House of Commons - Explanatory Note
Health And Social Care Bill - continued          House of Commons

back to previous text

Clause 24: Declaration of Financial interests

105. Clause 24 introduces new arrangements requiring practitioners providing family health services to declare any gifts or benefits they receive. The aim is to be consistent with other NHS workers. Doctors, and other NHS employees, in the hospital sector are required to agree to local standards of business conduct that normally oblige them to refuse to all patients except those of low intrinsic value such as diaries or chocolates.

106. Subsection (2) amends section 29 of the 1977 Act to provide that regulations may require practitioners providing general medical services to declare any gifts or other benefits that they may receive in connection with the provision of NHS services. Such regulations will be subject to consultation.

107. Subsections (3), (4) and (5) provide for similar regulatory powers requiring persons and organisations providing general dental services, general ophthalmic services and pharmaceutical services to declare any gifts or other benefits that they may receive in connection with the provision of NHS services. Such regulations will also be subject to consultation.

Clause 25: Supplementary lists

108. Clause 25 amends the 1977 Act to extend the existing Health Authority list systems to embrace all people who provide family health services otherwise than as principals in their own right.

109. Subsection (1) inserts new section 43D into the 1977 Act. Subsection (1) of that section provides powers to make regulations providing for the preparation and publication by each Health Authority of lists covering practitioners (locums, deputies, or employees) assisting in the provision of GMS, GDS, GOS and PhS. Subsection (2) of the new section provides that such a list is to be referred to as a "supplementary list".

110. Section 43D(3) sets out the provisions which may be included in the regulations about supplementary lists. Paragraph (a) provides powers to prescribe the Health Authority to which an application for inclusion in a supplementary list should be made.

111. Under paragraph (b), the regulations may make provision about the procedure for applying for inclusion in a list. This may include details of the information to be supplied to the Health Authority, either directly by or arranged by an applicant, in order for that Authority to assess the applicant's suitability.

112. Paragraph (c) enables provision to be made about the grounds on which a Health Authority may or must refuse an application for inclusion in a list. This may be for reasons of unsuitability or on other grounds. For example, regulations might make special provision for cases in which an applicant has previously been included in or removed from a list by another Health Authority, or disqualified previously by the NHS Tribunal. Regulations might also require a Health Authority to refuse entry to a list where, for example, the applicant has a conviction for murder. Provision may be made under paragraph (f) as to the grounds on which a Health Authority may suspend or remove a person from a supplementary list and the procedure for doing so.

113. Provisions may be made under paragraph (g) about payments to be made by Health Authorities to or in respect of suspended practitioners. Applicants for inclusion in a list and practitioners already included may, under paragraph (h), be required to supply the Health Authority with criminal conviction or criminal record certificates. Under paragraph (k), regulations may provide for the disclosure by Health Authorities to prescribed persons of specified information about applicants applying for inclusion in a supplementary list as well as refusals of such applications and suspensions and removals from lists.

114. Section 43D(4) allows provision to be made about supplementary lists which corresponds to provision which may be made about principal lists under sections 49F to 49K(1).

115. Section 43D(5) provides that regulations must provide for an appeal, by re-determination, to the FHSAA against any decision by a Health Authority to remove a person from a supplementary list .

116. Section 43D(6) provides for regulations requiring that practitioners on one of the main lists may not employ or engage a person to assist them in the provision of the respective family health service, unless that person is included in one of the main lists, a supplementary list or a PMS, PDS or LPS list. However, by virtue of section 43D(7), regulations need not require the two people concerned to be on lists held by the same Health Authority, but they may require that someone must be on a relevant list held by an English Health Authority if they are to be engaged to assist in providing services in England, and on a Welsh Health Authority's list to be engaged in Wales.

Clause 26: suspension and disqualification of practitioners

117. Clause 26 makes provision for Health Authorities to suspend and remove (including conditional removal) practitioners from the relevant principal family health services list. This will enable Health Authorities to take fast and effective action where concerns arise about a practitioner involved in the provision of these services.

118. New section 49F of the 1977 Act provides powers for a Health Authority to remove practitioners from the relevant principal medical, optical, dental, pharmaceutical or dispensing list on the grounds of inefficiency, fraud or unsuitability.

119. Section 49G provides powers for a Health Authority to contingently remove, rather than remove, a practitioner from a principal list. In such cases, the Health Authority may determine that removal shall only come into effect if the practitioner fails to comply with conditions imposed by that Health Authority. For example, a practitioner might be required to submit more detailed information than normal in order to justify claims for fees and allowances. In consequence of its decision to impose conditions, the Authority may vary the individual practitioner's terms of service.

