(1) Subject to the provisions of this section, there shall be paid to the holder of the office of Commissioner the same salary as if he were employed in the civil service of the State in such appointment as the House of Commons may, by resolution, from time to time determine, and any such resolution may take effect from the date on which it is passed or such other date as may be specified therein.
(2) Subject to the provisions of this section and subsections (5) to (7) of section 107 of the National Health Service Act 1977, Schedule 1 to the Parliamentary Commissioner Act 1967 (pensions and other benefits) shall have effect with respect to persons who have held office as Commissioner as it has effect with respect to persons who have held office as Commissioner under that Act of 1967.
(3) The salary payable to a holder of the office of a Commissioner shall be abated by the amount of any pension payable to him in respect of any public office in the United Kingdom or elsewhere to which he has previously been appointed or elected.
(4) In computing the salary of a former holder of the office of Commissioner for the purposes of Schedule 1 to that Act of 1967 there shall be disregarded—
(a) any abatement of that salary under subsection (3);
(b) any temporary abatement of that salary in the national interest; and
(c) any voluntary surrender of that salary in whole or in part.
(5) Where—
(a) a person holds the office of Parliamentary Commissioner for Administration and one or more of the offices of Health Service Commissioner for England, Health Service Commissioner for Scotland and Health Service Commissioner for Wales he shall, so long as he does so, be entitled only to the salary pertaining to the first-mentioned office; and
(b) a person holds two or more of those offices other than that of Parliamentary Commissioner for Administration he shall, so long as he does so, be entitled only to the salary pertaining to such one of those offices as he selects.
(6) A person—
(a) shall not be entitled to make simultaneously different elections in pursuance of paragraph 1 of Schedule 1 to that Act of 1967 in respect of different offices mentioned in subsection (5), and
(b) shall, if he has made or is treated as having made an election in pursuance of that paragraph in respect of such an office, be deemed to have made the same election in respect of all other offices to which he is, or is subsequently, appointed,
and no account shall be taken for the purposes of that Schedule of a period of service in such an office if salary in respect of the office was not paid for that period.
(7) The Minister for the Civil Service may—
(a) by regulations provide that Schedule 1 to that Act of 1967 shall have effect in relation to persons who have held more than one of the offices mentioned in subsection (5), and
(b) by those regulations modify that Schedule as he considers necessary in consequence of those persons having held more than one of those offices,
and different regulations may be made in pursuance of paragraph 4 of that Schedule in relation to different offices so mentioned.
This subsection is subject to subsection (6).
(8) Any salary, pension or other benefit payable by virtue of this section shall be charged on and issued out of the Consolidated Fund.
(1) The Commissioner may appoint such officers as he may determine with the approval of the Minister for the Civil Service as to numbers and conditions of service.
(2) Any function of the Commissioner under this Part may be performed by any officer of the Commissioner authorised for that purpose by him or by any officer so authorised of another Commissioner mentioned in subsection (5) of section 107 of the National Health Service Act 1977.
(3) To assist him in any investigation, the Commissioner may obtain advice from any person who in his opinion is qualified to give it, and such fees or allowances may be paid to such person by the Commissioner as he may, with the approval of the Minister for the Civil Service, determine.
(4) The expenses of the Commissioner under this Part, to such amount as may be sanctioned by the Minister for the Civil Service, shall be defrayed out of moneys provided by Parliament.
(1) Where the office of Commissioner becomes vacant, Her Majesty may, pending the appointment of a new Commissioner, appoint a person under this section to act as the Commissioner at any time during the period of twelve months beginning with the date on which the vacancy arose.
(2) A person appointed under this section shall hold office during Her Majesty’s pleasure and, subject to that, shall hold office—
(a) until the appointment of a new Commissioner or the expiry of the period of twelve months beginning with the date on which the vacancy arose, whichever occurs first; and
(b) in other respects, in accordance with the terms and conditions of his appointment which shall be such as the Secretary of State may, with the approval of the Treasury, determine.
(3) A person appointed under this section shall, while he holds office, be treated for all purposes, except those of section 91, as the Commissioner.
(4) Any salary, pension or other benefit payable by virtue of this section shall be charged on and issued out of the Consolidated Fund.
(5) A person appointed under this section shall not, during his appointment, be a member of a body subject to investigation or any management committee thereof.
(1) In this Part a “body subject to investigation” means any of the following bodies—
(a) Health Boards;
(b) the Agency;
(bb) NHS trusts
(bb) the Dental Practice Board;
(c)
(2) Subject to the provisions of this section, the Commissioner may investigate—
(a) an alleged failure in a service provided by a body subject to investigation, or
(b) an alleged failure of a body subject to investigation to provide a service which it was the function of the body to provide, or
(c) any other action taken by or on behalf of a body subject to investigation,
in a case where a complaint is duly made by or on behalf of any person that he has sustained injustice or hardship in consequence of the failure or in consequence of maladministration connected with the other action.
(3) Except as hereafter provided, the Commissioner shall not conduct an investigation under this Part in respect of any of the following matters—
(a) any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative;
(b) any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law;
but the Commissioner may conduct an investigation notwithstanding that the person aggrieved has or had such a right or remedy, if he is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it.
(4) Without prejudice to subsection (3), the Commissioner shall not conduct an investigation under this Part in respect of any such action as is described in Schedule 14.
(5) Her Majesty may, by Order in Council, amend the said Schedule 14 so as to exclude from the provisions of that Schedule action described in paragraph 4 or 5 of that Schedule.
(6) In determining whether to initiate, continue or discontinue an investigation under this Part, the Commissioner shall, subject to the foregoing provisions of this section, act in accordance with his own discretion; and any question whether a complaint is duly made under this Part shall be determined by the Commissioner.
(1) A complaint under this Part may be made by any individual or by any body of persons, whether incorporated or not, not being—
(a) a local authority or other authority or body constituted for purposes of the public service or of local government or for the purposes of carrying on under national ownership any industry or undertaking or part of an industry or undertaking;
(b) any other authority or body whose members are appointed by Her Majesty or any Minister of the Crown or government department, or whose revenues consist wholly or mainly of moneys provided by Parliament.
(2) Where the person by whom a complaint might have been made under the foregoing provisions of this Part has died or is for any reason unable to act for himself, the complaint may be made by his personal representative or by a member of his family or by some body or individual suitable to represent him; but except as aforesaid a complaint shall not be entertained under this Part unless made by the person aggrieved himself.
(3) A complaint shall not be entertained under this Part unless it is made in writing to the Commissioner by or on behalf of the person aggrieved not later than 12 months from the day on which the matters alleged in the complaint first came to the notice of the person aggrieved; but the Commissioner may conduct an investigation pursuant to a complaint not made within that period if he considers it proper to do so.
(4) Before proceeding to investigate a complaint the Commissioner shall satisfy himself that the complaint has been brought by or on behalf of the person aggrieved to the notice of the body subject to investigation and that that body has been afforded a reasonable opportunity to investigate and reply to the complaint; but the Commissioner may disregard the preceding provisions of this subsection in relation to a complaint made by an officer of the body subject to investigation on behalf of the person aggrieved if the officer is authorised by virtue of subsection (2) to make the complaint and the Commissioner is satisfied that in the particular circumstances those provisions ought to be disregarded.
(5) Notwithstanding the foregoing provisions of this section, a body subject to investigation—
(a) may itself (excluding its officers) refer to the Commissioner a complaint that a person has, in consequence of a failure or maladministration for which the body is responsible, sustained such injustice or hardship as is mentioned in section 93(2) above if the complaint—
(i) is made in writing to that body by that person, or by a person authorised by virtue of subsection (2) above to make the complaint to the Commissioner on his behalf, and
(ii) is so made not later than one year from the day mentioned in subsection (3) above, or within such other period as the Commissioner considers appropriate in any particular case, but
(b) shall not be entitled to refer a complaint in pursuance of paragraph (a) above after the expiry of twelve months beginning with the day on which the body received the complaint;
and a complaint referred to the Commissioner in pursuance of this subsection shall, subject to section 93(6) above, be deemed to be duly made to him under this Part.
95 Application of certain provisions of the Parliamentary Commissioner Act 1967.
The following provisions of the Parliamentary Commissioner Act 1967 shall, with any necessary modifications, apply to the Commissioner, to his officers and to a body subject to investigation as they apply to the Commissioner under that Act, to his officers and to a department or authority concerned:—
section 7 (procedure in respect of investigations);
section 8 (evidence);
section 9 (obstruction and contempt);
section 11 (secrecy of information), except subsection (4);
and in sections 7(1) and 8(1) of the said Act of 1967 as applied by this section the words “the principal officer of” and “Minister” shall be omitted.
(1) Where, at any stage in the course of conducting an investigation under this Part, the Commissioner forms the opinion that the complaint relates partly to a matter which could be the subject of an investigation under—
(a) the Parliamentary Commissioner Act 1967; or
(b) Part V of the National Health Service Act 1977, he shall, if he considers it necessary, inform the person initiating the complaint of the steps necessary to initiate a complaint under the Parliamentary Commissioner Act 1967 or, as the case may be, Part V of the National Health Service Act 1977.
(2) In the circumstances described in subsection (1), the Commissioner shall consult the Parliamentary Commissioner or the Health Service Commissioner for England or for Wales, as appropriate,about the complaint (unless he also holds office as that other Commissioner) and such consultation may extend to any matter relating to the complaint, including—
(a) the conduct of any investigation into the complaint; and
(b) the form, content and publication of any report of the results of such an investigation;
and the application by section 95 of section 11(2) of the Parliamentary Commissioner Act 1967 shall not extend to the disclosure of informa-tion by the Commissioner or any of his officers in the course of such consultations.
(3) Where the Commissioner also holds office as any of the other Commissioners mentioned in subsection (2) and a person initiates a complaint to him in his capacity as such other Commissioner which relates partly to a matter with respect to which that person has previously initiated a complaint to him under this Part, or subsequently initiates such a complaint, information obtained by him or his officers in the course of or for the purposes of the investigation under this Part may be disclosed for the purposes of his carrying out his functions as such other Commissioner in relation to that person’s complaint.
(1) In any case where the Commissioner conducts an investigation under this Part, he shall send a report of the results of his investigation to—
(a) the person who made the complaint;
(aa) to any member of the House of Commons who, to the Commissioner’s knowledge, assisted in the making of the complaint (or if he is no longer a member to such other member as the Commissioner thinks appropriate),
(b) the body subject to investigation;
(c) any person who is alleged in the complaint to have taken or authorised the action complained of;
(d) , the Secretary of State.
(2)
(3) In any case where the Commissioner decides not to conduct an investigation under this Part, he shall send a statement of his reasons for doing so to the persons and bodies described in paragraphs (a) to (b) of subsection (1).
(4) If, after an investigation under this Part has been conducted by the Commissioner or an officer authorised by him, it appears to the Commissioner that injustice or hardship has been caused to the person aggrieved in the circumstances described in section 93(2), and that the injustice or hardship has not been or will not be remedied, he may, if he thinks fit—
(a)
(b) , make a special report to the Secretary of State who shall, as soon as is reasonably practicable, lay a copy of the report before each House of Parliament.
(5) The Commissioner shall annually make to the Secretary of State a general report on the performance of his functions under this Part , and may from time to time make to the Secretary of State such other reports with respect to those functions as the Commissioner thinks fit; and the Secretary of State shall lay a copy of any such report before each House of Parliament.
(6) The Commissioner may from time to time lay before each House of Parliament such reports with respect to his functions under this Part as he thinks fit.
(7) For the purpose of the law of defamation, any report or statement made, sent or laid in pursuance of this section, shall be absolutely privileged.
