
(5) The descriptions of trusts or other persons that may be prescribed for the purposes of sub-paragraph (2)(a) or (b) may, in particular, be framed by reference to the nature of the services that they provide or the proportion of their services that are provided within the integrated care board’s area.
(6) The chair must exercise the approval function mentioned in sub-paragraph (1)(b) with a view to ensuring that at least one of the ordinary members has knowledge and experience in connection with services relating to the prevention, diagnosis and treatment of mental illness.
(7) In this paragraph “local authority” has the meaning given by section 2B(5).
Further provision in connection with membership
9 The constitution may make further provision in connection with the membership of the integrated care board, including provision about—
(a) how members are to be appointed;
(b) qualification and disqualification for membership;
(c) the tenure of members (including the circumstances in which a member ceases to hold office or may be removed or suspended from office);
(d) eligibility for re-appointment;
(e) terms of appointment (including provision about the remuneration or allowances of the chair and ordinary members);
(f) the validation of proceedings in the event of a vacancy or defect in an appointment.
10 (1) The constitution of an integrated care board must comply with any requirements in connection with membership that are imposed by regulations.
(2) The regulations may impose requirements in connection with any provision that may be included in an integrated care board’s constitution by virtue of paragraphs 3 to 9.
Arrangements for discharging functions
11 (1) The constitution must specify arrangements for the exercise of the integrated care board’s functions (including its functions in determining the terms and conditions of its employees).
(2) The arrangements may include provision—
(a) for the appointment of committees or sub-committees of the integrated care board, and
(b) for any such committees to consist of or include persons other than members or employees of the integrated care board.
(3) The arrangements may include provision for any functions of the integrated care board to be exercised on its behalf by—
(a) any of its members or employees;
(b) a committee or sub-committee of the board.
(4) If the constitution includes provision under this paragraph allowing committees or sub-committees to exercise commissioning functions, the constitution must—
(a) provide for the members of any such committee or sub-committee to be approved or appointed by the chair of the integrated care board, and
(b) prohibit the chair from approving or appointing someone as a member of any such committee or sub-committee (“the candidate”) if the chair considers that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise.
(5) In sub-paragraph (4) “commissioning functions” means the functions of an integrated care board in arranging for the provision of services as part of the health service.
12 (1) The constitution must specify the procedure to be followed by the integrated care board in making decisions.
(2) The constitution must also specify the arrangements to be made by the integrated care board for securing that there is transparency about the decisions of the board and the manner in which they are made.
Arrangements for conflicts of interests
13 The constitution must include—
(a) provision about the arrangements to be made by the integrated care board for discharging its functions under section 14Z30(1) to (4), and
(b) a statement of the principles to be followed by the board in implementing those arrangements.
Arrangements for public involvement
14 The constitution must include—
(a) provision about the arrangements to be made by the integrated care board for discharging its functions under section 14Z45(2), and
(b) a statement of the principles to be followed by the board in implementing those arrangements.
Variation of constitution
15 (1) The constitution must include a power to vary the constitution in accordance with a procedure set out there.
(2) The provision made by the constitution in accordance with sub-paragraph (1) must—
(a) include power for NHS England to vary the constitution on its own initiative, and
(b) require NHS England’s approval to be obtained before any other variation is made.
Further provision
16 In addition to the provision authorised or required to be included under this Part of this Schedule, the constitution may make further provision.
PART 2 Further provision about integrated care boards
Status
17 (1) An integrated care board is a body corporate.
(2) An integrated care board is not to be regarded—
(a) as a servant or agent of the Crown, or
(b) as enjoying any status, privilege or immunity of the Crown.
(3) An integrated care board’s property is not to be regarded as property of, or property held on behalf of, the Crown.
Staff
18 (1) An integrated care board may appoint employees.
(2) Employees of an integrated care board are to be paid such remuneration and allowances as the board may determine.
(3) Employees of an integrated care board are to be appointed on such other terms and conditions as the board may determine.
(4) An integrated care board may pay or make provision for the payment of such pensions, allowances or gratuities as it may determine to or in respect of any person who is or has been an employee of the board.
19 (1) An integrated care board may make arrangements for a person to be seconded to the board to serve as a member of the board’s staff.
(2) A period of secondment to an integrated care board does not affect the continuity of a person’s employment with the employer from whose service the person is seconded.
(3) In paragraphs 11 and 18 a reference to an employee of an integrated care board includes a person seconded to the board.
(4) In paragraph 7(2) the reference to an employee of an integrated care board includes any of the following seconded to the board—
(a) a person employed in the civil service of the State, or
(b) a person employed by—
(i) NHS England,
(ii) an NHS trust established under section 25,
(iii) an NHS foundation trust,
(iv) a Special Health Authority performing functions only or mainly in respect of England,
(v) the Care Quality Commission,
(vi) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(vii) the Health Services Safety Investigations Body,
(viii) the Human Tissue Authority,
(ix) the Human Fertilisation and Embryology Authority, or
(x) NICE.
(5) The Secretary of State may by regulations amend this paragraph so as to provide that other references in this Act to an employee of an integrated care board include persons, or persons of a prescribed description, seconded to the board.
Additional powers in respect of payment of allowances
20 An integrated care board may pay such allowances as it considers appropriate to a member of a committee or sub-committee of the integrated care board who is not a member of the board.
Externally financed development agreements
21 (1) The powers of an integrated care board include power to enter into externally financed development agreements.
(2) For the purposes of this paragraph, an agreement is an externally financed development agreement if it is certified as such in writing by the Secretary of State.
(3) The Secretary of State may give a certificate under this paragraph if—
(a) in the Secretary of State’s opinion the purpose or main purpose of the agreement is the provision of services or facilities in connection with the exercise by an integrated care board of any of its functions, and
(b) a person proposes to make a loan to, or provide any other form of finance for, another party in connection with the agreement.
(4) If an integrated care board enters into an externally financed development agreement it may also, in connection with that agreement, enter into an agreement with a person who falls within sub-paragraph (3)(b) in relation to the externally financed development agreement.
(5) In sub-paragraph (3)(b) “another party” means any party to the agreement other than the integrated care board.
(6) The fact that an agreement made by an integrated care board has not been certified under this paragraph does not affect its validity.
Accounts and audits
22 (1) An integrated care board must keep proper accounts and proper records in relation to the accounts.
(2) An integrated care board must prepare annual accounts in respect of each financial year.
(3) NHS England may, with the approval of the Secretary of State, direct an integrated care board to prepare accounts in respect of such period or periods as may be specified in the direction.
(4) NHS England may, with the approval of the Secretary of State, give directions to an integrated care board as to—
(a) the methods and principles according to which any accounts under this paragraph must be prepared, and
(b) the form and content of any accounts prepared under this paragraph.
(5) For the audit of the annual accounts, see the Local Audit and Accountability Act 2014 (and, in particular, section 4 of that Act).
(6) Accounts prepared under sub-paragraph (3) are also to be audited under that Act if NHS England so directs.
(7) The Comptroller and Auditor General may examine—
(a) the annual accounts and any records relating to them, and
(b) any report on them by the auditor or auditors.
(8) An integrated care board must send any audited accounts prepared under this paragraph to NHS England by the date specified in a direction by NHS England.
(9) NHS England may direct an integrated care board to send it any unaudited accounts prepared under this paragraph by the date specified in a direction by NHS England.
Incidental powers
23 The power conferred on an integrated care board by section 2 includes, in particular, power to—
(a) enter into agreements,
(b) acquire and dispose of property, and
(c) accept gifts (including property to be held on trust for the purposes of the integrated care board).
Seal and evidence
24 (1) The application of an integrated care board’s seal must be authenticated by the signature of any person who has been authorised (generally or specially) for that purpose.
(2) A document purporting to be duly executed under an integrated care board’s seal or to be signed on its behalf must be received in evidence and, unless the contrary is proven, taken to be so executed or signed.
SCHEDULE 4 NHS trusts established under section 25
Section 25
Part 1 Constitution, establishment, etc
Status
1 Each NHS trust is a body corporate.
2 (1) An NHS trust must not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown.
(2) An NHS trust's property must not be regarded as property of, or property held on behalf of, the Crown.
Board of directors
3 (1) Each NHS trust has a board of directors consisting of—
(a) a chairman appointed by NHS England, and
(b) executive and non-executive directors.
(2) Sub-paragraph (1)(b) is subject to paragraph 7(2).
(3) An executive director is a director who is an employee of the NHS trust, and a non-executive director is a director who is not an employee of the NHS trust.
(4) Sub-paragraph (3) is subject to any provision made by regulations under paragraph 4(1)(d).
Regulations
4 (1) The Secretary of State may by regulations make 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 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 must 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 NHS trust is nevertheless, on appointment as a director, to be regarded as an executive rather than a non-executive director,
(e) the proceedings of the NHS trust (including the validation of proceedings in the event of a vacancy or defect in appointment), and
(f) the appointment, constitution and exercise of functions by committees and sub-committees of the NHS trust (whether or not consisting of or including any members of the board).
(2) Regulations under sub-paragraph (1) may, in particular, make provision to deal with cases where the post of any officer of an NHS trust is held jointly by two or more persons or where the functions of such an officer are in any other way performed by more than one person.
Provision to be made by first NHS trust order
5 (1) The first NHS trust order made in relation to any NHS trust must specify—
(a) the name of the NHS trust,
(b) the functions of the NHS trust,
(c) the number of executive directors and non-executive directors,
(d) where the NHS trust has 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 NHS trust, and
(f) if a scheme is to be made under paragraph 8, the ... Special Health Authority or Local Health Board which is to make the scheme.
(2) The functions which may be specified in an NHS trust order include a duty to provide goods or services so specified at or from a hospital or other establishment or facility so specified.
(3) For the purposes of sub-paragraph (1)(d), an NHS trust has a significant teaching commitment in the following cases—
(a) if the NHS trust is established to provide services at 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.
(4) 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 NHS trust,
his employment by the NHS trust must be disregarded in determining whether, if appointed, he will be a non-executive director of the NHS trust.
(5) The operational date of the NHS trust is the date on which it will begin to undertake the whole of the functions conferred on it.
(6) An NHS trust order must specify the accounting date of the NHS trust.
Temporary availability of staff etc.
6 (1) An NHS trust order may require a ... Special Health Authority ... or Local Health Board to make staff, premises and other facilities available to an NHS trust pending the transfer or appointment of staff to or by the NHS trust and the transfer of premises or other facilities to the NHS trust.
(2) An NHS trust order making provision under this paragraph may make provision with respect to the time when the functions of the ... Special Health Authority ... or Local Health Board under the provision are to come to an end.
Establishment of NHS trust prior to operational date
7 (1) An NHS trust order may provide for the establishment of an NHS trust with effect from a date earlier than the operational date of the NHS trust and, during the period between that earlier date and the operational date, the NHS trust has such limited functions for the purpose of enabling it to begin to operate satisfactorily with effect from the operational date as may be specified in the order.
(2) If an NHS trust 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 must be regarded as properly constituted (and may carry out its limited functions accordingly) notwithstanding that, at that time, all or any of the executive directors have not yet been appointed.
(3) If an NHS trust order makes the provision referred to in sub-paragraph (1), the order may require a ... Special Health Authority or Local 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.
Transfer of staff to NHS trusts
8 (1) This paragraph applies to any person who, immediately before an NHS trust's operational date—
(a) is employed by a Special Health Authority ... or Local Health Board to work solely at, or for the purposes of, a hospital or other establishment or facility which will become the responsibility of the NHS trust, or
(b) is employed by a Special Health Authority ... or Local Health Board to work at, or for the purposes of, such a hospital, establishment or facility and is designated for the purposes of this paragraph by a scheme made by the Special Health Authority ... or Local Health Board specified as mentioned in paragraph 5(1)(f).
(2) Sub-paragraph (1) is subject to sub-paragraph (6).
(3) A scheme under this paragraph does not have effect unless approved by the Secretary of State.
