National Health Service Act 2006 (c. 41)

(The document as of February, 2008)

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(a) by way of evidence in any proceedings, or

(b) in accordance with an enactment or order of a court or tribunal.

(4) The Secretary of State must make provision, whether in a code of practice issued under section 200 or otherwise, for requiring any person disclosing protected information in accordance with section 201(3) to ensure, by the use of a distinguishing mark or in some other way, that the information is clearly identified as protected information for the purposes of this section.

(5) Information that appears to be protected information must not be disclosed by way of evidence in any proceedings unless--

(a) the whole of the proceedings are held in private, or

(b) in any other case, the information is disclosed in accordance with permission given by the court or tribunal on an application under subsection (6).

(6) If, on an application by a party to--

(a) proceedings before a court, or

(b) proceedings of any description before a tribunal that sits, or may sit, in public during the whole or part of proceedings of that description,

the court or tribunal is satisfied that it is in the interests of justice for any information that appears to be protected information to be disclosed by way of evidence in the proceedings, it may give permission for the information to be so disclosed, on such terms as it thinks fit.

(7) When determining such an application, the court or tribunal must consider whether, in the interests of protecting the identity of the individual to whom the information relates, the whole or part of the proceedings should be held in private.

(8) If the court or tribunal is satisfied that the whole or part of the proceedings should be held in private, it must give such directions, or take such other steps, as appear to it to be appropriate.

(9) In this section "proceedings" means--

(a) criminal or civil proceedings, or

(b) relevant disciplinary proceedings (as defined by section 201(4)).

203 Manner in which disclosure notice may be served

(1) This section provides for the manner in which a notice may be served under section 197.

(2) The notice may be served on a person by--

(a) delivering it to him,

(b) leaving it at his proper address,

(3) For the purposes of this section and section 7 of the Interpretation Act 1978 (c. 30) (service of documents by post) in its application to this section, the proper address of a person is his usual or last-known address (whether residential or otherwise), except that--

(a) in the case of a notice to be served on the secretary, clerk or similar officer of a body corporate, it is the address of the registered office of that body or its principal office in the United Kingdom,

(b) in the case of a notice to be served on a partner or a person having the control or management of a partnership business, it is the address of the principal office of the partnership in the United Kingdom, and

(c) in the case of a notice to be served on an officer of an unincorporated association (other than a partnership), it is the address of the principal office of the association in the United Kingdom.

Offences under this Part

204 Offences in connection with production of documents

(1) A person commits an offence if, without reasonable excuse, he fails to comply with any requirement imposed on him under section 197 or 198.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction--

(a) to imprisonment for a term not exceeding 51 weeks, or

(b) to a fine not exceeding level 3 on the standard scale,

or to both.

(3) If a person is convicted of an offence under subsection (1) in respect of a failure to produce a document and the failure continues after the date of his conviction, the person--

(a) commits a further offence, and

(b) is liable on summary conviction to a fine not exceeding 2% of level 3 on the standard scale for each day on which the failure so continues.

(4) A person commits an offence if, in purported compliance with any requirement imposed on him under section 198--

(a) he makes a statement which is false or misleading, and

(b) he either knows that it is false or misleading or is reckless as to whether it is false or misleading.

(5) "False or misleading" means false or misleading in a material particular.

(6) A person guilty of an offence under subsection (4) is liable--

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both,

(b) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both.

205 Offences relating to disclosure or use of information

(1) A person commits an offence if he fails to comply with section 201(2) or (5) or section 202(2).

(2) A person guilty of an offence under subsection (1) is liable--

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both,

(b) on summary conviction to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding the statutory maximum, or to both.

(3) It is a defence for a person charged with an offence under subsection (1) in respect of a disclosure of information to prove that at the time of the alleged offence--

(a) any of the circumstances in subsection (4) applied, or

(b) he reasonably believed that they applied.

(4) The circumstances referred to in subsection (3) are--

(a) that the disclosure was lawful,

(b) that the information had already been lawfully made available to the public,

(d) that the disclosure was made in a form in which no person to whom the information relates is identified.

(5) Subsection (4)(d) is not satisfied if the identity of any such person can be ascertained either--

(a) from the information itself, or

(b) from that information taken with other information obtained by virtue of section 197 or 198 and disclosed by or on behalf of the Secretary of State.

