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

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Clause 38: Control of Entry Regulations

161. Clause 38 provides that regulations under section 42 of the 1977 Act may include provision about the extent which services provided under Local Pharmaceutical Services pilot schemes are to be taken into account when determining such applications.

Clause 39: Assessing pilot schemes

162. Clause 39 provides that the Secretary of State or National Assembly for Wales may not bring into effect Clause 40 (which deals with the provision of Local Pharmaceutical Services otherwise than under pilot schemes) unless they are satisfied that pilot schemes have shown that the continued provision of Local Pharmaceutical Services would be in the interests of the health service (or any part of it). The Secretary of State or National Assembly for Wales must have regard, in particular to the results of reviews of pilot schemes required under Clause 32.

Clause 40: Provision for LPS schemes

163. Clause 40 makes provision for Local Pharmaceutical Services schemes which are not pilot schemes by inserting a new section 28J and a new Schedule 8A into the NHS Act 1977. The new Schedule 8A is set out in Schedule 3 to this Bill. Subsection (3) inserts a new subsection 42(2A) in the 1977 Act, which has the same effect in relation to Local Pharmaceutical Services schemes which are not pilot schemes, as Clause 38 has in relation to pilot schemes.

Clause 41: Application of existing statutory provisions to LPS schemes

164. Clause 41 provides a power to make regulations applying existing statutory provisions to LPS schemes (including pilot schemes) where those provisions already apply to arrangements for the provision of personal medical services or personal dental services. The provisions may be applied with such modifications as are considered appropriate.

Schedule 2: Pilot Schemes

165. This Schedule deals with arrangements for establishing Local Pharmaceutical Services pilot schemes (see explanatory notes to Chapter I of Part II of the Bill and in particular Clause 30).

166. Paragraph 1 provides that a pilot scheme may be established on a Health Authority's own initiative or, on the request of a person wishing to participate in a scheme. A request from a prospective participant must be made in writing and must conform to any requirements set out in regulations.

167. Paragraph 2 deals with the preparation of proposals for pilot schemes. Before establishing a pilot scheme Health Authorities are to be required to prepare proposals for submission to the Secretary of State or National Assembly for Wales, who may issue directions about the issues to be dealt with and the information to be included in such proposals. They may also issue directions requiring Health Authorities to consult on proposals before submitting them (and any such requirement would be in addition to any other obligation to consult imposed by or under any other legislation).

168. In some cases, it may be that Health Authorities will be required to include with proposals a recommendation about whether it should, or should not, be approved. The Secretary of State or National Assembly for Wales is therefore to be able to issue directions specifying the factors that Health Authorities should take into account in making any recommendation and the form in which the recommendation is to be made. Like other directions under this paragraph, such directions may be general, or particular to specific schemes.

169. Health Authorities are not generally to be required to submit proposals at the request of potential participants. However, sub-paragraph (5) will allow the Secretary of State and National Assembly for Wales to direct Health Authorities to submit summaries of such requests, prepared and presented in accordance with the directions, and to specify circumstances in which Health Authorities must submit proposals for consideration.

170. Paragraph 3 deals with approval. The Secretary of State or National Assembly for Wales will not be able to approve a proposal unless satisfied that there are adequate arrangements for participants (other than the Health Authority) to withdraw. Otherwise, they may approve proposals as submitted, or with modifications, or reject them. They must notify the relevant Health Authority of their decision and the Health Authority must notify the other participants without delay.

171. Paragraph 4 will permit a Health Authority to apply for preliminary approval for a scheme, before it has identified who the participants are to be. This could be used, for example, by a Health Authority wishing to establish services in an area that is not adequately served either by Local Pharmaceutical Services or Part II Pharmaceutical Services. It could first obtain preliminary approval for a scheme, and then invite bids from people to become the pilot scheme provider. As with full proposals, the Secretary of State and National Assembly for Wales will be required either to approve preliminary approvals as they stand or subject to modifications, or else reject them. If the preliminary proposal is approved, Health Authorities may be required to prepare full proposals in accordance with directions from the Secretary of State or National Assembly for Wales. Preliminary approval will not guarantee final approval of the scheme.

172. Paragraph 5 permits the Secretary of State and National Assembly for Wales to issue guidance about the criteria they are likely to apply when considering both full and preliminary proposals.