(4) Subject to sub-paragraphs (9) to (11), the contract of employment between a person to whom this paragraph applies and the Special Health Authority ... or Local Health Board by whom he is employed has effect from the operational date as if originally made between him and the NHS trust.
(5) In particular—
(a) all the rights, powers, duties and liabilities of the Special Health Authority ... or Local Health Board under or in connection with a contract to which sub-paragraph (4) applies are by virtue of this paragraph transferred to the NHS trust on its operational date, and
(b) anything done before that date by or in relation to the Special Health Authority ... or Local Health Board in respect of that contract or the employee is deemed from that date to have been done by or in relation to the NHS trust.
(6) In any case where—
(a) an NHS trust order provides for the establishment of an NHS trust with effect from a date earlier than the operational date of the NHS trust,
(b) on or after that earlier date but before its operational date the NHS trust makes an offer of employment by the NHS trust to a person who at that time is employed by a Special Health Authority ... or Local Health Board to work (whether solely or otherwise) at, or for the purposes of, the hospital or other establishment or facility which will become the responsibility of the NHS 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,
sub-paragraphs (4) and (5) have effect in relation to that person's contract of employment as if he were a person to whom this paragraph applies and as if any reference in those sub-paragraphs to the operational date of the NHS trust were a reference to the date on which he takes up employment with the NHS trust.
(7) Sub-paragraphs (4) and (5) do not affect 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 arises by reason only of the change in employer effected by this paragraph.
(8) A scheme under this paragraph may designate a person either individually or as a member of a class or description of employees.
(9) In the case of a person who falls within sub-paragraph (1)(b), a scheme under this paragraph may provide that, with effect from the NHS trust's operational date, his contract of employment (his “original contract”) must 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 Special Health Authority ... or Local Health Board by whom he was employed before that date (the “transferor authority”).
(10) Where a scheme makes provision as mentioned in sub-paragraph (9)—
(a) the scheme must secure that the benefits to the employee under the two contracts referred to in that sub-paragraph, when taken together, are not less favourable than the benefits under his original contract,
(b) this paragraph applies in relation to the contract referred to in sub-paragraph (9)(a) as if it were a contract transferred under this paragraph from the transferor authority to the NHS trust, and
(c) so far as necessary to preserve any rights and obligations, the contract referred to in sub-paragraph (9)(b) must be regarded as a continuation of the employee's original contract.
(11) Where, as a result of the provisions of this paragraph, by virtue of his employment during any period after the operational date of the NHS trust—
(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 trust under Part 11 of the Employment Rights Act 1996 (c. 18) (redundancy payments),
any benefits provided to him by virtue of the contractual rights referred to in paragraph (a) must be taken as satisfying his entitlement to benefits under that Part of that Act.
Transfer of property and liabilities to NHS trusts
9 (1) The Secretary of State may by order transfer, or provide for the transfer of, any of the property and liabilities of ... ... a Special Health Authority, a Local Health Board or the Secretary of State, to an NHS trust, with effect from any date as may be specified in the order.
(2) An order under this paragraph may create or impose such new rights or liabilities in respect of what is transferred or what is retained as appear to the Secretary of State to be necessary or expedient.
(3) Nothing in this paragraph affects the power of the Secretary of State or any power of a ... ... Special Health Authority or Local Health Board to transfer property or liabilities to an NHS trust otherwise than under sub-paragraph (1).
(4) Stamp duty is not chargeable in respect of any transfer to an NHS trust effected by or by virtue of an order under this paragraph.
(5) Where an order under this paragraph provides for the transfer—
(a) of land held on lease from a third party, or
(b) of any other asset leased or hired from a third party or in which a third party has an interest,
the transfer is binding on the third party notwithstanding that, apart from this sub-paragraph, it would have required his consent or concurrence.
(6) “Third party” means a person other than the Secretary of State, ...... a Special Health Authority or a Local Health Board.
(7) Any property and liabilities which—
(a) belong to, or are used or managed by, a ... Special Health Authority or Local Health Board ..., and
(b) will be transferred to an NHS trust by or by virtue of an order under this paragraph,
must be identified by agreement between the ... ... Special Health Authority or Local Health Board and the NHS trust or, in default of agreement, by direction of the Secretary of State.
(8) Where, for the purpose of a transfer pursuant to an order under this paragraph, it becomes necessary to apportion any property or liabilities, the order may contain such provisions as appear to the Secretary of State to be appropriate for the purpose.
(9) Where any such property or rights fall within sub-paragraph (5), the order must 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.
(10) In the case of any transfer made by or pursuant to an order under this paragraph, a certificate issued by the Secretary of State that any property specified in the certificate or any such interest in or right over any such property as may be so specified, or any right or liability so specified, is vested in the NHS trust specified in the order is conclusive evidence of that fact for all purposes.
(11) An order under this paragraph may include provision for matters to be settled by arbitration by a person determined in accordance with the order.
(12) Sub-paragraph (11) does not affect section 272(8).
...
10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pay and allowances
11 (1) An NHS trust must pay—
(a) to the chairman and any non-executive director of the NHS trust remuneration of an amount determined by the Secretary of State, not exceeding such amount as may be approved by the Treasury,
(b) to the chairman and any non-executive director of the NHS trust such travelling and other allowances as may be determined by the Secretary of State with the approval of the Treasury,
(c) to any member of a committee or sub-committee of the NHS 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 NHS trust, the NHS trust must 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 sub-paragraph (2) in relation to different cases or descriptions of cases.
Accounts and audit
11A (1) An NHS trust must keep proper accounts and proper records in relation to the accounts.
(2) The Secretary of State may give an NHS trust directions as to the form in which its accounts must be kept.
(3) An NHS trust must prepare, in respect of each financial year, annual accounts in such form as the Secretary of State may direct.
(4) For the audit of the annual accounts, see the Local Audit and Accountability Act 2014 (and, in particular, section 4 of that Act).
(5) The Comptroller and Auditor General may examine—
(a) the annual accounts and any records relating to them, and
(b) any report on them by the auditor or auditors.
(6) An NHS trust must send a copy of its audited annual accounts to NHS England by such date as NHS England may direct.
(7) Nothing in sub-paragraph (1) has effect in relation to accounts relating to a charitable trust of which an NHS trust is a trustee.
(8) Nothing in sub-paragraph (3) requires any accounts prepared by an NHS trust to include matters relating to a charitable trust of which it is a trustee.
Reports and other information
12 (1) For each accounting year an NHS trust must prepare and send to NHS England an annual report in such form as may be determined by NHS England.
(1A) The annual report must, in particular, review the extent to which the NHS trust has exercised its functions in accordance with the plans published under—
(a) section 14Z52 (joint forward plans for integrated care board and its partners), and
(b) section 14Z56 (joint capital resource use plan for integrated care board and its partners).
(1B) The annual report must, in particular, review the extent to which the NHS trust has exercised its functions consistently with NHS England’s views set out in the latest statement published under section 13SA(1) (views about how functions relating to inequalities information should be exercised).
(2) At such time or times as may be prescribed, an NHS trust must hold a public meeting at which must be presented—
(a) its audited accounts and annual report, and
(b) any report on the accounts made pursuant to section 8 of the Audit Commission Act 1998 (c. 18) or paragraph 19 of Schedule 8 to the Government of Wales Act 2006 (c. 32).
(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) In such circumstances and at such time or times as may be prescribed, an NHS trust must hold a public meeting at which such documents as may be prescribed must be presented.
13 (1) An NHS trust must furnish to the Secretary of State or NHS England such reports, returns and other information, including information as to its forward planning, as, and in such form as, the Secretary of State or NHS England may require.
(2) An integrated care board may require any of its partner NHS trusts to provide it with any information that it requires.
(3) Information required under sub-paragraph (2) must be provided in such form, and at such time or within such period, as may be specified by the integrated care board.
Part 2 Powers and duties
General
14 (1) An NHS trust may do anything which appears to it to be necessary or expedient for the purposes of or in connection with its functions.
(2) In particular it may—
(a) acquire and dispose of property,
(b) enter into contracts, and
(c) accept gifts of property (including property to be held on trust, either for the general or any specific purposes of the NHS trust or for any purposes relating to the health service).
(3) The reference in sub-paragraph (2)(c) to specific purposes of the NHS trust includes a reference to the purposes of a specific hospital or other establishment or facility at or from which services are provided by the NHS trust.
NHS contracts
15 (1) In addition to carrying out its other functions, an NHS trust may, as the provider, enter into NHS contracts.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Research
16 An NHS trust may undertake and commission research and make available staff and provide facilities for research by other persons.
Training
17 An NHS trust may—
(a) provide training for persons employed or likely to be employed by the NHS 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.
Joint exercise of functions
18 An NHS trust may enter into arrangements for the carrying out, on such terms as the NHS trust considers appropriate, of any of its functions jointly with any ... ... Special Health Authority, Local Health Board or other NHS trust, or any other body or individual.
Payment for accommodation or services
19 (1) According to the nature of its functions, an NHS trust may make accommodation or services available for patients who give undertakings (or for whom undertakings are given) to pay any charges imposed by the NHS trust in respect of the accommodation or services.
(2) An NHS trust may exercise the power conferred by sub-paragraph (1) only—
(a) to the extent that its exercise does not to any significant extent interfere with the performance by the NHS trust of its functions or of its obligations under NHS contracts, and
(b) in circumstances specified in directions under section 8, with the Secretary of State's consent.
Additional income
20 (1) For the purpose of making additional income available in order better to perform its functions, an NHS trust has the powers specified in section 7(2) of the Health and Medicines Act 1988 (c. 49) (extension of powers of Secretary of State for financing the health service).
(2) The power conferred by sub-paragraph (1) may be exercised only—
(a) to the extent that its exercise does not to any significant extent interfere with the performance by the NHS trust of its functions or of its obligations under NHS contracts, ...
(b) in circumstances specified in directions under section 8, with the consent of the Secretary of State , and
(c) in circumstances specified in directions under section 27B, with the consent of NHS England.
Provision of accommodation and services outside England and Wales
21 An NHS Trust may arrange for the provision of accommodation and services outside England and Wales.
Conferral of further powers by order
22 The Secretary of State may by order confer specific powers on NHS trusts, further to those provided for by paragraphs 15 to 21.
Powers of NHS trusts to enter into externally financed development agreements
23 (1) The powers of an NHS trust include power to enter into externally financed development agreements.
(2) For the purposes of this paragraph, an agreement is an externally financed development agreement if it is certified as such in writing by the Secretary of State.
(3) The Secretary of State may give a certificate under this paragraph if—
(a) in his opinion the purpose or main purpose of the agreement is the provision of facilities or services in connection with the discharge by the NHS trust of any of its functions, and
(b) a person proposes to make a loan to, or provide any other form of finance for, another party in connection with the agreement.
(4) If an NHS trust enters into an externally financed development agreement it may also, in connection with that agreement, enter into an agreement with a person who falls within sub-paragraph (3)(b) in relation to the externally financed development agreement.
(5) “Another party” means any party to the agreement other than the NHS trust.
(6) The fact that an agreement made by an NHS trust has not been certified under this paragraph does not affect its validity.
Agreements under section 92 or 107
24 An NHS trust may provide services under an agreement made under section 92 (primary medical services) or section 107 (primary dental services) and may do so as a member of a qualifying body (within the meaning given by section 93 or section 108).
Staff
25 (1) An NHS trust may employ such staff as it considers appropriate.
(2) An NHS trust may—
(a) pay its staff such remuneration and allowances, and
(b) employ them on such other terms and conditions,
as it considers appropriate.
(3) An NHS trust must—
(a) in exercising its powers under sub-paragraph (2), and
(b) otherwise in connection with the employment of its staff,
act in accordance with regulations and any directions given by the Secretary of State and any directions given by NHS England under section 27B.
(4) Before making any regulations under sub-paragraph (3), the Secretary of State must consult such bodies as he may recognise as representing persons who, in his opinion, are likely to be affected by the regulations.
