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

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Schedule 3: Local Pharmaceutical Services

221. Schedule 3 sets out the new Schedule 8A which is inserted into the 1977 Act by Clause 47. The Schedule makes provision for Health Authorities to make arrangements for Local Pharmaceutical Services schemes on a substantive (rather than a pilot basis).

222. Paragraph 1 makes provision for Local Pharmaceutical Services schemes, equivalent to those in Clause 35 for pilot schemes.

223. 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 37 for pilot schemes.

224. 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) - (k). Sub-paragraphs (f) and (g) provide for regulations to make arrangements similar to those provided for in respect of pilot schemes by Clause 40 (NHS Contracts). Sub-paragraphs (h) and(i) make provision equivalent to that in Clause 46. Sub-paragraph (k) 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 41 for pilot schemes. Chapter 2: Changes to existing arrangements

Clause 49: Dispensing of NHS Prescriptions and provision of pharmaceutical services

225. Subsection (1) of Clause 49 inserts a revised section 41 into the 1977 Act on the arrangements for pharmaceutical services.

226. 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).

227. 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.

228. 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 68, which deals with the related issue of extension of the right to prescribe such medicines.

229. 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.

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

231. Subsection (3) provides that the categories of persons under subsection (1)(d) whose prescriptions may be dispensed must be professionals regulated under statute. It includes provision to ensure that prescriptions written by health professionals regulated under Scottish and Northern Irish legislation can be dispensed in England and Wales. 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.

232. 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 50: Remote provision of pharmaceutical services

233. Section 41A of the 1977 Act concerns the provision of "additional pharmaceutical services" which are in addition to those required by section 41. Clause 50 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 50) 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.

234. 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.

235. Subsection (4) of Clause 50 adds new subsections (3A) and (3B) to section 42 of the 1977 Act.

236. New subsection (3B) allows regulations to be made requiring people providing remote services to be approved for that purpose. 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.

237. Subsection (5) (of Clause 50) 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.

238. 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 50) 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 51: Dispensing of NHS Prescriptions, Scotland

239. Clause 51 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. This clause was requested by the Scottish Executive and approved by the Scottish Parliament on 17th January 2001. Section 27(1)(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.

240. Subsection (3) limits the categories of person who may be prescribed in regulations under Section 27(1)(cc) to certain professionals regulated under statute. It includes provision to ensure that prescriptions written by health professionals regulated under legislation in Northern Ireland can be dispensed in Scotland. 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 3 CARE TRUSTS AND PARTNERSHIP ARRANGEMENTS

Clauses 52 - 54: Care Trusts

241. Clauses 52 - 54 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, an application can be made to the Secretary of State or National Assembly for Wales jointly by the NHS bodies and local authorities involved. Secondly, a Care Trust can be set up where the Secretary of State directs that partnership arrangements are to be entered in to in order to address inadequate performance of a local authority or an NHS body. These new powers of direction will also allow the Secretary of State or National Assembly for Wales to require other partnership arrangements to be adopted if they are likely to improve performance. Care Trusts are intended to 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 52: Care Trusts where voluntary arrangements

242. Clause 52 provides for the designation of a Care Trust following an application to the Secretary of State or the National Assembly for Wales by the partners in the proposed Care Trust.

243. Subsection (1) provides that the Secretary of State and the National Assembly for Wales 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 the Secretary of State or the National Assembly for Wales to be of the opinion that Care Trust status is likely to promote the effective exercise by the trust 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.

244. 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 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. This will enable the arrangements for the different NHS partners to be specified, and allow regulations to be made governing the formation of a Care Trust where more than one local authority or health body has an interest.

245. Subsection (3) enables the Secretary of State or the National Assembly for Wales to provide that a Care Trust may exercise health related local authority functions in relation to people for whom it does not exercise NHS functions. 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.

246. Subsection (4) enables the designation of a Care Trust to be revoked by the Secretary of State or National Assembly for Wales. This may be of the Secretary of State's or National Assembly for Wales's own motion (after consultation) or following an application by one or more of the parties. In the latter case the Secretary of State or National Assembly for Wales must revoke the designation at the earliest time considered appropriate having regard to the steps which need to be taken in connection with the revocation .

247. Subsection (5) allows the Secretary of State or the National Assembly 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.

