(1) A charge of an amount calculated in accordance with section 71A may be made and recovered, in such manner as may be prescribed, in respect of any services provided as part of the general dental services under Part II, not being—
(a) oral health assessments and dental examinations carried out on or after 1st April 2006;
(a)
(b) the repair of appliances other than prescribed appliances;
(c) the arrest of bleeding;
(d)
The additional provisions of paragraphs 3 and 5 of Schedule 11 have effect in relation to this subsection.
(2) Regulations may provide that, in the case of such special dental treatment as may be prescribed, being treatment provided as part of the general dental services (but not being oral health assessments or dental examinations carried out on or after 1st April 2006), such charges as may be prescribed may be made and recovered by the person providing the services.
71A Calculation of charges for dental appliances and treatment.
(1) Subject to the following provisions of this section, regulations may make such provision as to the amount of any charge—
(a) authorised by section 70(1A) for the supply of dentures or other dental appliances; or
(b) authorised by section 71 for the provision of services,
as appears to the Secretary of State to be appropriate.
(2) Without prejudice to the generality of subsection (1) above, regulations may provide that any such charge in respect of appliances or services supplied or provided under Part II of this Act—
(a) shall be of an amount equal—
(i) to the practitioner’s remuneration in respect of the supply or provision; or
(ii) to any part of that remuneration; or
(b) shall be otherwise calculated by reference to that remuneration.
(3) Without prejudice to the generality of subsection (1) above, regulations may provide that any charge which is so authorised in respect of appliances supplied otherwise than under Part II of this Act—
(a) shall be of an amount equal—
(i) to the remuneration a practitioner would receive for a supply under that Part of equivalent appliances; or
(ii) to any part of such remuneration; or
(b) shall be otherwise calculated by reference to such remuneration.
(4) The charge shall not exceed the amount which the Secretary of State considers to be the cost to the health service of the supply or provision.
(5) In this section “cost to the health service” does not include—
(a) any fee in respect of a visit by a practitioner to a patient; or
(b) any fee or part of a fee payable by a patient in pursuance of regulations under section 71(2) or section 73(b) or 74(b).
72 Charges in respect of services etc. provided under sections 37, 38 and 41.
Regulations may provide for the recovery of such charges as may be prescribed—
(a) in respect of such services provided under section 37 (prevention of illness, care and after-care) as may be prescribed, not being services provided in a hospital;
(b) in respect of such articles or services provided under section 38 (care of mothers and young children) as may be prescribed, not being articles or services provided in a hospital, and not being a drug, a medicine or an appliance of a type normally supplied;
(c) from persons availing themselves of any service under section 41 (except advice on contraception),
and may provide for the remission of any such charge, in whole or in part, in such circumstances as may be prescribed.
Regulations may provide for the making and recovery of such charges as may be prescribed—
(a) by the Secretary of State in respect of the supply by him of any appliance or vehicle which is, at the request of the person supplied, of a more expensive type than the prescribed type, or in respect of the replacement or repair of any such appliance, or the replacement of any such vehicle, or the taking of any such action in relation to the vehicle as is mentioned in section 46(2).
(b) by persons providing personal dental services in accordance with section 17C arrangements or general dental services in respect of the supply, as part of those services, of any dental appliance which is, at the request of the person supplied, of a more expensive type than the prescribed type or in respect of replacement or repair of any such appliance.
(c) by a National Health Service trust in respect of the supply by them of any appliance or vehicle which is, at the request of the person supplied, of a more expensive type than the prescribed type, or in respect of the replacement or repair of any such appliance, or the replacement of any such vehicle.
74 Charges for repairs and replacements in certain cases.
Regulations may provide for the making and recovery of such charges as may be prescribed—
(a) by the Secretary of State in respect of the replacement or repair of any appliance or vehicle supplied by him, or
(b) by persons providing personal dental services in accordance with section 17C arrangements orgeneral dental services in respect of the replacement or repair of any dental appliance supplied as part of those services, or
(c) by an NHS trust in respect of the replacement or repair of any appliance or vehicle supplied by them,
if it is determined in the prescribed manner that the replacement or repair is necessitated by an act or omission of the person supplied or (if the act or omission occurred when the person supplied was under 16 years of age) of the person supplied or of the person having charge of him when the act or omission occurred.
75 Sums otherwise payable to those providing services.
Regulations made—
(a) under sections 69 to 71 and under sections 73 and 74 providing for the making and recovery of charges in respect of any services, may provide for the reduction of the sums which would otherwise be payable by a Health Board to the persons by whom those services are provided by the amount of the charges authorised by the regulations in respect of those services;
(b) for the purposes of section 70(1A) in relation to appliances provided as part of—
(i) general dental services, or
(ii) personal dental services provided in accordance with section 17C arrangements,
may provide for the reduction of the sums which would otherwise be payable by a Health Board to the persons by whom those services are provided by the amount of the charges authorised by section 70(1A) in respect of those appliances.
75A Remission and repayment of charges and payment of travelling expenses.
(1) Regulations may provide in relation to prescribed descriptions of persons—
(a) for the remission or repayment of the whole or any part of any charges which would otherwise be payable by them in pursuance of section 69(1) above, section 70(1) or, (1A) above section 70A(1) above or section 71 above or section 20 of the National Health Service (Primary Care) Act 1997;
(b) for the payment by the Scottish Ministers, in such cases as may be prescribed, of travelling expenses (including the travelling expenses of a companion) incurred or to be incurred for the purpose of their obtaining—
(i) any services provided under this Act,
(ii) any services in respect of which the costs are reimbursable under section 75BA,
(iii) any services authorised to be received in another EEA State or Switzerland under Article 20(2) or (3) or Article 27(3) of Regulation ( EC) 883/2004.