Pensions, etc.
26 (1) An NHS trust may, for or in respect of such of its employees as it may determine, make arrangements for providing pensions, allowances or gratuities.
(2) Such arrangements may include the establishment and administration, by the NHS trust or otherwise, of one or more pension schemes.
(3) 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 NHS trust's employees who suffer loss of office or employment or loss or diminution of emoluments.
(4) This paragraph does not affect the generality of paragraphs 14 and 25.
Compulsory acquisition
27 (1) An NHS trust may be authorised to purchase land compulsorily for the purposes of its functions by means of an order made by the NHS trust and confirmed by the Secretary of State.
(2) Subject to sub-paragraph (3), the Acquisition of Land Act 1981 (c. 67) applies to the compulsory purchase of land under this paragraph.
(3) No order may be made by an NHS trust under Part 2 of the Acquisition of Land Act 1981 with respect to any land unless the proposal to acquire the land compulsorily—
(a) has been submitted to the Secretary of State in such form and together with such information as he may require, and
(b) has been approved by him.
Part 3 Dissolution
28 (1) The Secretary of State or NHS England may by order dissolve an NHS trust.
(1A) An order under this paragraph may be made by NHS England only with the approval of the Secretary of State.
(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 or NHS England considers it appropriate in the interests of the health service.
(3) Except where it appears to the Secretary of State or NHS England necessary to make an order under this paragraph as a matter of urgency or where the order is made following the publication of a final report under section 65I(3), no such order may be made until after the completion of such consultation as may be prescribed.
29 (1) If an NHS trust is dissolved under paragraph 28, the Secretary of State or NHS England may by order transfer, or provide for the transfer of, the property and liabilities of the NHS trust to the Secretary of State or an NHS body; and such an order may include provisions corresponding to those of paragraph 9.
(2) The liabilities which may be transferred by virtue of sub-paragraph (1) to an NHS body include criminal liabilities.
(3) 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 paragraph 8, including provision for the making of a scheme by such ... Special Health Authority, Local Health Board or other body as may be specified in the order.
(4) No order may be made under this paragraph until after completion of such consultation as may be prescribed.
30 (1) If an NHS trust is dissolved under paragraph 28, the Secretary of State or such other NHS trust, ... ... Special Health Authority or Local Health Board as he or NHS England may direct must undertake the responsibility for the continued payment of any such pension, allowances or gratuities as, by virtue of paragraph 11(2) or paragraph 26, would otherwise have been the responsibility of the NHS trust which has been dissolved.
(2) Sub-paragraph (1) does not affect the generality of paragraph 29.
31 Subject to section 56AA, an NHS trust may not be dissolved or wound up except in accordance with paragraph 28 or section 57.
Part 4 Miscellaneous
Use and development of consecrated land and burial grounds
32 Section 128 of the Town and Country Planning Act 1971 (c. 78) (use and development of consecrated land and burial grounds) applies to consecrated land and land comprised in a burial ground, within the meaning of that section, which an NHS trust holds for any of its purposes as if—
(a) that land had been acquired by the NHS trust as mentioned in subsection (1) of that section, and
(b) the NHS trust were a statutory undertaker, within the meaning of that Act.
Instruments etc.
33 (1) The fixing of the seal of an NHS trust must be authenticated by the signature—
(a) of the chairman or of some other person authorised (whether generally or specifically) by the NHS trust for that purpose, and
(b) of one other director.
(2) A document purporting to be duly executed under the seal of an NHS trust must be received in evidence and must, unless the contrary is proved, be taken to be so executed.
(3) A document purporting to be signed on behalf of an NHS trust must be received in evidence and must, unless the contrary is proved, be taken to be so signed.
Interpretation
34 In this Schedule—
“provide” includes manage,
“operational date” has the meaning given by paragraph 5(5).
SCHEDULE 5 Financial provision about NHS trusts established under section 25
Section 27
Originating capital of NHS trusts
1 (1) Each NHS trust has an originating capital of an amount specified in an order made by the Secretary of State.
(2) The originating capital of an NHS trust is an amount representing the excess of the valuation of its assets over the amounts of its liabilities.
(3) In determining the originating capital of an NHS trust, there must be left out of account such assets or liabilities as are, or are of a class, determined for the purposes of this paragraph by the Secretary of State with the consent of the Treasury.
(4) An NHS trust's originating capital is deemed to have been issued out of moneys provided by Parliament and is an asset of the Consolidated Fund.
(5) An NHS trust's originating capital is public dividend capital.
(6) With the consent of the Treasury, the Secretary of State may determine—
(a) the dividend which is payable at any time on any public dividend capital issued, or treated as issued, to an NHS trust under this Act,
(b) the amount of any such public dividend capital which must be repaid at any time,
(c) any other terms on which any public dividend capital is so issued, or treated as issued.
(7) An order under sub-paragraph (1) may be made only with the consent of the Treasury.
(8) In this paragraph—
“assets” means the assets which, on or in connection with the establishment of the NHS trust, are or will be transferred to it (whether before, on or after its operational date), and
“liabilities” means the liabilities which are or will be so transferred.
Financial obligations of NHS trusts
2 (1) Each NHS trust must ensure that its revenue is not less than sufficient, taking one financial year with another, to meet outgoings properly chargeable to revenue account.
(2) NHS England may set financial objectives for NHS trusts.
(3) An NHS trust must achieve any financial objectives set under sub-paragraph (2).
(4) Financial objectives under sub-paragraph (2) may apply to NHS trusts generally, or to a particular NHS trust or NHS trusts of a particular description.
Borrowing
3 (1) 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) Sub-paragraph (1) is subject to any direction given by the Secretary of State under section 8, to the provisions of this paragraph and to any limit imposed under this Schedule.
(3) An NHS trust may not mortgage or charge any of its assets or in any other way use any of its assets as security for a loan.
(4) The Secretary of State must determine the terms of any loan made by him to an NHS trust (including terms as to the payment of interest, if any).
Guarantees of borrowing
4 (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 must 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 must 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 must 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 indebtedness
5 The aggregate of all sums borrowed by NHS trusts which are required to provide or manage services at or from hospitals or other establishments or facilities which are situated in England must not exceed £5,000 million or such other sum not exceeding £10,000 million as may be specified by order made by the Secretary of State with the consent of the Treasury.
Additional public dividend capital
6 The Secretary of State may, with the consent of the Treasury, instead of making a loan to an NHS trust under paragraph 3, pay an amount to the NHS trust as public dividend capital.
Supplementary payments
7 (1) The Secretary of State may make a payment to an NHS trust.
(2) The payment may be subject to such conditions as he considers appropriate, including conditions as to repayment.
Surplus funds
8 If it appears to the Secretary of State that any sum held by an NHS trust otherwise than as trustee is surplus to its foreseeable requirements, the trust must, if the Secretary of State with the approval of the Treasury and after consultation with the trust so directs, pay that sum into the Consolidated Fund.
Investment
9 (1) An NHS trust has power to invest money held by it in any investments, including investments which do not produce income, specified in directions under section 8.
(2) Sub-paragraph (1) does not apply in relation to money held by an NHS trust as trustee.
10 Any direction under section 8 with respect to—
(a) the power conferred on an NHS trust by paragraph 3, or
(b) the maximum amount which an NHS trust may invest in any investments or class of investments,
may be given only with the consent of the Treasury.
SCHEDULE 6 Special Health Authorities established under section 28
Section 28
Corporate status
1 Each Special Health Authority is a body corporate.
Pay and allowances
2 (1) The Secretary of State may pay to—
(a) the chairman of a Special Health Authority, and
(b) any member of a Special Health Authority who is appointed by the Secretary of State,
such remuneration as he may determine with the approval of the Treasury.
(2) The Secretary of State may provide as he may determine with the approval of the Treasury for the payment of a pension, allowance or gratuity to or in respect of the chairman of a Special Health Authority.
(3) Where a person ceases to be chairman of a Special Health Authority, and it appears to the Secretary of State that there are special circumstances which make it right for that person to receive compensation, the Secretary of State may make him a payment of such amount as the Secretary of State may determine with the approval of the Treasury.
(4) The Secretary of State may pay to a member of a Special Health Authority, or of a committee or sub-committee of, or joint committee or joint sub-committee including, a Special Health Authority, such travelling and other allowances (including attendance allowance or compensation for the loss of remunerative time) as he may determine with the approval of the Treasury.
(5) Allowances may not be paid under sub-paragraph (4) except in connection with the exercise, in such circumstances as the Secretary of State may determine with the approval of the Treasury, of such functions as he may so determine.
(6) Payments under this paragraph must be made at such times, and in such manner and subject to such conditions, as the Secretary of State may determine with the approval of the Treasury.
Staff
3 (1) A Special Health Authority may employ such officers as it may determine.
(2) A Special Health Authority may—
(a) pay its officers such remuneration and allowances, and
(b) employ them on such other terms and conditions,
as it may determine.
(3) A Special Health Authority must, in exercising its powers under sub-paragraph (1) or (2), act in accordance with regulations and any directions given by the Secretary of State.
(4) Regulations and directions under sub-paragraph (3) may make provision with respect to any matter connected with the employment by a Special Health Authority of its officers, including in particular provision—
(a) with respect to the qualifications of persons who may be employed as officers of a Special Health Authority,
(b) requiring a Special Health Authority to employ a chief officer and officers of such other descriptions as may be prescribed and to employ, for the purpose of performing prescribed functions of the Special Health Authority or any other body, officers having prescribed qualifications or experience, and
(c) as to the manner in which any officers of a Special Health Authority must be appointed.
(5) A direction under sub-paragraph (3) may relate to a particular officer or class of officer specified in the direction.
(6) Regulations and directions under sub-paragraph (3) may provide for approvals or determinations to have effect from a date specified in them.
(7) The date may be before or after the date of giving the approvals or making the determinations but may not be before if it would be to the detriment of the officers to whom the approvals or determinations relate.
(8) Regulations may provide for the transfer of officers from one Special Health Authority to another Special Health Authority or to NHS England, and for arrangements under which the services of an officer of a Special Health Authority are placed at the disposal of another Special Health Authority, NHS England or a local authority.
(9) Sub-paragraph (11) applies where the registration of a dental practitioner in the dentists register is suspended—
(a) by an interim suspension order under section 32 of the Dentists Act 1984 (c. 24) (interim orders), or
(b) by a direction or an order of the Health Committee, the Professional Performance Committee or the Professional Conduct Committee of the General Dental Council under any of sections 27B, 27C or 30 of that Act following a relevant determination that that practitioner's fitness to practise is impaired.
(10) For the purposes of sub-paragraph (9), a “relevant determination” that a practitioner's fitness to practice is impaired is a determination which is based solely on—
(a) the ground mentioned in paragraph (b) of subsection (2) of section 27 of the Dentists Act 1984 (deficient professional performance),
(b) the ground mentioned in paragraph (c) of that subsection (adverse physical or mental health), or
(c) both those grounds.
(11) The suspension does not terminate any contract of employment made between the dental practitioner and a Special Health Authority, but a person whose registration is so suspended must not perform any duties under a contract made between him and a Special Health Authority which involves the practice of dentistry within the meaning of the Dentists Act 1984.
(12) Directions may be given—
(a) by the Secretary of State to a Special Health Authority to place the services of any of its officers at the disposal of another Special Health Authority or of NHS England,
(b) by the Secretary of State to any Special Health Authority to employ as an officer of the Special Health Authority any person who is or was employed by another Special Health Authority ... and is specified in the direction.
(13) Regulations made in pursuance of this paragraph may not require that all consultants employed by a Special Health Authority must be so employed whole-time.
4 (1) The Secretary of State must, before he makes regulations under paragraph 3, consult such bodies as he may recognise as representing persons who, in his opinion, are likely to be affected by the regulations.