(1) In this Part and in Schedule 14
“action” includes failure to act, and other expressions connoting action shall be construed accordingly;
“body subject to investigation” has the meaning assigned to it by section 93(1);
“the Commissioner” means the Health Service Commissioner for Scotland;
“person aggrieved” means a person who claims or is alleged to have sustained such injustice or hardship as is mentioned in section 93(2).
(2) It is hereby declared that nothing in this Part authorises or requires the Commissioner to question the merits of a decision taken without maladministration by a body subject to investigation in the exercise of a discretion vested in that body.
Regulations may provide for the making and recovery in such manner as may be prescribed of such charges as the Secretary of State may determine in respect of the provision of such services under this Act as may be prescribed for such persons not ordinarily resident in Great Britain as may be prescribed; and the regulations may provide that the charges are only to be made in such cases as may be determined in accordance with the regulations. The Secretary of State may calculate charges under this section on any basis that he considers to be the appropriate commercial basis.
If any person, for the purpose of evading the payment of any charge under this Act, or of reducing the amount of any such charge—
(a) knowingly makes any false statement or false representation, or
(b) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,
the charge, or as the case may be the balance of the charge, may be recovered from him as a simple contract debt by the person by whom the cost of the service in question was defrayed.
(1) Where goods or services to which this section applies are provided and either—
(a) any charge payable by any person under this Act in respect of the provision of the goods or services is reduced, remitted or repaid, but that person is not entitled to the reduction, remission or repayment; or
(b) any payment under this Act is made to, or for the benefit of, any person in respect of the cost of obtaining the goods or services but that person is not entitled to, or to the benefit of, the payment,
the amount mentioned in subsection (2) is recoverable as a debt from the person in question by the responsible authority.
(2) That amount—
(a) in a case within subsection (1)(a), is the amount of the charge or (where it has been reduced) reduction;
(b) in a case within subsection (1)(b), is the amount of the payment.
(3) Where two or more persons are liable under section 99 or this section to pay an amount in respect of the same charge or payment, those persons shall be jointly and severally liable.
(4) For the purposes of this section, the circumstances in which a person is to be treated as not entitled to a reduction, remission or repayment of a charge, or to (or to the benefit of) a payment, include in particular those in which it is received (wholly or partly)—
(a) on the ground that he or another is a person of a particular description, where the person in question is not in fact of that description;
(b) on the ground that he or another holds a particular certificate, when the person in question does not in fact hold such a certificate or does hold such a certificate but is not entitled to it;
(c) on the ground that he or another has made a particular statement, when the person in question has not made such a statement or the statement made by him is false.
(5) In this section and section 99ZB, “responsible authority” means—
(a) in relation to the recovery of any charge under section 99 in respect of the provision of goods or services to which this section applies, the person by whom the charge is recoverable;
(b) in relation to the recovery by virtue of this section of the whole or part of the amount of any such charge, the person by whom the charge would have been recoverable;
(c) in a case within subsection (1)(b), the person who made the payment.
(6) But the Secretary of State may by directions provide for—
(a) the functions of any responsible authority of recovering any charges under this Act in respect of the provision of goods or services to which this section applies;
(b) the functions of any responsible authority under this section and section 99ZB,
to be exercised on behalf of the authority by another health service body.
(7) This section applies to the following goods and services—
(a) dental treatment and appliances provided in pursuance of this Act;
(b) drugs and medicines provided in pursuance of this Act;
(c) the testing of sight;
(d) optical appliances;
(e) any other appliances provided in pursuance of this Act.
(1) Regulations may provide that, where a person fails to pay—
(a) any amount recoverable from him under section 99 in respect of the provision of goods or services to which section 99ZA applies; or
(b) any amount recoverable from him under section 99ZA,
a notice (referred to in this section as a penalty notice) may be served on the person, by or on behalf of the responsible authority, requiring him to pay to the authority, within a prescribed period, that amount together with a charge (referred to in this section as a penalty charge) of an amount determined in accordance with the regulations.
(2) The regulations may not provide for the amount of the penalty charge to exceed whichever is the smaller of—
(a) £100;
(b) the amount referred to in subsection (1)(a) or (b) multiplied by 5.
(3) The Secretary of State may by order provide for subsection (2) to have effect as if, for the sum specified in paragraph (a) or the multiplier specified in paragraph (b) (including that sum or multiplier as substituted by a previous order), there were substituted a sum or (as the case may be) multiplier specified in the order.
(4) Regulations may provide that, if a person fails to pay the amount he is required to pay under a penalty notice within the period in question, he must also pay to the responsible authority by way of penalty a further sum determined in accordance with the regulations.
(5) The further sum must not exceed 50 per cent. of the amount of the penalty charge.
(6) Any sum payable under the regulations (including the amount referred to in subsection (1)(a) or (b)) may be recovered by the responsible authority as a debt.
(7) But a person is not liable by virtue of a penalty notice—
(a) to pay at any time so much of any amount referred to in subsection (1)(a) or (b) for which he is jointly and severally liable with another as at that time has been paid, or ordered by a court to be paid, by that other; or
(b) to a penalty charge, or a further sum by way of penalty, if he shows that he did not act wrongfully, or with any lack of care, in respect of the charge or payment in question.
(8) Section 99ZA and this section apply to charges which may be made and recovered under section 20 of the National Health Service (Primary Care) Act 1997 as they apply to charges under this Act which may be recovered under section 99; and the reference to this Act in section 99ZA(7)(a) includes a reference to a pilot scheme (within the meaning of the 1997 Act).
The Secretary of State’s functions may be performed outside Scotland, in so far as they relate—
(a) to holidays for patients;
(b) to the transfer of patients to or from England, Wales, Northern Ireland, the Isle of Man or the Channel Islands; or
(c) to the return of patients who have received treatment in Scotland to countries or territories outside the British Islands.
100 Accommodation for persons displaced in course of development.
(1) Where the carrying out of a scheme for the provision by the Secretary of State in pursuance of this Act or the Mental Health (Care and Treatment) (Scotland) Act 2003 of accommodation or other facilities will involve the displacement from any premises of persons residing in them, the Secretary of State may make arrangements with one or more of the following bodies—
(a) an authority who are a local authority for the purposes of the Housing (Scotland) Act 1987,
(b) the Scottish Special Housing Association;
(c) a Housing Association or Housing Trust within the meaning of the Housing Associations Act 1985.
(d) a development corporation established under the New Towns (Scotland) Act 1968,
for securing, in so far as it appears to him that there is no other residential accommodation suitable for the reasonable requirements of those persons available on reasonable terms, the provision of residential accommodation in advance of the displacements from time to time becoming necessary as the carrying out of the scheme proceeds.
(2) Arrangements made under subsection (1) may include provision for the making by the Secretary of State to the body with whom the arrangements are made of payments of such amounts, and for such purposes, as may be approved by the Treasury.
101 Protection of Health Boards and Common Services Agency.
Section 166 of the Public Health (Scotland) Act 1897 (which relates to the protection of local authorities and their officers) shall apply in relation to a Health Board , an NHS trust and the Agency in like manner as the said section applies in relation to a local authority, but with the substitution for any reference to that Act of a reference to this Act.
(1) The Secretary of State shall provide such hospitals as appear to him to be necessary for persons subject to detention under the Criminal Procedure (Scotland) Act 1995 (c. 46) or the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) who require treatment under conditions of special security on account of their dangerous, violent or criminal propensities.
(2) Hospitals provided by the Secretary of State under subsection (1) are referred to in this Act as “state hospitals”.
(3) Subject to subsection (4) and section 2, state hospitals shall be under the control and management of the Secretary of State.
(4) The Secretary of State may provide for the management of a state hospital to be undertaken on his behalf by—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) A Health Board, a Special Health Board, the Agency or an NHS trust to the extent that power to do so is delegated to the Board, Agency or trust by the Secretary of State.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Any question which is required by this Act or by any regulation thereunder to be determined by arbitration shall be determined by a single arbiter agreed upon by the parties, or, failing such agreement, appointed by the Court of Session on the application of any of the parties to the question; and at any stage in the proceedings in any such arbitration the arbiter may, and shall if so directed by the Court of Session, state a case for the opinion of that Court on any question of law arising in the arbitration.
(1) Stamp duty shall not be payable on any conveyance, agreement or assignation made, or instrument executed, solely for the purpose of giving effect to any transfer of property, rights or liabilities by, or by an order made under, sections 2 or 82 or paragraph 7 of Schedule 6.
(2) Section 12 of the Finance Act 1895 (which requires Acts to be stamped as conveyances on sale in certain cases) shall not apply to the transfer of property, rights or liabilities by, or by an order made under, section 2, and stamp duty shall not be payable on any such order.
(1) This section applies to a land transaction effected by a conveyance, agreement or assignation made, or an instrument executed, solely for the purpose of giving effect to any transfer of property, rights or liabilities held upon trust under section 82.
(2) For the purposes of stamp duty land tax the land transaction is exempt from charge.
(3) Relief under this section must be claimed in a land transaction return or an amendment of such a return.
(4) In this section—
“land transaction” has the meaning given by section 43(1) of the Finance Act 2003;
“land transaction return” has the meaning given by section 76(1) of that Act.
(1) Any power to make orders and regulations conferred by this Act shall be exercisable by statutory instrument.
(1A) Subsection (1) does not apply to orders made under section 12D(1) or paragraph 26(1) of Schedule 7A.
(2) A statutory instrument made by virtue of this Act shall, subject to subsections (2A) to (4), be subject to annulment in pursuance of a resolution by either House of Parliament.
(2A) No regulations shall be made under paragraph 12(1) of Schedule 1A (Health Board elections) unless a draft has been laid before, and approved by resolution of, the Scottish Parliament.
(3) No regulations shall be made under section 17L(1)(b)section 10O, section 10Z7 , section 12IJ(5), section 12IK(4) or sub-paragraphs (1) or (2) of paragraph 6 of Schedule 6 (capital value of and borrowings from relevant endowments or orders under section 10G, 10Z16(3) or section 99ZB(3)) unless a draft has been laid before Parliament and approved by a resolution of each House of Parliament.
(4) Subsection (2) does not apply to—
(a) an order made under section 2(1) constituting a Health Board;
(b) orders made under sections 2(11), 8, 10(3) to (5) 12A(1), 12A(8), 12E(1), 12G(2),, 70(2) . . . paragraph 25(1) of Schedule 7A and paragraph 3 of Schedule 7B;
(5) Any power to make regulations conferred on the Secretary of State by this Act is, if the Treasury so direct, exercisable by the Treasury and the Secretary of State jointly except in the case of—
(a) regulations made under section 22;
(b) regulations made under section 69(1) in respect of charges for the drugs, medicines or appliances referred to in paragraph (a) of that subsection, or under paragraph 1(1) of Schedule 11 in respect of the remission or repayment of any charge payable under that section in the cases provided for in paragraph 1(1) of that Schedule;
(c) regulations made under paragraph 2(2) of that Schedule;
(d) regulations made under paragraph 2(6) of that Schedule;
(6) Where under any provision of this Act—
(a) power to make an order may be exercisable, or
(b) directions may be given, or
(c) schemes may be made,
that provision includes power to vary or revoke the order or direction or scheme, as the case may be, by subsequent order or subsequent directions or subsequent scheme made in the like manner and subject to the same provisions.
(7) Any power conferred by this Act to make regulations , orders or directions may be exercised—
(a) either in relation to all cases to which the power extends, or in those cases subject to exceptions, or in relation to any specified cases or classes of case, and
(b) subject to such other exceptions or conditions as the Secretary of State thinks fit,
and shall include power to make such supplementary, incidental, consequential, transitory, transitional or saving provision as appears to the Secretary of State to be expedient.