(c) where they are persons whose travelling expenses are payable by virtue of paragraph (b) above, for the payment by the Secretary of State in such cases as may be prescribed of expenses necessarily incurred by them (and by any companion whose travelling expenses are so payable) in obtaining overnight accommodation for the purpose mentioned in that paragraph and
(d) for the payment by the Secretary of State to NHS trusts of such sums as will reimburse them for any sums paid by them as travelling expenses in such cases as may be prescribed .
(2) Descriptions of persons may be prescribed for the purposes of paragraph (a), (b) , (c) or (d) of subsection (1) above by reference to any criterion and, without prejudice to the generality of this subsection, by reference to any of the following criteria-
(a) their age;
(b) the fact that a prescribed person or a prescribed body accepts them as suffering from a prescribed medical condition;
(c) the fact that a prescribed person or a prescribed body accepts that a prescribed medical condition from which they suffer arose in prescribed circumstances;
(d) their receipt of benefit in money or in kind under any enactment or their entitlement to receive any such benefit;
(e) the receipt of any such benefit by other persons satisfying prescribed conditions or the entitlement of other persons satisfying prescribed conditions to receive such benefits; and
(f) the relationship, as calculated in accordance with the regulations by a prescribed person, between their resources and their requirements.
(3) Regulations under this section may direct how a person’s resources and requirements are to be calculated and, without pre-judice to the generality of this subsection, may direct that they shall be calculated—
(a) by a method set out in the regulations;
(b) by a method described by reference to a method of calculating or estimating income or capital specified in an enactment other than this section or in an instrument made under an Act of Parliament or by reference to such a method but subject to prescribed modifications;
(c) by reference to an amount applicable for the purposes of a payment under an Act of Parliament or an instrument made under an Act of Parliament; or
(d) by reference to the person’s being or having been entitled to payment under an Act of Parliament or an instrument made under an Act of Parliament.
(4) Regulations under this section which refer to an Act of Parliament or an instrument made under an Act of Parliament may direct that the reference is to be construed as a reference to that Act or instrument—
(a) as it has effect at the time when the regulations are made; or
(b) both as it has effect at that time and as amended subsequently.
75BA Reimbursement of the cost of services provided in another EEA State where expenditure is incurred on or after 25 October 2013.
(1) This section applies where qualifying EEA expenditure is incurred by a person on or after 25 October 2013 (but see subsections (9) and (14) and section 75BC).
(2) A Health Board must, on an application made by the person, reimburse to that person the amount of the qualifying EEA expenditure incurred by that person, but this is subject to subsections (8) and (9), to any limit applicable under subsection (11) and to any deduction applicable under section 75D.
(3) For the purpose of this section, “qualifying EEA expenditure” is expenditure incurred on the provision by an authorised provider, in an EEA State ..., to a person ordinarily resident in Scotland (“the patient”) of services as respects which condition A or condition B is met.
(4) Condition A is that the services—
(a) are necessary to treat or diagnose a medical condition of the patient, and
(b) are the same as or equivalent to services that a Health Board in whose area a patient resides would make or have made available to a patient under this Act in the circumstances of the patient’s case.
(5) But in the case of services which, although meeting the requirements in paragraphs (a) and (b) of subsection (4), fall within subsection (6), condition A is only met if, before the services were provided, the Health Board had given authorisation under section 75BB for the provision of the services to the patient.
(6) Services fall within this subsection if—
(a) they are subject to planning requirements relating to the objective of ensuring sufficient and permanent access to a balanced range of high quality treatment or to the wish to control costs and avoid, as far as possible, any waste of financial, technical and human resources, and—
(i) involve a stay in hospital accommodation for at least one night, or
(ii) require the use of highly specialised and cost-intensive medical infrastructure or medical equipment,
(b) they involve treatments presenting a particular risk for the patient or the population, or
(c) they are provided by a healthcare provider in circumstances that, on a case-by-case basis, could give rise to serious and specific concerns relating to the quality or safety of the care, with the exception of healthcare services which are subject to European Union legislation ensuring a minimum level of safety and quality throughout the European Union.
(7) Condition B is that before the services were provided the Health Board had given authorisation under section 75BB(4)(b) for the provision of the services to the patient.
(8) The duty in subsection (2) does not apply where the applicant for reimbursement incurred the qualifying EEA expenditure in connection with an arrangement which was entered into by or on behalf of the applicant in the course of business and under which the applicant has gained or might be expected to gain any financial benefit.
(9) This section does not apply in circumstances where Article 20 or 27(3) of Regulation (EC) No. 883/2004 apply.
(10) Subsection (11) applies where the services are the same as or equivalent to services that the Health Board in whose area a patient resides would have made available to that patient under this Act in the circumstances of the patient’s case.
(11) The Health Board may limit the amount of any reimbursement under this section to the cost that the Board would have incurred if the same or an equivalent service had been made available by the Board to a patient resident in the Board’s area.
(12) A Health Board may, on an application made by a person who receives reimbursement of qualifying expenditure under paragraph (2), reimburse to that person travelling expenses (including the travelling expenses of companions) incurred or to be incurred for the purpose of their obtaining any services reimbursed under this section.
(13) The Scottish Ministers may determine—
(a) the form in which an application under this section must be made, and
(b) the information to be provided in support of the application.
(14) This section does not apply where expenditure is incurred in Iceland, Liechtenstein or Norway before Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare applies to that state in accordance with the EEA Agreement.
(15) In this section and section 75BB—
“authorised provider” in relation to services provided in an EEA State means a person who is lawfully providing services,
“services” includes any goods, including drugs, medicines and appliances which are used or supplied in connection with the provision of a service, but does not include accommodation other than hospital accommodation.
75BB Prior authorisation for the purposes of section 75BA
(1) A person may apply to a Health Board under this section for prior authorisation for the purposes of section 75BA in relation to the provision of services (“the requested services”) to a person ordinarily resident in Scotland (“the patient”).
(2) The requested services must be—
(a) services which fall within section 75BA(6) and meet the requirements in paragraphs (a) and (b) of section 75BA(4), or
(b) services that are neither the same as nor equivalent to services that a Health Board in whose area the patient resides would make available to the patient under this Act in the circumstances of the patient’s case.