(2) The Secretary of State must, before he gives directions to a Special Health Authority under paragraph 3(12) in respect of any officer of a Special Health Authority—
(a) consult the officer about the directions,
(b) satisfy himself that the Special Health Authority of which he is an officer has consulted the officer about the placing or employment in question, or
(c) in the case of a direction under paragraph 3(12)(a), consult with respect to the directions such body as he may recognise as representing the officer.
(3) But if the Secretary of State—
(a) considers it necessary to give directions under paragraph 3(12)(a) for the purpose of dealing temporarily with an emergency, and
(b) has previously consulted bodies recognised by him as representing the relevant officers about the giving of directions for that purpose,
the Secretary of State may disregard sub-paragraph (2) in relation to the directions.
Miscellaneous
5 Provision may be made by regulations as to—
(a) the appointment and tenure of office of the chairman, vice-chairman and members of a Special Health Authority,
(b) the appointment and tenure of office of any members of a committee or sub-committee of a Special Health Authority who are not members of the Special Health Authority,
(c) the appointment and tenure of office of any members of a joint committee or joint sub-committee including a Special Health Authority who are not members of the Special Health Authority,
(d) the circumstances in which the chairman or vice-chairman or any member of a Special Health Authority may be suspended from office,
(e) the appointment and constitution of committees and sub-committees (and joint committees and joint sub-committees) of (or including) a Special Health Authority (including any such committees consisting wholly or partly of persons who are not members of the Special Health Authority in question), and
(f) the procedure of a Special Health Authority and of such committees and sub-committees as are mentioned in paragraph (e).
6 Regulations made under this Schedule may make provision (including provision modifying this Schedule) to deal with cases where the post of chief officer or any other officer of a Special Health Authority is held jointly by two or more persons or where the functions of such an officer are in any other way performed by more than one person.
7 A Special Health Authority may pay subscriptions, of such amounts as the Secretary of State may approve, to the funds of such bodies as he may approve.
8 A Special Health Authority has power to accept gifts of property (including property to be held on trust, either for the general or any specific purposes of the Special Health Authority or for any purposes relating to the health service).
9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10 The proceedings of a Special Health Authority are not invalidated by any vacancy in its membership or by any defect in a member's appointment.
11 (1) A Special Health Authority may—
(a) make available at a hospital for which it has responsibility accommodation or services for patients who give undertakings (or for whom undertakings are given) to pay any charges imposed by the Special Health Authority in respect of the accommodation or services, and
(b) make and recover charges in respect of such accommodation or services and calculate them on any basis that it considers to be the appropriate commercial basis.
(2) A Special Health Authority may exercise the power conferred by sub-paragraph (1) only if it is satisfied that its exercise—
(a) does not to any significant extent interfere with the performance by the Special Health Authority of any function conferred on it under this Act to provide accommodation or services of any kind, and
(b) does not to a significant extent operate to the disadvantage of persons seeking or afforded admission or access to accommodation or services at health service hospitals (whether as resident or non-resident patients) otherwise than under this section.
(3) Before a Special Health Authority decides to make accommodation or services available under sub-paragraph (1), it must consult organisations representative of the interests of persons likely to be affected by the decision.
(4) A Special Health Authority may allow accommodation or services which are made available under sub-paragraph (1) to be so made available in connection with treatment in pursuance of arrangements—
(a) made by a medical practitioner or dental practitioner serving (whether in an honorary or paid capacity) on the staff of a health service hospital,
(b) for the treatment of private patients of that practitioner.
(5) References in this paragraph to a health service hospital include references to such a hospital within the meaning of section 206 of the National Health Service (Wales) Act 2006 (c. 42), but do not include references to a hospital vested in an NHS trust or an NHS foundation trust.
12 (1) Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a Special Health Authority of any function exercisable by it by virtue of section 7 or section 29 are enforceable by or against that Special Health Authority (and no other body).
(2) This paragraph does not apply in relation to the joint exercise of any functions by a Special Health Authority with another body under section 29(1)(b).
13 Provision may be made by regulations with respect to the recording of information by a Special Health Authority, and the furnishing of information by a Special Health Authority to the Secretary of State, another Special Health Authority or NHS England.
SCHEDULE 7 Constitution of public benefit corporations
Section 30
Requirement for a constitution
1 (1) A public benefit corporation must have a constitution.
(2) As well as any provision authorised or required to be made by this Schedule, the constitution may make further provision (other than provision as to the powers of the corporation) consistent with this Schedule.
2 (1) The constitution must name the corporation and, if the corporation is an NHS foundation trust, its name must include the words “NHS foundation trust”.
(2) If the corporation is an NHS foundation trust, the constitution must specify its principal purpose (as to which, see section 43(1)).
Eligibility for membership
3 (1) The persons who may become or continue as members of a public benefit corporation are—
(a) individuals who live in any area specified in the constitution as the area for a public constituency,
(b) individuals employed by the corporation under a contract of employment and, if the constitution so provides, individuals who exercise functions for the purposes of the corporation otherwise than under a contract of employment with the corporation,
(c) if the constitution so provides, individuals who have attended any of the corporation's hospitals as either a patient or the carer of a patient within a period specified in the constitution.
(2) The constitution may specify one or more areas as areas for public constituencies, each of which must be an electoral area for the purposes of local government elections in England and Wales or an area consisting of two or more such electoral areas.
(3) A person may become or continue as a member of the corporation by virtue of sub-paragraph (1)(b) only if—
(a) he is employed by the corporation under a contract of employment which has no fixed term or has a fixed term of at least 12 months, or
(b) he has been continuously employed by the corporation for at least 12 months or, where he exercises functions for the purposes of the corporation as mentioned in that sub-paragraph, he has done so continuously for such a period.
(4) Chapter 1 of Part 14 of the Employment Rights Act 1996 (c. 18) applies for the purpose of determining whether an individual has been continuously employed by the corporation, or has continuously exercised functions for the purposes of the corporation, as it applies for the purposes of that Act.
(5) The constitution may divide those who come within sub-paragraph (1)(b) into two or more descriptions of individuals.
(6) An individual providing care in pursuance of a contract (including a contract of employment), or as a volunteer for a voluntary organisation, does not come within sub-paragraph (1)(c).
(7) The constitution may divide those who come within sub-paragraph (1)(c) into three or more descriptions of individuals, one of which must comprise the carers of patients.
(8) The constitution may make further provision as to the circumstances in which a person may not become or continue as a member.
Constituencies
4 (1) Members of a public benefit corporation are referred to as follows.
(2) Those who live in an area specified in the constitution as an area for any public constituency are referred to collectively as a public constituency.
(3) Those who come within paragraph 3(1)(b) are referred to collectively as the staff constituency and, if the power in paragraph 3(5) is exercised, each description of members is referred to as a class within that constituency.
(4) Those who come within paragraph 3(1)(c) are referred to collectively as the patient's constituency and, if the power in paragraph 3(7) is exercised, each description of members is referred to as a class within that constituency.
(5) A person who is a member of a constituency, or of a class within a constituency, may not while that membership continues be a member of any other constituency or class.
(6) A person who comes within paragraph 3(1)(b) may not become or continue as a member of any constituency other than the staff constituency.
5 The constitution must require a minimum number of members of each constituency or, where there are classes within the constituency, of each class.
Becoming a member
6 (1) An individual who is eligible to become a member of a public benefit corporation may do so on an application made to the corporation.
(2) The constitution may provide for any individual who is—
(a) eligible to become a member of the staff constituency, and
(b) invited by the corporation to become a member of that constituency (and, where there are classes within the constituency, a member of the appropriate class),
to become a member of the corporation as a member of that constituency (and class) without an application being made, unless he informs the corporation that he does not wish to do so.
(3) The constitution may provide for any individual who is—
(a) eligible to become a member of the patients' constituency (otherwise than as the carer of a patient), and
(b) invited by the corporation to become a member of a specified constituency (and where there are classes within the constituency, a member of the specified class),
to become a member of the corporation as a member of that constituency (and class) without an application being made, unless he informs the corporation that he does not wish to do so.
(4) The constituency and, where applicable, class to be specified—
(a) if he is eligible to be a member of any public constituency, is that constituency,
(b) otherwise, is the patients' constituency and, where applicable, the class of which he is eligible to become a member.
Council of Governors
7 (1) A public benefit corporation has a council of governors.
(2) Only members of the corporation and persons appointed under the following provisions may become or continue as members of the council .
(3) The members of the council other than the appointed members must be chosen by election.
(4) Members of a constituency or, where there are classes within it, members of each class may elect any of their number to be a member of the council.
8 (1) The following may not become or continue as members of the council of governors—
(a) a person who has been made bankrupt or whose estate has been sequestrated and (in either case) has not been discharged,
(aa) a person in relation to whom a moratorium period under a debt relief order applies (under Part 7A of the Insolvency Act 1986),
(b) a person who has made a composition or arrangement with, or granted a trust deed for, his creditors and has not been discharged in respect of it,
(c) a person who within the preceding five years has been convicted in the British Islands of any offence if a sentence of imprisonment (whether suspended or not) for a period of not less than three months (without the option of a fine) was imposed on him.
(2) The constitution may make further provision as to the circumstances in which a person may not become or continue as a member of the council.
9 (1) More than half of the members of the council of governors must be elected by members of the corporation other than those who come within paragraph 3(1)(b).
(2) At least three members of the council must be elected by the staff constituency or, where there are classes within it, at least one member of the council must be elected by each class and at least three members must be elected altogether.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) At least one member of the council must be appointed by one or more qualifying local authorities.
(5) A qualifying local authority is a local authority for an area which includes the whole or part of an area specified in the constitution as the area for a public constituency.
(6) If any of the corporation's hospitals includes a medical or dental school provided by a university, at least one member of the council must be appointed by that university.
(7) Any organisation specified in the constitution for the purposes of this sub-paragraph may appoint one or more members of the council (but no more than the number specified for those purposes in the constitution).
10 (1) An elected member of the council of governors may hold office for a period of three years.
(2) Such a member is eligible for re-election at the end of that period.
(3) But such a member ceases to hold office if he ceases to be a member of the corporation.
10A The general duties of the council of governors are—
(a) to hold the non-executive directors individually and collectively to account for the performance of the board of directors, and
(b) to represent the interests of the members of the corporation as a whole and the interests of the public.
10B A public benefit corporation must take steps to secure that the governors are equipped with the skills and knowledge they require in their capacity as such.
10C For the purpose of obtaining information about the corporation's performance of its functions or the directors' performance of their duties (and deciding whether to propose a vote on the corporation's or directors' performance), the council of governors may require one or more of the directors to attend a meeting.
11 The corporation may pay travelling and other expenses to members of the council of governors at rates decided by the corporation.
12 The constitution must provide for the chairman of the corporation or (in his absence) another person to preside at meetings of the council of governors.
13 (1) The constitution must provide for meetings of the council of governors to be open to members of the public.
(2) But the constitution may provide for members of the public to be excluded from a meeting for special reasons.
14 (1) The constitution must make provision as to—
(a) the conduct of elections for membership of the council,
(b) the appointment of persons to membership,
(c) the practice and procedure of the council,
(d) the removal of a member from office.
(2) The constitution may make further provision about the council.
Directors
15 (1) A public benefit corporation has a board of directors.
(2) The constitution must provide for all the powers of the corporation to be exercisable by the board of directors on its behalf.
(3) But the constitution may provide for any of those powers to be delegated to a committee of directors or to an executive director.
16 (1) The board consists of—
(a) executive directors, one of whom is the chief executive (and accounting officer) and another the finance director,
(b) non-executive directors, one of whom is the chairman.
(2) One of the executive directors must be a registered medical practitioner or a registered dentist (within the meaning of the Dentists Act 1984 (c 24)); and another must be a registered nurse or a registered midwife.
(3) A person may not be appointed as an executive director if he is within paragraph 8(1).
(4) A person may be appointed as a non-executive director only if—
(a) he is a member of a public constituency or the patients' constituency, or
(b) where any of the corporation's hospitals includes a medical or dental school provided by a university, he exercises functions for the purposes of that university,
and he is not within paragraph 8(1).