173. Paragraph 6 deals with the establishment of schemes once approved. It will require Health Authorities to implement proposals that have been approved, in accordance with directions from the Secretary of State or National Assembly for Wales. The Health Authority may not withdraw from the scheme before it is established, but any of the other parties may at any time. A pilot scheme may only differ from the proposals as approved if the Secretary of State or National Assembly for Wales agree the particular change, or if the change falls within the scope of any directions they have issued permitting variations. As soon as possible after implementing a scheme, Health Authorities will be required to publish details of the scheme, in accordance with any directions issued by the Secretary of State or National Assembly for Wales.

Schedule 3: Local Pharmaceutical Services

174. Schedule 3 sets out the new Schedule 8A which is inserted into the 1977 Act by Clause 40. The Schedule makes provision for Health Authorities to make arrangements for Local Pharmaceutical Services schemes on a substantive (rather than a pilot basis).

175. Paragraph 1 makes provision for Local Pharmaceutical Services schemes, equivalent to those in Clause 29 for pilot schemes.

176. Paragraph 2 allows regulations to be made permitting Health Authorities to designate locations in which they may give priority to Local Pharmaceutical Services. The provision is equivalent to that in Clause 31 for pilot schemes.

177. Paragraph 3 provides for the Secretary of State or National Assembly for Wales to make regulations about Local Pharmaceutical Services. Paragraph 3(2) requires that those regulations must include provision for participants in schemes (other than Health Authorities) to withdraw if they wish. Regulations may also impose conditions to be satisfied by people providing Local Pharmaceutical Services. By virtue of paragraph 3(3), regulations may make provision about other matters, including in particular the items specified in sub-paragraphs (a) - (h). Sub-paragraphs (f) and (g) provide for regulations to make arrangements similar to those provided for in respect of pilot schemes by Clause 34 (NHS Contracts). Sub-paragraph (h) provides for regulations to make provision for payments by Health Authorities of financial assistance in respect of preparatory work, and is similar in effect to Clause 35 for pilot schemes.

Chapter II: Changes to existing arrangements

Clause 42: Dispensing of NHS Prescriptions and provision of pharmaceutical services

178. Subsection (1) of Clause 42 inserts a revised section 41 into the 1977 Act on the arrangements for pharmaceutical services.

179. Subsection (1)(a) of new section 41 requires Health Authorities, in accordance with regulations, to make arrangements for the supply to persons who are in their area, of drugs, medicines and listed appliances to those people for whom they have been prescribed by medical practitioners under the national health service (including the Scottish and Northern Ireland health services).

180. Subsections (1)(b) and (c) require Health Authorities similarly, in accordance with regulations, to make arrangements for the supply to persons who are in their area, of drugs and medicines to those people for whom they have been prescribed by dental practitioners.

181. Subsection (1)(d) makes provision for items prescribed by certain other categories of prescriber also to be dispensed as part of NHS pharmaceutical services. This subsection gives the Secretary of State powers to specify in regulations the categories of person whose prescriptions will be dispensed and any conditions in accordance with which they must prescribe. It also provides the Secretary of State with powers to determine the particular drugs, medicines and appliances which each of them may prescribe for NHS dispensing. In relation to prescription only medicines, this subsection needs to be read in conjunction with Clause 60, which deals with the related issue of extension of the right to prescribe such medicines.

182. Subsection (1)(e) allows the Secretary of State to make regulations extending the scope of the services for which Health Authorities are required to make arrangements.

183. Subsection (2) of new section 41 defines these services together with the additional pharmaceutical services provided for under section 41A as "pharmaceutical services".

184. Subsection (3) provides that the categories of persons under subsection 1(d) whose prescriptions may be dispensed must be registered professionals. Subsection (4) relates to the Secretary of State's powers to determine the particular drugs, medicines and appliances which each category of prescriber may prescribe for NHS dispensing. It provides that a determination may make different provision for different cases; specify the circumstances or cases in which a drug, medicine or appliance may be prescribed and allow for the dispensing of such items as the prescriber thinks necessary, in the exercise of their discretion.

185. Subsection (5) provides that the arrangements made by a Health Authority can include arrangements for the provision of a service by 'remote' means, so that the person receiving the service does so otherwise than at the premises from which it is provided. Subsection (6) makes provision to the effect that (subject to any limitations imposed by the Secretary of State in regulations) people with whom a Health Authority has made arrangements may also provide pharmaceutical services to people who are outside the Authority's area. This might happen , for example, where patients send their prescriptions by post to the pharmacy of their choice, or where a pharmacy collects a prescription from a GP's surgery on a patient's behalf and then delivers the dispensed medicine to the patient's home. The intention is to facilitate, and provide a means to control, the development of internet, mail order, home delivery and other arrangements. This will provide patients with greater flexibility in the way they can present their prescriptions and obtain the drugs or appliances which have been ordered for them.