(3) The Scottish Ministers may determine—
(a) the form in which an application under this section must be made, and
(b) the information to be provided in support of the application.
(4) A Health Board—
(a) must authorise the provision of the requested services if they are services mentioned in subsection (2)(a) (but see subsection (5)), and
(b) may authorise the provision of the requested services in any case where—
(i) the requested services are necessary to treat or diagnose a medical condition of the patient, and
(ii) the duty in paragraph (a) does not apply.
(5) The duty in subsection (4)(a) does not apply if at least one of the following conditions is met—
(a) by receiving the requested services the patient would, according to a clinical evaluation, be exposed with reasonable certainty to a patient-safety risk that cannot be regarded as acceptable, taking into account the potential benefit for the patient of the requested service,
(b) the general public will be exposed with reasonable certainty to a substantial safety hazard as a result of the requested service,
(c) the requested service is to be provided by a healthcare provider that raises serious and specific concerns relating to the respect of standards and guidelines on quality of care and patient safety, including provisions on supervision, whether these standards and guidelines are laid down by laws or regulations or through accreditation systems established by the state in which the requested services will be provided,
(d) the Health Board can provide to the patient services that are the same as or equivalent to the requested services within a period of time that is medically justifiable, taking into account the patient’s state of health at the time the decision under this section is made and the probable course of the medical condition to which the requested services relate.
(6) The matters to which a Health Board is to have regard in determining for the purpose of subsection (5)(d) whether the length of any delay is medically justifiable include—
(a) the patient’s medical history,
(b) the extent of any pain, disability, discomfort or other suffering that is attributable to the medical condition to which the requested services are to relate,
(c) whether any such pain, disability, discomfort or suffering makes it impossible or extremely difficult for the patient to carry out ordinary daily tasks, and
(d) the extent to which the provision of the requested services would be likely to alleviate, or enable the alleviation of, the pain, disability, discomfort or suffering.
(7) In section 75D (deduction of NHS charges)—
(a) in subsection (1) after “75B(1)” insert “or 75BA”;
(b) in subsection (2) after “75C” insert “or 75BA and 75BB”.
(8) Any authorisation or refusal of authorisation in part or full under this section must be in writing.
(9) In this section ... “writing” includes an electronic communication as defined in section 15 of the Electronic Communications Act 2000which has been recorded and is capable of being reproduced.
75BC Restriction on reimbursement after EU withdrawal
(1) The duty to reimburse in section 75BA(2) applies in respect of a service provided to a person on or after IP completion day only if one of the following conditions is met.
(2) Condition 1 is that the service began to be provided to the person before IP completion day.
(3) Condition 2 is that—
(a) the application for authorisation under section 75BB in relation to the provision of the service to the person was made before IP completion day, and
(b) the service began to be provided to the person on or after IP completion day and before—
(i) the end of the period specified in the authorisation as the period for which authorisation is granted, or
(ii) if no such period is specified in the authorisation, the end of the period of 1 year beginning with IP completion day.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) A Health Board may deduct from any amount to be reimbursed under section ... 75BA, in whole or in part, any NHS charge which would have been payable by the eligible person for the same service or an equivalent service if the service had been made available by the Health Board in whose area the eligible person resides.
(2) Subsection (1) does not apply to the extent that the eligible person would, if the services received had been provided under this Act otherwise than in accordance with sections ... 75BA and 75BB, be entitled to any exemption or remission from any NHS charge.
(3) In this section—
“eligible person” means a person who is ordinarily resident in Scotland,
“NHS charge” means any charge payable in accordance with sections 69 to 74 or regulations made under those sections,
“services” has the meaning given in section 75BA(15).
(1) The Secretary of State may cause an inquiry to be held in any case where he deems it advisable to do so in connection with any matter arising under this Act , the 2021 Act or Part 1 of the Non-surgical Procedures and Functions of Medical Reviewers (Scotland) Act 2026.
(2) The provisions of Schedule 12 shall have effect with regard to any inquiry which the Secretary of State is, under this Act, required or authorised to hold.
(1) Where the Secretary of State is of the opinion, on representations made to him or otherwise, that—
(a) any Health Board; ...
(aa) an NHS trust
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) the Dental Estimates Board ; or
(d) HIS,
have failed to carry out any functions conferred or imposed on them by or under this Act , the 2021 Act or Part 1 of the Non-surgical Procedures and Functions of Medical Reviewers (Scotland) Act 2026, or have in carrying out those functions failed to comply with any regulations, schemes, proposals or directions relating to those functions, he may after holding an inquiry make an order declaring them to be in default
(2) When such an order is made, the members of the body shall forthwith vacate their office, and the order—
(a) shall provide for the appointment or, as the case may be, election, in accordance with the provisions of this Act, of new members of the body; and
(b) may contain such provisions as seem to the Secretary of State expedient for authorising any person to act in the place of the body in question pending the appointment or, as the case may be, election of new members.
(3) An order made under this section may contain such supplementary and incidental provisions as appear to the Secretary of State to be necessary or expedient.
If the Secretary of State is of the opinion that an emergency exists, and thinks it necessary in order to secure the effective continuance of any service under this Act or under the 2021 Act, he shall have power to direct that any function conferred by or under this Act, or by or under the 2021 Act, on any body or person shall, during the period of the emergency, be performed by such other body or person as he may specify in the direction.
(1) This section applies where—
(a) it is a function of a body or person under or by virtue of this Act, or under or by virtue of the 2021 Act, to provide, or secure the provision of, a service, and
(b) the Scottish Ministers consider that the body or person has failed, is failing or is likely to fail—
(i) to provide the service, or
(ii) to provide it to a standard which they regard as acceptable.
(2) The Scottish Ministers may, where they consider it necessary for the purpose of ensuring the provision of the service in question to a standard which they regard as acceptable, direct that specified functions of the body or person under or by virtue of this Act or, as the case may be, under or by virtue of the 2021 Act be performed, for a specified period and to a specified extent, by—
(a) a body falling within subsection (4), or
(b) one or more persons falling within subsection (5).
