Health and Social Care (Community Health and Standards) Act 2003 (c. 43)

(The document as of February, 2008)

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" "NHS employee" means an individual who, in connection with the provision of services in the health service in England and Wales, Scotland or Northern Ireland, is employed by--

(a) an NHS trust, an NHS foundation trust or (in Northern Ireland) a Health and Social Services Trust;

(b) a Primary Care Trust or Local Health Board;

(c) a person who is providing services under a general medical services contract or a general dental services contract;

(d) an individual who is providing services as specified in subsection (1)(bc)(iii) above; " .

(6) In the definitions of "section 17C employee" and "section 28C employee", for "an individual providing" substitute "a person providing or performing".

(7) In section 28E of the 1977 Act (regulations), in subsection (3), after paragraph (c) insert--

" (ca) impose conditions (including conditions as to qualifications and experience) to be satisfied by persons performing services in accordance with section 28C arrangements; " .

(8) In that section, after subsection (3) insert--

" (3A) The regulations may also require payments to be made under the arrangements in accordance with directions given for the purpose by the Secretary of State; and section 18(1) and (3)(b) apply in relation to any such directions.

(3B) A direction under subsection (3A) may make provision having effect from a date before the date of the direction, provided that, having regard to the direction as a whole, the provision is not detrimental to the persons to whose remuneration it relates. "

(9) In that section, after subsection (3B) (as inserted by subsection (8) above), insert--

" (3C) The regulations may also include provision requiring a Primary Care Trust or Local Health Board, in prescribed circumstances and subject to prescribed conditions, to enter into a general medical services contract or general dental services contract on prescribed terms with any person providing services under section 28C arrangements who so requests. "

(10) In that section, after subsection (3C) (as inserted by subsection (9) above) insert--

" (3D) The regulations may also include provision for the resolution of disputes as to the terms of any proposed section 28C arrangements, and in particular may make provision--

(a) for the referral of the terms of the proposed arrangements to the Secretary of State or National Assembly for Wales; and

(b) for the Secretary of State, or Assembly, or a person appointed by him or it, to determine the terms on which the arrangements may be entered into. "

(11) In that section, after subsection (3D) (as inserted by subsection (10) above) insert--

" (3E) The regulations must provide for the circumstances in which a person providing primary medical services under section 28C arrangements--

(a) must or may accept a person as a patient to whom such services are so provided;

(b) may decline to accept a person as such a patient;

(c) may terminate his responsibility for a patient.

(3F) The regulations must make provision as to the right of patients to choose the persons from whom they are to receive services under section 28C arrangements. "

(12) In that Act, sections 28F (choice of medical practitioner), 28G (choice of dental practitioner) and 28H (immunisation) shall cease to have effect.

178 Abolition of pilot schemes

(1) Part 1 of the National Health Service (Primary Care) Act 1997 (c. 46) (power to make pilot schemes for the provision of personal medical and dental services) shall cease to have effect.

(2) This section extends to England and Wales only.

179 Persons performing primary medical and dental services

(1) In the 1977 Act, after section 28W (as inserted by section 175 above) insert--

" 28X Persons performing primary medical and dental services

(1) Regulations may provide that a health care professional of a prescribed description may not perform any primary medical service for which a Primary Care Trust or Local Health Board is responsible unless he is included in a list maintained under the regulations by a Primary Care Trust or Local Health Board.

(2) Regulations may provide that a health care professional of a prescribed description may not perform any primary dental service for which a Primary Care Trust or Local Health Board is responsible unless he is included in a list maintained under the regulations by a Primary Care Trust or Local Health Board.

(3) For the purposes of this section--

(a) "health care professional" means a person who is a member of a profession regulated by a body for the time being mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002;

(b) a Primary Care Trust or Local Health Board is responsible for a medical or dental service if it provides the service, or secures its provision, by or under any enactment.