This subsection does not apply to regulations made under section 22 (but without prejudice to subsection (3) of that section) or to an order made under section 49 (but without prejudice to paragraph 1(1) of Schedule 10).
Regulations may make provision for all or any of the following matters,—
(a) for prescribing the forms of notices and other documents, and the manner of service of notices and other documents;
(b) for prescribing the manner in which documents may be executed or proved;
(c) for prescribing the manner in which resolutions of any bodies constituted under this Act are to be proved.
(1) Subject to subsection (2), where any local enactment provides for any matter which is also provided for by any provision of this Act or of any order or regulations made under this Act, the provisions of this Act, or as the case may be, of that order or those regulations, shall have effect in substitution for the local enactment, which shall cease to have effect.
(2) The Secretary of State may by order except from the operation of subsection (1) such local enactments as may be specified in the order and direct that corresponding provisions of this Act or of any order or regulations made under this Act, shall not have effect in the areas in which the specified local enactments have effect.
(3) If it appears to the Secretary of State that any local enactment not being an enactment which has ceased to have effect by virtue of subsection (1), is inconsistent with any provision of this Act or that any order or regulations made under this Act, or is no longer required, or regulations to be amended, having regard to any such provision, order or regulation, he may by order repeal or amend the local enactment as he may consider appropriate.
(1) In this Act, unless the contrary intention appears—
“the 2021 Act” means the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021;
“the Agency” has the meaning indicated in section 10;
“area medical committee”, “area dental committee”, “area nursing and midwifery committee”, “area pharmaceutical committee” and “area optical committee” have the meanings indicated in section 9(2);
“community care services” has the meaning given by section 12A(8) of the Social Work (Scotland) Act 1968;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“the Dental Estimates Board” has the meaning indicated in section 4;
“dental practitioner” means a person registered in the dentists register under the Dentists Act 1984;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“dispensing optician” means a person who is registered in the register kept under section 2 of the Opticians Act 1958 of dispensing opticians or a body corporate enrolled in the list kept under section 4 of that Act or such bodies carrying on business as dispensing opticians;
“education authority” has the same meaning as in the Education (Scotland) Act 1980;
“ EEA State” means a member State, Norway, Iceland or Lichtenstein;
“equipment” includes any machinery, apparatus or appliance, whether fixed or not, and any vehicle;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“functions” includes powers and duties;
“ general medical services contract ” has the meaning given in section 17J(2);
“ general ophthalmic services ” is to be construed in accordance with section 26(1F);
“ goods ” includes accommodation
“governing body”, in relation to any hospital to which section 89 applies, includes any body, whether corporate or unincorporate, having the control and management of the hospital or any part of it or otherwise carrying on the business of the hospital or any part of it;
“Health Board” means a Health Board constituted under section 2;
“the health service” means the health service established in pursuance of section 1 of the National Health Service (Scotland) Act 1947;
“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;
“ HIS ” has the meaning indicated in section 10A;
“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 any institution for providing dental treatment maintained in connection with a dental school,
and includes clinics, dispensaries, and out-patient departments maintained in connection with any such home or institution, and “hospital accommodation” shall be construed accordingly;
“the Hospital Trust”has the meaning indicated in section 11;
“illness” includes mental disorder within the meaning of section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and any injury or disability requiring medical or dental treatment or nursing;
“integration joint board” means an integration joint board established under section 9(2) of the Public Bodies (Joint Working) (Scotland) Act 2014;
“local authority”means a council constituted under section 2 of the Local Government etc. (Scotland ) Act 1994;
“local consultative committee” means a committee recognised by the Secretary of State under section 9(1);
“local health council” has the meaning indicated in section 7;
“medical” includes surgical;
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“ medical practitioner ”means a registered medical practitioner within the meaning of Schedule 1 to the Interpretation Act 1978
“medicine” includes such chemical re-agents as are included in a list for the time being approved by the Secretary of State for the purposes of section 27;
“modifications” includes additions, omissions and amendments;
“ National Health Service trust ” has the meaning indicated by section 12A and “ NHS trust ” shall be construed accordingly
“ NHS contract ” has the meaning indicated by section 17A(3)
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“officer” includes servant;
“ operational date ”, in relation to an NHS trust, shall be construed in accordance with paragraph 3(1)(e) of Schedule 7A;
“ ophthalmic optician ” means a person registered in the register of optometrists maintained under section 7 of the Opticians Act 1989 ... 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 an expectant or nursing mother and a lying-in woman;
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“ pilot scheme ” has the meaning given by section 1 of the National Health Service (Primary Care) Act 1997 (c.46);
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“prescribed” means prescribed by regulations made by the Secretary of State under this Act;
“ primary medical services ” is to be construed in accordance with section 2C(5);
“property” includes rights;
“ provide ” includes manage
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“ 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;
“ Regulation ( EC ) No. 883/2004 ” means Regulation ( EC ) No. 883/2004 of the European Parliament and of the Council of 29th April 2004 on the coordination of social security systems,
“ regulations ” means regulations made by the Secretary of State under this Act;
“ relevant endowment ” has the meaning indicated in section 11;
“ the Research Trust ” means the Scottish Hospital Endowments Research Trust constituted under subsection (1) of section 12 of this Act (before the repeal of that subsection by section 38(2)(a) of the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13);
“ section 17C arrangements ” has the same meaning as in section 17E(9);
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“ Special Health Board ” means a Special Health Board constituted under section 2;
“ state hospital ” has the meaning indicated in section 102(2)
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“ superannuation benefits ” means annual superannuation allowances, gratuities and periodical payments payable on retirement, death or incapacity, and similar benefits;
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“ the Tribunal ” has the meaning indicated in section 29;
“ the Trust ” has the meaning indicated in section 11;
“ University Liaison Committee ” means a committee such as is referred to in section 8;
“ 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.
(1A) References in this Act to “carrying on the business of dentistry” are to be construed in accordance with section 40 of the Dentists Act 1984 (c. 24).
(2) References in this Act to the purposes of a hospital shall be construed as referring both to the general purposes of the hospital and to any specific purpose of the hospital.
(3) Any reference in this Act to any enactment is a reference to it as amended or applied by or under any other enactment including this Act.
(4) In this Act, except where otherwise indicated,—
(a) a reference to a numbered Part, section or Schedule is a reference to the Part or section of, or the Schedule to, this Act so numbered;
(b) a reference in a section to a numbered subsection is a reference to the subsection of that section so numbered;
(c) a reference in a section, subsection or Schedule to a numbered or lettered paragraph is a reference to the paragraph of that section, subsection or Schedule so numbered or lettered; and
(d) a reference to any provision of an Act (including this Act) includes a reference to any Schedule incorporated in the Act by that provision.
109 Transitional provisions and savings, consequential amendments and repeals.
Schedule 15 to this Act is hereby given effect, and subject to the transitional provisions and savings contained in that Schedule—
(a) the enactments and the order specified in Schedule 16 have effect subject to the amendments (being amendments consequent on this Act) specified in that Schedule, and
(b) the enactments specified in Schedule 17 (which include enactments which were spent before the passing of this Act) are hereby repealed to the extent specified in the third column of that Schedule;
but nothing in this Act shall be taken as prejudicing the operation of sections 16(1) and 17(2)(a) of the Interpretation Act 1978 (which relates to the operation of repeals).
(1) This Act may be cited as the National Health Service (Scotland) Act 1978.
(2) Subject to subsection (3)subsections (2A) and (3), this Act extends only to Scotland.
(2A) Section 87B(3) extends also to England and Wales.
(3) Paragraph 3 of Schedule 10 extends to other parts of the United Kingdom.
(4) This Act shall come into force on 1st January 1979.
Section 2.
Part I
Constitution
1 A Health Board shall be a body corporate and shall have a common seal.
2 (1) A Health Board is to consist of the following types of members—
(a) a chairman, and other members, appointed by the Scottish Ministers (“appointed members”), and
(b) councillors appointed by the Scottish Ministers following nomination by local authorities in the area of the Health Board (“councillor members”), and
(c) individuals elected as members of the Health Board at an election held under Schedule 1A (“elected members”).
(2) Regulations must, in relation to each Health Board, specify—
(a) the total number of members of the Board, and
(b) the number of each type of member.
(3) At least one councillor member must be appointed for each local authority whose area is wholly or partly within the area of the Board.
2A In the case of a prescribed Health Board at least one of the appointed members must hold a post in a university with a medical or dental school.
3 An appointed member may be appointed only after consultation with the following bodies—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) any university appearing to the Secretary of State to have an interest in the provision of health services in that area;
(c) such organisations as the Secretary of State may recognise as representative in that area of the medical, dental, nursing, pharmaceutical and ophthalmic professions and such other professions as the Secretary of State considers appropriate, or of those professions generally; and
(d) such other organisations as appear to the Secretary of State to be concerned.
3A A person appointed as chairman of a Health Board may not be an employee of that Health Board.
4 The Secretary of State may pay to
(a) the chairman of a Health Board,
(b) such other members of a Health Board as may be prescribed, and
(c) such members of committees and sub-committees of a Health Board as may be prescribed,
such remuneration as he may, with the approval of the Minister for the Civil Service, from time to time determine.
5 A Health Board may employ such officers and servants on such terms as to remuneration and conditions of service as the Board may, determine in accordance with regulations and any directions given under this paragraph by the Secretary of State.
5A Regulations or directions under paragraph 5 may provide for approvals, authorisations or determinations to have effect from a date (which may be before or after the date of giving or making them but may not be before if to the detriment of such officers and servants) specified in them and a direction under that paragraph may relate to a particular officer or servant or class of officer or servant specified in the direction.
6 Regulations may make provision with respect to the method of appointment of officers or servants of a Health Board and as to the qualifications, remuneration and conditions of service of those persons.
6A (1) Sub-paragraph (3) 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 (interim orders); or
(b) by a direction or 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.
(2) For the purposes of sub-paragraph (1), a “relevant determination” that a practitioner's fitness to practise 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.
(3) Where this sub-paragraph applies, notwithstanding paragraph 7 of this Schedule, the suspension shall not terminate any contract of employment made between the dental practitioner and a Health Board, but a person whose registration is so suspended shall not perform any duties under a contract made between him and a Health Board which involves the practice of dentistry within the meaning of the Dentists Act 1984.
7 No officer or servant of a Health Board to whom regulations or any directions given under paragraph 5 apply shall be employed otherwise than in accordance with the regulations or, as the case may be, the directions.
7A Regulations may provide for the transfer of officers and servants from a Health Board to—
(a) another Health Board;
(b) the Agency; or
(c) a state hospital,
and for arrangements under which the services of an officer or servant of a Health Board are placed at the disposal of a body mentioned in sub-paragraphs (a) to (c).
7B Directions may be given by the Secretary of State—
(a) to a Health Board to place services of any of its officers or servants at the disposal of a body mentioned in sub-paragraphs (a) to (c) of paragraph 7A; and
(b) to any such body to employ as an officer or servant any person who is or was employed by a Health Board and is specified in the direction,
and a Board or body to which such directions are given shall comply with the directions.
7C Before making regulations under paragraph 7A or 8A, the Secretary of State shall consult such bodies and organisations as appear to him to be concerned.
8 Regulations under paragraph 6 shall not contain a requirement that all consultants employed for the purpose of hospitals shall be employed whole-time.
