House of Lords - Explanatory Note
      
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Session 2002 - 03
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Health (Wales) Bill


 

These notes refer to the Health (Wales) Bill
as brought from the House of Commons on 9th January 2003 [HL Bill 17]

HEALTH (WALES) BILL

     


     EXPLANATORY NOTES

     INTRODUCTION

1.     These explanatory notes relate to the Health (Wales) Bill as brought from the House of Commons on 9th January 2003. This Bill was published in draft as the National Health Service (Wales) Bill on 17th May 2002. They have been prepared by the Wales Office in conjunction with the National Assembly for Wales in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3.     The Bill contains 10 clauses and 4 Schedules.

Clause 1

4.     In January 2001 the National Assembly for Wales published the document Improving Health in Wales, A Plan for the NHS with its Partners, in which was set out a ten-year plan for the NHS in Wales. Included in that plan was the intention to retain and reform Community Health Councils in Wales.

5.     Clause 1 and Schedule 1 cover the reform of Community Health Councils. They also allow the National Assembly for Wales to establish an Association of Welsh Community Health Councils, with responsibility for the performance of Community Health Councils.

Clauses 2 and 3

6.     In May 1998, the Welsh Office published the consultation document Better Health Better Wales, concerning new approaches to tackling the underlying causes of ill-health.

In October 1998, a Strategic Framework was published reflecting responses to the consultation document and setting out aims and priorities for improving health and reducing health inequalities. A number of changes were proposed including the establishment of a Wales Centre for Health ("WCH").

7.     The WCH will be an independent training, advisory and research body working with the Assembly, the public, voluntary and academic sectors. It is intended that the WCH will—

  • bring together information and evidence and provide advice on which policy makers (including the Assembly) can base decisions;

  • co-ordinate professional surveillance of health trends; and

  • undertake risk assessment of threats to health and well-being.

8.     Clauses 2 and 3 (and Schedule 2) establish the WCH as a body corporate and set out the statutory functions of the WCH. The Assembly is empowered to confer further related functions on the WCH at a later date.

Clauses 4 and 5

9.     In 1997/1998 a report on the review of the Nurses, Midwives and Health Visitors Act 1997 concluded the need for the modernisation of nursing regulatory bodies across the UK. The Nursing and Midwifery Order 2001 ("the NMC Order" - SI 2002 No.253), arising out of the Government's consideration of the Report, provided for the abolition of the Welsh National Board for Nursing, Midwifery and Health Visiting ("WNB") with effect from 31st March 2002, and established the UK-wide Nursing and Midwifery Council ("NMC"). That body is responsible for, amongst other things, keeping a register for each of the relevant professions and setting standards of education and training.

10.     In addition to the NMC Order, the Health Professions Order 2001 (SI 2002 No.254, made at the same time) set up the Health Professions Council ("HPC"), replacing the Council for Professions Supplementary to Medicine. The HPC sets standards of education and training necessary to achieve the standards of proficiency it sets and requirements for access to such education (Article 15(1)). The Education and Training Committee of the HPC must take steps to satisfy itself that those standards and requirements are met (Article 15(5)(b)). In performing that function the Committee may approve or arrange with others to approve courses, qualifications, provider institutions and tests of competence in English (Article 15(6)).

11.     Clause 4 of this Bill provides for the creation of Health Professions Wales ("HPW"), a body which could undertake quality assurance of pre-registration nurse, midwife and health visitor training on behalf of the NMC if requested, and quality assurance work on behalf of the HPC if requested. In addition, HPW will carry out such other functions as the Assembly may from time to time determine in relation to the continuing education, training and clinical experience of nurses, midwives, health visitors and other healthcare professions and support workers. Annex A is a list of the healthcare professions that the Assembly intends will be included within this remit.

12.     HPW will also, if the Assembly makes provision for this, be able to undertake functions which are presently being performed on a temporary basis by a unit within the Assembly, also known as HPW. These are functions that were formerly undertaken by the WNB. Examples are: maintaining a register of students in training, and new functions including functions in relation to healthcare support workers, for example establishing a Code of Conduct for such workers. The National Assembly for Wales will be able to make provision as to the constitution of HPW.

13.     Clause 5 allows the Assembly to provide by order for HPW to charge for any of its services, and also for the transfer of property, rights and liabilities, as well as staff, in connection with any transfer of functions to HPW. The Assembly will also be able to make payments to HPW, direct HPW as to the employment of staff and the application of money received, and provide by order for the proper accounting and auditing of HPW. The Assembly will also be able to abolish HPW and by order provide for the transfer of any staff, property, rights and liabilities of HPW.

Clauses 6 to 10

14.     Clauses 6 to 10 (with Schedules 3 and 4), deal with miscellaneous and supplementary issues relating, in particular, to consequential provisions, financial provision, amendments and repeals, orders and regulations, devolution, commencement of the Act's provisions, the extent of the Act and the short title.