17 (1) It is for the council of governors at a general meeting to appoint or remove the chairman and the other non-executive directors.
(2) Removal of a non-executive director under sub-paragraph (1) requires the approval of three-quarters of the members of the council .
(3) It is for the non-executive directors to appoint or remove the chief executive.
(4) It is for a committee consisting of the chairman, the chief executive and the other non-executive directors to appoint or remove the executive directors.
(5) The appointment of a chief executive requires the approval of the council of governors.
18 (1) It is for the council of governors at a general meeting to decide the remuneration and allowances, and the other terms and conditions of office, of the non-executive directors.
(2) The corporation must establish a committee of non-executive directors to decide the remuneration and allowances, and the other terms and conditions of office, of the executive directors; but the constitution may make provision for those matters to be decided pending the establishment of such a committee.
18A The general duty of the board of directors, and of each director individually, is to act with a view to promoting the success of the corporation so as to maximise the benefits for the members of the corporation as a whole and for the public.
18B (1) The duties that a director of a public benefit corporation has by virtue of being a director include in particular—
(a) a duty to avoid a situation in which the director has (or can have) a direct or indirect interest that conflicts (or possibly may conflict) with the interests of the corporation;
(b) a duty not to accept a benefit from a third party by reason of being a director or doing (or not doing) anything in that capacity.
(2) The duty referred to in sub-paragraph (1)(a) is not infringed if—
(a) the situation cannot reasonably be regarded as likely to give rise to a conflict of interest, or
(b) the matter has been authorised in accordance with the constitution.
(3) The duty referred to in sub-paragraph (1)(b) is not infringed if acceptance of the benefit cannot reasonably be regarded as likely to give rise to a conflict of interest.
(4) In sub-paragraph (1)(b), “third party” means a person other than—
(a) the corporation, or
(b) a person acting on its behalf.
18C (1) If a director of a public benefit corporation has in any way a direct or indirect interest in a proposed transaction or arrangement with the corporation, the director must declare the nature and extent of that interest to the other directors.
(2) If a declaration under this paragraph proves to be, or becomes, inaccurate or incomplete, a further declaration must be made.
(3) Any declaration required by this paragraph must be made before the corporation enters into the transaction or arrangement.
(4) This paragraph does not require a declaration of an interest of which the director is not aware or where the director is not aware of the transaction or arrangement in question.
(5) A director need not declare an interest—
(a) if it cannot reasonably be regarded as likely to give rise to a conflict of interest;
(b) if, or to the extent that, the directors are already aware of it;
(c) if, or to the extent that, it concerns terms of the director's appointment that have been or are to be considered—
(i) by a meeting of the board of directors, or
(ii) by a committee of the directors appointed for the purpose under the constitution.
18D (1) Before holding a meeting, the board of directors must send a copy of the agenda of the meeting to the council of governors.
(2) As soon as practicable after holding a meeting, the board of directors must send a copy of the minutes of the meeting to the council of governors.
18E (1) The constitution must provide for meetings of the board of directors to be open to members of the public.
(2) But the constitution may provide for members of the public to be excluded from a meeting for special reasons.
Initial directors of former NHS trusts
19 (1) This paragraph applies, where the application for authorisation is made under section 33, to the exercise of the powers mentioned in paragraph 17 to appoint the initial non-executive directors and the initial chief executive.
(2) The power to appoint the initial chairman of the corporation must be exercised by appointing the chairman of the NHS trust, if he wishes to be appointed.
(3) The power to appoint the other initial non-executive directors of the corporation must be exercised, so far as possible, by appointing any of the non-executive directors of the NHS trust (other than the chairman) who wish to be appointed.
(4) A person appointed in accordance with sub-paragraph (2) or (3) must be appointed for the unexpired period of his term of office as chairman or non-executive director of the NHS trust; but if, on any such appointment, that period is less than 12 months, he must be appointed for 12 months.
(5) The power to appoint the initial chief executive of the corporation must be exercised by appointing the chief officer of the NHS trust, if he wishes to be appointed.
(6) Sub-paragraphs (a) and (b) of paragraph 16(4) do not apply to the appointment of any initial non-executive director in pursuance of this paragraph; and paragraph 17(5) does not apply to the appointment of the initial chief executive of the corporation in pursuance of sub-paragraph (5).
Register of members etc
20 (1) A public benefit corporation must have—
(a) a register of members showing, in respect of each member, the constituency to which he belongs and, where there are classes within it, the class to which he belongs,
(b) a register of members of the council of governors,
(c) a register of interests of the members of the council of governors,
(d) a register of directors,
(e) a register of interests of the directors.
(2) The constitution may make further provision about the registers including, in particular, admission to, and removal from, the registers.
21 The constitution must make provision for dealing with conflicts of interest of members of the council of governors and of the directors.
22 (1) A public benefit corporation must make the following documents available for inspection by members of the public free of charge at all reasonable times—
(a) a copy of the current constitution,
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) a copy of the latest annual accounts and of any report of the auditor on them,
(d) a copy of the latest annual report,
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) a copy of any order made under section 65D, 65J, 65KC, 65L or 65LA,
(h) a copy of any report laid under section 65D,
(i) a copy of any information published under section 65D,
(j) a copy of any draft report published under section 65F,
(k) a copy of any statement provided under section 65F,
(l) a copy of any notice published under section 65F, 65G, 65H, 65J, 65KA, 65KB, 65KC or 65KD,
(m) a copy of any statement published or provided under section 65G,
(n) a copy of any final report published under section 65I,
(o) a copy of any statement published under section 65J or 65KC,
(p) a copy of any information published under section 65M.
(2) Any person who requests it must be provided with a copy of or extract from any of the above documents.
(3) The corporation is also to make the registers mentioned in paragraph 20 available for inspection by members of the public, except in circumstances prescribed; and, so far as the registers are required to be available—
(a) they must be available free of charge at all reasonable times,
(b) a person who requests it must be provided with a copy of or extract from them.
(4) If the person requesting a copy or extract under this paragraph is not a member of the corporation, the corporation may impose a reasonable charge for doing so.
Auditor
23 (1) A public benefit corporation must have an auditor.
(2) It is for the council of governors to appoint or remove the auditor at a general meeting of the council.
(3) An auditor may be an individual or a firm —
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) A person appointed as auditor must be—
(a) eligible for appointment as a statutory auditor (see Part 42 of the Companies Act 2006),
(aa) eligible for appointment as a local auditor (see Part 4 of the Local Audit and Accountability Act 2014), or
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) a member of a body of accountants approved by the regulator for the purposes of this paragraph.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) The corporation must establish a committee of non-executive directors as an audit committee to perform such monitoring, reviewing and other functions as are appropriate.
(7) In this paragraph—
...
“firm” has the same meaning as in section 1261(1) of the Companies Act 2006.
Accounts
24 (1) A public benefit corporation must keep proper accounts and proper records in relation to the accounts.
(1A) NHS England may with the approval of the Secretary of State give directions to the corporation as to the content and form of its accounts.
(2) The accounts must be audited by the corporation's auditor.
(3) But the Comptroller and Auditor General may examine—
(a) the accounts,
(b) the records relating to them, and
(c) any report of the auditor on them.
(4) If trustees are appointed under section 51, the Comptroller and Auditor General may also examine—
(a) the accounts kept by the trustees,
(b) any records relating to them, and
(c) any report of an auditor on them.
(4A) The auditor must, in carrying out functions in relation to the accounts—
(a) comply with the code of audit practice applicable to the accounts that is for the time being in force (see Schedule 6 to the Local Audit and Accountability Act 2014), and
(b) have regard to guidance issued by the Comptroller and Auditor General under paragraph 9 of that Schedule (as it has effect by virtue of paragraph 10(6) of that Schedule).
(4B) The auditor of the accounts must comply with any directions given by the Secretary of State as to arrangements to monitor the standard of the work of auditors in the performance of audits under this paragraph (including arrangements to inspect that work).
(4C) The arrangements mentioned in sub-paragraph (4B) may include arrangements made by NHS England or by any other person the Secretary of State considers appropriate.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25 (1) A public benefit corporation must prepare in respect of each financial year annual accounts in such form as NHS England may with the approval of the Secretary of State direct.
(1A) NHS England may with the approval of the Secretary of State direct a public benefit corporation—
(a) to prepare accounts in respect of such period or periods as may be specified in the direction;
(b) that any accounts prepared by it by virtue of paragraph (a) are to be audited in accordance with such requirements as may be specified in the direction.
(2) In preparing its annual accounts or in preparing any accounts by virtue of sub-paragraph (1A)(a), the corporation must comply with any directions given by NHS England with the approval of the Secretary of State as to—
(a) the methods and principles according to which the accounts must be prepared,
(b) the content and form of the accounts.
(3) In determining the form and content of the annual accounts, or of any accounts to be prepared by it by virtue of sub-paragraph (1A)(a), NHS England must aim to ensure that the accounts present a true and fair view.
(4) The corporation must—
(a) lay a copy of the annual accounts, and any report of the auditor on them, before Parliament, and
(b) ... send copies of those documents to NHS England within such period as NHS England may direct.
(4A) The corporation must send to NHS England within such period as NHS England may direct—
(a) a copy of any accounts prepared by the corporation by virtue of sub-paragraph (1A)(a), and
(b) a copy of any report of an auditor on them prepared by virtue of sub-paragraph (1A)(b).
(5) The constitution must provide for the functions of the corporation under this paragraph to be delegated to the accounting officer.
(6) In this paragraph and paragraph 27 “financial year” means—
(a) the period beginning with the date on which the corporation is authorised under section 35 and ending with the next 31st March, and
(b) each successive period of twelve months beginning with 1st April.
Annual reports and forward plans
26 (1) A public benefit corporation must prepare annual reports and send them to NHS England.
(1A) The reports must, in particular, review the extent to which the public benefit corporation has exercised its functions in accordance with the plans published under—
(a) section 14Z52 (joint forward plans for integrated care board and its partners), and
(b) section 14Z56 (joint capital resource use plan for integrated care board and its partners).
(1B) The reports must, in particular, review the extent to which the public benefit corporation has exercised its functions consistently with NHS England’s views set out in the latest statement published under section 13SA(1) (views about how functions relating to inequalities information should be exercised).
(2) The reports must give—
(a) information on any steps taken by the corporation to secure that (taken as a whole) the actual membership of any public constituency and (if there is one) of the patients' constituency is representative of those eligible for such membership,
(aa) information on any occasions in the period to which the report relates on which the council of governors exercised its power under paragraph 10C,
(ab) information on the corporation's policy on pay and on the work of the committee established under paragraph 18(2) and such other procedures as the corporation has on pay,
(ac) information on the remuneration of the directors and on the expenses of the governors and the directors,
(b) any other information NHS England requires.
(2A) Before imposing a requirement under sub-paragraph (2)(b) that NHS England considers is sufficiently significant to justify consultation, NHS England must consult such persons as it considers appropriate.
(3) It is for NHS England to decide—
(a) the form of the reports,
(b) when the reports must be sent to it,
(c) the periods to which the reports are to relate.
27 (1) A public benefit corporation must give information to NHS England as to its forward planning in respect of each financial year.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Annual meeting of members
27A (1) A public benefit corporation must hold an annual meeting of its members.
(2) The meeting must be open to members of the public.
(3) At least one member of the board of directors of the corporation must attend the meeting and present the following documents to the members at the meeting—
(a) the annual accounts,
(b) any report of the auditor on them,
(c) the annual report.
(4) Where an amendment is made to the constitution in relation to the powers or duties of the council of governors of a public benefit corporation (or otherwise with respect to the role that the council has as part of the corporation)—
(a) at least one member of the council of governors must attend the next meeting to be held under this paragraph and present the amendment, and
(b) the corporation must give the members an opportunity to vote on whether they approve the amendment.