120. Section 49H provides powers for a Health Authority to suspend a practitioner from their list whilst considering whether that person should be removed or contingently removed. A Health Authority may also impose or continue suspension after it has made a decision to remove, but pending that decision coming into effect. If a Health Authority suspends a practitioner, it must specify the period of suspension. This may not exceed a maximum period of six months, except in prescribed circumstances. Regulations could, for example, prescribe that such circumstances would include where there is an ongoing criminal investigation, fraud investigation, an investigation by the professional regulatory body or medical grounds. The Health Authority may also refer the matter to the FHSAA to determine whether the suspension should continue exceptionally on grounds other than those prescribed. Subsection (8) makes provision for a Health Authority to pay suspended practitioners in accordance with regulations.

121. Section 49I provides for a Health Authority to review any decision to conditionally remove or suspend a practitioner. A Health Authority will be obliged to review a decision if requested in writing to do so by the practitioner. Following a review a Health Authority may end a suspension it has made, or in the case of conditional removal vary the terms, remove all conditions or remove the practitioner from a list.

122. Section 49J provides practitioners with a right of appeal, by re-determination, to the FHSAA against any Health Authority decision to remove or conditionally remove them from a list, or any Health Authority review decision. An appeal must be lodged in writing to the FHSAA within 21 days of notice of the decision. A Health Authority decision to remove or conditionally remove a practitioner from a list may not take effect until the specified time to lodge an appeal with the FHSAA has passed and no appeal has been lodged, or, if the FHSAA confirmed the decision of the Health Authority, that later date.

123. Section 49K sets out the powers of the FHSAA. The FHSAA may make any decision which could be made by a Health Authority. A decision by a Health Authority would be 'local' and would remove a practitioner from the list covering its area. Subsection (1) (of section 49K) also provides for the FHSAA to make a decision to nationally disqualify a practitioner from the corresponding list of all Health Authorities. Subsection (2) provides that a Health Authority may apply to the FHSAA for national disqualification to be imposed on a practitioner after removal from its list. Subsection (3) requires that a Health Authority may not subsequently include the practitioner in such a list, or if already included in a list, requires the Health Authority to remove the practitioner from it. Subsection (4) provides for the FHSAA to review a national disqualification at any time. Following a review the FHSAA may confirm or revoke the disqualification or substitute contingent removal for removal.

124. New section 49L provides for regulations requiring a Health Authority to notify the relevant professional body of any decision to suspend, remove or contingently remove a practitioner from a list. Section 49M provides for regulations prescribing the procedure to be followed by Health Authorities in making a decision to suspend, remove or contingently remove a practitioner. Subsection (2) (of section 49M) requires the regulations to include provision for a practitioner to be given notice of any allegation against him; for him to put his case at a hearing, and for him to be informed of a Health Authority's decision, the reasons for it and his right of appeal.

Clause 27: PMS and PDS lists

125. Clause 27 introduces new arrangements further extending the Health Authority list system to include those practitioners who may perform personal medical services "PMS" and personal dental services "PDS".

126. Subsection (1) inserts new section 28DA into the 1977 Act. Subsection (1) of that section provides powers to make regulations providing for the preparation and publication by each Health Authority of lists of medical and dental practitioners who may deliver PMS and PDS. Subsection (2) of the new section provides that such a list is to be referred to as a "services lists".

127. Section 28D(3) sets out the provisions which may be included in regulations about services lists. Paragraph (a) provides powers to prescribe the Health Authority to which an application for inclusion in a services list should be made.

128. Under paragraph (b), the regulations may make provision for the procedure for applying for inclusion in a list. This may include details of the information to be supplied to the Health Authority, either directly by or arranged by an applicant, in order for that Authority to assess the applicant's suitability.

129. Paragraph (c) enables provision to be made about the grounds on which a Health Authority may or must refuse an application for inclusion in a list. This may be for reasons of unsuitability or on other grounds. For example, regulations might make special provision for cases in which an applicant has previously been included in or removed from a list by another Health Authority, or disqualified previously by the NHS Tribunal. Regulations might also require a Health Authority to refuse entry to a list where, for example, the applicant has a conviction for murder. Provision may be made under paragraph (f) as to the grounds on which a Health Authority may suspend or remove a person from a services list and the procedure for doing so.