COMMENTARY ON CLAUSES

Clause 1, Schedule 1: Community Health Councils in Wales

15.     Clause 1, subsection (1) inserts a new section (section 20A) into the National Health Service Act 1977. Section 20A(1) provides that Community Health Councils will be retained in Wales. Section 20A (2)(a) allows the National Assembly for Wales to change the name of Community Health Councils. Section 20A(2)(b), (3)(a) and (3)(b) together allow the Assembly to determine the number of Community Health Councils in Wales and their geographical boundaries. Section 20A(2)(b) allows for the abolition, alteration or establishment of a Community Health Council. Section 20A(3)(a) provides that every part of Wales must be included within the district of a Community Health Council and Section 20A(3)(b) that no part of a Community Health Council's district must be separated from the rest of it. Section 20A(4) introduces Schedule 7A which makes further provision in relation to Community Health Councils. Clause 1, subsection (2) adds a power to amend or repeal any provision made by or under an enactment, in consequence of the exercise of powers under the new section 20A and Schedule 7A.

16.     Clause 1, subsection (3) inserts a revised Schedule, Schedule 7A, into the National Health Service Act 1977.

17.     Schedule 7A sets out the functions of Community Health Councils and how they are to be run. Paragraphs (a) and (b) of paragraph 1 state that it is the duty of a Community Health Council to represent the interests of the public in the health service and to perform such other functions as might be conferred on it.

18.     Paragraphs (a)-(n) of paragraph 2 detail the areas in which the National Assembly for Wales may make provision by regulations.

19.     Paragraph (a) covers the membership of Community Health Councils. The current Schedule 7 to the National Health Service Act 1977 states that at least one half of the Community Health Council's membership should be drawn from local authorities, one third from voluntary organisations and the remainder in such a manner as may be prescribed (in effect, the remainder are appointed through open advertisement). This paragraph gives the National Assembly for Wales the power through regulations to make provision about the membership of Councils. Paragraphs (b) to (e) grant a power to the Assembly to make regulations concerning proceedings, staff, premises and expenses of Councils, their discharge of functions via committees, and the appointment of persons who are not members of a Council to such committees.

20.     Paragraph (f)-(j) of paragraph 2 largely replicate the existing Schedule 7 provisions with regard to consultation of Councils by NHS bodies, with the necessary changes to take account of the new NHS bodies which exist or will exist in England and Wales. Paragraph (f) allows the Assembly to make regulations to require Local Health Boards and other NHS bodies to consult Community Health Councils on matters relating to health services. Paragraphs (g) to (j) give the Assembly power to make provision about advice and reports by Councils on such matters, and about the making of comments on reports and advice by NHS bodies.

21.     Paragraph (k) of paragraph 2 allows the Assembly to make regulations concerning the provision of information to Councils by health service bodies, and paragraph (l) concerns the provision of information by Councils to other persons (including other Councils).

22.     Paragraph (m) allows the Assembly to make regulations concerning the provision of independent complaints advocacy services by Councils.

23.     Paragraph (n) allows the Assembly to make regulations concerning additional functions of Councils.

24.     Paragraph 3 gives the National Assembly for Wales power to make regulations requiring health service bodies and providers of family health services, (e.g. GPs, pharmacists, dentists and opticians) as well as others who own or control premises where such services are provided (e.g. nursing homes in which NHS care is provided), to allow authorised members of Community Health Councils to inspect premises owned or controlled by them. This applies to Health Authorities, Local Health Boards, Strategic Health Authorities, Primary Care Trusts, Local Authorities, NHS trusts, and providers of general and personal medical services under the relevant provisions of the National Health Service Act 1977. The requirement to allow access will be limited to the cases and circumstances set out in regulations and subject to any limitations or conditions specified in those regulations.

25.     Paragraph 4 allows the National Assembly for Wales, through regulations, to establish a statutory body to advise and assist Community Health Councils in Wales, following the abolition of the Association of Community Health Councils in England and Wales. The new body will have responsibility for setting standards for Community Health Councils in Wales and for their performance management.

26.     Paragraph 5 replicates existing Schedule 7 provisions applicable to members' expenses.

Clause 2 and Schedule 2: Wales Centre for Health

27.     Clause 2, subsection (1) establishes the Wales Centre for Health ("WCH") as a body corporate.

28.     Clause 2, subsection (2) empowers the National Assembly for Wales ("the Assembly") to appoint the members of the WCH and subsection (3) allows the Assembly to appoint one of the members as the Centre's chairman.

29.     Clause 2, subsection (4) allows the Assembly to make payments to the WCH on such conditions as the Assembly determines.

30.     Clause 2, subsection (5) introduces Schedule 2, which sets out further provisions in relation to the WCH. Schedule 2 deals with the status of the Centre, the exercise of functions by the Centre, the remuneration and allowances of members, the appointment and remuneration of the chief executive and other staff by the new body and other general matters. Paragraphs 4 to 9 of Schedule 2 concern directions which may be given by the Assembly in circumstances where there has been a serious failure by the Centre to perform any function (paragraph 6), and more generally in relation to staff and administrative matters (paragraph 4). Paragraph 10 details the areas in which the Assembly may make provision through regulations. The Schedule also contains provision about matters such as remuneration and allowances, the chief executive and other staff, powers, charging of fees, arrangements for assistance, accounts, audit and reporting.