8A In connection with arrangements relating to community care services ..., regulations may make provision with respect to—
(a) the transfer to employment by a local authority of officers or servants employed by a Health Board; and
(b) the transfer to employment by a National Health Service body of officers and servants transferred to employment by a local authority by virtue of this paragraph,
and for the purposes of this paragraph “ National Health Service body ” means a Health Board, the Agency or an NHS trust.
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Part II
Supplementary provisions
10A (1) An elected member holds office for a period beginning with the day after the day of the Health Board election at which the member was elected and ending on the day of the next following Health Board election in the Health Board area.
(2) An elected member vacates office on becoming—
(a) a member of the European Parliament,
(b) a member of the House of Commons,
(c) a member of the House of Lords,
(d) a member of the Scottish Parliament, or
(e) a local authority councillor.
(3) Regulations may specify further circumstances in which an elected member must vacate office before the end of that period and, in particular, may specify that an elected member is to vacate office on becoming the holder of a post set out in a list of restricted posts maintained by the Health Board concerned for that purpose.
11 Regulations may make provision—
(a) as to the appointment, tenure and vacation of office of appointed members and councillor members (including provision specifying circumstances in which the Scottish Ministers may determine that such a member is to vacate office);
(b) as to the delegation of functions to committees or sub-committees constituted in accordance with the regulations; and
(c) as to the procedure of Health Boards, their committees and sub-committees;
(d)
11A A Health Board may subscribe to the funds of any associations or other bodies having objects of which the Board approves.
12 The proceedings of a Health Board shall not be invalidated by any vacancy in membership or by any defect in the appointment or, as the case may be, election of any member thereof.
13 The Secretary of State shall pay to members of a Health Board, the committees and sub-committees thereof, such travelling and other allowances, including compensation for loss of remunerative time, as he may, with the approval of the Minister for the Civil Service, from time to time determine.
14 Allowances shall not be paid under paragraph 13 except in connection with the performance of such powers or duties, in such circumstances, as the Secretary of State may determine.
15 Payment under paragraph 13 shall be made at such times and in such manner, and subject to such conditions as to records, certificates or otherwise, as the Secretary of State may determine.
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18 The functions transferred to and exercisable by Health Boards under section 56 of the National Health (Scotland) Act 1972 (functions under the Nursing Homes Registration (Scotland) Act 1938) shall continue to be exercisable by them under this paragraph.
19 The Secretary of State may, with any necessary modifications, by order apply any of the provisions of paragraph 6 of Schedule 3 to the Civil Aviation Act 1982 to the case of a person who enters the employment of a Health Board after having been employed in employment to which the said paragraph 6 applies, and any such order may provide that for the purposes of any enactment specified in the order, or for any other purposes so specified, there shall be deemed to have been no break in the employment of any such person.
(introduced by section 2(10A))
Health Board elections
1 An election held under this Schedule is known as a “Health Board election”.
Timing of Health Board elections
2 (1) A Health Board must hold the first Health Board election in the Health Board area on the day specified in election regulations.
(2) Election regulations may specify different days for the first election in different Health Board areas.
(3) A Health Board must hold subsequent Health Board elections on the first Thursday falling after the end of the period of 4 years beginning with the day of the previous election.
(4) But a Health Board election may be held in a Health Board area before the day specified in sub-paragraph (3) if the Scottish Ministers make an order under section 77 specifying the date of a Health Board election in that area.
Electoral wards
3 (1) Each Health Board area is to be comprised of a single electoral ward unless election regulations specify that a Health Board area is to be divided into more than one ward.
(2) If regulations specify such a division they must also specify—
(a) the number of electoral wards in the Health Board area,
(b) the boundaries of those wards, and
(c) the number of elected members to be elected in each ward.
(3) Before regulations specifying such a division are made—
(a) the Scottish Ministers must consult the Local Government Boundary Commission for Scotland, and
(b) the Commission must give the Scottish Ministers advice about the boundaries of the electoral wards which the Health Board is to be divided into.
Conduct of election
4 (1) Election regulations must appoint an individual as the returning officer for each ward in which a Health Board election is to be held.
(2) Election regulations may make provision about—
(a) the tenure and vacation of office of a returning officer,
(b) the functions of a returning officer,
(c) a returning officer's fees and expenses,
(d) any other matters relating to returning officers that the Scottish Ministers consider appropriate.
5 (1) The nomination of a candidate must be made—
(a) within the period specified in election regulations (the “nomination period”), and
(b) in accordance with any other requirement made in those regulations.
(2) A candidate may withdraw from a Health Board election at any time before the end of the nomination period.
6 If, at the end of the nomination period, the number of nominated candidates in an electoral ward is equal to or less than the number of elected members to be elected for that ward—
(a) the Health Board election is not to be held in the ward, and
(b) on the day on which the election was to be held the returning officer must—
(i) declare the nominated candidates (if any) to be deemed to have been elected as elected members for the ward, and
(ii) if the number of nominated candidates is less than the number of elected members to be elected for the ward, declare the number of vacancies in the ward.
7 (1) In any other case, the elected members are to be elected for the electoral ward at a poll held in accordance with this paragraph.
(2) At the poll, each individual entitled to vote may vote by marking on the ballot paper—
(a) the voter's first preference from among the candidates, and
(b) if the voter wishes to express a further preference for one or more candidates, the voter's second and, if the voter wishes, subsequent preferences from among those candidates.
(3) Election regulations must, in particular, make provision about—
(a) the manner in which and period during which votes may be cast,
(b) the form and content of ballot papers,
(c) the manner in which the number of votes which will secure the return of a candidate as an elected member is to be calculated,
(d) the procedure for counting votes,
(e) the declaration of the result of the poll.
Candidates
8 (1) An individual is disqualified from being a candidate in a Health Board election if the individual is—
(a) a member of the European Parliament,
(b) a member of the House of Commons,
(c) a member of the House of Lords,
(d) a member of the Scottish Parliament, or
(e) a local authority councillor.
(2) Election regulations may make further provision about—
(a) who is qualified to be a candidate in a Health Board election, and
(b) the circumstances in which an individual may be disqualified from being a candidate,
and, in particular, may disqualify from being a candidate an individual holding a post set out in a list of restricted posts maintained by the Health Board concerned for that purpose.
Franchise
9 (1) An individual is entitled to vote at a Health Board election if the individual—
(a) is aged 16 or over, and
(b) meets any further criteria specified in election regulations.
(2) Such further criteria may, in particular, provide that an individual is entitled to vote at a Health Board election only if the individual—
(a) is registered in the register of local government electors in respect of an address in the Health Board area, and
(b) would be entitled to vote at a local government election in an electoral area falling wholly or partly in the Health Board area (or would be so entitled if aged 18 or over).
(3) Election regulations may determine, or set out the criteria for determining, the electoral ward in which an individual is entitled to vote.
(4) Election regulations may not entitle an individual to vote—
(a) more than once in the same Health Board area, nor
(b) in more than one Health Board area.
Election expenses
10 Election regulations may make provision about the expenses which may be incurred by any person in connection with a Health Board election.
Vacancies
11 (1) This paragraph applies if—
(a) a returning officer declares a vacancy in an electoral ward (see paragraph 6), or
(b) an elected member vacates office before the end of the period mentioned in paragraph 10A(1) of Schedule 1.
(2) The Scottish Ministers may—
(a) direct the Health Board with the vacancy to invite an unelected candidate to fill the vacancy, or
(b) appoint, in accordance with any provision made by election regulations, an individual to fill the vacancy.
(3) If a vacancy arises less than 6 months before the date of the next Health Board election in the Health Board area where it arises, the Scottish Ministers may, instead of taking action under sub-paragraph (2), direct the Health Board to leave the vacancy unfilled until that next election.
(4) An individual who fills a vacancy is to be deemed to be an elected member of the Health Board elected for the ward in which the vacancy occurred.
(5) In sub-paragraph (2)(a), an “unelected candidate” is an individual who—
(a) was a nominated candidate in the last Health Board election to be held in the Health Board area, and
(b) is identified by criteria specified in election regulations.
Election regulations
12 (1) The Scottish Ministers may make regulations (“election regulations”) in relation to any matter specified in this Schedule as something in relation to which provision may be made by election regulations.
(2) Election regulations may make further provision about Health Board elections (in so far as not already provided for in this Schedule).
(3) In particular, election regulations may provide that an enactment applies (with or without modifications specified in the regulations) or does not apply to Health Board elections.
(4) In sub-paragraph (3), “enactment” includes an Act of the Scottish Parliament and any instrument made under such an Act.
1 The Medical Practices Committee shall consist of a chairman, who shall be a medical practitioner, and 5 other members of whom 3 shall be medical practitioners actively engaged in medical practice.
2 The chairman and members shall be appointed by the Secretary of State after consultation with such organisations as the Secretary of State may recognise as representative of the medical profession.
3 The Secretary of State may make regulations with respect to the appointment, tenure of office and vacation of office of the members of the Committee.
4 The Secretary of State may provide the services of such officers as the Committee may require.
5 The proceedings of the Committee shall not be invalidated by any vacancy in the membership of the Committee or by any defect in the appointment or qualification of any member thereof.
Section 8.
The University Liaison Committee for any area or combination of areas shall consist of such number of members as the Secretary of State thinks fit; and of those members—
(a) not less than one-third shall be appointed by any university or universities appearing to the Secretary of State to have an interest in the health service in the area or combined areas;
(b) a number, equal to the number appointed under paragraph (a), shall be appointed by the Health Board for the area or, as the case may be, by the Health Boards for the combined areas acting jointly; and
(c) any other members shall be appointed in such manner as may be provided in the order constituting the Committee.
The Committee shall appoint one of their number to be chairman.
Section 10.
1 The Agency shall be a body corporate and shall have a common seal.
2 The affairs of the Agency shall be managed by a management committee constituted in accordance with paragraph 3.
3 The management committee shall consist of a chairman appointed by the Secretary of State and such other members as the Secretary of State may, after consultation with the Health Boards, appoint.
3A The Secretary of State may pay to the chairman of the management committee and to such other members of the management committee as may be prescribed such remuneration as he may, with the approval of the Minister for the Civil Service, from time to time determine.
4 The proceedings of the management committee shall not be invalidated by any vacancy in its membership or by any defect in the appointment of any member thereof.
5 The Secretary of State shall pay to members of the management committee and sub-committees thereof such travelling and other allowances, including compensation for loss of remunerative time, as he may, with the approval of the Minister for the Civil Service, from time to time determine.
6 Allowances shall not be paid under paragraph 5 except in connection with the performance of such powers or duties, in such circumstances, as the Secretary of State may determine.
7 The Agency may employ such officers and servants on such terms as to remuneration and conditions of service as the management committee may, determine in accordance with regulations and any directions given under this paragraph by the Secretary of State.
7A Regulations or directions under paragraph 7 may provide for approvals, authorisations or determinations to have effect from a date (which may be before or after the date of giving or making them but may not be before if to the detriment of such officers and servants) specified in them.
7B Regulations may provide for the transfer of officers and servants from the Agency to a Health Board or state hospital, and for arrangements under which the services of an officer or servant of the Agency are placed at the disposal of a Health Board or state hospital.
7C Directions may be given by the Secretary of State—
(a) to the Agency to place services of any of its officers or servants at the disposal of a Health Board or state hospital; and
(b) to a Health Board or state hospital to employ as an officer or servant any person who is or was employed by the Agency and is specified in the direction,
and it shall be the duty of the Agency, a Health Board or a state hospital to comply with any such directions given to it.