130. Provision is to be made under paragraph (g) about payments to be made by Health Authorities to or in respect of suspended practitioners. Applicants for inclusion in a list and practitioners already included, may, under paragraph (h), be required to supply the Health Authority with criminal conviction or criminal record certificates. Under paragraph (k), regulations may provide for the disclosure by Health Authorities to prescribed persons of specified information about applicants applying for inclusion in a services list as well as refusals of such applications and suspensions and removals of practitioners from a services list.

131. Regulations under section 28D(4) may require that no person may deliver PMS or PDS unless they are included in either a medical or dental list, a supplementary list or a services list.

132. Section 28D(5) allows provision to be made about services lists which corresponds to provision which may be made about principal lists under sections 49F to 49K(1).

133. Section 28D(6) provides that regulations must provide for an appeal, by re-determination, to the FHSAA against any decision by a Health Authority to remove a person from a services list.

134. Subsection (2) inserts a new section 8A into the National Health Service (Primary Care) Act 1997 introducing similar provisions in relation to PMS and PDS schemes which are not pilot schemes.

Clause 28: The Family Health Services Appeal Authority

135. The NHS Plan set out the Government's intention to abolish the NHS Tribunal, to devolve the power to suspend or remove practitioners from a Health Authority list to Health Authorities, subject to a right of appeal to the Family Health Services Appeal Authority. Clause 19 of this Bill abolishes the NHS Tribunal. The intention is to rationalise the functions carried out by the existing Family Health Services Appeal Authority and the NHS Tribunal into one body. In effect the Family Health Services Appeal Authority will take over the functions of the Tribunal, adapted to take account of the new powers of Health Authorities to suspend or remove practitioners. The Family Health Services Appeal Authority is currently constituted as a special Health Authority. Clause 28 reconstitutes the authority as an independent body.

136. Subsection (1) of Clause 28 inserts a new section 49M into the 1977 Act which sets up the Family Health Services Appeal Authority (FHSAA). Subsection (2) provides for the authority to be constituted in accordance with new Schedule 9A. Subsection (3) provides for the functions of the FHSAA to be conferred on it by this 1977 Act. Subsection (4) provides a power for the Secretary of State to direct the FHSAA to exercise any of his functions relating to the determination of appeals. Subsection (5) provides that such directions should be given by regulations or in writing.

137. Subsection (3) (of Clause 28) inserts Schedule 9A into the 1977 Act. Paragraphs 1 to 5 set out the constitution and membership of the FHSAA. The FHSAA will consist of a President and number of other members to be appointed by the Lord Chancellor. The number of other members and their terms of appointment will be determined by the Lord Chancellor with the agreement of the Secretary of State. The membership must include people with a lay background as well as those with relevant professional expertise.

138. Paragraph 7 provides for the FHSAA to determine its own procedure, subject to the requirements of paragraph 8. Paragraph 8 requires that each party to an appeal before the FHSAA be given the opportunity of putting his case at hearing; that such party be entitled to legal representation at such hearings and that such party be given notice of the FHSAA's decision and the reasoning behind it.

PART II PHARMACEUTICAL SERVICES

Chapter I: Local Pharmaceutical Services

139. Chapter I of Part II provides for new arrangements under which community pharmacy and related services may be provided on a piloted basis. At present, pharmaceutical services, include the dispensing of NHS prescriptions, are provided by community pharmacies, appliance contractors and dispensing doctors under arrangements made with Health Authorities in accordance with Part II of the NHS Act 1977, and in particular regulations made under sections 41 and 42 of that Act. These arrangements are referred to below as "Part II pharmaceutical services".

140. The new arrangements will be known as Local Pharmaceutical Services and will provide an alternative legal framework for the provision of pharmaceutical services, under locally agreed contracts. Local Pharmaceutical Services will first be provided under pilot schemes, which are intended to develop and demonstrate innovative ways of providing high quality, cost-effective services to patients. They will be similar to Personal Medical Services and Personal Dental Services pilot schemes, established under the NHS (Primary Care Act) 1997. Many of the provisions in this Part of the Bill (and in particular Clauses 32-37) are modelled on the equivalent provisions in that Act.

Preparation and making of pilot schemes

Clause 29: Pilot Schemes

141. Clause 29 deals with the general nature of Local Pharmaceutical Services pilot schemes. Subsection (2) provides that a pilot scheme may consist of one or more agreements between a Health Authority and any other person or persons (other than another Health Authority) under which Local Pharmaceutical Services are to be provided. The Health Authority may not itself provide Local Pharmaceutical Services.