(4) Regulations under this section may make provision in relation to lists under this section and in particular as to--

(a) the preparation, maintenance and publication of a list;

(b) eligibility for inclusion in a list;

(c) applications for inclusion (including provision as to the Primary Care Trust or Local Health Board to which an application must be made, and for the procedure for applications and the documents to be supplied on application);

(d) the grounds on which an application for inclusion may or must be granted or refused;

(e) requirements with which a person included in a list must comply (including the declaration of financial interests and gifts and other benefits);

(f) suspension or removal from a list (including provision for the grounds for, and consequences of, suspension or removal);

(g) circumstances in which a person included in a list may not withdraw from it;

(h) payments to be made in respect of a person suspended from the list (including provision for the amount of the payment, or the method of calculating the payment, to be determined by the Secretary of State or National Assembly for Wales, or a person appointed by him or it);

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

(j) appeals against decisions made by a Primary Care Trust or Local Health Board under the regulations; and

(k) disclosure of information about applicants for inclusion, grants or refusals of applications or suspensions or removals;

and may make any provision corresponding to anything in sections 49F to 49N below.

(5) Regulations under this section may, in particular, also provide for--

(a) a person's inclusion in a list to be subject to conditions determined by a Primary Care Trust or Local Health Board;

(b) a Trust or Board to vary the conditions or impose different ones;

(c) the consequences of failing to comply with a condition (including removal from the list);

(d) the review by a Trust or Board of decisions made by it by virtue of the regulations.

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

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

(b) preventing fraud.

(7) Regulations making provision as to the matters referred to in subsection (4)(k) may in particular authorise the disclosure of information--

(a) by a Primary Care Trust or Local Health Board to the Secretary of State or the National Assembly for Wales; and

(b) by the Secretary of State or the National Assembly for Wales to a Primary Care Trust or Local Health Board. "

(2) In section 49M(7) of that Act, at the end there is inserted "; and regulations under this subsection may include provision of the kind referred to in section 49I(10)".

180 Assistance and support

In the 1977 Act, after section 28X (as inserted by section 179 above) insert--

" 28Y Assistance and support

(1) A Primary Care Trust or Local Health Board may provide assistance or support to--

(a) any person providing, or proposing to provide primary medical services or primary dental services under a general medical services contract or a general dental services contract;

(b) any person providing, or proposing to provide, such services in accordance with section 28C arrangements.

(2) Assistance or support provided by a Primary Care Trust or Local Health Board under subsection (1) is to be provided on such terms, including terms as to payment, as the Trust or Board thinks fit.

(3) In this section "assistance" includes financial assistance. "

Dental services: miscellaneous

181 Abolition of Dental Practice Board

The Dental Practice Board is abolished.

182 Special Health Authorities

(1) In section 16B of the 1977 Act (exercise of functions by Primary Care Trusts), at the end insert--

" (4) The Secretary of State may by order make provision for the transfer to a Special Health Authority of the rights and liabilities of a Primary Care Trust under a general dental services contract in a case where the Authority exercises functions of the Trust in relation to the contract by virtue of subsection (2)(b) above (and for their transfer back to the Trust where the Authority ceases to exercise those functions). " .

(2) In section 16BC of that Act (exercise of functions by Local Health Boards), at the end insert--

" (4) The Assembly may by order make provision for the transfer to a Special Health Authority of the rights and liabilities of a Local Health Board under a general dental services contract in a case where the Authority exercises functions of the Board in relation to the contract by virtue of subsection (2)(b) above (and for their transfer back to the Board where the Authority ceases to exercise those functions). " .

183 Charges for dental services

(1) In the 1977 Act, for sections 78A to 79A substitute--

" 79 Dental charging

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

(2) Regulations under subsection (1) may in particular include provision--

(a) specifying the amount, or maximum amount, of any charge (or aggregate charge in respect of the provision for two or more relevant dental services);

(b) for calculating the amount of any charge;

(c) for the variation of the amount, or maximum amount, of any charge in cases of a prescribed description;

(d) for any charge not to be payable in cases of a prescribed description;

(e) for power to direct that a charge is not payable in any particular case;

(f) for the repayment of any charge (including provision as to the persons by whom, and manner in which, repayments are to be made).

(3) Regulations under subsection (1) may provide for sums which would otherwise be payable by a Primary Care Trust, Local Health Board or Special Health Authority to persons providing relevant dental services to be reduced by the amount of the charges authorised by the regulations.

(4) This section is subject to Schedule 12ZA.

(5) In this section and Schedule 12ZA "relevant dental services" means--

(a) dental treatment provided--

(i) under section 16CA(2) above (dental services provided by a Primary Care Trust or Local Health Board);

(ii) under a general dental services contract;

(iii) in accordance with section 28C arrangements; and

(b) the supply of dentures and other dental appliances under this Act.