8 Regulations may make provision with respect to—
(a) the appointment, tenure and vacation of office of the chairman and members of the management committee;
(b) enabling alternative members to attend in place of any member of the committee who may be absent;
(c) the appointment by the management committee of sub-committees, whose membership may include persons who are not members of the management committee;
(d) the procedure of the management committee; and
(e) the method of appointment of officers or servants of the Agency and the qualifications, remuneration and conditions of service of those persons.
8A In connection with arrangements relating to community care services ..., regulations may make provision with respect to—
(a) the transfer to employment by a local authority of officers or servants employed by the Agency; and
(b) the transfer to employment by a National Health Service body of officers and servants transferred to employment by a local authority by virtue of this paragraph.
and for the purposes of this paragraph “ National Health Service body ” means the Agency, a Health Board or an NHS trust.
8B Before making regulations under paragraph 7B or 8A, the Secretary of State shall consult such bodies and organisations as appear to him to be concerned.
9 No officer or servant of the Agency to whom regulations or any directions given under paragraph 7 apply shall be employed otherwise than in accordance with the regulations or, as the case may be, the directions.
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12 The Secretary of State may exercise the powers conferred by paragraph 19 of Schedule 1 in the case of a person who enters the employment of the Agency and to whom that paragraph otherwise applies.
(introduced by section 10A(5))
Status
1 (1) Healthcare Improvement Scotland is a body corporate.
(2) HIS is not to be regarded as a servant or agent of the Crown, or as having any status, immunity or privilege of the Crown, nor are its members or its employees to be regarded as civil servants.
(3) HIS's property is not to be regarded as property of, or held on behalf of, the Crown.
Membership of HIS
2 (1) HIS is to consist of the following members—
(a) a person appointed by the Scottish Ministers to chair HIS;
(b) the person appointed under paragraph 2(1)(a) of schedule 11 to the Public Services Reform (Scotland) Act 2010 (asp 8) to chair Social Care and Social Work Improvement Scotland; and
(c) no fewer than 10 nor more than 13 other members appointed by the Scottish Ministers.
(2) The Scottish Ministers may by order amend sub-paragraph (1)(c) by substituting for the minimum or maximum number of members for the time being specified there such other number as they think fit.
(3) In appointing members, the Scottish Ministers are to have regard to the desirability of including—
(a) persons who have experience of, and have shown capacity and capability in, the provision of services provided under the health service or independent health care services;
(b) persons who use, or have used services provided under the health service or independent health care services;
(c) persons who have such other skills, knowledge or experience as the Scottish Ministers consider to be relevant in relation to the exercise of HIS's functions.
Terms of appointment etc.
3 (1) Each member of HIS is to be appointed for such period as the Scottish Ministers think fit.
(2) A member—
(a) holds and vacates office in accordance with the terms and conditions of appointment; but
(b) may, by written notice to the Scottish Ministers, resign office as a member.
(3) A person is, on ceasing to be a member, eligible for reappointment.
Removal of members
4 The Scottish Ministers may, by written notice, remove a member from office if they are satisfied that—
(a) the member—
(i) has been adjudged bankrupt;
(ii) has granted a trust deed for creditors or a composition contract;
(iii) has proposed a voluntary arrangement which has been approved;
(b) the member's estate has been sequestrated;
(c) the member has been absent from 3 consecutive meetings of HIS without the permission of HIS;
(d) the member is otherwise unfit or unable to discharge the functions of a member.
Disqualification from membership
5 A person is disqualified from appointment, and from holding office, as a member of HIS if that person is—
(a) a member of the Scottish Parliament;
(b) a member of the House of Commons;
(c) a member of the European Parliament.
Remuneration and allowances for members
6 HIS must pay to each of its members such—
(a) remuneration; and
(b) allowances and expenses,
as the Scottish Ministers may determine.
Chief executive and other employees
7 (1) HIS is to employ a chief executive.
(2) The chief executive must be a member of HIS.
(3) The Scottish Ministers are to make the first appointment of the chief executive on such terms and conditions as the Scottish Ministers may determine.
(4) Each subsequent chief executive is, with the approval of the Scottish Ministers, to be appointed by HIS on such terms and conditions as HIS may, with such approval, determine.
(5) HIS may (subject to any directions given under sub-paragraph (6)) appoint such other employees on such terms and conditions as HIS may determine.
(6) The Scottish Ministers may give directions to HIS as regards—
(a) the appointment of employees under sub-paragraph (5); and
(b) the terms and conditions of their employment.
(7) HIS may, with the approval of the Scottish Ministers—
(a) pay or make arrangements for the payment;
(b) make payments or contributions towards the provision;
(c) provide and maintain schemes (whether contributory or not) for the payment,
of such pensions, allowances or gratuities to or in respect of any person who is or has ceased to be an employee of HIS, as it may determine.
(8) The reference in sub-paragraph (7) to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of employment.
Medical reviewers
7A (1) HIS must appoint persons employed under paragraph 7(5) to exercise the functions of medical reviewers; and when doing so those employees are to be known as medical reviewers.
(2) HIS must appoint a person employed under paragraph 7(5) to exercise the functions of the senior medical reviewer; and when doing so that employee is to be known as the senior medical reviewer.
(3) A person appointed as a medical reviewer or the senior medical reviewer must—
(a) be a medical practitioner;
(b) have been so throughout the 5 years prior to appointment; and
(c) have such other qualifications, training and experience as may be specified by regulations.
(4) A member of HIS may not exercise the functions of—
(a) a medical reviewer; or
(b) the senior medical reviewer.
(5) An employee of HIS (other than a medical reviewer) may not exercise any function of a medical reviewer other than those under section 17.
(6) An employee of HIS (other than the senior medical reviewer) may not exercise the functions of the senior medical reviewer (except by virtue of arrangements made under paragraph 11(2C)).
(7) An appointment as a medical reviewer or the senior medical reviewer does not affect the appointed person's status as employed under paragraph 7(5).
Committees
8 (1) HIS may establish committees for any purpose relating to its functions.
(2) Subject to section 10Z16, HIS is to determine the composition of its committees.
(3) HIS may appoint persons who are not members of HIS to be members of a committee.
(4) A committee of HIS is to comply with any directions given to it by HIS.
Procedure and meetings
9 (1) HIS may determine its own procedure and that of its committees, including a quorum for meetings.
(2) The validity of any proceedings of HIS, or any of its committees, is not affected by a vacancy in membership nor by any defect in the appointment of a member.
(3) Members of—
(a) the Scottish Executive and persons authorised by the Scottish Ministers;
(b) Social Care and Social Work Improvement Scotland and persons authorised by it,
may attend and take part in meetings of HIS or any of its committees, but are not entitled to vote at such meetings.
General powers
10 (1) HIS may do anything which appears to be necessary or expedient for the purpose of, or in connection with, or which appears conducive to, the exercise of its functions.
(2) In particular, HIS may—
(a) enter into contracts;
(b) with the consent of the Scottish Ministers—
(i) borrow money;
(ii) acquire and dispose of land;
(iii) borrow sums in sterling by way of overdraft for the purpose of meeting a temporary excess of expenditure over sums otherwise available to meet that expenditure.
Delegation of functions
11 (1) HIS may, subject to sub-paragraphs (2) to (3) authorise—
(a) the chief executive;
(b) any other employee;
(c) any of its committees,
to exercise such of its functions, and to such extent, as it may determine.
(2) HIS may not authorise any of the following functions to be exercised by any other person—
(a) the approval of annual reports and accounts;
(b) the approval of any budget or other financial plan.
(2A) HIS may authorise an employee to carry out the functions of a medical reviewer under section 17.
(2B) Any other function conferred on a medical reviewer or the senior medical reviewer may not, subject to sub-paragraph (2C), be delegated by HIS.
(2C) The senior medical reviewer may, with the approval of HIS, make arrangements for the functions of the senior medical reviewer to be carried out by a medical reviewer where the senior medical reviewer is absent or otherwise unavailable.
(3) Sub-paragraph (1) does not affect the responsibility of HIS for the exercise of its functions.
Location of office
12 HIS's determination of the location of its office premises is subject to the approval of the Scottish Ministers.
Accounts
13 (1) HIS must—
(a) keep proper accounts and accounting records;
(b) prepare in respect of each financial year a statement of accounts; and
(c) send a copy of the statement to the Scottish Ministers,
and must do so in accordance with any directions the Scottish Ministers may give.
(2) HIS must send the statement of accounts to the Auditor General for Scotland for auditing.
Reports
14 (1) As soon as practicable after the end of each financial year, HIS must prepare a report which is—
(a) to provide information on the discharge of HIS's functions during that year; and
(b) to include a copy of the statement of accounts for that year audited by the Auditor General for Scotland.
(2) HIS must—
(a) publish the report;
(b) lay a copy of the report before the Scottish Parliament;
(c) send a copy of the report to the Scottish Ministers.
(3) HIS may publish such other reports and information on matters relevant to the functions of HIS as it considers appropriate.
Part I
Constitution
1 The Hospital Trust (hereafter in this Schedule referred to as “the Trust”) shall consist of a chairman appointed by the Secretary of State and not more than 7 and not less than 5 other members so appointed.
2 The Trust shall be a body corporate.
3 The proceedings of the Trust shall not be invalidated by any vacancy in the membership thereof or by any defect in the appointment of a member.
Part II
Powers
4 The Trust shall have the following powers—
(a) the like powers in relation to their funds as trustees have in relation to their trust estate under section 4(1) of the Trusts (Scotland) Act 1921;
(b) power to purchase and lease land and to invest in any security in which trustees are authorised to invest under or in pursuance of the Trusts (Scotland) Act 1921 and the Trustee Investments Act 1961 and—
(i) to retain any investment which they from time to time receive,
(ii) to make a narrower-range investment falling within Part II of Schedule 1 to the Trustee Investments Act 1961 without first obtaining advice as required by section 6 of that Act,
(iii) to invest in the units of a unit trust scheme or in participation certificates or in any form of participation under any trust or scheme having the effect of enabling persons to participate in the profits and income arising from the acquisition, holding, management or disposal of securities or of land;
(c) power to make loans to Health Boards and NHS trusts against their share in the capital of the Trust;
(d) power to pay all the expenses of the constitution and administration of the Trust from their funds;
(e) power to accept from any Health Board for investment and management on behalf of the Board any endowments or accumulated income thereof transferred to the Board under Part VI of the National Health Service (Scotland) Act 1972 and any endowments, or accumulated income thereof, otherwise held by a Health Board;
(ea) power to accept from any NHS trust for investment and management on behalf of the trust any property held on behalf of the trust by trustees appointed by virtue of section 12G(2), and any endowments or accumulated income otherwise held by the trust;
(f) power to accept, hold, administer and dispose of any property (other than a relevant endowment or such an endowment as is referred to in sub-paragraph (e) or, as the case may be, paragraph (ea)) on trust for purposes similar to those for which property is held by a Health Board or, as the case may be, by an NHS Trust;
(g) power to give advice to a Health Board relating to the investment or management of any such endowment or income as is referred to in sub-paragraph (e) and which is not transferred to the Trust under paragraph 16 of Schedule 1, and to recover from the Board concerned any expenses reasonably incurred by them in giving such advice. It is hereby declared, for the avoidance of doubt, that the Trust has at all times had the power referred to in sub-paragraph (b) above to invest in any security in which trustees are authorised to invest under or in pursuance of the Trustee Investments Act 1961.
5 (1) It shall be the duty of the Trust to obtain advice on the investment of any property held by them under this Act from a person whom the Trust reasonably believe to be qualified to give such advice by his ability in, and practical experience of, financial matters.
(2) For the purposes of sub-paragraph (1), the advice referred to therein may be obtained from a person other than an officer or servant of the Trust on such terms as may be agreed between the Trust and that person.