142. Unlike Personal Medical and Dental Services pilots, provision of Local Pharmaceutical Services is not to be restricted to particular classes of person (although nothing in these provisions will alter restrictions in the Medicines Act 1968 and other legislation on who may supply medicines). The parties to pilot schemes may therefore include, amongst others, individual pharmacists, retail pharmacy businesses and dispensing appliance contractors. They may also include NHS Trusts and Primary Care Trusts, and subsection (7) provides that NHS Trusts and Primary Care Trusts have the necessary powers to provide services under a pilot scheme.

143. The meaning of Local Pharmaceutical Services will be defined in regulations under subsection (8). It is likely to include services similar to those included within the definition of Part II pharmaceutical services, but subsection (9) means that Local Pharmaceutical Services may not include the provision of pharmaceutical services by doctors to patients for whom they provide general medical services, nor by dentists to patients for whom they provide general dental services.

144. Under section 41 of the NHS Act 1977, Health Authorities have a duty to arrange Part II pharmaceutical services for their area. Since Local Pharmaceutical Services pilot schemes will be providing similar services, subsection (6) permits Health Authorities to take into account such schemes in determining how to meet their duty under section 41.

145. Subsection (3) provides that a pilot scheme may also include health services which are not Local Pharmaceutical Services, but which may be provided under Part I of the NHS Act 1977. This could include, for example, diagnostic testing, therapeutic monitoring and health education. It need not be restricted to services normally associated with pharmacies. So it could, for example, include the provision of chiropody or similar services. Pilot schemes may also include the provision of training and education. However, subsection (4) provides that schemes may not combine arrangements for Local Pharmaceutical Services with those for Personal Medical or Dental Services.

146. Subsection (5) defines piloted services as services provided under a pilot scheme, which therefore includes not only Local Pharmaceutical Services but any other services included within a scheme.

Clause 30: The making of Pilot Schemes

147. Clause 30 introduces Schedule 2, which makes provision about the making of pilot schemes. In particular, that Schedule provides that pilot schemes may only be established with the approval of the Secretary of State or, in relation to Wales, the National Assembly for Wales.

Clause 31: Designation of priority neighbourhoods or premises

148. Clause 31 permits the Secretary of State or National Assembly for Wales to make regulations allowing Health Authorities to designate neighbourhoods, particular premises, or particular descriptions of premises for the purposes of Local Pharmaceutical Services pilot schemes. Under subsection (2) the regulations may, in particular, make provisions about which such places Health Authorities may designate and in what circumstances. The regulations may also make provision about how, and to what extent, Health Authorities may give priority to Local Pharmaceutical Services pilot schemes and may allow Health Authorities to defer applications to provide Part II Pharmaceutical Services relating to designated places. To avoid designations being prolonged inappropriately, regulations may also deal with the cancellation of designations, and may permit the Secretary of State or the National Assembly for Wales to direct that a designation be cancelled.

Reviews, variation and termination of pilot schemes

Clause 32: Reviews of Pilot Schemes

149. Clause 32 deals with the review of pilot schemes. Subsection (1) requires that each pilot scheme be reviewed at least once by the Secretary of State or National Assembly for Wales, and subsection (2) requires that this be done within three years of services first being provided under the scheme. Subsection (3) requires the Secretary of State or National Assembly for Wales to give the relevant Health Authority and the people providing services under each scheme an opportunity to comment as part of the review, but otherwise subsection (4) allows the procedure for the review to be at the discretion of the Secretary of State or National Assembly for Wales.

Clause 33: Variation and Termination of Pilot Schemes

150. Clause 33 deals with the variation and termination of pilot schemes. In particular subsection (1) permits the Secretary of State or National Assembly for Wales to issue directions to Health Authorities giving them a general authority to vary pilot schemes in specified circumstances and subject to specified conditions. The Secretary of State or National Assembly for Wales may also issue directions under subsection (2) to require Health Authorities to vary particular schemes. If for any reason the Secretary of State or National Assembly for Wales is satisfied that a pilot scheme is unsatisfactory, subsection (3) permits them to issue directions requiring the Health Authority concerned to bring the scheme to an end.