(5) If more than half of the members voting approve the amendment, the amendment continues to have effect; otherwise, it ceases to have effect and the corporation must take such steps as are necessary as a result.
Meeting of council of governors to consider annual accounts and reports
28 (1) The following documents must be presented to the council of governors of a public benefit corporation at a general meeting—
(a) the annual accounts,
(b) any report of the auditor on them,
(c) the annual report.
(2) Nothing in sub-paragraph (1) prevents the council of governors from holding a general meeting more than once a year.
Combined meetings of members and governors
28A A public benefit corporation may hold a meeting which combines a meeting under paragraph 27A with a meeting under paragraph 28.
Instruments etc
29 (1) The constitution must make provision for the authentication of the fixing of the corporation's seal.
(2) A document purporting to be duly executed under the corporation's seal or to be signed on its behalf must be received in evidence and, unless the contrary is proved, taken to be so executed or signed.
Power to make provision about voting
30 (1) Regulations may amend this Chapter so as to add, vary or omit provision relating to voting by members of the council of governors of a public benefit corporation that is an NHS foundation trust, by its directors or by its members.
(2) The power under sub-paragraph (1) is exercisable only in relation to provision in this Chapter that was inserted, or otherwise provided for, by Part 4 of the Health and Social Care Act 2012.
SCHEDULE 10 Audit of accounts of NHS foundation trusts
Section 62
General duty
1 In auditing the accounts of any NHS foundation trust an auditor must by examination of the accounts and otherwise satisfy himself that—
(a) they are prepared in accordance with directions under paragraph 25 of Schedule 7,
(b) they comply with the requirements of all other provisions contained in, or having effect under, any enactment which are applicable to them,
(c) proper practices have been observed in their compilation, and
(d) the trust has made proper arrangements for securing economy, efficiency and effectiveness in its use of resources.
Right to documents and information
2 (1) An auditor of an NHS foundation trust has a right of access at all reasonable times to every document relating to the trust which appears to him necessary for the purposes of his functions under this Chapter.
(2) The auditor may—
(a) require a person holding or accountable for any such document to give him such information and explanation as he considers necessary for the purposes of his functions under this Chapter,
(b) if he considers it necessary, require the person to attend before him in person to give the information or explanation or to produce the document.
(3) The auditor may also—
(a) require any director or officer of the trust to give him such information or explanation as he considers necessary for the purposes of his functions under this Chapter,
(b) if he considers it necessary, require the director or officer to attend before him in person to give the information or explanation.
(4) The trust must provide the auditor with every facility and all information which he may reasonably require for the purposes of his functions under this Chapter; but this sub-paragraph does not affect the generality of sub-paragraphs (1) to (3).
(5) A person who without reasonable excuse fails to comply with any requirement of an auditor of an NHS foundation trust under any of sub-paragraphs (1) to (3) is guilty of an offence.
(6) A person guilty of an offence under sub-paragraph (5) is liable on summary conviction—
(a) to a fine not exceeding level 3 on the standard scale, and
(b) to an additional fine not exceeding £20 for each day on which the offence continues after conviction for the offence.
(7) Any expenses incurred by an auditor of an NHS foundation trust in connection with proceedings for an offence under sub-paragraph (5) alleged to have been committed in relation to the audit of the accounts of the trust, so far as not recovered from any other source, are recoverable from the trust.
Reports
3 In auditing the accounts of an NHS foundation trust, the auditor must consider—
(a) whether, in the public interest, he should make a report on any matter coming to his notice in the course of the audit, in order for it to be considered by the trust or brought to the attention of the public, and
(b) whether the public interest requires any such matter to be made the subject of an immediate report rather than of a report to be made at the conclusion of the audit.
4 (1) When an auditor of an NHS foundation trust has concluded his audit of the trust's accounts, he must enter on the accounts—
(a) a certificate that he has completed the audit in accordance with this Chapter, and
(b) his opinion on the accounts.
(2) But where the auditor makes a report to the council of governors and board of directors of the trust under paragraph 3 at the conclusion of the audit, he may instead include the certificate and his opinion in that report.
5 (1) Any report under paragraph 3 must be sent by the auditor to the council of governors and board of directors of the trust and to NHS England—
(a) at once if it is an immediate report,
(b) otherwise not later than 14 days after conclusion of the audit.
(2) The directors must take the report into consideration as soon as practicable after receiving it.
Referral to NHS England
6 If the auditor of an NHS foundation trust has reason to believe that the trust or a director or officer of the trust—
(a) is about to make, or has made, a decision which involves or would involve the incurring of expenditure which is unlawful, or
(b) is about to take, or has taken, a course of action which, if pursued to its conclusion, would be unlawful and likely to cause a loss or deficiency,
he must refer the matter at once to NHS England.
Audit of accounts of directors or officers
7 (1) Where a director or officer of an NHS foundation trust receives money or other property—
(a) on behalf of the trust, or
(b) for which he ought to account to the trust,
the accounts of the director or officer must be audited by the auditor of the accounts of the trust.
(2) The accounts of the director or officer must be made up to 31st March.
(3) Paragraph 25(5) of Schedule 7 and paragraphs 1 to 5 of this Schedule apply with the necessary modifications to the audit under this paragraph.
Restriction on disclosure of information
8 (1) No information relating to an NHS foundation trust or other person and obtained by an auditor (or by a person acting on the auditor's behalf) under this Chapter or in the course of an audit under this Chapter may be disclosed except—
(a) with the consent of the person to whom the information relates,
(b) for the purposes of any functions of an auditor of an NHS foundation trust,
(c) for the purposes of the functions of NHS England,
(d) for the purposes of the functions of the Comptroller and Auditor General under this Chapter,
(e) for the purposes of the functions of the Care Quality Commission,
(f) for the purposes of any criminal proceedings.
(2) A person who discloses information in contravention of sub-paragraph (1) is guilty of an offence.
(3) A person guilty of an offence under sub-paragraph (2) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or to a fine not exceeding the statutory maximum (or to both),
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine (or to both).
(4) In relation to an offence committed before 2 May 2022 the reference in sub-paragraph (3) to a period of imprisonment of 12 months is a reference to a period of imprisonment of 6 months.
SCHEDULE 10A Intervention powers in relation to the reconfiguration of NHS services
Section 68A
Definitions
1 In this Schedule—
“NHS commissioning body” means NHS England or an integrated care board;
“NHS services” means services provided as part of the health service in England;
“NHS trust” means an NHS trust established under section 25;
“reconfiguration of NHS services” means a change in the arrangements made by an NHS commissioning body for the provision of NHS services where that change has an impact on—
the manner in which a service is delivered to individuals (at the point when the service is received by users), or
the range of health services available to individuals.
Duty to notify Secretary of State of reconfiguration proposals
2 (1) If an NHS commissioning body proposes a notifiable reconfiguration of NHS services it must notify the Secretary of State.
(2) For the purposes of this paragraph a reconfiguration of NHS services is “notifiable” if it is of a description specified in regulations.
Power to call-in proposal for reconfiguration
3 (1) The Secretary of State may give an NHS commissioning body a direction calling in any proposal by the body for the reconfiguration of NHS services.
(2) Where a direction is given under sub-paragraph (1), the Secretary of State—
(a) may, within the period of 6 months beginning with the date of the direction, take any decision in relation to the proposal that could have been taken by the NHS commissioning body, and
(b) must notify the NHS commissioning body once the Secretary of State has finished considering the proposal.
(3) The power of the Secretary of State to take decisions under sub-paragraph (2)(a) includes—
(a) power to decide whether a proposal should, or should not, proceed, or should proceed in a modified form;
(b) power to decide particular results to be achieved by the NHS commissioning body in taking decisions in relation to the proposal;
(c) power to decide procedural or other steps that should, or should not, be taken in relation to the proposal;
(d) power to retake any decision previously taken by the NHS commissioning body.
(4) The Secretary of State must, before acting under sub-paragraph (2), give each of the following an opportunity to make representations to the Secretary of State in relation to the proposal—
(a) the NHS commissioning body,
(b) if the NHS commissioning body is an integrated care board, NHS England,
(c) each local authority (within the meaning of section 2B) to whose area the proposed reconfiguration of NHS services relates, and
(d) any other person that the Secretary of State considers appropriate.
(5) The Secretary of State must—
(a) publish any decision under sub-paragraph (2)(a) together with an explanation of the reasons for taking it, and
(b) notify the NHS commissioning body of the decision and the reasons.
(6) The Secretary of State must publish a summary of any representations made under sub-paragraph (4).
4 (1) This paragraph applies where the Secretary of State gives a direction under paragraph 3(1) calling in a proposal for the reconfiguration of NHS services.
(2) Until notified that the Secretary of State has finished considering the proposal, the NHS commissioning body must not take further steps in relation to a proposal except to such extent (if any) as may be permitted by the direction.
(3) Once notified that the Secretary of State has finished considering the proposal, the NHS commissioning body must give effect to any decision of the Secretary of State under paragraph 3(2)(a) in relation to the proposal.
Power to require consideration of proposals for reconfiguration
5 (1) The Secretary of State may direct an NHS commissioning body to consider a reconfiguration of NHS services.
(2) The Secretary of State must publish any direction under this paragraph, together with an explanation of the reasons for giving it.
Duties to provide information and other assistance
6 An NHS commissioning body, NHS trust or NHS foundation trust must give the Secretary of State any information or other assistance that the Secretary of State requires it to give for the purposes of carrying out any functions under this Schedule.
Guidance
7 (1) The Secretary of State must publish guidance for NHS commissioning bodies, NHS trusts and NHS foundation trusts about—
(a) the exercise of their functions under this Schedule, and
(b) how the Secretary of State proposes to exercise the Secretary of State’s functions under this Schedule.
(2) NHS commissioning bodies, NHS trusts and NHS foundation trusts must have regard to any guidance published under sub- paragraph (1).
Section 135
How pilot schemes may be initiated
1 (1) A pilot scheme may be made—
(a) on the initiative of NHS England, or
(b) in response to a request made by a person wishing to participate in the scheme.
(2) The request referred to in sub-paragraph (1)(b) must—
(a) be made in writing, and
(b) comply with such requirements (if any) as may be prescribed.
Preliminary steps to be taken
2 (1) Before making a pilot scheme, NHS England must prepare proposals for the scheme and submit them to the Secretary of State.
(2) But proposals may be submitted by NHS England only with the agreement of the other proposed participants.
(3) In preparing proposals for a pilot scheme, NHS England must comply with any directions given to it by the Secretary of State as to—
(a) the matters to be dealt with, and information to be included, in the proposals, and
(b) the procedure to be followed by NHS England.
(4) Before submitting proposals for a pilot scheme, NHS England must (in addition to complying with any requirements about consultation imposed by or under any other enactment) comply with any directions given to it by the Secretary of State about the extent to which, and manner in which, it must consult on the proposals.
(5) The Secretary of State may give directions—
(a) requiring NHS England to submit proposals to him,
(b) as to the matters to which NHS England must have regard in making any recommendation to the Secretary of State when submitting proposals for a pilot scheme,
(c) as to the form in which any such recommendation must be made,
(d) requiring NHS England to provide the Secretary of State with summaries (prepared and presented in the manner specified in the directions) of all requests received by it during the period specified in the directions.
(6) A direction under this paragraph may be given so as to apply—
(a) generally in circumstances specified in the direction, or
(b) in relation to a particular case.
Approval
3 (1) If proposals for a pilot scheme are submitted under paragraph 2, the Secretary of State must—
(a) approve them as submitted,
(b) make such modifications as he considers appropriate and approve them as modified, or
(c) reject them.
(2) The Secretary of State may not approve proposals for a pilot scheme unless satisfied that they include satisfactory provision for any participant other than NHS England to withdraw from the scheme if he wishes to do so.
(3) When the Secretary of State makes a decision under this paragraph—
(a) he must notify NHS England of the decision, and
(b) NHS England must, without delay, notify the other participants in the proposed scheme.