248. Subsection (6) makes provisions which enable the Secretary of State or the National Assembly for Wales to dissolve existing PCTs or NHS trusts where they think it is appropriate to do so in connection with the designation of another body as a Care Trust. Subsection (7) provides a regulation making power enabling the Secretary of State and the National Assembly for Wales to make regulations dealing with matters which are consequential or supplementary to the formation of Care Trusts and revoking the designation of such trusts. Subsection (8) sets out particular circumstances for which such regulations may make provision. These include:

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

(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.

249. Subsection (9) explains that the designation of a PCT or a NHS trust as a Care Trust will not affect its functions, rights or liabilities as a PCT or NHS trust.

250. Subsection (10) provides that where an NHS body is to exercise social services functions as a Care Trust, it must act in accordance with directions and guidance from the Secretary of State or the National Assembly for Wales under certain powers relating to social services functions.

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

Clauses 53 and 54: Care Trusts where directed partnership arrangements and Further provisions about directions in connection with Care Trusts.

252. Clause 53 provides a power for the Secretary of State or National Assembly 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.

253. Subsection (1) provides the power for the Secretary of State or the National Assembly for Wales to direct local authorities and NHS bodies to enter into delegation arrangements or pooled fund arrangements. The details of the arrangements are to 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 any of 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 is of the opinion that a delegation or pooled fund arrangement would be likely to improve the delivery of the failing function.

254. 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 where this would be likely to contribute to the improvement of the failing function.

255. 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. As far as the NHS is concerned, the powers of direction relate to functions prescribed for the purposes of partnership arrangements under section 31 of the Health Act 1999 (see the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000, SI 2000/617).

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

257. Subsection (5) makes equivalent provision to clause 47(3). That is, it enables the Secretary of State to provide that a Care Trust may exercise health related local authority functions in relation to people for whom it does not exercise NHS functions.

258. Subsection (6) allows the Secretary of State or the National Assembly 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 it may continue as a purely voluntary arrangement between the local parties.

259. 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 (except clause 52(8)(a), which applies to voluntary applications).

260. Subsection (8) makes it clear that an improvement in the way in which a function is exercised includes improvement of services to individuals.

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

262. Clause 54 deals with further provisions relating to the Secretary of State's and the National Assembly for Wales' powers to direct partnership arrangements including those involving the formation of Care Trusts. Subsection (1) enables directions to be made dealing with matters which are required to be dealt with by virtue of regulations made under Section 31 of the Health Act 1999. The partnership arrangements authorised by the Health Act 1999 cover first, pooled fund arrangements, whereby NHS bodies and local authorities contribute to a communal pot so that the money is neither health nor local authority money and is used to purchase integrated services; secondly, arrangements whereby a local authority can delegate its health related functions to an NHS body; and thirdly, arrangements whereby an NHS body can delegate its functions to a local authority. Subsection (3) makes it possible for the Secretary of State and the National Assembly for Wales to issue directions to NHS bodies and local authorities in connection with the main direction.

263. Subsection (4) makes it possible for the Secretary of State or the National Assembly for Wales to make directions requiring bodies to take such steps as appropriate to enable a decision to be made about whether a direction under clause 53 should be made.

264. Subsections (5) and (6) make it clear that directions have to be given in writing, that they can be revoked by further directions and that they must be adhered to.

265. Subsections (7) and (8) provide that where a direction is revoked any arrangements required by the direction may continue.

Clause 55: Transfer of staff in connection with partnership arrangements

266. Clause 55 inserts Schedule 4 to the Bill into the Health Act 1999 (as a new Schedule 2A). The new Schedule makes provision for the transfer of staff where any functions of a body are to be exercised by another body under section 31 of the Health Act (including where Care Trusts are established under clauses 52 and 53.) The Schedule enables staff transfer orders to be made which make the same provision as the Transfer of Undertakings Regulations 1981 [S.I. 1981/1794] ("the TUPE Regulations"). This is necessary because there is some doubt as whether the TUPE Regulations apply to transfers of functions in the public sector. Cabinet Office guidance (see Staff Transfers in the Public Sector - Statement of Practice) says that "where TUPE does not apply in strict legal terms .. the principles of TUPE should be followed (where possible using legislation to effect the transfer) and the staff involved should be treated no less favourably than had the Regulations applied" (see paragraph 5). The guidance goes on to say that "there should be appropriate arrangements to protect occupational pensions, redundancy, and severance terms of staff in all these types of transfer" (see paragraph 5). Currently the TUPE regulations exclude pensions, although the Acquired Rights Directive (which the TUPE regulations implement) has just been amended to enable Member States to include pension provision. Orders under the new Schedule include the transfer of pension provision except in so far as the Order makes provision under paragraph 4 of the Schedule. This is so that the flexibility allowed by Member States to make provision about pension where the Acquired Rights Directive applies is also given to staff transfers in the public sector where that Directive may not apply.