(3) In subsection (2), “ specified ” means specified in the direction.
(4) A body falls within this subsection if it is—
(a) a Health Board,
(b) a Special Health Board, . . .
(c) the Agency , or
(d) HIS.
(5) A person falls within this subsection if the person is—
(a) an employee of a Health Board, a Special Health Board , the Agency or HIS.,
(b) a member of the staff of the Scottish Administration, or
(c) an employee of a local authority.
(6) A body or person appointed by a direction given under subsection (2) to perform functions of a body or person referred to in subsection (1) is referred to in this section as an “ appointed person ”.
(7) An appointed person must comply with a direction given under subsection (2).
(8) The remuneration and expenses of, and any other costs reasonably incurred by, an appointed person in performing the functions specified in the direction shall, unless otherwise specified in the direction, be paid by the body or person referred to in subsection (1).
(9) Anything done or omitted by an appointed person in performing the functions specified in the direction is to be regarded as done or omitted by the body or person referred to in subsection (1).
(10) A person dealing with an appointed person in good faith and for value is not concerned to inquire whether the appointed person is acting within the powers conferred by virtue of the direction.
(11) The Scottish Ministers may vary or withdraw a direction given under subsection (2).
(1) The Secretary of State may purchase by agreement any moveable property and, by agreement or compulsorily, any land which he considers is required for the purposes of any service under this Act or under the 2021 Act and may take any such property or land on lease,, and may use for those purposes any property, heritable or moveable, acquired by him or on his behalf under this Act.
(1A) Without prejudice to any other power of disposal, the Secretary of State may dispose of any land which he considers is no longer required for the purposes of any service under this Act or under the 2021 Act ...
(2) Where the Secretary of State acquires premises under subsection (1) other than on lease he may acquire compulsorily, in accordance with Schedule 13, any equipment, furniture or other moveable property used in or in connection with the premises.
(2A) For the avoidance of doubt, the power to use heritable property conferred by subsection (1), and the power to dispose of land conferred by subsection (1A), include power to let the property or, as the case may be, land.
(3) Any Health Board , the Agency or (in connection with the exercise of its health service functions only) HIS may acquire on behalf of the Secretary of State any moveable property which may be required for the purposes aforesaid.
(4) For the purpose of the purchase of land by agreement by the Secretary of State—
(a) the Lands Clauses Acts (except so much thereof as relates to the acquisition of land otherwise than by agreement, and the provisions relating to access to the special Act, and except sections 120 to 125 of the Lands Clauses Consolidation (Scotland) Act 1845), and
(b) section 6 and sections 70 to 78 of the Railways Clauses Consolidation (Scotland) Act 1845 (as originally enacted and not as amended by section 15 of the Mines (Working Facilities and Support) Act 1923),
are hereby incorporated with this section; and in construing those Acts for the purposes of this section, this section shall be deemed to be the special Act and the Secretary of State shall be deemed to be the promoter of the undertaking.
(1) All property vested in the Secretary of State by virtue of section 6 of the National Health Service (Scotland) Act 1947 is so vested free of any trust existing immediately before 5th July 1948; and the Secretary of State may use any such property for the purpose of any of the functions exercisable by him under this Act, but shall so far as practicable secure that the objects for which any such property was used immediately before the said 5th July are not prejudiced by the exercise of the power hereby conferred.
(2) Where the character and associations of any voluntary hospital transferred to the Secretary of State by virtue of the said Act of 1947 are such as to link it with a particular religious denomination, regard shall be had in the general administration of the hospital to the preservation of the character and associations of the hospital.
81 Power of voluntary organisations to transfer property to Secretary of State.
Notwithstanding anything contained in the constitution or rules of any voluntary organisation formed for the purpose of providing a service of nurses for attendance on the sick in their own home or of midwives, or in any trust deed or other instrument relating to any such organisation or service, any property vested in the organisation or held by any persons on trust for the organisation or service or for any specific purposes connected with the organisation or service may be transferred to the Secretary of State on such terms as may be agreed between the Secretary of State and the organisation or trustees, with a view to the property being used or held by the Secretary of State for purposes similar to the purposes for which it was previously used or held.
82 Use and administration of certain endowments and other property held by Health Boards.
(1) All endowments vested in a Health Board by virtue of section 37 of the National Health Service (Scotland) Act 1972 are so vested free of any trust existing immediately before 1st April 1974 (hereafter in this section referred to in relation to any such endowment as “the original trust”); but all such endowments shall be held by the Health Board on trust for such purposes relating to services provided under this Act in or in relation to hospitals, or to the functions of the Board with respect to research, as the Board may think fit.
(2) All property vested in a Health Board by virtue of section 39 of the said Act of 1972 is so vested free of any trust existing immediately before the said 1st April (hereafter in this section referred to in relation to any such property as “the original trust”); but all such property shall be held by the Health Board on trust for such purposes relating to services provided by them under this Act, or to the functions of the Board with respect to research, as the Board may think fit.
(2A) All endowments and other property (including value in lieu of the property) vested in a Health Board by virtue of section 5 or 6(2) of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4) is so vested free of any trust existing immediately before it is so vested (hereafter in this section referred to in relation to any such endowment or property as “the original trust”); but all such endowments and other property shall be held by the Health Board on trust for such purposes relating to services provided under this Act or in relation to hospitals, or to the functions of the Board with respect to research, as the Board may think fit.
(2B) All endowments and property held in trust transferred to a Health Board by an order under paragraph 26 of Schedule 7A (whenever made) are held by the Health Board free of any trust existing immediately before the transfer (hereafter in this section referred to in relation to any such endowment or property as “the original trust”); but all such endowments and property shall be held by the Health Board on trust for such purposes relating to services provided under this Act, or to the functions of the Board with respect to research, as the Board may think fit.