(6) Any reference in this section or Schedule 12ZA to the supply of an appliance includes a reference to its repair, adjustment, refitting or replacement and, in the case of dentures, to their being relined or having additions made to them. "

(2) After Schedule 12 to that Act insert--

" SCHEDULE 12ZA Dental charging: exemptions

General exemptions

1 (1) No charge is to be made under regulations under section 79(1) in respect of a relevant dental service provided for any person who at the prescribed time--

(a) was under 18;

(b) was under 19 and receiving qualifying full-time education;

(c) was pregnant; or

(d) had given birth to a child within the previous 12 months.

(2) In sub-paragraph (1)(b), "qualifying full-time education" means full-time instruction at a recognised educational establishment or by other means accepted as comparable by the person or body making the regulations.

(3) For the purposes of sub-paragraph (2)--

(a) "recognised educational establishment" means an establishment recognised by the person or body making the regulations 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.

(4) In sub-paragraph (1)(d), "child" includes a still-born child (within the meaning of the Births and Deaths Registration Act 1953).

(5) This paragraph is subject to paragraph 3.

Repair and replacement

2 (1) No charge is to be made under regulations under section 79(1) in respect of the repair or replacement of any appliance.

(2) This paragraph is subject to paragraph 3.

Exceptions to paragraphs 1 and 2

3 Paragraphs 1 and 2 do not apply in relation to--

(a) the repair or replacement of any appliance of a prescribed description; or

(b) the repair or replacement of any appliance where it is determined in the prescribed manner--

(i) in any case, that the repair or replacement was necessitated by an act or omission of the person supplied; or

(ii) in a case where the person supplied was under the age of 16, that the repair or replacement was necessitated by an act or omission, occurring while that person was under that age, of a person having charge of him.

Hospital patients

4 No charge is to be made under regulations under section 79(1) in respect of any appliance supplied to a patient for the time being resident in a hospital.

5 Paragraph 4 does not apply where an appliance is supplied--

(a) under section 16CA(2) above;

(b) under a general dental services contract; or

(c) in accordance with section 28C arrangements.

Arrest of bleeding

6 No charge is to be made under regulations under section 79(1) in respect of the arrest of bleeding.

Declarations and evidence

7 Regulations may provide, with respect to any exemption under this Schedule, that it is to be a condition of the exemption that--

(a) a declaration of the prescribed kind is made in the prescribed form and manner; or

(b) a certificate or other evidence of the prescribed kind is supplied in the prescribed form and manner. "

(3) In section 126 of that Act--

(a) in subsection (1), after "PCT order" insert "or an instrument to which subsection (1A) applies";

(b) after subsection (1) insert--

" (1A) The Secretary of State may not make a statutory instrument containing the first regulations made under section 79(1) above (as substituted by the Health and Social Care (Community Health and Standards) Act 2003) unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament. "

(4) In respect of any period after the coming into force of this section but before the coming into force of section 178, section 79(5)(b) of the 1977 Act (as inserted by subsection (1) above) shall have effect as if it included a reference to the supply of dentures and other dental appliances in accordance with a pilot scheme under Part 1 of the National Health Service (Primary Care) Act 1997 (c. 46).

General

184 Minor and consequential amendments

Schedule 11 (which contains minor and consequential amendments relating to this Part) has effect.

Part 5 Miscellaneous

Welfare Food Schemes

185 Replacement of the Welfare Food Schemes: Great Britain

(1) In the Social Security Act 1988 (c. 7), for section 13 (schemes for the distribution etc of welfare foods), substitute--

" 13 Benefits under schemes for improving nutrition: pregnant women, mothers and children

(1) Regulations may establish one or more schemes to provide benefits for prescribed descriptions of--

(a) pregnant women,

(b) mothers, and

(c) children,

with a view to helping and encouraging them to have access to, and to incorporate in their diets, food of a prescribed description.

(2) Before establishing, or varying, a scheme the Secretary of State must consult the Scottish Ministers and the National Assembly for Wales ("the Assembly").

(3) A scheme may, in particular, specify requirements that must be satisfied--

(a) before a person may become entitled to a benefit;

(b) for a beneficiary to remain entitled to a continuing benefit.