206 Offences by bodies corporate etc

(1) If an offence committed by a body corporate is proved--

(a) to have been committed with the consent or connivance of an officer, or

(b) to be attributable to any neglect on his part,

the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) "Officer", in relation to the body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.

(3) If the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(4) If an offence committed by a partnership is proved--

(a) to have been committed with the consent or connivance of a partner, or

(b) to be attributable to any neglect on his part,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(5) "Partner" includes a person purporting to act as a partner.

(6) If an offence committed by an unincorporated association (other than a partnership) is proved--

(a) to have been committed with the consent or connivance of an officer of the association or a member of its governing body, or

(b) to be attributable to any neglect on the part of such an officer or member,

the officer or member as well as the association is guilty of the offence and liable to be proceeded against and punished accordingly.

(7) "Offence" means an offence under this Part.

207 Offences committed by partnerships and other unincorporated associations

(1) Proceedings for an offence alleged to have been committed by a partnership must be brought in the name of the partnership (and not in that of any of the partners).

(2) Proceedings for an offence alleged to have been committed by an unincorporated association (other than a partnership) must be brought in the name of the association (and not in that of any of its members).

(3) Rules of court relating to the service of documents have effect as if the partnership or unincorporated association were a body corporate.

(4) In proceedings for an offence brought against a partnership or an unincorporated association, section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule 3 to the Magistrates' Courts Act 1980 (c. 43) apply as they apply in relation to a body corporate.

(5) A fine imposed on a partnership on its conviction for an offence must be paid out of the partnership assets.

(6) A fine imposed on an unincorporated association on its conviction for an offence must be paid out of the funds of the association.

(7) Subsections (1) and (2) do not affect any liability of a partner, officer or member under section 206(4) or (6).

(8) "Offence" means an offence under this Part.

208 Penalties for offences under this Part: transitional modification

(1) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44) (general limit on magistrates' courts power to impose imprisonment), the reference in section 204(6)(b) to a period of imprisonment of 12 months is a reference to a period of imprisonment of 6 months.

(2) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for summary offences), the references in sections 204(2)(a) and 205(2)(b) to periods of imprisonment of 51 weeks are references to periods of imprisonment of 3 months.

Supplementary

209 Orders and regulations under this Part

(1) Any power under this Part to make an order or regulations is exercisable by statutory instrument.

(2) Subject to subsection (3) a statutory instrument made by virtue of this Part is subject to annulment in pursuance of a resolution of either House of Parliament.

(3) A statutory instrument containing an order under section 196(7) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(4) Any power under this Part to make an order or regulations--

(a) may make different provision for different cases or descriptions of case or different purposes or areas, and

(b) may make incidental, supplementary, consequential, transitory, transitional or saving provision.

210 Interpretation of this Part

(1) In this Part--

"authorised officer", in relation to any function, means (subject to subsection (5)) an officer of the Secretary of State authorised by him to act in exercise of the function,
"document" means anything in which information of any description is recorded,
"enactment" includes any provision of subordinate legislation (within the meaning of the Interpretation Act 1978 (c. 30)), and references to enactments include enactments passed or made after the passing of this Act,
"employed" means employed whether under a contract of service or a contract for services or otherwise, and whether for remuneration or not,
"functions to which this Part applies" has the meaning given by section 195(4),
"health service provider" and "NHS contractor" have the meaning given by section 196,
"NHS body" must be construed in accordance with section 196,
"personal records" has the meaning given by section 12 of the Police and Criminal Evidence Act 1984 (c. 60),
"statutory health body" has the meaning given by section 196.

(2) References in this Part to the provision of services--

(a) in relation to statutory health bodies, health service providers or NHS contractors, include references to the provision of goods or facilities, and

(b) include references to the provision of services (or goods or facilities) wherever that takes place.

(3) References in this Part to the health service are references to the health service in England.

(4) In relation to information recorded otherwise than in legible form, any reference in this Part to the production of documents is a reference to the production of a copy of the information in legible form.

(5) Where functions of the Secretary of State are exercisable by a Special Health Authority--

(a) references in this Part to authorised officers include officers of the Special Health Authority authorised by or on behalf of the Special Health Authority to act in exercise of the functions, and

(b) references in this Part to information held or disclosed by or on behalf of the Secretary of State include information held or disclosed by or on behalf of the Special Health Authority.