Clause 43: Remote provision of pharmaceutical services

186. Section 41A of the 1977 Act concerns the provision of "additional pharmaceutical services" which are in addition to those required by section 41. Clause 43 amends this section to give the Secretary of State powers to give directions to Health Authorities authorising or requiring them to arrange for the provision of services to any person, whether or not in their area. Subsection (1)(b) (of Clause 43) adds a new subsection (1A) to section 41A of the 1977 Act to allow the Secretary of State to authorise or require Health Authorities to arrange for the provision of these services by remote means so that the service is received otherwise than at the premises from which it is provided.

187. Section 42 of the 1977 Act provides powers to make regulations governing the arrangements made by a Health Authority for the provision of pharmaceutical services. In accordance with section 42(2), regulations require all Health Authorities to prepare and publish lists of persons (other than for medical and dental practitioners) who undertake to provide pharmaceutical services from premises in their area. Applications for inclusion in a pharmaceutical list are only to be granted if the Health Authority is satisfied that it is necessary or desirable to do so to secure the adequate provision of services in the neighbourhood in which the premises are located. Subsection (3) provides that regulations may be made exempting people from the 'necessary or desirable' test where they are to provide services solely by remote means.

188. Subsection (4) of Clause 39 adds new subsections (3A) and (3B) to section 42 of the 1977 Act.

189. New subsection (3B) allows regulations to be made requiring people providing remote services to be approved for that purpose, in accordance with criteria which may be specified in or determined under the regulations by the Secretary of State or another person specified in regulations (subsection (3B)(a)). It also provides a power to prescribe conditions to be imposed on the grant of an application for inclusion in a pharmaceutical list, where the applicant is to provide services by remote means (subsection (3B)(b)).

190. Subsection (5) (of Clause 43) amends section 43(2A) of the 1977 Act, under which regulations are required to provide for the preparation by Health Authorities of lists of medical practitioners who supply drugs, medicines and appliances. The effect is to ensure that such dispensing doctors are included in the list of each Health Authority with whom they have arranged to dispense, even if they dispense from premises in another Health Authority's area.

191. Section 44 of the 1977 Act permits a Health Authority to recognise a Local Pharmaceutical Committee (LPC) which it is satisfied is representative of persons providing pharmaceutical services in its area. Subsection (6) (of Clause 39) amends section 44 to clarify that notwithstanding that people in the Health Authority's area may receive pharmaceutical services from people whose premises are outside that area, the LPC need only be representative of persons who are included in a Health Authority's own pharmaceutical list, in order to be recognised by it.

Clause 44: Dispensing of NHS Prescriptions, Scotland

192. Clause 44 amends Section 27 of the National Health Service (Scotland) Act 1978 to make provision for items prescribed by certain categories of prescriber to be dispensed as part of NHS community pharmaceutical services in Scotland. Section 27(cc) as amended, gives Scottish Ministers powers to specify in regulations the categories of person whose prescriptions will be dispensed and conditions in accordance with which they must prescribe. Scottish Ministers may also determine the drugs, medicines and appliances which each of the them may prescribe for NHS dispensing. Paragraph (cc) applies to persons other than doctors and dentists, for whom separate provision is made at paragraphs (a) to (c) of Section 27.

193. Subsection (3) limits the categories of person who may be prescribed in regulations under Section 27(cc) to certain registered professionals. It also provides that determinations under that section may make different provision for different cases, specify the circumstances or cases in which a given drug, medicine or appliance may be prescribed, and specify types of prescriber who may prescribe such drugs, medicines and listed appliances as they see fit, in the exercise of their discretion.

PART III CARE TRUSTS

Clauses 45 - 47: Care Trusts

194. Clauses 45 - 47 provide for the designation of Primary Care Trusts ( PCTs) and NHS Trusts as Care Trusts in cases where they take on local authority health-related functions. The Care Trust will then be able to commission and provide integrated services covering health, social services and other health-related local authority functions. Designation as a Care Trust will lead to a change in governance arrangements so that local authority interests are duly represented within the governance structures of the Care Trust. Two routes to Care Trust status are provided for. First, on application to the Secretary of State or National Assembly for Wales for Wales jointly by the NHS bodies and local authorities involved. Secondly, where the Secretary of State directs that a Care Trust is to be set up to address inadequate performance of the local authority. These new powers of direction will also allow the Secretary of State or National Assembly for Wales for Wales to require other partnership arrangements to be adopted if they are likely to improve performance. Care Trusts will provide for a high level of integration between Health and Local authority services enabling patients needs to be addressed holistically, the synergies of joint working to be exploited and patients to benefit from a seamless provision of their care needs.

