Select Committee on Delegated Powers and Deregulation Seventh Report



PART II - THE NATIONAL HEALTH SERVICE: SCOTLAND

CLAUSE 36: FUNDHOLDING PRACTICES

148.  This clause parallels clause 1, and serves to repeal the provisions in the National Health Service (Scotland) Act 1978 (the "1978 Act") about general practice fundholding. As in England, transitional arrangements will be made under clause 49, for the same purposes.

CLAUSE 37: NHS TRUSTS ESTABLISHMENT ORDERS

149.  This clause amends Section 12A of the 1978 Act and makes a number of consequential amendments, primarily to change the definition of NHS Trusts' purpose from owning and managing hospitals and other facilities to providing goods and services for the National Health Service - a purpose which more fully reflects the range of activities they are expected to perform and in particular the range of functions that the new Primary Care NHS Trusts are to carry out.

150.  No new delegated powers are introduced by virtue of this clause. However, various order-making powers are amended to reflect the change. Clause 37(1)(b) replaces sub-section 12A(4) of the 1978 Act to reflect the change in the already existent order making power under Section 12A(1). Clause 37(3) provides that orders already made under Section 12A(1) of 1978 Act are to be treated as if the amendment to that Section had always been in force. Clause 37(5) provides that any order made under clause 49 may have retrospective effect. These provisions mirror those made for England and Wales in clause 8.

CLAUSE 38: DIRECTIONS AS TO DELEGATION OF FUNCTIONS

151.  Clause 38 empowers the Secretary of State by means of a direction to enable Primary Care NHS Trusts in Scotland to take over responsibility for "Part II" functions from Health Boards. Part II functions are broadly those relating to the family health services, which under the 1978 Act are the responsibility of Health Boards. In most cases, the relevant Part II functions will be transferred from a Health Board to the single Primary Care NHS Trust established to provide services in that Health Board's area. But the island Health Boards (Orkney, Shetland and Western Isles) do not have any Primary Care NHS Trusts operating in their areas and will therefore retain the functions; and in 2 Health Board areas - Lothian and Argyll and Clyde - there will be 2 Primary Care NHS Trusts providing services. The direction making power therefore provides the necessary flexibility to deal with these different circumstances.

CLAUSE 39: CONSTITUTION OF NHS TRUST BOARDS

152.  This clause contains no delegated powers.

CLAUSE 40: DUTIES OF NHS TRUSTS

153.  Under the 1978 Act, the Secretary of State has a broad power to direct Health Boards and the Common Services Agency. Clause 40 extends the existing limited powers that he has to direct NHS Trusts so that it is similarly broad to that in respect of Health Boards. This will ensure proper statutory accountability of NHS Trusts within the National Health Service. The parallel power in England and Wales will be provided under clause 7(2)(d).

CLAUSE 41: DUTY OF QUALITY

154.  Clause 41 contains no delegated powers.

CLAUSE 42: EXPENDITURE OF HEALTH BOARDS AND OTHER BODIES

155.  This clause replaces Section 85 of the 1978 Act with new Sections 85AA and 85 designed to enable Health Boards' funding for hospital and community health services (HCHS) (also known as "Part I" services) and some family health services (FHS or Part II) to be provided in a single stream. At present Part I and Part II funding is delivered in separate funding streams.

156.  New subsection 85AA(4) describes the expenditure which will comprise the single funding stream. Paragraph (b), (c) and (d) refer to Part II expenditure and services being "designated". Section 85AA(5) explains that "designated" means designated in writing by the Secretary of State. The designation procedure is required because of the detailed nature of the arrangements which will need to be made for this purpose. New subsections 85AA(8) and 85(3) re-enact the specific direction making power in the current Section 85(2A) of the 1978 Act, except that the former new subsection extends it to cover designated Part II expenditure in consequence of the other provisions in Section 85AA.

CLAUSE 43: PUBLIC DIVIDEND CAPITAL

CLAUSE 44: EXISTING NHS TRUSTS: CONVERSION OF INITIAL LOAN

157.  These clauses creates no new delegated powers.

CLAUSE 45: BORROWING

158.  This Clause is the Scottish equivalent of clause 12. As in that clause, subclause (2) makes the ability of NHS Trusts to borrow subject to the Secretary of State's power of direction. The power of direction avoids the need to place detailed administrative provisions on the face of the Bill (which may be different for different NHS trusts) and provides the flexibility for the provisions to be changed to reflect changing financial circumstances.

CLAUSE 46: DISQUALIFICATION OF PART II PRACTITIONERS

159.  Clause 46 makes provision comparable in Scotland to clause 33.


 
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