Health and Social Care Act 2001 (c. 15)

(The document as of February, 2008)

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(i) criteria to be applied in making decisions under the regulations,

(j) appeals against decisions of Health Authorities under the regulations,

(k) the disclosure by a Health Authority, to prescribed persons or persons of prescribed descriptions, of information of a prescribed description about applicants for inclusion in a services list, refusals of such applications, and suspensions and removals from that list.

(4) The regulations may, in particular, also provide for--

(a) a person's inclusion in a services list to be subject to conditions determined by the Health Authority,

(b) the Health Authority to vary the conditions or impose different ones,

(d) the review by the Health Authority of their decisions made by virtue of regulations under this subsection.

(5) The imposition of such conditions must be with a view to--

(a) preventing any prejudice to the efficiency of the services to which the services list relates; or

(b) preventing any acts or omissions of the type described in section 49F(3)(a) of the 1977 Act.

(6) Regulations may provide--

(a) that no person may perform personal medical services unless he is included in a medical list, a supplementary list under section 43D of the 1977 Act or a services list,

(b) that no person may perform personal dental services unless he is included in a list referred to in section 36(1)(a) of the 1977 Act, a supplementary list under section 43D of that Act or a services list.

(7) Regulations made by virtue of subsection (3)(e) may (but need not) make provision corresponding to anything in sections 49F to 49N of the 1977 Act.

(8) If the regulations provide under subsection (3)(e) or (4) that a Health Authority may suspend or remove a person from a services list, they must include provision--

(a) requiring him to be given notice of any allegation against him;

(b) giving him the opportunity of putting his case at a hearing before the Health Authority make any decision as to his suspension or removal; and

(c) requiring him to be given notice of the Health Authority's decision and the reasons for it and of any right of appeal under subsection (9) or (10).

(9) If the regulations provide under subsection (3)(c) or (e) that a Health Authority may refuse a person's application for inclusion in a services list, or remove a person from one, the regulations must provide for an appeal (by way of redetermination) to the Family Health Services Appeal Authority ("FHSAA") against the Health Authority's decision.

(10) If the regulations make provision under subsection (4), they must provide for an appeal (by way of redetermination) by the person in question to the FHSAA against the Health Authority's decision--

(a) to impose conditions, or any particular condition,

(b) to vary a condition,

(d) on any review of an earlier such decision of theirs. "

(3) In section 40(3) of the National Health Service (Primary Care) Act 1997 (c. 46) (interpretation) after "sections 28C" there shall be inserted ", 28DA".

The Family Health Services Appeal Authority

27 The Family Health Services Appeal Authority

(1) After section 49R of the 1977 Act (which is inserted by section 25 of this Act) there shall be inserted--

" The Family Health Services Appeal Authority

49S The Family Health Services Appeal Authority

(1) There shall be a body to be known as the Family Health Services Appeal Authority ("FHSAA").

(2) The FHSAA shall be constituted in accordance with Schedule 9A to this Act, which also makes other provision in relation to the FHSAA.

(3) The FHSAA shall have such functions as are conferred on it by this Act or by any other enactment.

(4) The Secretary of State may direct the FHSAA to exercise any of his functions relating to the determination of appeals to him which are specified in the directions.

(5) Directions under subsection (4) shall be given by regulations or by an instrument in writing.

(6) The Secretary of State may make available to the FHSAA any facilities (including the use of any premises) provided by him or by a Special Health Authority or NHS trust for any service under this Act, and the services of persons employed by the Secretary of State or by a Special Health Authority or NHS trust.

(7) Subsections (1) to (3) of section 27 above apply in relation to the services of persons employed by a Special Health Authority and made available under subsection (6) as they apply in relation to the services of officers of Special Health Authorities to be made available under section 26 above.

(8) For the purposes of subsection (6)--

(a) the Secretary of State may give directions to an NHS trust requiring it to make facilities or the services of persons available as mentioned there; but

(b) subsections (1) and (2) of section 27 above apply in relation to the services of such persons as they apply in relation to the services of officers to be made available by virtue of section 26 above by a Health Authority, Special Health Authority or Primary Care Trust. "

(2) In section 102 of the 1977 Act (allowances and remuneration for members of certain bodies), in each of subsections (1)(a)(v) and (2)(d), for "the Tribunal constituted under section 46 above" there shall be substituted "the FHSAA".