Preliminary approval
4 (1) This paragraph applies if NHS England proposes to make a pilot scheme but has not determined who the participants, or who all of the participants, will be.
(2) NHS England may apply to the Secretary of State for preliminary approval to be given to its proposals.
(3) If such an application is made, the Secretary of State must—
(a) give preliminary approval to the proposals as submitted,
(b) make such modifications as he considers appropriate and give preliminary approval to them as modified, or
(c) reject them.
(4) If NHS England is given preliminary approval, it must take such steps, with a view to obtaining final approval for the proposed pilot scheme, as the Secretary of State may direct.
(5) The fact that the Secretary of State has given preliminary approval to proposals for a pilot scheme does not affect his right to refuse to approve the completed proposals when they are submitted under paragraph 2.
(6) Sub-paragraphs (3) to (6) of paragraph 2 apply in relation to an application for preliminary approval of proposals under this paragraph as they apply in relation to proposals under that paragraph.
Effect of proposals on existing services
5 (1) Proposals for a pilot scheme submitted under paragraph 2, or included in an application for preliminary approval of proposals under paragraph 4, must include—
(a) an assessment by NHS England of the likely effect of the implementation of the proposals in the area concerned on the services mentioned in sub-paragraph (2),
(b) any assessment prepared under sub-paragraph (3).
(2) The services are—
(a) pharmaceutical services,
(b) local pharmaceutical services provided under existing pilot schemes or LPS schemes,
(c) primary medical services.
(3) If it appears to NHS England that the proposals would, if implemented, affect any of the services mentioned in sub-paragraph (2) provided in another area, it must prepare an assessment of the likely effect on those services of the implementation of the proposals before submitting them under paragraph 2 or including them in an application for preliminary approval under paragraph 4.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Guidance
6 The Secretary of State may issue guidance about the criteria by reference to which, as a general rule, powers under paragraph 3 or 4 are likely to be exercised.
Making a scheme
7 (1) If the Secretary of State approves proposals for a pilot scheme under paragraph 3 and notifies NHS England in accordance with that paragraph, NHS England must implement the proposals in accordance with directions given by the Secretary of State.
(2) A proposed participant in a pilot scheme (other than NHS England) may withdraw at any time before the proposals relating to him are implemented.
(3) A pilot scheme, as implemented, may differ from the proposals for the scheme approved by the Secretary of State only if he agrees to the variation or—
(a) directions given by him (either under sub-paragraph (1) or generally) authorise variations that satisfy specified requirements, and
(b) the variation satisfies those requirements.
(4) As soon as is reasonably practicable after implementing proposals for a pilot scheme, NHS England must (in accordance with any directions given to it by the Secretary of State) publish details of the scheme.
Section 144
Provision of local pharmaceutical services
1 (1) NHS England or the Secretary of State ... may establish LPS schemes.
(2) In this Act, an “LPS scheme” means one or more agreements—
(a) made by NHS England or the Secretary of State (the “commissioner”) ... in accordance with this Schedule,
(b) under which local pharmaceutical services will be provided (otherwise than by the the commissioner). ...
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2B) The Secretary of State may establish an LPS scheme only where the other party is NHS England.
(2C) NHS England may provide local pharmaceutical services under an LPS scheme only in such circumstances as may be prescribed.
(3) An LPS scheme may include arrangements—
(a) for the provision of services which are not local pharmaceutical services, but which may be provided under this Act, other than under Chapter 1 of this Part, and whether or not of the kind usually provided by pharmacies,
(b) for the provision of training and education (including training and education for persons who are, or may become, involved in the provision of local pharmaceutical services).
(4) An LPS scheme may not combine arrangements for the provision of local pharmaceutical services with arrangements for the provision of primary medical services or primary dental services.
(5) In determining the arrangements it needs to make in order to comply with section 126, NHS England may take into account arrangements under an LPS scheme ....
(6) The functions of an NHS trust , an NHS foundation trust and NHS England include power to provide any services to which an LPS scheme applies.
(7) In this Schedule—
“local pharmaceutical services” means such services of a kind which may be provided under section 126, or by virtue of section 127, (other than practitioner dispensing services) as may be prescribed for the purposes of this Schedule, and
“LP services” means services provided under an LPS scheme (including any services to which the scheme applies as a result of sub-paragraph (3)).
(8) “Practitioner dispensing services” means the provision of drugs, medicines or listed appliances (within the meaning given by section 126) by a medical practitioner or dental practitioner to a patient of his pursuant to arrangements made by virtue of section 132(1).
Designation of priority neighbourhoods or premises
2 (1) The Secretary of State may make regulations allowing NHS England... to designate—
(a) relevant areas,
(b) premises, or
(c) descriptions of premises,
for the purposes of this paragraph.
(2) The regulations may, in particular, make provision—
(a) as to the circumstances in which, and the relevant areas or premises in relation to which, designations may be made or maintained,
(b) allowing NHS England to defer consideration of pharmaceutical list applications relating to relevant areas, premises or descriptions of premises that have been designated,
(c) allowing a designation to be cancelled in prescribed circumstances,
(d) requiring a designation to be cancelled—
(i) if the Secretary of State gives a direction to that effect, or
(ii) in prescribed circumstances.
(3) “Pharmaceutical list applications” means applications for inclusion in a pharmaceutical list.
(4) “Relevant area” has the same meaning as in section 129(2A).
Regulations
3 (1) The Secretary of State may make regulations with respect to LP services.
(2) The regulations must include provision for participants other than the commissioner to withdraw from an LPS scheme if they wish to do so.
(3) The regulations may, in particular—
(a) provide that an LPS scheme may be made only—
(i) in prescribed circumstances,
(ii) in relation to an area, a community or a category of persons determined in accordance with the regulations, or
(iii) in relation to premises determined in accordance with the regulations,
(b) provide that only prescribed services, or prescribed categories of service, may be provided in accordance with an LPS scheme,
(c) make provision as to the services, or categories of service, for which an LPS scheme must provide,
(d) impose conditions (including conditions as to qualifications and experience) to be satisfied by persons providing LP services,
(e) require details of each LPS scheme to be published,
(f) make provision with respect to the variation and termination of an LPS scheme,
(g) prevent (except in such circumstances and to such extent as may be prescribed) the provision of both LP services and pharmaceutical services from the same premises,
(h) make provision with respect to the inclusion, removal, re-inclusion or modification of an entry in respect of premises in a pharmaceutical list,
(i) provide for parties to an LPS scheme to be treated, in such circumstances and to such extent as may be prescribed, as health service bodies for the purposes of section 9,
(j) provide for directions, as to payments, made under section 9(11) (as it has effect as a result of regulations made by virtue of paragraph (i)) to be enforceable in the county court (if the court so orders) as if they were judgments or orders of that court,
(k) authorise NHS England or the Secretary of State ... to make payments of financial assistance for prescribed categories of preparatory work undertaken—
(i) in connection with preparing proposals for an LPS scheme, or
(ii) in preparation for the provision of services under a proposed LPS scheme.
Section 165A(3)
Interpretation
1 In this Schedule—
(a) “drugs” includes medicines and listed appliances (within the meaning of section 126), and
(b) “pharmaceutical remuneration” means remuneration paid by NHS England to persons providing pharmaceutical services or local pharmaceutical services.
Pharmaceutical remuneration to be apportioned among integrated care boards
2 (1) NHS England must determine the elements of pharmaceutical remuneration in respect of which apportionments are to be made in relation to a financial year in accordance with this paragraph.
(2) In this Schedule, those elements of pharmaceutical remuneration are referred to as “designated elements”.
(3) NHS England must notify each integrated care board of a determination under sub-paragraph (1).
(4) NHS England must apportion the sums paid by it in respect of each designated element during the financial year among all integrated care boards, in such manner as NHS England thinks appropriate.
(5) In apportioning sums under sub-paragraph (4), NHS England may, in particular, take into account the financial consequences of orders for the provision of drugs that are attributable to the members of each integrated care board.
(6) Where an amount of pharmaceutical remuneration is apportioned to an integrated care board, NHS England—
(a) may deduct that amount from the sums that it would otherwise pay to the board under section 223G(1), and
(b) if it does so, must notify the board accordingly.
(7) The Secretary of State may direct NHS England that an element of pharmaceutical remuneration specified in the direction is not to be included in a determination under sub-paragraph (1).
(8) In determining the amount to be allotted to an integrated care board for the purposes of section 223G, NHS England must take into account the effect of this Schedule.
(9) For the purposes of sections 223GC and 223M(1)(b) and paragraph 22 of Schedule 1B, any amount of which an integrated care board is notified under sub-paragraph (6) is to be treated as expenditure of the group which is attributable to the performance by it of its functions in the year in question.
Other pharmaceutical remuneration
3 (1) This paragraph applies in relation to pharmaceutical remuneration paid in a financial year other than—
(a) designated elements of such remuneration, and
(b) remuneration of a prescribed description.
(2) NHS England may require a person to reimburse NHS England for any pharmaceutical remuneration to which this paragraph applies if the drugs or services to which the remuneration relates were—
(a) ordered by that person, or
(b) ordered in the course of the delivery of a service arranged by that person.
(3) Any sum payable to NHS England by virtue of sub-paragraph (2) may be recovered summarily as a civil debt (but this does not affect any other method of recovery).
Exercise of functions
4 NHS England may, with the consent of the Secretary of State—
(a) direct a Special Health Authority to exercise any functions of NHS England under this Schedule, or
(b) arrange for any other person to exercise any of those functions.
SCHEDULE 17 Exempt information relating to health services
Section 246
Part 1 Descriptions of exempt information
1 Information relating to a particular employee, former employee or applicant to become an employee of, or a particular office-holder, former office-holder or applicant to become an office-holder under, a relevant body.
2 Information relating to any particular occupier or former occupier of, or applicant for, accommodation provided by or at the expense of a relevant body.
3 Information relating to any particular applicant for, or recipient or former recipient of, any service provided by a relevant body.
4 Information relating to any particular applicant for, or recipient or former recipient of, any financial assistance provided by a relevant body.
5 The amount of any expenditure proposed to be incurred by a relevant body under any particular contract for the acquisition of property or the supply of goods and services.
6 Any terms proposed or to be proposed by or to a relevant body in the course of negotiations for a contract for the acquisition or disposal of property or the supply of goods or services.
7 The identity of a relevant body (as well as of any other person, by virtue of paragraph 6) as the person offering any particular tender for a contract for the supply of goods or services.
8 Information relating to any consultations or negotiations, or contemplated consultations or negotiations, in connection with any labour relations matter arising between a relevant body or a Minister of the Crown and employees of, or office-holders under, a relevant body.
9 Any instructions to counsel and any opinion of counsel (whether or not in connection with any proceedings) and any advice received, information obtained or action to be taken in connection with—
(a) any legal proceedings by or against a relevant body, or
(b) the determination of any matter affecting a relevant body,
(whether, in either case, proceedings have been commenced or are in contemplation).
10 Information relating to a particular person who was included in a list of persons undertaking to provide services under Part 2 of the National Health Service Act 1977 (c. 49).
11 Information relating to a particular person who is, or was formerly, included in, or is an applicant for inclusion in—
(a) a pharmaceutical list, or
(b) a pharmaceutical list or ophthalmic list under the National Health Service (Wales) Act 2006 (c. 42).
12 Information relating to a particular person who—
(a) provided primary medical services, primary dental services or primary ophthalmic services under a contract under section 28K, 28Q or 28WA of the National Health Service Act 1977, or
(b) was included in a list under section 28X of that Act.
13 (1) Information relating to a particular person who—
(a) is, or was formerly, providing primary medical services, primary dental services or primary ophthalmic services under a contract under section 84, 100 or 117, or
(b) is, or was formerly, included in, or is an applicant for inclusion in, a list under section 91, 106, 123 or 147A.
(2) In this paragraph—
(a) references to primary medical services and primary dental services include such services provided under the National Health Service (Wales) Act 2006, and
(b) references to provisions of this Act include references to corresponding provisions of that Act.