Part 11 Property and finance

Chapter 1 Land and other property

211 Acquisition, use and maintenance of property

(1) The Secretary of State may acquire--

(a) any land, either by agreement or compulsorily,

(b) any other property,

required by him for the purposes of this Act.

(2) In particular, land may be so acquired to provide residential accommodation for persons employed for any of those purposes.

(3) The Secretary of State may use for the purposes of any of the functions conferred on him by this Act any property belonging to him by virtue of this Act, and he has power to maintain all such property.

(4) A local social services authority may be authorised to purchase land compulsorily for the purposes of this Act by means of an order made by the authority and confirmed by the Secretary of State.

(5) The Acquisition of Land Act 1981 (c. 67) applies to the compulsory purchase of land under this section.

(6) Section 120(3) of the Local Government Act 1972 (c. 70) (which relates to the application of Part 1 of the Compulsory Purchase Act 1965 (c. 56) where a council is authorised to acquire land by agreement) applies to the acquisition of land by the Secretary of State under this section as it applies to such acquisition by a council under that section.

(7) Sections 238 and 239 of the Town and Country Planning Act 1990 (c. 8) (use and development of consecrated land and burial grounds) apply to consecrated land or land comprised in a burial ground (within the meaning of section 240 of that Act) which--

(a) the Secretary of State holds for the purposes of the health service, and

(b) has not been the subject of a relevant acquisition (within the meaning of that section) by him,

as if that land had been the subject of such an acquisition by him for those purposes.

Chapter 2 Trusts

212 Special trustees for a university hospital or teaching hospital

(1) In this Act "special trustees" are trustees appointed by the Secretary of State in relation to England under--

(a) section 29 of the National Health Service Reorganisation Act 1973 (c. 32),

(b) section 95 of the National Health Service Act 1977 (c. 49), and

for any hospital falling within subsection (2).

(2) A hospital falls within this subsection if, immediately before the day appointed for the purposes of section 29 of the National Health Service Reorganisation Act 1973 (c. 32), it was controlled and managed by a University Hospital Management Committee or a Board of Governors, other than--

(a) a body on whose request an order was made under section 24(2) of that Act, or

(b) a preserved Board within the meaning of section 15(6) of that Act.

(3) Special trustees must hold and administer the property transferred under the National Health Service Reorganisation Act 1973.

(4) The number of special trustees appointed under this section is such as the Secretary of State may from time to time determine after consultation with such persons as he considers appropriate.

(5) Special trustees have power to accept, hold and administer any property on trust, being a trust which is wholly or mainly for hospitals for which they are appointed, for all or any purposes relating to--

(a) hospital services (including research), or

(b) any other part of the health service associated with hospitals.

(6) The term of office of any special trustee appointed under this section must be fixed by the Secretary of State, but a special trustee may be removed by the Secretary of State at any time during the special trustee's term of office.

(7) Subsection (3) is subject to sections 213 and 214.

213 Transfers of trust property

(1) The Secretary of State may, having regard to any change or proposed change--

(a) in the arrangements for the administration of a hospital or other establishment or facility, or

(b) in the area or functions of any NHS body other than an NHS foundation trust,

by order provide for the transfer of any trust property from any relevant health service body to any other relevant health service body.

(2) In this section "relevant health service body" means--

(a) an NHS body,

(b) special trustees, or

(3) Where property is transferred by an order under this section to two or more bodies, it must be apportioned by them in such proportions as they may agree, or as may in default of agreement be determined by the Secretary of State, and the order may provide for the way in which the property must be apportioned.

(4) Where property is so apportioned, the Secretary of State may by order make any consequential amendments of the trust instrument relating to the property.

(5) In this section "special trustees" includes special trustees within the meaning of section 160 of the National Health Service (Wales) Act 2006 (c. 42).

214 Transfer of functions and property to or from special trustees

(1) If it appears to the Secretary of State at any time that all the functions of any special trustees should be discharged by a Primary Care Trust, an NHS trust, a Special Health Authority or an NHS foundation trust, he may by order provide for the transfer of all trust property from the special trustees to the body or, in such proportions as may be specified in the order, to those bodies.

(2) Before acting under subsection (1) the Secretary of State must consult the special trustees and other bodies concerned.

(3) If it appears to the Secretary of State at any time that--

(a) the functions of any special trustees should be discharged by the trustees for a Primary Care Trust, an NHS trust or an NHS foundation trust ("the trustees of the body"), or

(b) the functions of the trustees of the body should be discharged by special trustees,

he may, after consulting the special trustees and the trustees of the body, by order provide for the transfer of all trust property from the special trustees to to the trustees of the body, or from the trustees of the body to the special trustees.