(3) In section 128(1) of the 1977 Act (interpretation), in the appropriate place there shall be inserted--

" "the FHSAA" means the Family Health Services Appeal Authority; " .

(4) Before Schedule 10 to the 1977 Act there shall be inserted--

" SCHEDULE 9A The Family Health Services Appeal Authority

Constitution

1 The Family Health Services Appeal Authority ("the FHSAA") shall consist of--

(a) a President;

(b) one or more Deputy Presidents; and

all appointed by the Lord Chancellor on terms to be determined by him.

2 The number of the other members shall be determined by the Lord Chancellor after consulting the Secretary of State.

3 A person appointed as the President shall have a 10 year general qualification (within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41)), and a person appointed as a Deputy President shall have a 7 year general qualification.

4 The qualifications which the other members must have in order to be eligible for appointment shall be determined by the Lord Chancellor.

5 Each person appointed under paragraph 1--

(a) shall hold and vacate office in accordance with the terms of his appointment; and

(b) may be removed from office by the Lord Chancellor on grounds of incapacity or misbehaviour.

6 The other members must include at least one--

(a) medical practitioner providing general medical services, or performing personal medical services under section 28C arrangements;

(b) dental practitioner providing general dental services, or performing personal dental services under section 28C arrangements;

(d) registered pharmacist providing pharmaceutical services or local pharmaceutical services (whether under this Act or under a pilot scheme made under section 28 of the Health and Social Care Act 2001),

and must also include such number of persons with a 7 year general qualification (construed as in paragraph 3) as the Lord Chancellor considers appropriate bearing in mind the requirements of paragraph 9, and a number of lay persons who do not fall within paragraphs (a) to (d) and who possess such qualifications and experience as the Lord Chancellor considers appropriate.

Procedure

7 The procedure of the FHSAA shall be as it determines, subject to the following.

8 The functions of the FHSAA shall be exercised by panels consisting--

(a) in the case of functions referred to in section 49S(4) above, of such one or more members as the President may choose; and

(b) in the case of other functions, of three members chosen by the President,

and, in either case, the President may include himself (or, in the case of a one-member panel, may constitute the panel).

9 Subject to paragraph 10, at least one member of each panel (or, in the case of a one-member panel, that member) must have a 7 year general qualification (within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41)).

10 In the case of a panel constituted for the purposes of section 49M or 49N above, one member of the panel must have the qualification mentioned in paragraph 9, and (unless the President decides otherwise)--

(a) if the practitioner provides general medical services, one member of the panel must fall within paragraph 6(a), and so on as respects a practitioner who provides one of the other services referred to in section 49F(1); and

(b) the third member must neither fall within any of sub-paragraphs (a) to (d) of paragraph 6 nor have a legal qualification.

11 Where a panel has more than one member--

(a) the President shall nominate one of the members as chairman,

(b) decisions shall be taken by a majority of votes, and

12 The FHSAA shall--

(a) give notice of a panel's decision and of the reasons for it to each party to the proceedings; and

(b) publish each decision of a panel falling within paragraph 13 in such way as the FHSAA considers appropriate;

and it may send a copy of any such decision to such prescribed persons or persons of prescribed descriptions as it considers appropriate, together with any information relevant to the decision which the FHSAA considers it appropriate to include.

13 The following decisions fall within this paragraph--

(a) a decision on national disqualification (see section 49N above);

(b) a decision to allow an appeal brought by virtue of section 49M(2)(a), (b) or (c) above; and

14 The FHSAA may publish a decision not falling within paragraph 13 if it considers it appropriate to do so.

15 The Lord Chancellor may make rules as to--

(a) the composition of panels,

(b) the allocation to panels of cases, or of particular proceedings in any case, and

16 The Lord Chancellor shall make rules--

(a) giving each party to proceedings before a panel the opportunity of putting his case at a hearing,

(b) entitling each party to be legally represented at any hearing (whether it is held at the instance of the panel or of a party), and

(c) securing that any hearing is held in public unless the practitioner asks for it to be in private (a request which the panel must consider but need not grant).