6 (1) Regulations may prescribe the method of calculating the capital value of relevant endowments transferred from Boards of Management and Regional Hospital Boards to the Trust under section 2(1) of the Hospital Endowments (Scotland) Act 1971 and the shares of Health Boards in the total endowments so transferred.
(2) Regulations may prescribe the terms and conditions on which sums may be borrowed from the Trust by Health Boards or NHS trusts.
7 (1) The Trust shall, at such date or dates in each year as the Secretary of State may determine, distribute the income from all relevant endowments transferred to them under section 2(1) of the Hospital Endowments (Scotland) Act 1971 and from property accepted by them in pursuance of paragraph 4(f), after deduction of such expenses as have been incurred under this Act or the said Act of 1971 or regulations made thereunder, among Health Boards , NHS trusts and state hospitals in accordance with schemes made from time to time by the Secretary of State by statutory instrument.
(2) Before making a scheme under this paragraph the Secretary of State shall give to Health Boards , NHS trusts and the bodies charged with the management of state hospitals an opportunity to make representations to him about the scheme.
(3) Such schemes shall provide for the income from such relevant endowments—
(a) in so far as it is distributed among Health Boards, being used by those Boards for purposes relating to services provided under this Act in or in relation to hospitals, or to research into any such matters as are mentioned in section 47(2), or for purposes intended to preserve the memory of any person or class of persons;
(b) in so far as it is distributed to a state hospital, being used by that hospital for any purpose for which the hospital was provided, including research in connection with any such purpose.
(c) in so far as it is distributed among NHS trusts, being used by that trust for any purpose for which the trust was established.
(4) In making a scheme under this paragraph the Secretary of State shall have regard to the arrangements for the distribution of income under any scheme, being a scheme made under section 7 of the said Act of 1971 and in operation immediately before 1st April 1974; and any scheme made under this paragraph may provide that any accumulated income held by a Health Board by virtue of section 2(2)(a) of the said Act of 1971 may be used only for such purposes as may be specified in the scheme.
(5) No scheme shall be made under this paragraph unless a draft has been laid before Parliament and has been approved by a resolution of each House of Parliament.
8 The total annual expenses of administration of the Trust shall be limited to such maximum amount as the Secretary of State may from time to time determine.
9 Regulations may make provision in respect of any of the following matters—
(a) the appointment, and tenure and vacation of office, of the members of the Trust;
(b) the procedure of the Trust;
(c) the appointment, remuneration and conditions of service of officers and servants of the Trust;
(d) the making of payments, not exceeding limits to be determined from time to time by the Secretary of State, from the funds of the Trust to the members thereof in respect of any loss of earnings they would otherwise have made or any additional expenses (including travelling and subsistence expenses) to which they would not otherwise have been subject, being loss or expenses necessarily suffered or incurred by them for the purpose of enabling them to perform duties as members of the Trust;
(e) any matters consequential on, or incidental to, any of the aforesaid matters.
10 (1) The accounts of the Trust shall be audited annually by an auditor appointed by the Trust.
(2) No person shall be qualified to be appointed auditor under this paragraph unless he is a member of one or more of the following bodies:
(a) the Institute of Chartered Accountants of Scotland;
(b) the Institute of Chartered Accountants in England and Wales;
(c) the Association of Certified and Corporate Accountants;
(d) the Institute of Chartered Accountants in Ireland;
(e) any other body of accountants established in the United Kingdom and for the time being recognised for the purposes of section 161(1)(a) of the Companies Act 1948 by the Secretary of State;
but a Scottish firm may be so appointed if each of the partners therein is qualified to be so appointed.
1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2 The Research Trust shall be a body corporate.
Members
3 Subject to paragraph 3A, the Research Trust shall consist of such number of members appointed by the Trust as the Trust may determine.
3A (1) The persons who are the members of the Research Trust immediately before the day on which section 38 of the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13) comes into force shall, on that day, continue to be members (the “continuing members”).
(2) The terms and conditions of appointment of the continuing members shall, on the 90th day after whichever of the following occurs first—
(a) the day on which that section comes into force; or
(b) the day on which the Research Trust first make standing orders under paragraph 3F,
be the terms and conditions of appointment the Research Trust determine for the members appointed by them under paragraph 3B(1).
(3) The provisions of paragraphs 3B(2) and (3) to 3D and 3F shall apply to the continuing members as they apply to members appointed under paragraph 3; and in the application of paragraph 3C any period of appointment of a continuing member as a member (before he became a continuing member by virtue of sub-paragraph (1)) shall count for the purposes of determining eligibility for re-appointment in accordance with paragraph 3C.
Terms of office etc
3B (1) Subject to the provisions of this Schedule, the appointment of a member under paragraph 3 shall be on such terms and conditions as the Research Trust may determine, but shall not be for a period exceeding 4 years.
(2) A person holds and vacates office as member in accordance with the person's terms of appointment.
(3) A person may resign office as member at any time by notice in writing to the Research Trust.
Eligibility for re-appointment
3C A person who ceases to be a member of the Research Trust shall be eligible for re-appointment, but only once.
Payments to members
3D The Research Trust may make payments from their funds to their members in respect of any loss of earnings the members would otherwise have made or any additional expenses to which they would not otherwise have been subject, being loss of expenses necessarily suffered or incurred for the purpose of enabling the members to discharge their duties as members of the Trust.
Staff
3E (1) The Research Trust may appoint such staff, on such terms and conditions (including as to remuneration and allowances), as they consider appropriate.
(2) The Research Trust may—
(a) pay, or make arrangements for the payment of;
(b) make payments towards the provision of; and
(c) provide and maintain schemes (whether contributory or not) for the payment of,
such pensions, allowances and gratuities to or in respect of such of their employees, or former employees, as they may determine.
(3) The reference in sub-paragraph (1) to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of employment or reduction in remuneration.
Standing orders
3F (1) The Research Trust—
(a) shall make and maintain standing orders regulating—
(i) the appointment by them of members;
(ii) the appointment of a member as convener;
(iii) the terms and conditions of office of members and convener;
(iv) their procedure;
(v) such other matters as the Research Trust consider appropriate;
(b) may, subject to sub-sub-paragraph (a), amend such standing orders from time to time.
(2) The first set of standing orders under this paragraph shall be made before the expiry of the period of 90 days beginning with the day on which section 38 of the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13) comes into force.
(3) Subject to the provisions of this Schedule, the Research Trust may regulate their own procedure.
(4) The validity of any proceedings of the Research Trust shall not be affected by any vacancy in membership nor by any defect in the appointment of a member.
Powers etc.
3G The Research Trust may do anything which appears to them to be necessary or expedient for the purpose of, or in connection with, the exercise of their functions.
4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5 The Research Trust shall have, in relation to their funds, the like powers as trustees have in relation to their trust estate under subsection (1) of section 4 of the Trusts (Scotland) Act 1921.
6 Where the Research Trust borrow money or draw upon capital to meet expenditure of a capital nature, they shall set aside annually a sum sufficient to repay such loan or draft within a period which . . . shall not exceed 30 years; but this paragraph shall not apply in the case of a draft on capital to the extent only of surplus income added to capital.
7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part I Orders Establishing NHS Trusts Etc.
1 Any reference in this Part of this Schedule to an order is a reference to an order under section 12A(1) establishing an NHS trust or any subsequent order under that provision amending or revoking a previous order.
2 The provisions made by an order shall be in conformity with any general provision made by regulations under section 12A(5).
3 (1) Without prejudice to any amendment made by subsequent order, the first order to be made in relation to any NHS trust shall specify—
(a) the name of the trust;
(b) the functions of the trust;
(c) the number of executive directors and trustees;
(d) where the trust is to be regarded as having a significant teaching commitment, a provision to secure the inclusion in the trustees referred to in paragraph (c) of a person appointed from a university with a medical or dental school specified in the order;
(e) the operational date of the trust, that is to say, the date on which the trust is to begin to undertake the whole of the functions conferred on it; and
(f) if a scheme is to be made under section 12B, the body (being a Health Board or the Agency) which is to make the scheme.
(2) For the purposes of sub-paragraph (1)(d), an NHS trust is to be regarded as having a significant teaching commitment in the following cases—
(a) if the trust is established to 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.
(a) is employed by the university in question; and
(b) would also, apart from this sub-paragraph, be regarded as employed by the trust,
his employment by the trust shall be disregarded in determining whether, if appointed, he will be a trustee of the trust.
(4) An order shall specify the accounting date of the trust.
4 (1) An order may require a Health Board and the Agency to make staff, premises and other facilities available to an NHS trust pending the transfer or appointment of staff to or by the trust and the transfer of premises or other facilities to the trust.
(2) An order making provision under this paragraph may make provision with respect to the time when the Health Board’s functions under the provision are to come to an end.
5 (1) An order may provide for the establishment of an NHS trust with effect from a date earlier than the operational date of the trust and, during the period between that earlier date and the operational date, the trust shall have such limited functions for the purposes of enabling it to begin to operate satisfactorily with effect from the operational date as may be specified in the order.
(2) If an order makes the provision referred to in sub-paragraph (1), then, at any time during the period referred to in that sub-paragraph, the NHS trust shall be regarded as properly constituted (and may carry out its limited functions accordingly) notwithstanding that, at that time, all or any of the executive officers have not yet been appointed.
(3) If an order makes the provisions referred to in sub-paragraph (1) above, the order may require a Health Board to discharge such liabilities of the NHS trust as—
(a) may be incurred during the period referred to in that sub-paragraph; and
(b) are of a description specified in the order.
Part II Duties, Powers and Status of NHS Trusts
Specific duties
6 (1) In carrying out the functions for the time being conferred on it an NHS trust shall comply with any directions given to it by the Secretary of State, whether of a general or of a particular nature.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7 (1) For each accounting year an NHS trust shall prepare and send to the Secretary of State an annual report in such form as may be determined by the Secretary of State.
(2) At such time or times as may be prescribed, an NHS trust shall hold a public meeting at which its audited accounts, its annual report, and such other documents as may be prescribed shall be presented.
(3) In such circumstances and at such time or times as may be prescribed, an NHS trust shall hold a public meeting at which such documents as may be prescribed shall be presented.
8 An NHS trust shall furnish to the Secretary of State such reports, returns and other information, including information as to its forward planning as, and in such form as, he may require.
9 (1) An NHS trust shall be liable to pay—
(a) to the chairman and any trustee of the trust—
(i) remuneration of an amount determined by the Secretary of State, not exceeding such amount as may be approved by the Treasury; and
(ii) such travelling and other allowances as may be determined by the Secretary of State with the approval of the Treasury; and
(b) to any member of a committee or sub-committee of the trust who is not also a director such travelling and other allowances as may be so determined.
(2) If an NHS trust so determines in the case of a person who is or has been a chairman of the trust, the trust shall be liable to pay such pension, allowances or gratuities to or in respect of him as may be determined by the Secretary of State with the approval of the Treasury.
(3) Different determinations may be made under sub-paragraph (1) or (2) in relation to different cases or description of cases.
Specific powers
10 An NHS trust may enter into NHS contracts.
11 An NHS trust may undertake and commission research and make available staff and provide facilities for research by other persons.
12 An NHS trust may—
(a) provide training for persons employed or likely to be employed by the trust or otherwise in the provision of services under this Act; and
(b) make facilities and staff available in connection with training by a university or any other body providing training in connection with the health service.
13 An NHS trust may enter into arrangements for the carrying out on such terms as seem to it to be appropriate, of any of its functions jointly with any Health Board, with the Agency, with another NHS trust or with any other body or individual.