(3) In exercising the power conferred on them by this section in relation to any endowment or property a Health Board shall secure, so far as is reasonably practicable, that the objects of the original trust (including, in the case of an endowment, the objects of the endowment) and the observance of any conditions attaching thereto, including, in particular, conditions intended to preserve the memory of any person or class of persons, are not prejudiced by the exercise of the power.
(4) Any reference in this section to an endowment or to any property includes a reference to the accumulated income thereof.
83 Power of Health Boards and local health councils to hold property on trust.
(1) A Health Board , and HIS, shall have power to accept, hold and administer any property on trust for purposes relating to any service which it is their function to make arrangements for, administer or provide, or to their functions with respect to research.
(1ZA) Any reference in subsection (1) to a function of HIS is to be construed as a reference to that body's health service functions only.
(1A) A Health Board shall have power to accept, hold and administer any property on trust for purposes relating to any service which it is the function of any NHS trust in the area of the Health Board to make arrangements for, administer or provide.
(2) A local health council shall have power to accept, hold and administer any property on trust for purposes relating to any function conferred upon them by or under any enactment.
84 Power of trustees to make payments to Health Boards.
(1) Where property (other than property transferred to the Secretary of State under Part V of the National Health Service (Scotland) Act 1972 or to a Health Board under Part VI of that Act) was immediately before 1st April 1974, and is at any time after the commencement of this Act, held on trust under a trust instrument the terms of which authorise or require the trustees (whether immediately or in the future) to apply any part of the capital or income of the property for the purposes of any hospital or service which is administered by a Health Board or (in connection with the exercise of its health service functions only) by HIS or an NHS trust, the trust instrument shall be construed as authorising, or, as the case may be, requiring, the trustees to pay that capital or income to the Health Board or NHS trust concerned or, as the case may be, to HIS.
(2) Where property so held on trust is, under the trust instrument, to be applied for the purposes of hospitals which are administered by more than one Health Board or NHS trust, the trustees shall distribute the property between the Boards or NHS trusts concerned, in such manner, having regard to the purposes of the trust, as the trustees may determine.
(3) Any sums paid to a Health Board or to HISor an NHS trust under this section shall, so far as practicable, be applied by them for the purposes specified in the trust instrument.
84A Power to raise money, etc., by appeals, collections, etc.
(1) A Health Board or (in connection with the exercise of its health service functions only) HISor NHS trust shall have power to engage in activities intended to stimulate the giving (whether on trust or otherwise) of money or other property to assist them in providing or improving any services or any facilities or accommodation which is or are to be provided as part of the health service or to assist them in connection with their functions with respect to research.
(2) A local health council shall have power to engage in activities intended to stimulate the giving (whether on trust or otherwise) of money or other property to assist them in carrying out any function conferred upon them by or under any enactment.
(3) Subject to any directions of the Secretary of State excluding specified descriptions of activity, the activities authorised by this section include public appeals or collections and competitions, entertainments, bazaars, sales of produce or other goods and other similar activities and the activities may involve the use of land, premises or other property held by or for the benefit of the Board , NHS trust or local health council exercising the power or, as the case may be, by or for the benefit of HIS, subject however to any restrictions on the purposes for which trust property may be used.
(4) Subject to subsections (5) and (6), the Health Board , NHS trust or local health council at whose instance property is given in pursuance of this section shall, after defraying out of it any expenses incurred in obtaining it, hold, administer and apply the property on trust for or for the purpose for which it was given.
(4A) Subsection (4) applies (subject to the subsections mentioned there) to HIS in respect of property given in pursuance of this section as it applies to a Health Board in respect of such property given at the instance of the Health Board.
(5) Where property held by a Health Board or by HIS, NHS trust or local health council under this section is more than sufficient to enable the purpose for which it was given to be fulfilled, the excess shall be applicable, in default of any provision for its application made by the trust or other instrument under or in accordance with which the property comprising the excess was given, for such purposes connected with any of the functions of the Board , NHS trust or council as the Board , NHS trust or council think fit or, as the case may be, of HIS as HIS thinks fit..
(6) Where property held by a Health Board or by HIS, NHS trust or local health council under this section is insufficient to enable the purpose for which it was given to be fulfilled then—
(a) the Board or, as the case may be, HIS, NHS trust or the council may apply so much of the capital or income at their disposal as is needed to enable the purpose to be fulfilled subject, however, in the case of trust property, to any restrictions on the purposes for which the trust property may be applied, and in the case of money paid or payable by the Secretary of State under section 85(1), to any directions he may give; but
(b) where the capital or income applicable under paragraph (a) is insufficient or is not applied to enable the purpose to be fulfilled, the property so held by the Board or by HIS, NHS trust or the council shall be applicable, in default of any provision for its application made by the trust or other instrument under or in accordance with which the property was given, for such purposes connected with any of the functions of the Board , NHS trust or council as the Board , NHS trust or council think fit or, as the case may be, any of the health service functions of HIS as HIS thinks fit..
(7) Where under subsections (5) or (6) property becomes applicable for purposes other than that for which it was given, the Health Board or, as the case may be, HIS, NHS trust or local health council shall have regard to the desirability of applying the property for a purpose similar to that for which it was given.
(1) The Scottish Ministers may do any (or all) of the following—
(a) form or participate in forming bodies corporate to provide facilities or services for persons or groups of persons exercising functions, or otherwise providing services, under this Act;
(b) participate in bodies corporate providing facilities or services for persons or groups of persons falling within paragraph (a);
(c) with a view to securing or facilitating the provision by bodies corporate of facilities or services for persons or groups of persons falling within paragraph (a)—
(i) invest in the bodies corporate (whether by acquiring assets, securities or rights or otherwise);
(ii) provide loans and guarantees and make other kinds of financial provision to or in respect of them.