17 Rules under this Schedule may, in particular, make provision--

(a) as to the carrying out by a Deputy President of functions of the President,

(b) as to how, and as to the time within which, an application to the FHSAA is to be made, or an appeal to the FHSAA is to be brought (so far as the matter is not provided for in or by virtue of this or any other Act),

(c) for a period which must elapse before an application, or a further application, may be made under section 49M(5)(a) above,

(d) as to the matters referred to in paragraph 12,

(e) for the giving by the panel of directions to the parties as to the conduct of the case, and for the consequences of failure to comply with such directions (which may include allowing or dismissing the appeal or application if the failure to comply was without reasonable excuse);

(f) empowering a panel to require persons to attend and give evidence or produce documents,

(g) about the admissibility of evidence, and

(h) enabling the panel to administer oaths.

18 No person shall be required by virtue of any such rules to give any evidence or produce any document or other material which he could not be compelled to give or produce in civil proceedings in a court in England and Wales.

Miscellaneous

19 (1) The President must, in respect of each period of 12 months beginning on 1st April, prepare a written report about the FHSAA's activities during that period.

(2) He must send a copy of the report to the Lord Chancellor, the Secretary of State and the National Assembly for Wales.

(3) After consulting the Lord Chancellor and the National Assembly for Wales, the Secretary of State may give directions to the President as to subjects with which the report must deal.

20 The President must arrange such training for himself and the other members of the FHSAA as he considers appropriate.

Interpretation

21 In this Schedule--

"practitioner" means the person whose case is before the FHSAA;
"prescribed" means prescribed by the Lord Chancellor in rules. "

(5) In the National Health Service (Primary Care) Act 1997 (c. 46)--

(a) in section 22 (supplementary regulations about personal medical or dental services), in the section 28E to be inserted into the 1977 Act, in subsection (7)(e), for "Tribunal constituted under section 46" there shall be substituted "Family Health Services Appeal Authority constituted under section 49S"; and

(b) in Schedule 1 (preferential treatment on transferring to medical lists), in paragraph 9(a), for "Tribunal constituted under section 46" there shall be substituted "Family Health Services Appeal Authority constituted under section 49S".

Part 2 Pharmaceutical Services

Chapter 1 Local Pharmaceutical Services

Preparation and making of pilot schemes

28 Pilot schemes

(1) Health Authorities may establish pilot schemes.

(2) In this Chapter "pilot scheme" means one or more agreements--

(a) made by a Health Authority ("A") in accordance with this Chapter;

(b) under which local pharmaceutical services are to be provided (otherwise than by A); and

(3) A pilot scheme may include arrangements--

(a) for the provision of services which are not local pharmaceutical services, but which may be provided under Part 1 of the 1977 Act (whether or not of the kind usually provided by pharmacies);

(b) for the provision of training and education (including training and education for persons who are, or may become, involved in the provision of local pharmaceutical services).

(4) A pilot scheme may not combine arrangements for the provision of local pharmaceutical services with arrangements for the provision of personal medical services or personal dental services under any provision of, or made under, the 1977 Act or the National Health Service (Primary Care) Act 1997.

(5) In this Chapter "piloted services" means services provided under a pilot scheme (including any services to which the scheme applies as a result of subsection (3)).

(6) In determining the arrangements they need to make in order to comply with section 41 of the 1977 Act (arrangements to be made by Health Authorities for the provision of pharmaceutical services), a Health Authority may take into account arrangements under a pilot scheme made by them.

(7) The functions of an NHS trust or a Primary Care Trust include power to provide any services to which a pilot scheme applies.

(8) In this Chapter--

"pharmaceutical services" means services of a kind which may be provided under section 41 of the 1977 Act, or by virtue of section 41A of that Act; and
"local pharmaceutical services" means such pharmaceutical services (other than practitioner dispensing services) as may be prescribed by regulations.

(9) "Practitioner dispensing services" means the provision of drugs, medicines or listed appliances (within the meaning of section 41 of the 1977 Act) by a medical practitioner or dental practitioner to a patient of his pursuant to arrangements made by virtue of section 43(1) of the 1977 Act.

29 Making pilot schemes

Schedule 2 makes provision with respect to making pilot schemes, including provision with respect to the procedure to be followed.