Clause 45: Care Trusts where voluntary arrangements

195. Clause 45 provides for the designation of a Care Trust following an application to the Secretary of State or the National Assembly for Wales for Wales by the partners in the proposed Care Trust.

196. Subsection (1) provides that the Secretary of State may designate a PCT or NHS Trust that is, or is to, be party to local authority delegation arrangements as a Care Trust. Subsection (1)(b) requires that the Secretary of State or the National Assembly for Wales for Wales be of the opinion that Care Trust status is likely to promote the effective exercise by the trusts of any delegated health related functions of the local authority alongside the trust's existing NHS functions. This reflects the main aim of a Care Trust which is to improve services through effective integration of NHS and local authority services.

197. Subsection (2) sets out the voluntary nature of this approach to forming a Care Trust. The Secretary of State or the National Assembly for Wales for Wales will only be able to designate a Care Trust following a joint application by the local partners. The NHS partner could be a PCT, NHS Trust or Health Authority (where a Care Trust is to be based on an existing Primary Care Group). Regulations will define the detailed arrangements for the applications, including which bodies must be party to the joint application. This will enable the arrangements for the different NHS partners to be specified, and allow for regulations to be made governing the formation of a Care Trust where more than one local authority or health body has an interest.

198. Subsection (3) provides for the area to be covered by the health functions and delegated social services functions of the Care Trust. The intention is that the health and local authority health related functions of the Care Trust should be exercised together to provide integrated services. Some flexibility will be required to cope with the different populations covered by local authorities and health bodies and a Care Trust may have responsibility for only health or local authority health related functions for some sections of the population covered.

199. Subsection (4) allows for any of the parties involved in the Care Trust to apply for Care Trust status to be revoked, enabling them to adopt different arrangements for the delivery of their functions. This subsection also allows for the Secretary of State or National Assembly for Wales for Wales to revoke the Care Trust designation. Subsection (5) provides for the Care Trust designation to be revoked by order, and for that order to change the name of the body and make any necessary consequential provisions. For example the order may change the governance arrangements of a PCT revoking its Care Trust status to return them to the standard arrangements for a PCT.

200. Subsection (5) allows for the Secretary of State or the National Assembly for Wales for Wales to designate a body as a Care Trust by order, either amending the establishment order of an existing PCT or NHS Trust, or by creating a new body. A new body will be created where a Care Trust is to be formed from a partnership between a local authority and a Primary Care Group.

201. Subsection (6) makes provisions which are consequential or supplementary to Subsection (7) provides a regulation making power enabling the Secretary of State to make regulations governing the formation of Care Trusts under this section. Subsection (8) sets out that regulations made under subsection (7) can, in particular, cover:

(a) the process for applying for Care Trust status, the information to be supplied and the criteria to be met.

(b) the governance arrangements for the Care Trust. The intention is to include local authority members on the Boards of Care Trusts and to increase the representation of Social Services professionals within the governance arrangements for the Care Trust.

202. Subsection (9) explains that the designation of a PCT or a NHS Trust as a Care Trust will not affect its responsibilities to provide NHS services in accordance with health service legislation.

203. Subsection (10) provides that where the NHS body is to exercise social services functions as a Care Trust, it is to act in accordance with under the same directions and guidance from the Secretary of State or the National Assembly for Wales for Wales as would apply to a local authority exercising those functions.

204. Subsection (11) defines the terms used in this clause.

Clauses 46 and 47: Care Trusts where directed Partnership Arrangements

205. Clause 46 provides a power for the Secretary of State or National Assembly for Wales for Wales to require local authorities and NHS bodies to enter into partnership arrangements and where appropriate to establish Care Trusts to address inadequate performance.

206. Subsection (1) provides the power for the Secretary of State or the National Assembly for Wales for Wales to direct local authorities and NHS bodies to enter into delegation arrangements or pooled fund arrangements. The details of the arrangements can be specified in the direction. Subsection (1)(a) limits the use of this power to circumstances where a local authority or NHS Body is failing to deliver its functions adequately, and subsection (1)(b) further limits the use of the power to circumstances where the Secretary of State or the National Assembly for Wales for Wales are of the opinion that a delegation or pooled fund arrangement would be likely to improve the delivery of the failing function.

207. Subsection (2) provides that the directed arrangements may cover not only the function which is being delivered inadequately but also other functions exercised by the same body.