(1A) The Scottish Ministers may do any (or all) of the following—
(a) form or participate in forming bodies corporate for any of the purposes mentioned in subsection (1B),
(b) participate in bodies corporate formed for any of those purposes,
(c) with a view to securing or facilitating any of the purposes for which such a body corporate is formed—
(i) transfer, or secure the transfer, to the body corporate of heritable or moveable property held by the Scottish Ministers, a Health Board, the Common Services Agency for the Scottish Health Service (“the Agency”) or Healthcare Improvement Scotland (“HIS”) under or by virtue of, or for the purposes of, this Act and any rights, liabilities or obligations relating to the property,
(ii) otherwise invest in the body corporate (whether by acquiring assets, securities or rights or otherwise),
(iii) provide loans and guarantees and make other kinds of financial provision to or in respect of the body corporate.
(1B) The purposes are—
(a) management or development of any heritable property held by the Scottish Ministers, a Health Board, the Agency or HIS under or by virtue of, or for the purposes of, this Act,
(b) management of any moveable property so held,
(c) disposal of any such heritable or moveable property.
(2) For the purpose of subsection (1), it is immaterial that the facilities or services provided or to be provided by a body corporate are not provided or to be provided—
(a) only to persons or groups of persons exercising functions, or otherwise providing services, under this Act; or
(b) to such persons or groups of persons only in that capacity.
(2A) The Scottish Ministers may—
(a) form or participate in forming bodies corporate for a prescribed purpose,
(b) participate in bodies corporate formed for a prescribed purpose.
(2B) A purpose prescribed under subsection (2A) must relate to the functions conferred on the Scottish Ministers by or under this Act.
(3) In this section—
“ companies ” means companies as defined in section 1(1) of the Companies Act 2006 ;
“ facilities ” includes the provision of (or the use of) premises, goods, equipment, materials, vehicles, plant or apparatus.
85AA Means of meeting expenditure of Health Boards out of public funds.
(1) The Secretary of State shall pay to each Health Board sums equal to their general Part II expenditure.
(2) “General Part II expenditure" is expenditure which—
(a) is attributable to the payment of remuneration to persons providing services in pursuance of Part II; but
(b) does not fall within paragraphs (b) to (e) of subsection (4).
(3) The Secretary of State shall pay to each Health Board and to HIS, in respect of each financial year, sums not exceeding the amount allotted for that year by the Secretary of State to the Board or, as the case may be, HIS towards meeting their main expenditure.
(4) In subsection (3) “ main expenditure ” means expenditure which is attributable to—
(a) the performance by the Board of their functions or, as the case may be, by HIS of its health service functions, in that year, but—
(i) is not general Part II expenditure; and
(ii) does not fall within paragraphs (b) or (c);
(b) the reimbursement of expenses of persons providing services in pursuance of Part II which are designated expenses incurred in connection with the provision of the services (or in giving instruction in matters relating to the services);
(c) remuneration which is paid to persons providing additional pharmaceutical services (in accordance with directions under section 27A) in respect of such of those services as are designated;
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) remuneration which is referable to the cost of drugs for which the Health Board is accountable in that year (whether paid by it or by another Health Board).
(5) In paragraphs (b) to (e) of subsection (4), “ designated ” means designated in writing by the Secretary of State for the purposes of that paragraph and in relation to the allotment in question.
(6) An amount is allotted to a Health Board or to HIS for a year under this section when they are notified by the Secretary of State that it is allotted to them for that year; and the Secretary of State may make an allotment under this section increasing or reducing an allotment previously so made.
(7) Where the Secretary of State proposes to pay any sum to a Health Board, he may, with the consent of the Treasury, instead pay that sum to an NHS trust in discharge of the whole or any part of any liability of the Health Board to the NHS trust.
(8) The Secretary of State may give directions to a Health Board or to HIS with respect to the application of sums paid to them and a Board to whom directions have been given under this subsection and HIS, when directions are so given to it, shall comply with the directions.
(9) The expenditure of a University Liaison Committee shall, for the purposes of this section, be deemed to be the expenditure of the Health Board for whose area it is constituted, and, where a University Liaison Committee is constituted for the areas of more than one Health Board, its expenditure shall be apportioned between the Boards concerned in such manner as may be determined by the Secretary of State.
(10) Payments under this section 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.
(11) In this section and section 85AB, “ drugs ” includes medicines and listed appliances (within the meaning of section 27).
85AB Further provision as to expenditure on drugs.
(1) For each financial year, the Secretary of State shall apportion, in such manner as he thinks appropriate, among all Health Boards the total of the remuneration referable to the cost of drugs which is paid by each Health Board in that year.
(2) A Health Board is accountable in any year for remuneration referable to the cost of drugs to the extent (and only to the extent) that such remuneration is apportioned to it under subsection (1).
(3) Where in any financial year any remuneration referable to the cost of drugs for which a Health Board is accountable is paid by another Health Board, the remuneration is to be treated (for the purposes of this section) as having been paid by the first Health Board in the performance of its functions.
(4) The Secretary of State may, in particular, exercise his discretion under subsection (1)—
(a) so that any apportionment reflects, in the case of each Health Board, the financial consequences of orders for the provision of drugs, being orders which in his opinion are attributable to the Board in question;
(b) by reference to averaged or estimated amounts.
(5) The Secretary of State may make provision for any remuneration referable to the cost of drugs which is paid by a Health Board other than the Health Board which is accountable for the payment to be reimbursed in such manner as he may determine.
(6) The Secretary of State shall determine what remuneration paid by Health Boards to persons providing pharmaceutical services is to be treated for the purposes of section 85AA and this section as remuneration referable to the cost of drugs.
(1) There shall, in respect of each financial year, be paid by the Secretary of State sums not exceeding the amount allotted by him for that year to each of the following bodies towards meeting the expenditure attributable to the performance by that body of their functions in that year—
(a) the Agency;
(b) every Special Health Board;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) the Dental Estimates Board;
(e) the tribunal;
(ea) HIS;
(f) every local health council.
(1A) The reference in subsection (1) to the functions of HIS is to be construed as a reference to that body's health service functions only.