(4) A scheme may also include provision--

(a) for a benefit to consist of food of a prescribed description being provided by--

(i) a person who supplies, or arranges for the supply of, food of that description for beneficiaries under the scheme;

(ii) a person providing a service (such as day care) for the recipient of the benefit; or

(iii) a health service body;

(b) for the use of vouchers, or similar arrangements, in connection with the provision of benefits;

(c) that a person taking part in the scheme, otherwise than as a beneficiary, must be registered under the scheme;

(d) for the payment by the Secretary of State of sums to persons registered in accordance with a provision of a kind mentioned in paragraph (c), in respect of things provided or done by them in accordance with the scheme;

(e) for the making of payments to such persons entitled to receive benefits as may be determined by or under the scheme;

(f) for the delegation, in accordance with provisions of the scheme, of prescribed functions under the scheme;

(g) for the scheme, or prescribed provisions of the scheme, to be administered on behalf of the Secretary of State by such health service body, or other description of body, as may be prescribed;

(h) requiring prescribed categories of persons to take reasonable steps to provide--

(i) to a person authorised for the purpose in accordance with the scheme,

(ii) on production, if required, of evidence of his authority,

such information or evidence as may be reasonably needed in connection with administering the scheme.

(5) Provision of a kind mentioned in subsection (4)(h) may, in particular--

(a) require information or evidence to be provided in a legible form;

(b) authorise the taking of copies or making of extracts;

(c) require an explanation by the information provider of anything which he has provided;

(d) require an information provider to state, to the best of his knowledge and belief, where information or evidence that he has failed to provide is held.

(6) The power to prescribe descriptions of food (conferred by subsection (1)) is to be exercised, in relation to the operation of a scheme in Wales, by regulations made by the Assembly.

(7) The Secretary of State may give such directions--

(a) to a body administering a scheme (or part of a scheme),

(b) in relation to matters relating to the operation of the scheme (or that part of the scheme),

as he considers appropriate.

(8) The Assembly may, with the agreement of the Secretary of State, give such directions--

(a) to a body administering a scheme (or part of a scheme),

(b) in relation to matters relating to the operation of the scheme (or that part of the scheme) in Wales,

as it considers appropriate.

(9) A scheme may direct that prescribed enactments relating to the administration of benefit under the Social Security Administration Act 1992 (c. 5) (including enactments relating to offences and criminal proceedings) are to have effect for the purpose of administering the scheme subject to such modifications (if any) as may be prescribed.

(10) The Secretary of State may not make a statutory instrument containing the first set of regulations made under subsection (1) unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

(11) In this section--

• "benefit", in relation to a scheme, means a benefit under the scheme;

• "children" has such meaning as may be prescribed;

• "enactment" includes an Act of the Scottish Parliament and a provision made under an enactment;

• "food" includes vitamins, minerals and other dietary supplements;

• "health service body" has such meaning as may be prescribed;

• "information provider" means the person who is required to provide information or, where that person is a body corporate, any person who is, or at any time has been, an officer or employee of the body corporate;

• "pregnant" includes recently pregnant;

• "prescribed" means prescribed by regulations;

• "regulations", except in subsection (6), means regulations made by the Secretary of State;

• "scheme" means a scheme made under this section;

• "women" includes persons under the age of 18. "

(2) In section 15A of that Act--

(a) in subsection (2), after the first "instrument" insert "made by the Secretary of State"; and

(b) omit subsection (3).

186 Replacement of the Welfare Food Schemes: Northern Ireland

An Order in Council under paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c. 1) (legislation for Northern Ireland during suspension of devolved government) which contains a statement that it is made only for purposes corresponding to those of section 185 above--

(a) is not subject to paragraph 2 of that Schedule (affirmative resolution of both Houses of Parliament), but

(b) is subject to annulment in pursuance of a resolution of either House of Parliament.

Appointments and employment

187 Appointments to certain health and social care bodies

(1) This section applies to a body (however established) which has functions relating to--

(a) health;

(b) social care;

(c) the regulation of professions associated with health or social care.

(2) The Secretary of State may direct a Special Health Authority to exercise so much of the appointments function relating to a body to which this section applies as is specified in the direction.

(3) If the Secretary of State gives a direction under subsection (2) the 1977 Act has effect as if--

(a) the direction is a direction of the Secretary of State under section 16D of that Act;

(b) the function is exercisable by the Special Health Authority under section 16D.