208. Subsection (3) sets out that the power to direct bodies to enter into delegation or pooled fund arrangements applies to NHS bodies and local authorities. In the case of local authorities, these powers can only be triggered by a failure to perform their social services functions adequately.

209. Subsection (4) allows the Secretary of State or National Assembly for Wales (for Wales) to designate any PCT or NHS Trust taking on functions from a local authority, following a direction made under this clause. Subsection (4)(b) requires the Secretary of State or the National Assembly for Wales for Wales to be of the opinion that designation as a Care Trust is likely to promote the effective exercise of the delegated function.

210. Subsection (6) allows the Secretary of State or the National Assembly for Wales (for Wales) to revoke the designation of a Care Trust once the direction requiring the delegation of the local authority functions is revoked, but there is no obligation to do so. A Care Trust may be formed in response to a direction from the Secretary of State to tackle a failing service, but once the failures have been addressed, may continue as a purely voluntary arrangement between the local parties.

211. Subsection (7) provides for the same order and regulation making powers in designating a Care Trust following a direction to delegate, as are available following an application to form a voluntary Care Trust.

212. Subsection (9) defines the terms used in this clause.

213. Clause 47 deals with further provisions relating to Secretary of State's powers to direct the formation of Care Trusts. Subsection (1) makes it possible for the Secretary of State when directing for the formation of a Care Trust, to direct local and health authorities to enter into partnership arrangements as prescribed by the Health Act 1999 and to make consequential directions. The partnership arrangements as set out by the Health Act 1999 cover pooled fund arrangements whereby NHS bodies and local authorities contribute to a communal pot so the money is neither health nor local authority money, and it is then used to purchase integrated services. Secondly there can be arrangements whereby the local authority can delegate its health related functions to an NHS body and thirdly an arrangement whereby an NHS body can delegate its functions to a local authority. Subsection (3) makes it possible for the Secretary of State to issue directions to a health authority to commission a Primary Care Trust or Care Trust to provide services under the partnership arrangements.

214. Subsection (4) makes it possible for the Secretary of State or the National Assembly for Wales (for Wales) to make directions that enable potential care trust partners to seek third party advice about their existing partnership working arrangements.

215. Subsections (5), (6) and (7) make it clear that the directions that are issued have to be in writing, they can be revoked by further directions and that they must be adhered to.

PART IV SOCIAL CARE

216. This section of the Bill is designed to improve the system of funding long term care, as set out in The NHS Plan: The Government's Response to the Royal Commission on Long Term Care. It will also give local authorities powers to place people in residential care homes and nursing homes outside England and Wales, and allow regulations to be made making provision for direct payments so as to extend the scope of the existing direct payments scheme allowing individuals more choice and control over the services they receive.

Nursing care

Clause 48: Exclusion of nursing care from community care services

217. Currently, people in nursing homes may be required to contribute towards the cost of their nursing care. There are two categories of such people. The first are those who make their own arrangements for nursing home accommodation. the second are those for whom local authorities make arrangements (under Part II of the National Assistance Act 1948 ("the 1948 Act")) but who contribute under the means testing regime provided for by sections 22 and 26 of that Act. Those who receive nursing from the NHS, however, receive their nursing care free of charge.

218. Clause 48 removes local authorities' current powers to purchase nursing care by a registered nurse. This new arrangement is intended to strengthen the incentives for the NHS to ensure effective rehabilitation after acute illness of injury. It is estimated that around 35,000 people who are paying for their nursing care will receive free nursing care through the NHS.

219. Subsection (1) removes the right of a local authority to provide, arrange or purchase nursing care by a registered nurse. It is intended that the NHS in pursuance of its powers and duties under the 1977 Act will provide or arrange nursing care by a registered nurse and such care will (in accordance with the 1977 Act) be free of charge. The Department of Health is currently working with the Royal College of Nursing and other key stakeholders to develop a tool to be used across the country for assessing for nursing care. NHS staff will be trained in the use of this tool in time for the introduction of free nursing care.

220. Subsection (2) gives the definition of "nursing care by a registered nurse". This means services provided by a registered nurse and involving either the provision of care, or the planning, supervision or delegation of the provision of care, other than services which do not need to be provided by a registered nurse. In deciding whether services need to be provided by a registered nurse, it is necessary to have regard to the nature of those services and the circumstances in which they are provided. "Registered" in relation to nurses, midwives and health visitors means registered in the register maintained by the United Kingdom Central Council for Nursing, midwifery and health visiting by virtue of qualifications in nursing, Midwifery or health visiting (see schedule 1 to the Interpretation Act 1978).

 
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Prepared: 21 December 2000