(2) The date on which an allotment under subsection (1) (including an allotment increasing or reducing an allotment previously made) takes effect is the date on which the body receiving the allotment are notified of its amount by the Secretary of State.
(3) The Secretary of State may give directions to a body referred to in subsection (1) with respect to the application of the sums paid to them under that subsection and it shall be the duty of any body to whom directions have been given under this subsection to comply with the directions.
(4) Payments under subsection (1) 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.
85A Financial duties of bodies referred to in section 85.
(1) It is the duty of each such body as is referred to in section 85AA(1) or 85(1), in respect of each financial year, so to perform their functions as to secure that the expenditure attributable to the performance of their functions in that year does not exceed the aggregate of—
(a) the amounts allotted to that body for that year under section 85AA(1) or 85(1) and, as the case may be, section 85AA(3);
(b) any other sums received under this Act in that year by that body; and
(c) any sums received otherwise than under this Act in that year by that body for the purposes of enabling them to defray any such expenditure.
(1A) References to “functions” in subsection (1) are, in the application of that subsection to HIS, to be construed as references to HIS's health service functions only.
(2) Subsection (9) of section 85AA shall apply for the purposes of this section as it applies for the purposes of that section.
(3) The Secretary of State may give such directions to a body referred to in section 85AA(1) or 85(1) as appear to him to be requisite to secure that the body comply with the duty imposed on them by subsection (1) and it shall be the duty of the body to comply with the directions.
Directions under this subsection may be specific in character.
(4) To the extent to which—
(a) any expenditure of a Health Board , HIS or a local health council is defrayed by that body as trustee; or
(b) any sums are received by such a body as trustee or under section 84A,
that expenditure and, subject to subsection (5), those sums shall be disregarded for the purposes of this section, and, for those purposes, sums which, in the hands of such a body, cease to be trust funds and become applicable by the body otherwise than as trustee shall be treated, on their becoming so applicable, as having been received by the body otherwise than as trustee.
(5) Of the sums received by a body under section 84A so much only as accrues to the body after defraying any expenses incurred in obtaining them shall be disregarded under subsection (4).
(6) Subject to subsection (4), the Secretary of State may, by directions, determine—
(a) whether sums of a description specified in the directions are or are not to be treated for the purposes of this section as being receivable under this Act by a body of a description so specified;
(b) whether expenditure of a description specified in the directions is or is not to be treated for the purposes of this section as being attributable to the performance of functions by a body of a description so specified; or
(c) the extent to which and the circumstances in which sums received but not yet spent by a body under section 85AA(1) 85(1) , or, as the case may be, section 85AA(3) are to be treated for the purposes of this section as part of the expenditure of the body and to which financial year’s expenditure they are to be attributed.
85B Schemes for meeting losses and liabilities etc. of certain health service bodies.
(1) The Secretary of State may by regulations made with the consent of the Treasury establish a scheme whereby any of the bodies mentioned in subsection (2) may make provision to meet—
(a) expenses arising from any loss of or damage to their property; and
(b) liabilities to third parties for loss, damage (including solatium) or injury arising out of the carrying out of the functions of the bodies concerned.
(2) The bodies referred to in subsection (1) are—
(a) Health Boards;
(b) the Agency;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) NHS trusts . . .
(e) Special Health Boards;
(ea) HIS; ...
(f) the Mental Welfare Commission for Scotland,
(g) local authorities; and
(h) integration joint boards established by order under section 9(2) of the 2014 Act,
but a scheme under this section may limit the class or description of bodies which are eligible to participate in it.
(2A) The reference—
(a) in paragraph (a) of subsection (1) to property of HIS is to be construed as a reference to property held by HIS in connection with the exercise of its health service functions;
(b) in paragraph (b) of that subsection to the functions of HIS is to be construed as a reference to the health service functions of that body.
(2B) The reference—
(a) in paragraph (a) of subsection (1) to property of a local authority is to be construed as a reference to property held by a local authority in connection with the exercise of its relevant functions;
(b) in paragraph (b) of that subsection to the functions of a local authority is to be construed as a reference to the relevant functions of a local authority.
(2C) In subsection (2B), “relevant functions” means—
(a) integration functions; and
(b) such other functions as the Scottish Ministers may by order specify.
(2D) In subsection (2C)(a), “integration functions” means functions which in pursuance of an integration scheme under the 2014 Act are—
(a) delegated to the authority;
(b) to be carried out in conjunction with functions delegated to the authority (that is, functions set out in the integration scheme in pursuance of section 1(3)(c) of that Act); or
(c) to be carried out by the authority by virtue of a direction under section 26 of the 2014 Act.
(3) Without prejudice to the generality of the power conferred by subsection (1), a scheme under this section may-
(a) provide for the scheme to be administered by the Secretary of State, the Agency HIS , or a Health Board or NHS trust specified in the scheme;
(b) require any body which participates in the scheme to make payments in accordance with the scheme; and
(c) provide for the making of payments for the purposes of the scheme by the Secretary of State.
(4) Without prejudice to any other power of direction conferred on the Secretary of State,-
(a) if the Secretary of State so directs, any body which is eligible to participate in a scheme shall do so; and
(b) where a scheme provides for it to be administered by the Secretary of State, the Agency , HIS or a Health Board or NHS trust shall carry out such functions in connection with the administration of the scheme as the Secretary of State may direct.
(4A) Subsection (4)(a) does not apply in relation to a local authority.
(5) Neither the Secretary of State nor any body administering a scheme under this section shall, by virtue of their activities under the scheme, be regarded as effecting or carrying out contracts of insurance for the purposes of the Financial Services and Markets Act 2000.
(6) In this section, “the 2014 Act” means the Public Bodies (Joint Working) (Scotland) Act 2014.
(1) The following bodies that is to say—
(a) every Health Board;
(b) the Agency; and
(ba) HIS;
(c) every NHS trust,
shall keep, in such form as the Secretary of State may, with the approval of the Treasury, direct, accounts of all moneys received or paid out by them (in the case of HIS, in connection with the exercise of that body's health service functions only), and shall send those accounts to the Scottish Ministers by such time as they may direct.