14 According to the nature of its functions, an NHS trust may make accommodation or services or both available for patients who give undertakings (or for whom undertakings are given) to pay, in respect of the accommodation or services (or both) such charges as the trust may determine.
15 For the purpose of making additional income available in order better to perform its functions, an NHS trust shall have the powers specified in section 7(2) of the Health and Medicines Act 1988 (extension of powers of Secretary of State for financing the Health Service).
General powers
16 Subject to Schedule 7B, an NHS trust shall have power to do anything which appears to it to be necessary or expedient for the purpose of or in connection with the discharge of its functions, including in particular power—
(a) to acquire and dispose of land and other property;
(b) to enter into such contracts as seem to the trust to be appropriate;
(c) to accept gifts of money, land or other property, including money, land or other property to be held on trust, for purposes relating to any service which it is their function to provide, administer, or make arrangements for . . .; and
(d) to employ staff on such terms as the trust thinks fit.
17 In connection with arrangements relating to community care services ..., the Secretary of State may by regulations make provision with respect to—
(a) the transfer to employment by a local authority of staff employed by an NHS trust; and
(b) the transfer to employment by a national Health Service body of staff transferred to employment by a local authority by virtue of this paragraph.
and for the purposes of this paragraph “ National Health Service body ” means an NHS trust, a Health Board or the Agency.
18 Regulations made under paragraph 17 may make such incidental and consequential provision in relation to staff transferred by virtue of that paragraph as may be made in relation to officers and servants of a Health Board transferred by virtue of regulations made under paragraph 8A of Schedule 1.
19 Before making regulations under paragraph 17, the Secretary of State shall consult such bodies and organisations as appear to him to be concerned.
20 (1) Without prejudice to the generality of paragraph 16, to or in respect of such of its employees as it may determine, an NHS trust may make such arrangements for providing pensions, allowances or gratuities as it may determine; and such arrangements may include the establishment and administration, by the trust or otherwise, of one or more pension schemes.
(2) The reference in sub-paragraph (1) to pensions, allowances or gratuities to or in respect of employees of an NHS trust includes a reference to pensions, allowances or gratuities by way of compensation to or in respect of any of the trust’s employees who suffer loss of office or employment or loss of diminution of emoluments.
Status
21 An NHS trust shall not be regarded as the servant or agent of the Crown or, except as provided by this Act, as enjoying any status, immunity or privilege of the Crown; and an NHS trust’s property shall not be regarded as property of, or property held on behalf of, the Crown.
Part III Supplementary Provisions
Reimbursement for health services work carried out otherwise than under contract
22 (1) In any case where an NHS trust provides goods or services for the benefit of an individual and—
(a) those goods or services are not provided pursuant to an NHS contract; and
(b) the condition of the individual is such that he needs those goods or services and, having regard to his condition, it is not practicable before providing them to enter into an NHS contract for their provision, and
(c) the provision of those goods or services is a function of a Health Board or is within the primary functions of a Health Authority established under section 8 of the National Health Service Act 1977, or is within the functions of a Health and Social Care trust mentioned in Article 10(1) of the Health and Personal Social Services (Northern Ireland) Order 1991(S.I. 1991/194 (N.I. 1)) . . .
the trust shall be remunerated by that Board . . . or Health and Social Care trust in respect of the provision of the goods or services in question.
(2) The rate of any remuneration payable by virtue of sub-paragraph (1) shall be calculated in such manner or on such basis as may be determined by the Secretary of State.
23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Use and development of land used for religious purposes and burial grounds
24 Where land consisting of a church or other building used or formerly used for religious worship, or the site thereof, or a burial ground, within the meaning of section 197 of the Town and Country Planning (Scotland) Act 1997 (provisions as to churches and burial grounds), is held by an NHS trust for any of its purposes, that section applies to the land as if—
(a) the land had been acquired by the trust as mentioned in subsection (1) of that section; and
(b) the trust were a statutory undertaker, within the meaing of that Act.
Part IV Dissolution
25 (1) The Secretary of State may by order dissolve an NHS trust.
(2) An order under this paragraph may be made—
(a) on the application of the NHS trust concerned; or
(b) if the Secretary of State considers it appropriate in the interests of the health service as a whole.
(3) Except where it appears to the Secretary of State necessary to make an order under this paragraph as a matter of urgency, no such order shall be made until after the completion of such consultation as may be prescribed.
26 (1) If an NHS trust is dissolved under this Part of this Schedule, the Secretary of State may by order transfer or provide for the transfer to—
(a) the Secretary of State, or
(b) a Health Board, or
(c) the Agency, or
(d) another NHS trust.
of such of the property, rights and liabilities of the NHS trust which is dissolved as in his opinion is appropriate and any such order may include provisions corresponding to those of section 12D.
(1A) For the avoidance of doubt, the reference to “property, rights and liabilities” in sub-paragraph (1) includes endowments and property held in trust.
(2) An order under this paragraph may make provision in connection with the transfer of staff employed by or for the purposes of the NHS trust which is dissolved; and such an order may include provisions corresponding to those of sections 12B and 12C, including provision for the making of a scheme by such body (being a Health Board or the Agency) as may be specified in the order.
(3) No order shall be made under this paragraph until after completion of such consultation as may be prescribed.
27 If an NHS trust is dissolved under this Part of this Schedule, the Secretary of State or such other NHS trust or Health Board as he may direct or, if he so directs, the Agency shall undertake the responsibility for the continued payment of any such pension, allowances or gratuities as, by virtue of paragraph 9(2) or paragraph 20 above, would otherwise have been the responsibility of the trust which has been dissolved.
28 An NHS trust may not be dissolved or wound up except in accordance with this Part of this Schedule.
SCHEDULE 7B Financial Provisions relating to NHS Trusts
Borrowing
1 (1) Subject to any direction given by the Secretary of State, tothe provisions of this paragraph and to any limit imposed under the following provisions of this Schedule, for the purpose of its functions an NHS trust may borrow (both temporarily, by way of overdraft, and longer term) from the Secretary of State or from any other person.
(2) An NHS trust may not grant any security over any of its assets or in any other way use any of its assets as security for a loan.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) It shall be for the Secretary of State, with the consent of the Treasury, to 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
2 (1) The Secretary of State may guarantee, in such manner and on such conditions as, with the approval of the Treasury, he considers appropriate, the repayments of the principal of and the payment of interest on any sums which an NHS trust borrows from a person other than the Secretary of State.
(2) Immediately after a guarantee is given under this paragraph, the Secretary of State shall lay a statement of the guarantee before each House of Parliament.
(3) Where any sum is issued for fulfilling a guarantee so given, the Secretary of State shall lay before each House of Parliament a statement relating to that sum as soon as possible after the end of each financial year beginning with that in which the sum is issued and ending with that in which all liability in respect of the principal of the sum and in respect of interest on it is finally discharged.
(4) If any sums are issued in fulfilment of a guarantee given under this paragraph, the NHS trust concerned shall make to the Secretary of State, at such times and in such manner as the Secretary of State may from time to time direct,—
(a) payments of such amounts as the Secretary of State with the consent of the Treasury so directs in or towards repayment of the sums so issued; and
(b) payments of interest, at such rates as the Secretary of State with the consent of the Treasury so directs, on what is outstanding for the time being in respect of sums so issued.
Surplus funds
2A In any financial year the net aggregate amount of sums borrowed by NHS trusts shall not exceed the amount specified for that year for the purposes of this paragraph in a Budget Act.
2B In paragraph 2A above, “net aggregate amount” means the aggregate amount of sums borrowed in the financial year less any repayments made during that year (otherwise than by way of interest) in respect of sums borrowed in that or any other year.
Limits on indebtedness
3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Additional public dividend capital
5 (1) If the Secretary of State, with the consent of the Treasury, considers it appropriate to do so, he may, instead of making a loan to an NHS trust under paragraph 1, pay an amount to the trust as public dividend capital.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Surplus funds
6 If it appears to the Secretary of State that any sum held by an NHS trust other than a sum held on trust under section 12G is surplus to its foreseeable requirements, the trust shall, if the Secretary of State with the approval of the Treasury and after consultation with the trust so directs, pay that sum into the Consolidated Fund.
Investment
7 An NHS trust shall have power to invest money held by it in any investments, including investments which do not produce income, specified in directions made by the Secretary of State with the consent of the Treasury; but nothing in this paragraph applies in relation to money held on trust under section 12G.
8 Any direction with respect to—
(a) the power conferred on an NHS trust by paragraph 1; or
(b) the maximum amount which an NHS trust may invest in any investment or class of investment,
may be given only with the consent of the Treasury.
Section 29.
1 The Tribunal shall consist of—
(a) a chairman appointed by the Lord President of the Court of Session,
(b) such number of deputy chairmen as may be so appointed,
(c) such number of persons as the Secretary of State may appoint for the purposes of this sub-paragraph,
(d) such number of medical practitioners as the Secretary of State may appoint for the purposes of this sub-paragraph,
(e) such number of medical practitioners having the qualifications prescribed under section 26 as the Secretary of State may appoint for the purposes of this sub-paragraph,
(f) such number of dental practitioners as the Secretary of State may appoint for the purposes of this sub-paragraph,
(g) such number of ophthalmic opticians as the Secretary of State may appoint for the purposes of this sub-paragraph, and
(h) such number of registered pharmacists as the Secretary of State may appoint for the purposes of this sub-paragraph.
2 A person appointed as the chairman or a deputy chairman shall be a practising—
(a) advocate; or
(b) solicitor,
of not less than ten years’ standing.
3 Any appointment for the purposes of paragraph 1(c) above shall be made after consultation with such body as the Secretary of State may recognise as representative of Health Boards.
4 Any appointment for the purposes of any of sub-paragraphs (d) to (h) of paragraph 1 above shall be made after consultation with such organisations as the Secretary of State may recognise as representative of the profession or calling concerned.
5 For the purposes of paragraph 4, the Secretary of State shall, after consultation with such organisations as he may recognise as representative of the several professions or callings concerned, appoint the following panels, none of which shall exceed 6 persons, that is to say:—
(a) a panel of medical practitioners;
(b) a panel of medical practitioners having the qualifications prescribed under section 26;
(c) a panel of dental practitioners;
(d) a panel of ophthalmic opticians;
(e)
(f) a panel of registered pharmacists.
6 If any member of the Tribunal is unable to act in any case a deputy may be appointed by the Lord President of the Court of Session or the Secretary of State, as in the case of the appointment of the member in question; and, if the member is the chairman, the deputy shall possess the professional qualifications required for the office of chairman, and, if the member is the practitioner member, the deputy shall be appointed from the same panel.
7 Regulations may make provision—
(a) with respect to the appointment, tenure of office and vacation of office of members of the Tribunal;
(b) with respect to the appointment of officers of the Tribunal.
8 (1) The functions of the Tribunal shall be exercised by three members consisting of—
(a) the chairman or a deputy chairman,
(b) a person appointed under paragraph 1(c) above, and
(c) a person appointed under such one of sub-paragraphs (d) to (h) of paragraph 1 above as provides for the appointment of persons of the same profession or calling as that of the person concerned.
(2) In sub-paragraph (1)(c) above as it has effect in relation to the functions mentioned below, the reference to the person concerned is—
(a) in the case of functions under section 29 to 29C, to the person to whom the representations in question relate,
(b) in the case of functions under section 30 (or paragraph 6 of Schedule 15), to the person whose disqualification or conditional disqualification is under consideration,
(c) in the case of functions under section 32A, to the person to whom the application in question relates, and
(d) in the case of functions under section 32B, to the person in relation to whom section 32A(3) may be made to apply or continue to apply.