(4) Where property is transferred by an order under this section to two or more bodies, it must be apportioned by them in such proportions as they may agree, or as may in default of agreement be determined by the Secretary of State, and the order may provide for the way in which the property must be apportioned.

(5) Where property is so apportioned, the Secretary of State may by order make any consequential amendments of the trust instrument relating to the property.

(6) "Special trustees" includes special trustees within the meaning of section 160 of the National Health Service (Wales) Act 2006.

215 Trustees and property under section 222

(1) Where property is given in pursuance of section 222 (power of NHS bodies to raise money) to or on trust for any purposes of a hospital for which special trustees have been appointed, the property may be held, administered and applied by the special trustees instead of by the body responsible for the hospital if that body and the special trustees agree.

(2) The body responsible for a hospital is--

(a) in the case of a hospital vested in an NHS trust or an NHS foundation trust, that trust, and

(b) in any other case, the Strategic Health Authority or Primary Care Trust exercising functions of the Secretary of State in respect of the hospital.

(3) Subsection (4) applies where property is given in pursuance of section 222--

(a) on trust for any purposes of a Primary Care Trust for which trustees have been appointed under paragraph 12 of Schedule 3,

(b) on trust for any purposes of an NHS trust for which trustees have been appointed under paragraph 10 of Schedule 4, or paragraph 10 of Schedule 3 to the National Health Service (Wales) Act 2006 (c. 42), or

(4) Where this subsection applies and the trustees and the Primary Care Trust, NHS trust or NHS foundation trust agree, the property may be held, administered and applied by the trustees instead of by the Primary Care Trust, NHS trust or NHS foundation trust.

(5) Property given in pursuance of section 222 on trust may be transferred by order of the Secretary of State under section 213 or 214 in the same circumstances as other trust property may be transferred under either of those sections.

216 Application of trust property: further provisions

(1) Any discretion given by a trust instrument to the trustees of property transferred under--

(a) section 24 of the National Health Service Reorganisation Act 1973 (c. 32) (transfer of trust property from abolished authorities),

(b) section 25 of that Act (transfer of trust property held for health services by local health authorities),

(d) section 213 or 214 of this Act,

is exercisable by the person to whom the property is so transferred and, subject to this section, the transfer does not affect the trusts on which the property is held.

(2) Where--

(a) property has been transferred under section 24 of the National Health Service Reorganisation Act 1973, or section 92 of the National Health Service Act 1977, and

(b) any discretion is given by a trust instrument to the trustees to apply the property, or income arising from the property, to such hospital services (including research) as the trustees consider appropriate without any restriction on the kinds of hospital services and without any restriction to one or more specified hospitals,

the discretion is enlarged so as to allow the application of the property or of the income arising from the property, to such extent as the trustees consider appropriate, for any other part of the health service associated with any hospital.

(3) Subsection (2) applies on any subsequent transfer of the property under section 213 or 214.

217 Trusts: supplementary provisions

(1) This section applies in relation to--

(a) section 51(1) to (3),

(b) sections 212 to 214,

(d) section 218,

(e) section 220,

(f) paragraphs 12 and 13 of Schedule 2,

(g) paragraph 12 of Schedule 3,

(h) paragraph 10 of Schedule 4, and

(i) paragraphs 8 and 9 of Schedule 6.

(2) A provision--

(a) contained in a provision to which this section applies,

(b) for the transfer of any property,

includes provision for the transfer of any rights and liabilities arising from that property.

(3) Where a transfer of property by virtue of a provision to which this section applies is of, or includes--

(a) land held on lease from a third party, or

(b) any other asset leased or hired from a third party or in which a third party has an interest,

the transfer is binding on the third party notwithstanding that, apart from this subsection, it would have required his consent or concurrence.

(4) "Third party" means a person other than the Secretary of State or an NHS body.

(5) Nothing in a provision to which this section applies affects any power of Her Majesty, the court (as defined in the Charities Act 1993 (c. 10)) or any other person, to alter the trusts of any charity.

(6) Nothing in section 12 of the Finance Act 1895 (c. 16) (which requires certain Acts and certain instruments relating to the vesting of property by virtue of an Act to be stamped as conveyances on sale) applies to--

(a) a provision to which this section applies, or

(b) an order made in pursuance of any such provision.