(1AA) The Scottish Ministers shall send the accounts to the Auditor General for Scotland for auditing.
(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1B) In preparing its annual accounts in pursuance of subsection (1), an NHS trust shall comply with any directions given by the Secretary of State with the approval of the Treasury as to—
(a) the methods and principles according to which the accounts are to be prepared; and
(b) the information to be given in the accounts.
(1C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Every body mentioned in paragraphs (a) to (c) of subsection (1) shall prepare and transmit to the Secretary of State in respect of each financial year accounts in such form as the Secretary of State may, with the approval of the Treasury, direct.
(4) The Scottish Ministers may if they think fit prepare, in respect of any financial year, summarised or consolidated accounts, in such form as they may determine, of such of the bodies mentioned in paragraphs (a) to (c) of subsection (1), or such groups of those bodies, as they may determine; and they shall transmit any such accounts to the Auditor General for Scotland for auditing
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
87 Regulation of financial arrangements of Health Boards, the Agency and the Dental Estimates Board.
(1) Regulations may provide, in the case of all or any of the following bodies, that is to say, Health Boards, the Agency HIS, and the Dental Estimates Board, for restricting the making of payments by or on behalf of the body otherwise than on such authorisation and subject to such conditions as may be specified in the regulations; but such provision may be made subject to such exceptions as may be so specified.
(2) Regulations made under this section may contain such other provisions as to the making and carrying out by all or any of those bodies of such arrangements with respect to financial matters as the Secretary of State thinks necessary for the purpose of securing that the affairs of such bodies are conducted, so far as reasonably practicable, in such manner as to prevent financial loss and to ensure and maintain efficiency.
(3) Without prejudice to the operation of the provisions of any such regulations, the Secretary of State may give to any of the said bodies such directions (which may be specific in character) as to any matter with respect to which regulations may be made under this section as it appears to him is requisite for the purpose of securing that the affairs of the body are conducted, so far as reasonably practicable, in such manner as is mentioned in subsection (2); and a body to whom any such directions are given shall comply therewith.
(4) In relation to HIS, the references—
(a) in subsection (1) to payments;
(b) in subsection (2) to arrangements and affairs; and
(c) in subsection (3) to affairs,
are to be construed as references to payments, arrangements and affairs for or in connection with the exercise by HIS of its health service functions only.
88 Payment of allowances and remuneration to members of certain bodies connected with the health services.
(1) The Secretary of State may pay to members of—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) the Dental Estimates Board,
(c) the Tribunal,
(d) any body on which functions are conferred by regulations under section 22 or by regulations which make provision in relation to section 17C arrangements of a kind that may be made by regulations under section 22, and
(e) any body specified in an order made by the Secretary of State as being a body recognised by him to have been formed for the purpose of performing a function connected with the provision of services under this Act,
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.
(2) The Secretary of State may pay to members of—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) the Dental Estimates Board,
(c) the Tribunal,
(d) any other body constituted under or by virtue of Part II, being a body specified in an order made for the purposes of this section by the Secretary of State with the approval of the Minister for the Civil Service, and
(e) any body on which functions are conferred by regulations under section 22 or by regulations which make provision in relation to section 17C arrangements of a kind that may be made by regulations under section 22,
such remuneration as the Secretary of State may, with such approval, from time to time determine.
(3) Allowances shall not be paid under subsection (1) except in connection with the performance of such powers or duties, in such circumstances, as may, with the approval of the Minister for the Civil Service, be determined by the Secretary of State.
(4) Any payments made under this section 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, with the approval of the Minister for the Civil Service, determine.
89 Superannuation of officers of certain hospitals.
(1) The Secretary of State may enter into an agreement with the governing body of any hospital to which this section applies for admitting, on such terms and conditions as may be provided in the agreement, officers of the hospital of such classes as may be so provided to participate in the superannuation benefits provided under regulations made under section 10 of the Superannuation Act 1972, in like manner as officers of Health Boards; and the said regulations shall apply accordingly in relation to the officers so admitted, subject to such modifications as may be provided in the agreement.
(2) The governing body of any hospital to which this section applies shall have all such powers as may be necessary for the purpose of giving effect to any terms and conditions on which their officers are admitted to participate in those superannuation benefits.
(3) This section applies to any hospital (not vested in the Secretary of State) which is used, in pursuance of arrangements made by the governing body of the hospital with a Health Board, for the provision of services under this Act.
90 Appointment of Commissioner and tenure of office.
(1) For the purpose of conducting investigations in accordance with the following provisions of this Part, there shall be appointed a Commissioner, to be known as the Health Service Commissioner for Scotland.
(2) Her Majesty may, by Letters Patent, from time to time appoint a person to be the Commissioner, and any person so appointed shall, subject to subsections (3) and (3A), hold office during good behaviour.
(3) A person appointed to be the Commissioner may be relieved of office by Her Majesty at his own request, or may be removed from office by Her Majesty in consequence of Addresses from both Houses of Parliament, and shall in any case vacate office on completing the year of service in which he attains the age of 65 years.
(3A) Her Majesty may declare the office of Commissioner to have been vacated if satisfied that the person appointed to be the Commissioner is incapable for medical reasons:
(a) of performing the duties of his office; and
(b) of requesting to be relieved of it.
(4) The Commissioner shall not be a member of the House of Commons, or of the Senate or House of Commons of Northern Ireland, and accordingly the House of Commons Disqualification Act 1975 shall continue to have effect with the following amendments—
(a) in Part III of Schedule 1 there shall be inserted, at the appropriate point in alphabetical order, the entry “The Health Service Commissioner for Scotland"; and
(b) the like amendment shall be made in the Part substituted for the said Part III by Schedule 3 to the said Act in its application to the Senate and House of Commons of Northern Ireland.
(5) The Commissioner shall not be a member of a body subject to investigation or any management committee thereof.