(4) If the Secretary of State gives a direction under subsection (2) in respect of a body which exercises functions in relation to any part of the United Kingdom other than England and Wales subsection (5) applies--

(a) at the time the direction is given;

(b) for the purposes of anything done by a Special Health Authority in pursuance of the direction.

(5) Sections 11 and 16D of and (so far as relating to a Special Health Authority) Schedule 5 to the 1977 Act and any other provision of that Act which relates to the exercise of the function in pursuance of the direction must be taken to extend to any part of the United Kingdom in relation to which the body exercises functions.

(6) The appointments function is any function exercisable by the Secretary of State in relation to--

(a) the appointment of persons to be members of a body to which this section applies;

(b) the removal (whether permanently or otherwise) of such persons from the membership of the body,

and includes any function relating to the appointment to or removal from (whether permanently or otherwise) any particular office in the membership of the body.

(7) For the purposes of this section it is immaterial that a body has functions relating to matters other than those specified in subsection (1).

(8) Schedule 12 amends certain enactments which provide for appointments to be made to certain bodies by or on the advice of the Privy Council.

(9) If in the exercise of a power conferred by virtue of that Schedule the Privy Council gives a direction corresponding to a direction given by the Secretary of State under subsection (2) above, subsections (3) to (5) above apply for the purposes of the Privy Council's direction as they apply for the purposes of a direction given by the Secretary of State.

(10) Nothing in this section applies in relation to the Commission for Healthcare Audit and Inspection or the Commission for Social Care Inspection.

188 Appointments to certain health and social care bodies: joint functions

(1) This section applies if (apart from section 187) the appointments function in relation to a body is exercisable jointly or concurrently with a person who is not a Minister of the Crown.

(2) A requirement to exercise the function jointly or concurrently does not prevent the Secretary of State from making a direction in relation to the body but he must not do so unless he first consults the other person.

(3) If a direction is given as mentioned in subsection (2) so much of the functions of the Secretary of State and of the other person as are specified in the direction is exercisable by the Special Health Authority acting alone.

(4) Subsections (2) and (3) do not apply if the other person is the Scottish Ministers but that does not prevent the Secretary of State from giving a direction under section 187 in relation to the exercise of any function he has.

(5) Appointments function has the same meaning as in section 187.

189 Validity of clearance for employment in certain NHS posts

(1) In section 7 of the Protection of Children Act 1999 (c. 14) (effect of inclusion of person on lists relating to suitability for child care positions) after subsection (3) there are inserted the following subsections--

" (3A) This section does not apply in relation to an offer of relevant NHS employment if each of the following paragraphs applies in respect of the individual to whom the offer is made--

(a) at the time the offer is made he is employed by an NHS body;

(b) that NHS body has ascertained that he is not included in the list kept under section 1 above or (during the period that he is employed by that body) another NHS body or an employment agency or employment business has ascertained that he is not included in the list;

(c) subsection (1A) (inserted by paragraph 26(2) of Schedule 4 to the Care Standards Act 2000) does not apply to him;

(d) he accepts the offer and for so long as he is employed in the employment to which the offer relates paragraph (c) applies.

(3B) Relevant NHS employment is employment in a child care position with an NHS body.

(3C) Each of the following is an NHS body--

(a) a National Health Service trust;

(b) a Strategic Health Authority;

(c) an NHS foundation trust;

(d) a Health Authority;

(e) a Local Health Board;

(f) a Special Health Authority;

(g) a Primary Care Trust. "

(2) In section 89 of the Care Standards Act 2000 (c. 14) (effect of inclusion of person on lists relating to suitability for care positions) after subsection (4) there are inserted the following subsections--

" (4A) This section does not apply in relation to an offer of relevant NHS employment if each of the following paragraphs applies in respect of the individual to whom the offer is made--

(a) at the time the offer is made he is employed by an NHS body;

(b) that NHS body has ascertained that he is not included in the list kept under section 81 above or (during the period that he is employed by that body) another NHS body or an employment agency or employment business has ascertained that he is not included in the list;

(c) subsection (2) does not apply to him;

(d) he accepts the offer and for so long as he is employed in the employment to which the offer relates paragraph (c) applies.

(4B) Relevant NHS employment is employment in a care position with an NHS body.

(4C) Each of the following is an NHS body--

(a) a National Health Service trust;

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