30 Designation of priority neighbourhoods or premises

(1) The relevant authority may make regulations allowing a Health Authority to--

(a) designate neighbourhoods,

(b) designate premises, or

for the purposes of this section.

(2) The regulations may, in particular, make provision--

(a) as to the circumstances in which, and the neighbourhoods or premises in relation to which, designations may be made or maintained;

(b) allowing a Health Authority to defer consideration of Part 2 applications relating to neighbourhoods, premises or descriptions of premises that have been designated;

(d) requiring a designation to be cancelled--

(i) if a relevant authority gives a direction to that effect; or

(ii) in prescribed circumstances.

(3) "Part 2 applications" means applications for inclusion in a list maintained under section 42 of the 1977 Act.

(4) "Prescribed" means prescribed by the regulations.

Reviews, variation and termination of pilot schemes

31 Reviews of pilot schemes

(1) At least one review of the operation of each pilot scheme must be conducted by the relevant authority.

(2) Each pilot scheme must be reviewed under this section before the end of the period of three years beginning with the date on which piloted services are first provided under the scheme.

(3) When conducting a review of a pilot scheme, the relevant authority must give--

(a) the Health Authority concerned, and

(b) any person providing services under the scheme,

an opportunity to comment on any matter relevant to the review.

(4) Otherwise, the procedure on any review is to be determined by the relevant authority.

32 Variation and termination of pilot schemes

(1) The relevant authority may give directions authorising Health Authorities to vary pilot schemes (otherwise than in response to directions given under subsection (2)) in such circumstances, and subject to such conditions, as may be specified in the directions.

(2) The relevant authority may by directions require a pilot scheme to be varied by the Health Authority concerned in accordance with the directions.

(3) If satisfied that a pilot scheme is (for any reason) unsatisfactory, the relevant authority may give directions to the Health Authority concerned requiring them to bring the scheme to an end in accordance with the terms of the directions.

NHS contracts and financial provisions

33 NHS contracts

(1) In the case of a pilot scheme entered into, or to be entered into, by a single individual or body corporate, that individual or body may make an application under this section to become a health service body.

(2) In the case of any other pilot scheme, all of those providing, or proposing to provide, piloted services under the scheme may together make an application under this section to become a single health service body.

(3) An application must--

(a) be made to the relevant authority in accordance with such provisions as may be made by regulations; and

(b) specify the pilot scheme in relation to which it is made.

(4) Except in such cases as may be prescribed by regulations, the relevant authority may grant an application.

(5) If an application is granted, the relevant authority must specify a date in relation to that application and, as from that date--

(a) in the case of an application under subsection (1), the applicant is, and

(b) in the case of an application under subsection (2), the applicants together are,

a health service body for the purposes of section 4 of the 1990 Act (NHS contracts).

(6) That section has effect in relation to such a health service body ("a PHS body"), acting as acquirer, as if the functions referred to in subsection (1) of that section were the provision of piloted services.

(7) Except in such circumstances as may be prescribed by regulations, a PHS body resulting from an application under subsection (2) is to be treated, at any time, as consisting of those who are providing piloted services under the scheme.

(8) A direction as to payment made under section 4(7) of the 1990 Act against, or in favour of, a PHS body is enforceable in a county court (if the court so orders) as if it were a judgment or order of that court.

(9) Regulations may provide for a PHS body to cease to be a PHS body in prescribed circumstances.

(10) The relevant authority must--

(a) maintain and publish a list of PHS bodies;

(b) publish a revised copy of the list as soon as is reasonably practicable after any change is made to it.

(11) The list is to be published in such manner as the relevant authority considers appropriate.

34 Funding of preparatory work

(1) Provision may be made by regulations for Health Authorities to make payments of financial assistance for preparatory work.

(2) "Preparatory work" means work which it is reasonable for a person to undertake--

(a) in connection with preparing proposals for a pilot scheme; or

(b) in preparing for the provision by him of any piloted services.

(3) The regulations may, in particular, include provision--

(a) prescribing the circumstances in which payments of financial assistance may be made;

(b) imposing a limit on the amount of any payment of financial assistance which a Health Authority may make in any prescribed period in respect of any one person or any one pilot scheme;

(c) imposing a limit on the aggregate amount which a Health Authority may pay by way of financial assistance in any one financial year;

(d) requiring a person to whom assistance is given under this section to comply with such conditions as may be imposed in accordance with prescribed requirements; and

(e) for repayment in the case of a failure to comply with any condition so imposed.