NHS contracts and Financial provision

Clause 34: NHS Contracts

151. Under Clause 34, persons providing pilot services may apply to become a health service body. The effect of such an application being granted is that the contracts entered into between the Health Authority and the health service body will be NHS contracts within the meaning of the National Health Service and Community Care Act 1990, rather than legal contracts.

152. Where a pilot scheme involves a single individual or body corporate, subsection (1) provides for that individual or body to apply to become a health service body. Where a pilot scheme involves more than one person, subsection (2) permits all the people involved to apply collectively. In both cases, applications must be made in accordance with regulations under subsection (3). Regulations under subsection (4) may provide for applications to be granted except in specified cases. If an application is granted, subsection (5) requires the Secretary of State or National Assembly for Wales to specify when it is to come into effect.

153. From a specified day following grant of an application, the applicant or applicants are to be treated as health service bodies for the purposes of section 4 of the 1990 Act. Subsection (7) provides that where an application has been granted to pilot scheme providers collectively, it is the providers in that scheme at any given time who are to be considered the health service body, even if they have changed since the original application. Regulations under subsection (9) may provide for people to cease to be health services bodies in specified circumstances.

154. Subsections (10) and (11) require the Secretary of State and National Assembly for Wales to maintain and keep up to date a list of pilot scheme providers who have been awarded health services body status, and to publish it in such manner as they consider appropriate.

155. Subsection (6) has the effect that contracts between pilot scheme providers which have been granted the status of health service bodies and other health services bodies (including other pilot scheme providers) are to be treated as NHS contracts if they are for the provision of goods or services in connection with the scheme.

156. NHS contracts are not normally enforceable in the Courts. Instead, any disputes can be put to the Secretary of State or National Assembly for Wales for resolution. However, because most pilot scheme providers will be rather different to other health service bodies, subsection (8) provides that the County Court may enforce directions issued as a result of that dispute resolution procedure in favour of, or against a pilot scheme provider.

Clause 35: Funding of preparatory work

157. Clause 35 deals with financial support for people developing proposals for pilot schemes and preparing to provide services under them. Subsection (1) provides that regulations may make provision for Health Authorities to give people financial assistance in respect of preparatory work, as defined by subsection (2). Subsection (3) sets out matters which may in particular be included in those regulations.

Clause 36: Charges for the provision of piloted services

158. Clause 36 deals with charges. The Government's policy is that arrangements for prescription charges under Local Pharmaceutical Services will be the same as those which apply in relation to Part II Pharmaceutical Services. People who are exempt, or who otherwise are not required to pay prescription charges, will receive free prescriptions whether they use a pilot scheme provider or a Part II provider. Similarly, there will be no difference in the level of prescription charges, nor in the cost of pre-payment certificates. Such certificates will be valid for both services interchangeably. To that end, subsection (1) provides that regulations may be made about the making and recovery of charges for piloted services. Subsection (2) specifies matters which may in particular be included in regulations, including the application to Local Pharmaceutical Services of sections 122A and 122B of the 1977 Act, which deal with the recovery of certain charges and the imposition of penalty charges in certain cases. Subsection (3) requires the regulations to secure that any charges in respect of Local Pharmaceutical Services will be the same as those which would apply had the service been provided under Part II of the 1977 Act.

General

Clause 37: Effect of the 1977 Act

159. Clause 37 makes general provision about the status of the functions of the Secretary of State, National Assembly for Wales and Health Authorities in respect of Local Pharmaceutical Services pilot schemes. In particular, subsection (2) provides that, unless otherwise specified, the 1977 Act applies to services provided under pilot schemes as if the Secretary of State or National Assembly for Wales had directed a Health Authority to arrange those services on his behalf. One effect of this is that Health Authorities may, subject to directions from the Secretary of State or National Assembly for Wales under section 17A of the 1977 Act, delegate their functions in respect of pilot schemes to a Primary Care Trust. (For that reason, references in these explanatory notes to Health Authorities should be read to include Primary Care Trusts unless the context demands otherwise.)

160. Section 42 of the 1977 Act requires regulations to be made about (amongst other things) the preparation and publication by Health Authorities of lists of people who have undertaken to provide Part II Pharmaceutical Services. Except as provided for in those regulations, applications by people wishing to join such a list (or to change the services or premises in respect of which they are already entered in the list) are granted only if the Health Authority is satisfied that it is necessary or desirable to do so in order to secure in the neighbourhood in question the provision of adequate pharmaceutical services by people on the list.

 
previous Section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries index

© Parliamentary copyright 2000
Prepared: 21 December 2000