(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) In the case of functions under section 32A or 32B, sub-paragraph (1) above is subject to section 32C(2)(b).
SCHEDULE 9 Additional Provisions as to Prohibition of Sale of Medical Practices
Section 35.
Prohibition, and certificate of Practices Committee
1 (1) Any person who sells or buys the goodwill . . .of a medical practice which it is unlawful to sell by virtue of section 35(1) is guilty of an offence and liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 3 months, or to both such fine and such imprisonment.
(2) Any person proposing to be a party to a transaction or series of transactions which he thinks might amount to a sale of the goodwill of a medical practice in contravention of section 35(1) may ask the Health Board which has arrangements with the person, under which, or in accordance with which, services as specified in section 35(1) are provided or performed, for a certificate under this paragraph.
(3) That Health Board shall consider any such application, and, if they are satisfied that the transaction or series of transactions does not involve the giving of valuable consideration in respect of the goodwill, or any part of the goodwill . . . of such a medical practice, they shall issue to the applicant a certificate to that effect, which shall be in the prescribed form and shall set out all material circumstances disclosed to the Board.
(4) Where any person is charged with an offence under this paragraph in respect of any transaction or series of transactions, it shall be a defence to the charge to prove that the transaction or series of transactions was certified by the Health Board under sub-paragraph (3).
(5) Any document purporting to be such a certificate shall be admissible in evidence and shall be deemed to be such a certificate unless the contrary is proved.
(6) If it appears to the court that the applicant for any such certificate failed to disclose to the Board all the material circumstances, or made any misrepresentation with respect thereto, the court may disregard the certificate, and sub-paragraph (4) shall not apply thereto.
(7) A Health Board shall, at the request of the Lord Advocate, furnish him with a copy of any certificate issued by them under sub-paragraph (3), and with copies of any documents produced to them in connection with the application for that certificate.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Certain transactions deemed sale of goodwill
2 (1) For the purposes of section 35(1) and paragraph 1, a disposal of premises previously used for the purposes of a medical practice shall be 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.
(1A) If a person disposes of any premises together with any other property, the court shall, for the purposes of sub-paragraph (1), make such apportionment of the consideration as it thinks just.
(1B) For the purposes of sub-paragraphs (1) and (1A)—
(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” are to be read accordingly; and
(b) a person who procures the disposal of any premises is to be treated as having disposed of them.
(2) 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 shall be deemed for the purposes of section 35(1) and paragraph 1 to have been a sale of the goodwill . . . of the practice of any partner to whom, or to whose personal representative, the consideration or any part thereof is given or, as the case may be, for whose benefit the services are performed, to the partner or each of the partners by or on whose behalf the consideration or any part thereof was given or, as the case may be, the partner who performed the services, and the said sale shall be deemed for the purposes of section 35(1) and paragraph 1 to have been effected—
(i) in a case to which paragraph (a) or paragraph (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 thereof was given, or
(ii) in a case to which paragraph (c) applies, at the time when the agreement was made.
(3) Sub-paragraph (3A) 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.
(3A) For the purposes of section 35 and paragraph 1, a sale of the goodwill of the practice is to be 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.
(4) For the purposes of section 35(1) and paragraph 1, the goodwill of a medical practice shall be deemed to have been sold if—
(a) a person carrying on the practice (or employing a practitioner who carries on a medical practice) agrees, for valuable consideration—
(i) to do or refrain from doing any act, for the purpose of facilitating the succession of another person to the practice; or
(ii) to allow any act to be done, for that purpose; or
(b) a person—
(i) gives valuable consideration to a person carrying on the practice (or employing a practitioner who carries on a medical practice); and
(ii) succeeds, or has previously succeeded, to the practice.
(5) Sub-paragraph (4) does not apply—
(a) if it is proved that no part of the consideration was given in respect of the goodwill; or
(b) to anything done—
(i) in relation to the acquisition of premises for the purposes of a medical practice;
(ii) in pursuance of a partnership agreement; or
(iii) in the performance of medical services by one person as an assistant to another.
(6) In determining for the purposes of section 35(1) and this Schedule the consideration given in respect of any transaction, the court shall have regard to any other transaction appearing to the court to be associated with the first transaction, and shall estimate the total consideration given in respect of both or all the transactions, and shall apportion it between those transactions in such manner as it thinks just.
(7) For the purposes of section 35 and this Schedule—
(a) consideration is deemed to be given to a person (“B") if—
(i) it is given to another person but with B’s knowledge and consent; and
(ii) it appears to the court that B has derived, or will derive, a substantial benefit from the giving of the consideration; and
(b) unless the context otherwise requires, references to a person include, in the case of an individual who has died, references to his personal representative.
Carried-over goodwill
3 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 35(1) does not, by itself, make it unlawful under section 35(1) for the goodwill of his practice to be sold.
SCHEDULE 11 Additional Provisions as to Regulations for the Making and Recovery of Charges
Sections 69—71.
Regulations under section 69—charges for drugs, medicines or appliances, or pharmaceutical services
1 (1) No charge shall be made under section 69(1) in relation to the supply of drugs, medicines and appliances referred to in paragraph (a) of that subsection in respect of—
(a) the supply of any drug, medicine or appliance for a patient who is for the time being resident in hospital, or
(b) the supply of any drug or medicine (otherwise than in accordance with section 17C arrangements) for the treatment of venereal disease, or
(c) the supply of any appliance for a person who is under 16 years of age or is under 19 years of age and is receiving qualifying full-time education, or
(d) the replacement or repair of any appliance in consequence of a defect in the appliance as supplied,
(2)
Regulations under section 70—charges for dental or optical appliances
2 (1) The optical appliances referred to in section 70(1) are glasses and contact lenses, and the charge for glasses and contact lenses which that subsection authorises is a charge of such sum as may be determined by or in accordance with directions given by the Secretary of State.
(2) Regulations may—
(a) vary the amount or maximum amount of any charge authorised by section 70(1) for any optical appliance, and this power includes power to direct that the charge shall not be payable; or
(b) vary the descriptions of appliances for which any such charge is authorised;
and regulations made for the purposes of section 70(1) may be made so as to take effect—
(i) in the case of appliances supplied under this Act otherwise than under Part II, where the examination or testing of sight (otherwise than under that Part) leading to the supply of those appliances, or the first such examination or testing takes place on or after the date on which the regulations come into force;
(ii)
(iii)
(3) No charge shall be made under section 70(1) or (1A) in respect of any appliance supplied otherwise than under Part II to a patient for the time being resident in a hospital.
(4) No charge shall be made under section 70 (1A) in respect of the supply of a dental appliance if at the relevant time the person for whom that appliance was supplied—
(a) was under 18 years of age or was under 19 years of age and receiving qualifying full-time education; or
(b) was an expectant mother or had borne a child within the previous 12 months.
(5)
(6) Regulations made with respect to any exemption under sub-paragraph (4) may provide that it shall be a condition of the exemption that such declaration is made in such form and manner, or such certificate or other evidence is supplied in such form and manner, as may be prescribed.
(7) In sub-paragraph (4), “the relevant time” means—
(a) in relation to a dental appliance supplied otherwise than under Part II, the time of the examination leading to the supply of the appliance, or the first such examination;
(b) in relation to a dental appliance supplied under Part II, the time of the making of the contract or arrangement in pursuance of which the appliance is supplied.
(8) References in section 70 and in this paragraph to the supply of appliances shall be construed as including references to their replacement and, in the case of dentures, to their being relined or adjusted or having additions made to them but no charge shall be made under those provisions in respect of the replacement of dentures if the replacement is required in consequence of loss or damage.
2A (1) It shall be the duty of the Secretary of State to provide by regulations for payments to be made by him or by a Health Board to meet, or to contribute towards, the cost incurred (whether by way of charge under this Act or otherwise) for the supply of optical appliances for which a prescription has been given in consequence of a testing of sight under this Act—
(a) for a child;
(b) for a person whose resources fall to be treated under the regulations as being less than his requirements; or
(c) for a person of such other description as may be prescribed or for which a prescription has been given for a person such as is mentioned in paragraph (a), (b) or (c) above in consequence of a testing of sight (not being a testing of sight under this Act) which took place in prescribed circumstances.
(2) In sub-paragraph (1) (above) “child” means—
(a) a person who is under the age of 16 years; or
(b) a person who is under the age of 19 years and receiving qualifying full-time education.
(3) The Secretary of State may by regulations—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) provide for payments to be made by him or by a Health Board to meet, or to contribute towards, any cost accepted by him or by the Board as having been incurred (whether by way of charge under this Act or otherwise) for the replacement or repair in prescribed circumstances of optical appliances for which a prescription was given in consequence of a testing of the sight of a person of a prescribed description; and
(c) direct how a person’s resources and requirements are to be calculated and, without prejudice to the generality of this sub-paragraph, give any such direction as to how they are to be calculated as may be given by regulations under section 75A(3).
(3A) Descriptions of persons may be prescribed under this paragraph by reference to any criterion and, without prejudice to the generality of this sub-paragraph, by reference to any of the criteria specified in section 75A(2).
(3B) Subsection (4) of section 75A shall have effect in relation to regulations under this paragraph as it has effect in relation to regulations under that section.
(4) If regulations under this paragraph provide for payments to be made by a Health Board, it shall be the duty of the Secretary of State to pay to the Board, in respect of each financial year, the sum attributable to the Board’s disbursements under the regulations.
(5) Sums falling to be paid in pursuance of regulations made under this paragraph shall be payable subject to compliance with such conditions as to records, certificates or otherwise as the Secretary of State may determine.
Regulations under section 71—charges for dental treatment
3 (1)
(2) Regulations may vary the amount or the maximum amount of any charge authorised by section 71(1), and this power includes power to direct that the charge shall not be payable.
(3) Where any services in respect of which a charge is payable under section 70 are provided in pursuance of the contract or arrangement, the charges payable under that section and section 71(1) in respect of all services provided in pursuance of the contract or arrangement shall not exceed a prescribed sum in the aggregate.
(4) No charge shall be made under section 71(1) in respect of services provided for any person who, on the date of the contract or arrangement for the services—
(a) was under 18 years of age or was under 19 years of age and receiving qualifying full-time education, or
(c) was an expectant mother or had borne a child within the previous 12 months,
(5) Regulations made with respect to any exemptions under sub-paragraph (4)
may provide that it shall be a condition of the exemption that such declaration is made in such form and manner, or such certificate or other evidence is supplied in such form and manner, as may be prescribed.
Miscellaneous Provisions
4 For the purposes of section 39(2) (which provides for the Secretary of State to arrange for the free medical treatment of certain pupils) any charge made in pursuance of regulations under this Act in respect of the supply of drugs, medicines or appliances shall be disregarded.
5 Regulations may provide for the remission or repayment of any charges which, in pursuance of section 70(1) or section 71(1), are payable apart from this paragraph by a person whose income as calculated in accordance with regulations is at less than the prescribed rate, in respect of the supply or replacement of dental appliances or in respect of services provided as part of the general dental services.
6 For the purposes of sections 69 and 70 and of this Schedule, a bridge, whether fixed or removable, which takes the place of any teeth shall be deemed to be a denture having that number of teeth;
7 References in this Schedule to qualifying full-time education mean full-time instruction at a recognised educational establishment or by other means accepted as comparable by the Secretary of State, and for the purposes of such references—
(a) “recognised educational establishment” means an establishment recognised by the Secretary of State as being, or as comparable to, a school, college or university; and
(b) regulations may prescribe the circumstances in which a person is or is not to be treated as receiving full-time instruction.