35 Charges, recovery of payments and penalties

(1) Regulations may provide for the making and recovery, in such manner as may be prescribed, of charges for local pharmaceutical services.

(2) The regulations may, in particular provide for--

(a) exemptions from charges;

(b) the liability to pay charges to be disregarded in prescribed circumstances or for prescribed purposes;

(c) section 122A of the 1977 Act (recovery of certain charges and payments) to apply also in relation to local pharmaceutical services (with or without modification);

(d) section 122B of the 1977 Act (penalties) to apply also in relation to local pharmaceutical services (with or without modification).

(3) The regulations must secure that the amount charged for any service is the same as the amount that would be charged for that service if it were provided under Part 2 of the 1977 Act.

General

36 Effect of the 1977 Act

(1) The provisions of the 1977 Act, apart from section 16D (power to direct Health Authority to exercise functions of relevant authority), apply in relation to functions of the relevant authority in relation to pilot schemes as if they were functions under Part 1 of the 1977 Act.

(2) The 1977 Act (and in particular section 17) has effect in relation to piloted services--

(a) subject to any provision of, or made under, this Chapter; but

(b) otherwise as if those services were provided as a result of directions given under section 16D of the 1977 Act in relation to functions of the relevant authority under Part 1 of that Act.

(3) The functions of a Health Authority in relation to piloted services are primary functions of the Authority for the purposes of the 1990 Act.

37 Premises from which piloted services may be provided

The relevant authority may by regulations--

(a) prevent (except in such circumstances and to such extent as may be prescribed) the provision of both piloted services and pharmaceutical services from the same premises;

(b) make provision with respect to the inclusion, removal, re-inclusion or modification of an entry in respect of premises in a list under section 42 of the 1977 Act.

38 Control of entry regulations

The power to make regulations under section 42 of the 1977 Act (regulations as to pharmaceutical services) includes power to prescribe the extent to which the provision of piloted services is to be taken into account in determining whether to grant an application for inclusion in a list referred to in subsection (2) of that section.

Assessing the result of pilot schemes

39 Assessing pilot schemes

(1) The relevant authority may not bring section 40 into force unless satisfied that pilot schemes have shown that continuing to provide for the provision of local pharmaceutical services in accordance with provisions of the kind made by pilot schemes would be in the interests of the health service or any part of the health service (within the meaning of section 128(1) of the 1977 Act).

(2) In determining whether to bring section 40 into force, the relevant authority must have regard, in particular, to the results of the reviews of pilot schemes conducted under section 31.

Provision for local pharmaceutical schemes

40 Provision for LPS schemes

(1) In the 1977 Act there shall be inserted, after section 28I--

" 28J Local pharmaceutical services schemes

(1) Schedule 8A makes provision with respect to the provision of local pharmaceutical services in accordance with schemes made by Health Authorities. "

(2) The Schedule set out in Schedule 3 to this Act shall be inserted in the 1977 Act as Schedule 8A to that Act.

(3) In section 42 of the 1977 Act there shall be inserted after subsection (2)--

" (2A) The regulations may prescribe the extent to which the provision of LP services (as defined by paragraph 1 of Schedule 8A to this Act) is to be taken into account in determining whether to grant an application for inclusion in a list. "

Corresponding provision, etc.

41 Corresponding provision and application of enactments

(1) The relevant authority may by regulations make, in relation to Schedule 8A arrangements or persons providing or assisting in the provision of services under such arrangements, provision corresponding (whether or not exactly) to enactments containing provision relating to--

(a) arrangements made under section 28C of the 1977 Act (provision of personal medical or dental services); or

(b) pilot schemes made under Part 1 of the National Health Service (Primary Care) Act 1997 (c. 46),

or relating to persons who provide or perform services under them.

(2) The regulations may, in particular, provide for the application of any such enactment with such modifications, if any, as the relevant authority considers appropriate.

(3) "Schedule 8A arrangements" means arrangements made under--

(a) an LPS scheme made under Schedule 8A to the 1977 Act; or

(b) a pilot scheme.

Chapter 2 Changes to existing arrangements

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