PART 4 SOCIAL CARE

267. 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. In addition, it will give local authorities powers to place people in residential care homes and nursing homes outside England and Wales, and it will 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 56: Exclusion of nursing care from community care services

268. 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.

269. Clause 56 removes local authorities' functions to purchase nursing care by a registered nurse under community care legislation. 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.

270. Subsection (1) removes the right of a local authority to provide, or arrange 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 peoples' needs as regards nursing care. NHS staff will be trained in the use of this tool in time for the introduction of free nursing care.

271. Subsection (2) defines "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).

Preserved rights

Clause 57: Preserved rights: transfer to local authorities of responsibilities as to accommodation

272. Clauses 57 - 59 concern the abolition of preserved rights. Until 1993 when the community care reforms came into effect, residential care was paid for by the social security benefits that residents received. The community care reforms transferred the responsibility for paying for residential care to local authorities. However, people who were in residential care immediately before 1st April 1993, the day the reforms took effect, retained their right to the higher rate of income support that they had been receiving to pay for their care. Responsibility for paying for their care was not transferred to the local authority.

273. Over time residential care costs have increased at a disproportionate rate to social security benefits, and in some cases social security benefits are not sufficient to cover the cost of the residential care. This has meant that sometimes people have had to leave the care home they have been in and find alternative accommodation that is covered by the social security payment.

274. These clauses provide for the removal of the entitlement to higher rates of income support or jobseeker's allowance and require local authorities to make appropriate arrangements in the same way as they are required to do for those who entered residential accommodation on or after 1 April 1993. They will require the Secretary of State for Social Security to ensure that the special provision made for those with preserved rights ceases. At the request of the Scottish Executive and by the approval of the Scottish Parliament which was obtained (on 17th January 2001) clause 57 operates on devolved legislation concerning Scotland so that preserved rights can cease across the whole of Great Britain on the same day.

275. These new arrangements will require local authorities to assess (under the 1948 Act) the care needs of those who have had preserved rights rates of benefits for community care services.

276. Clause 57 sets out the provisions for the transfer to local authorities of the responsibility for providing community care services for preserved rights recipients. Subsection (1)(a) will allow local authorities in England or Wales to provide residential accommodation for persons who were in such accommodation on 31 March 1993 by repealing section 26A of the 1948 Act. The corresponding provision for Scotland is repealed by subsection (1)(b).

277. Subsection (2) provides that a "qualifying person" for the purposes of this clause is a person to whom either of those provisions applies immediately before the appointed day (ie the day on which subsection (1) takes effect).

278. Subsection (3) requires a local authority to secure community care services for qualifying persons in relation to their accommodation from, or as soon as possible after, the appointed day. Community care services are defined for England and Wales by section 46 of the National Health Services and Community Care Act 1990.

279. Subsection (4) places an obligation on local authorities to actively identify people with preserved rights and to carry out appropriate care assessments. Authorities will do this by working with the Department of Social Security, who will be given power to disclose relevant information by clause 58.

280. Subsection (5) provides that where a qualifying person is (under subsection (3)) provided with community care services with respect to his accommodation, his private arrangements with the residential home will terminate from the date from which he is provided with those community care services.

281. Subsection (6) provides that the local authority is liable to make any payment under a person's existing arrangements between the appointed day and the date when the person is provided with such services in respect of his accommodation or, where the person notifies the authority that he does not wish to be provided with community care services, the date of the notification. This is to ensure that where a local authority has not been able to assess a person's need for community care services before the appointed day, the person's liability to pay for his accommodation becomes the liability of the local authority until the local authority makes the arrangements they consider necessary. Subsection (7) enables the local authority to recover from the person all or part of such a payment. It is intended that the Secretary of State will make regulations so that the liability of persons to pay during this period mirrors the means testing system provided for under sections 22 and 26 of the 1948 Act.

282. Subsection (8) enables regulations to be made so that the provisions of clause 57 do not apply in relation to any person of a prescribed description.

283. Subsection (9) allows regulations to be made to define the meaning of "ordinarily resident". It also allows regulations to be made governing the payment which a person is to make in respect of his accommodation before community care services are provided.

 
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Prepared: 21 February 2001