14 Information relating to any particular employee, former employee, or applicant to become an employee, of a person referred to in paragraph 10, 11, 12 or 13.
15 Information relating to the physical or mental health of a particular individual.
Part 2 Qualifications
16 Information relating to a person of a description specified in any of paragraphs 1 to 4 and 10 to 14 of Part 1 is not exempt information by virtue of that paragraph unless it relates to an individual of that description in the capacity indicated by the description.
17 Information falling within paragraph 5 of Part 1 is exempt information if and so long as disclosure to the public of the amount there referred to would be likely to give an advantage to a person entering into, or seeking to enter into, a contract with a relevant body in respect of the property, goods or services, whether the advantage would arise as against that body or as against other such persons.
18 Information falling within paragraph 6 of Part 1 is exempt information if and so long as disclosure to the public of the terms would prejudice a relevant body in those or any other negotiations concerning the property or goods or services.
19 Information falling within paragraph 8 of Part 1 is exempt information if and so long as disclosure to the public of the information would prejudice a relevant body in those or any other consultations or negotiations in connection with a labour relations matter arising as mentioned in that paragraph.
Part 3 Interpretation
20 In this Schedule—
“disposal”, in relation to property, includes the granting of an interest in or right over it,
“employee” means a person employed under a contract of service,
“labour relations matter” means—
any of the matters specified in paragraphs (a) to (g) of section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (matters which may be the subject of a collective agreement), or
any dispute about a matter falling within paragraph (a),
and for the purposes of this definition the enactments mentioned in paragraph (a), with the necessary modifications, apply in relation to office-holders under a relevant body as they apply in relation to employees of a relevant body,
“office-holder”, in relation to a relevant body, means the holder of any paid office appointments to which are or may be made or confirmed by the body or by any person who holds any such office or is an employee of the body.
SCHEDULE 18 Section 75 arrangements: transfer of staff
Section 75
Application of Schedule
1 This Schedule applies where, under any arrangements under regulations under section 75, any functions of a body (“the transferor”) will be exercised by another body (“the transferee”).
Orders transferring staff
2 (1) The Secretary of State may by order transfer to the transferee any specified description of employees of the transferor.
(2) An order may be made under this paragraph only if any prescribed requirements about consultation have been complied with in relation to each of the employees to be transferred.
Effect of order on contracts of employment
3 (1) The contract of employment of an employee transferred by an order under paragraph 2—
(a) is not terminated by the transfer, and
(b) has effect from the date of the transfer as if originally made between the employee and the transferee.
(2) In particular—
(a) all the rights, powers, duties and liabilities of the transferor under or in connection with the employee's contract of employment are by virtue of this sub-paragraph transferred to the transferee, and
(b) anything done before the date of the transfer by or in relation to the transferor in respect of the employee or his contract of employment is deemed from that date to have been done by or in relation to the transferee.
(3) Sub-paragraphs (1) and (2) do not transfer an employee's contract of employment, or the rights, powers, duties and liabilities under or in connection with it, if he informs the transferor or the transferee that he objects to the transfer.
(4) Where an employee objects as mentioned in sub-paragraph (3), his contract of employment with the transferor is terminated immediately before the date on which the transfer would occur; but he must not be treated, for any purpose, as having been dismissed by that body.
(5) This paragraph does not affect any right of an employee transferred by an order under paragraph 2 to terminate his contract of employment if a substantial change is made to his detriment in his working conditions; but no such right arises by reason only that, under this paragraph, the identity of his employer changes unless the employee shows that, in all the circumstances, the change is a significant change and is to his detriment.
Effect of order on pension rights
4 (1) An order under paragraph 2 may provide that, in the case of an employee of any specified description who is transferred by the order, paragraph 3 does not apply in relation to—
(a) so much of the employee's contract of employment as relates to relevant pension provisions, or
(b) any rights, powers, duties or liabilities under or in connection with that contract, or otherwise arising in connection with the employee's employment, and relating to such provisions.
(2) If an order under paragraph 2 provides as mentioned in sub-paragraph (1), the order may in relation to any such employee make such provision (if any) as the Secretary of State considers appropriate with respect to all or any of the matters mentioned in paragraphs (a) and (b) of that sub-paragraph.
(3) The provision which may be made by virtue of sub-paragraph (2) includes provision—
(a) for any such employee's contract of employment with the transferee to have effect with any specified modifications,
(b) for relevant pension provisions of any specified description to have effect in the case of any such employee with any such modifications.
(4) In this paragraph “relevant pension provisions” means the provisions of an occupational pension scheme within the meaning of the Pension Schemes Act 1993 (c. 48), with the exception (if the order under paragraph 2 so provides) of any provisions of such a scheme falling within a description specified in the order.
Divided employments
5 (1) Where an employee will be transferred by an order under paragraph 2 but will continue to be employed for certain purposes by the transferor, the order may provide that the contract of employment of the employee is, on the date on which the employee is transferred, divided so as to constitute two separate contracts of employment between the employee and the transferor and between the employee and the transferee.
(2) Where an employee's contract of employment is divided as provided under sub-paragraph (1)—
(a) the order must provide for paragraph 3 to have effect in the case of the employee and his contract of employment subject to appropriate modifications, and
(b) paragraph 4 similarly applies only so far as appropriate in connection with the employee's employment by the transferee.
SCHEDULE 21 Prohibition of sale of medical practices
Section 259
Prohibition, and certificate of the Secretary of State
1 (1) Any person who sells or buys the goodwill of a medical practice which it is unlawful to sell by virtue of section 259 is guilty of an offence and liable on conviction on indictment to a fine not exceeding—
(a) such amount as will in the court's opinion secure that he derives no benefit from the offence, and
(b) the further amount of £500,
or to imprisonment for a term not exceeding three months, or both.
(2) Any person proposing to be a party to a transaction or series of transactions which he considers might amount to a sale of the goodwill of a medical practice in contravention of section 259 may ask the Secretary of State for a certificate under this paragraph.
(3) The Secretary of State must—
(a) consider any such application, and
(b) if he is satisfied that the transaction or series of transactions does not involve the giving of valuable consideration in respect of the goodwill of such a medical practice, issue to the applicant a certificate to that effect.
(4) The certificate must—
(a) be in the prescribed form, and
(b) set out all material circumstances disclosed to the Secretary of State.
(5) Where any person is charged with an offence under this paragraph in respect of any transaction or series of transactions, it is a defence to prove that the transaction or series of transactions was certified by the Secretary of State under sub-paragraph (3).
(6) Any document purporting to be such a certificate is admissible in evidence and is deemed to be such a certificate unless the contrary is proved.
(7) The court may disregard such a certificate if it appears to the court that the applicant for the certificate—
(a) failed to disclose to the Secretary of State all the material circumstances, or
(b) made any misrepresentation with respect to the material circumstances.
(8) A prosecution for an offence under this paragraph may be instituted only by or with the consent of the Director of Public Prosecutions, and the Secretary of State must, at the request of the Director, furnish him with—
(a) a copy of any certificate issued by the Secretary of State under sub-paragraph (3), and
(b) copies of any documents produced to him in connection with the application for that certificate.
Certain transactions deemed sale of goodwill
2 (1) For the purposes of section 259 and paragraph 1, a disposal of premises previously used for the purposes of a medical practice is deemed to be a sale of the goodwill of a medical practice if—
(a) the person disposing of the premises did so knowing that another person (“A”) intended to use them for the purposes of A's medical practice, and
(b) the consideration for the disposal substantially exceeded the consideration that might reasonably have been expected if the premises had not previously been used for the purposes of a medical practice.
(2) If a person disposes of any premises together with any other property, the court must, for the purposes of sub-paragraph (1), make such apportionment of the consideration as it considers just.
(3) For the purposes of sub-paragraphs (1) and (2)—
(a) “disposal” means any sale, letting or other form of disposal (whether by a single transaction or a series of transactions) and “disposes” and “disposing” must be read accordingly, and
(b) a person who procures the disposal of any premises must be treated as having disposed of them.
(4) Where in pursuance of any partnership agreement—
(a) any valuable consideration, other than the performance of services in the partnership business, is given by a partner or proposed partner as consideration for his being taken into partnership,
(b) any valuable consideration is given to a partner, on or in contemplation of his retirement or of his acceptance of a reduced share of the partnership profits, or to the personal representative of a partner on his death, not being a payment in respect of that partner's share in past earnings of the partnership or in any partnership assets or any other payment required to be made to him as the result of the final settlement of accounts, as between him and the other partners, in respect of past transactions of the partnership, or
(c) services are performed by any partner for a consideration substantially less than those services might reasonably have been expected to be worth having regard to the circumstances at the time when the agreement was made,
there is deemed for the purposes of section 259 and paragraph 1 to have been a sale of goodwill as specified in sub-paragraph (5).
(5) The sale of goodwill is the sale of the goodwill of the practice—
(a) of any partner to whom, or to whose personal representative, the consideration (or any part of it) is given or for whose benefit the services are performed,
(b) to the partner or each of the partners by or on whose behalf the consideration (or any part of it) was given or to the partner who performed the services.
(6) The sale is deemed for the purposes of section 259 and paragraph 1 to have been effected—
(a) in a case to which sub-paragraph (4)(a) or (b) applies, at the time when the consideration was given, or, if the consideration was not all given at the same time, at the time when the first part was given, or
(b) in a case to which sub-paragraph (4)(c) applies, at the time when the agreement was made.
(7) Sub-paragraph (8) applies if a person (“the assistant”)—
(a) performs services on behalf of a person who carries on a medical practice (or as an employee of a person employing a practitioner who carries on a medical practice),
(b) receives substantially less remuneration for performing those services than might reasonably have been expected, having regard to the circumstances at the time when the remuneration was fixed, and
(c) subsequently succeeds, whether as a result of a partnership agreement or otherwise, to that practice.
(8) For the purposes of section 259 and paragraph 1, a sale of the goodwill of the practice is deemed to have taken place (at the time when the remuneration was fixed) unless it is proved that the remuneration was not fixed in contemplation of the assistant's succeeding to the practice.
(9) For the purposes of section 259 and paragraph 1, the goodwill of a medical practice is deemed to have been sold if sub-paragraph (10) or (11) applies.
(10) This sub-paragraph applies where a person carrying on the practice (or employing a practitioner who carries on a medical practice) agrees, for valuable consideration—
(a) to do or refrain from doing any act for the purpose of facilitating the succession of another to the practice, or
(b) to allow any act to be done for that purpose.
(11) This sub-paragraph applies where a person—
(a) gives valuable consideration to a person carrying on the practice (or employing a practitioner who carries on a medical practice), and
(b) succeeds, or has previously succeeded, to the practice.
(12) Sub-paragraph (9) does not apply if it is proved that no part of the consideration was given in respect of the goodwill.
(13) Sub-paragraph (9) does not apply to anything done—
(a) in relation to the acquisition of premises for the purposes of a medical practice,
(b) in pursuance of a partnership agreement, or
(c) in the performance of medical services by one person as an assistant to another.
Consideration
3 (1) In determining for the purposes of section 259 and this Schedule the consideration given in respect of any transaction, the court must—
(a) have regard to any other transaction appearing to the court to be associated with the first transaction,
(b) estimate the total consideration given in respect of both or all the transactions, and
(c) apportion the total between the transactions in such manner as the court considers just.
(2) For the purposes of section 259 and this Schedule consideration is deemed to be given to a person (“B”) if—
(a) it is given to another person but with B's knowledge and consent, and
(b) it appears to the court that B has derived, or will derive, a substantial benefit from the giving of the consideration.
Carried-over goodwill
4 The fact that a person's medical practice was previously carried on by another person who at any time provided or performed services as specified in section 259 does not, by itself, make it unlawful under section 259 for the goodwill of his practice to be sold.
Interpretation
5 In section 259 and this Schedule, unless the context otherwise requires, references to a person include, in the case of an individual who has died, references to his personal representative.