(7) Stamp duty is not payable on an order falling within subsection (6)(b).

218 Private trusts for hospitals

(1) Subsection (2) applies where the terms of a trust instrument authorise or require the trustees, whether immediately or in the future, to apply any part of the capital or income of the trust property for the purposes of any health service hospital.

(2) The trust instrument must be construed as authorising or requiring the trustees to apply the trust property to the like extent, and at the like times, for the purpose of making payments, whether of capital or income, to the appropriate hospital authority.

(3) Any sum paid to the appropriate hospital authority must, so far as practicable, be applied by it for the purpose specified in the trust instrument.

(4) "The appropriate hospital authority" means--

(a) where special trustees are appointed for the hospital, those trustees,

(b) where the hospital is managed by, and trustees have been appointed for, an NHS trust, an NHS foundation trust or Primary Care Trust, the trustees,

(c) where the hospital is managed by an NHS trust, an NHS foundation trust or Primary Care Trust and neither paragraph (a) nor paragraph (b) applies, the NHS trust, NHS foundation trust or Primary Care Trust, and

(d) in any other case, the Strategic Health Authority or Special Health Authority exercising functions of the Secretary of State in respect of the hospital, or the Special Health Authority or Local Health Board exercising functions of the Welsh Ministers in respect of the hospital.

(5) Nothing in this section applies to property transferred under section 24 of the National Health Service Reorganisation Act 1973.

(6) In this section--

"health service hospital" includes such a hospital within the meaning of section 206 of the National Health Service (Wales) Act 2006 (c. 42), and
"special trustees" includes special trustees within the meaning of section 160 of that Act.

Chapter 3 Property transferred under the National Health Service Act 1946

219 Transferred property free of trusts

(1) All property vested in the Secretary of State in consequence of the transfer of that property under section 6 of the National Health Service Act 1946 (c. 81) (transfer of hospitals) is vested free of any trust existing immediately before that transfer.

(2) The Secretary of State may use any such property for the purpose of any of his functions under this Act, but he must so far as practicable secure that the objects for which any such property was used immediately before that transfer are not prejudiced by the exercise of the power conferred by this subsection.

220 Trust property previously held for general hospital purposes

(1) This section applies to property--

(a) transferred under section 23 of the National Health Service Reorganisation Act 1973 (c. 32) (winding-up of hospital endowment funds), or

(b) transferred under section 24 of that Act (transfer of trust property from abolished authorities) and which immediately before the day appointed for the purposes of that section was, in accordance with any provision contained in or made under section 7 of the National Health Service Act 1946, applicable for purposes relating to hospital services or relating to some form of research,

including any such property which has been further transferred under section 92 of the National Health Service Act 1977 (c. 49).

(2) This section continues to apply to any such property after any further transfer under section 213 or 214.

(3) The person holding the property after the transfer or last transfer must secure, so far as is reasonably practicable, that the objects of any original endowment, and the observance of any conditions attached to that endowment, including in particular conditions intended to preserve the memory of any person or class of persons, are not prejudiced by this Part of this Act.

(4) "Original endowment" means a hospital endowment which was transferred under section 7 of the National Health Service Act 1946 (c. 81) and from which the property in question is derived.

(5) Subject to subsection (3), the property must be held on trust for such purposes relating to hospital services (including research), or to any other part of the health service associated with any hospital, as the person holding the property considers appropriate.

(6) Where the person holding the property is a body of special trustees, the power conferred by subsection (5) must be exercised as respects the hospitals for which they are appointed.

221 Voluntary hospitals

(1) Subsection (2) applies where--

(a) any hospital provided by the Secretary of State in accordance with this Act was a voluntary hospital transferred by virtue of the National Health Service Act 1946, and

(b) the character and associations of that hospital before its transfer were such as to link it with a particular religious denomination.

(2) Regard must be had in the general administration of the hospital to the preservation of that character and those associations.

Chapter 4 Raising money

222 Power to raise money

(1) This section applies to any NHS body other than a Local Health Board.

(2) A body to which this section applies has power to engage in activities intended to stimulate the giving (whether on trust or otherwise) of money or other property to--

(a) assist the body in providing or improving any services or any facilities or accommodation which is or are, or will be, provided as part of the health service, or

(b) assist it in connection with its functions with respect to research.

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