Clause 3: Functions of the Centre

31.     Clause 3, subsection (1) sets out the statutory functions of the WCH. These include providing information to the public on matters related to the protection and improvement of health in Wales, and undertaking research and supporting training in such matters. Subsection (2) provides that the function of making information available to the public must be carried out with a view to ensuring that they are kept informed in respect of matters which the Centre considers might significantly affect their health.

32.     Clause 3, subsection (3) empowers the Assembly to make provision by regulations regarding the functions of the WCH, persons to whom advice and information are to be given by the WCH, and reports by the WCH.

33.     Clause 3, subsections (4), (5) and (6) empower the Assembly to transfer, by order, any (or all) functions of the WCH to itself. Any transfer order may make provision for the transfer of any staff, assets or liabilities of the Centre. Where a transfer order transfers all the Centre's functions to the Assembly, the order may abolish the Centre.

Clauses 4 and 5: Health Professions Wales

34.     Clause 4 gives the National Assembly for Wales the power to establish a body to carry out functions relating to health care professions and healthcare support workers. This includes entering into arrangements with the Health Professions Council and the Nursing and Midwifery Council for the exercise of their functions in Wales (subsection (4)), and performing functions of the Assembly (subsection (3)). Subsection (7) allows the Assembly to provide for the constitution of HPW, including making similar provision to that set out in Schedule 2 in respect of WCH.

35.     Clause 5, subsection (1) allows the Assembly to make provision for HPW to charge for any of its services. Under subsection (2), the Assembly may provide for the transfer of staff, assets and liabilities in consequence of the transfer of functions to HPW. Subsection (3) sets out the Assembly's power to make payments to HPW. Subsections (4) to (6) deal with the giving of directions by the Assembly to HPW.

36.     As the Assembly will provide funding for HPW, it is necessary to require that the body is accountable for the use of those public funds. Subsection (7) empowers the Assembly to make provision about the accounts and audit of HPW including making similar provision to that set out in Schedule 2 in respect of WCH.

37.     Subsection (8) allows the Assembly to abolish HPW by order, and subsections (9) and (10) allow it to transfer to itself any staff, property, rights and liabilities of HPW.

ESTIMATE OF PUBLIC SECTOR FINANCIAL EFFECTS AND PUBLIC SECTOR MANPOWER EFFECTS

CHCs

38.     The cost of the proposals will be borne from the funding provided to Community Health Councils in Wales.

WCH

39.     The Assembly has allocated a budget for the operation of the WCH (currently £0.6 million per annum) which will be made available. The WCH will also be able to generate income from the services it provides, for instance by charging bodies or groups for specific research, or other projects, which they voluntarily commission from WCH. There will be no charge to the general public or to persons who have not voluntarily commissioned WCH's services. The WCH is expected to deploy up to 20 whole time staff (or equivalents).

HPW

40.     The Welsh National Board was funded by the National Assembly for Wales. It has been agreed that this budget will be transferred to the new body with the addition of monies to support development initiatives. HPW will also be able to generate income from some elements of the services it provides, for instance provision of a careers information service for those who wish to use it, or for accrediting study centres for healthcare professionals in the private sector. There will be no general compulsory charge imposed on healthcare professionals or bodies who do not use these services.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT ("RIA")

41.     There are no direct regulatory costs arising from the Health (Wales) Bill. It provides for the National Assembly for Wales to make further provisions by subordinate legislation. The Assembly is required to include a regulatory appraisal of the likely costs and benefits of complying with proposed Assembly subordinate legislation before that subordinate legislation is laid before the Assembly. Of the measures within the Bill, it is considered that an RIA is only required for powers under Clause 1 of the Bill, relating to the reform and retention of CHCs.

42.     The cost of the proposals will be borne from funding provided to CHCs and the AWCHC by the National Assembly for Wales. However, there are no direct compliance costs other than those associated with CHC visits to bodies providing NHS services.

43.     Budgetary costs are estimated at £0.6 million per annum.

44.     A full copy of the Regulatory Impact Assessment that accompanies the Health (Wales) Bill and includes a more detailed analysis of the benefits of Clause 1 of the Bill is available on http://www.walesoffice.gov.uk

EUROPEAN CONVENTION ON HUMAN RIGHTS

45.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act).

46.     The Lord Evans of Temple Guiting has made the following statement—

         "In my view the provisions of the Health (Wales) Bill are compatible with the Convention rights."

COMMENCEMENT

47.     The provisions of the Act will be brought into effect on one or more dates appointed by the National Assembly for Wales, with the exception of clauses 8, 9 and 10 (provisions concerning orders and regulations, commencement, extent and short title) which will come into force on Royal Assent.

ANNEX A

Healthcare Professionals within the remit of Health Professions Wales

     It is intended that Health Professions Wales will exercise its functions in respect of the following healthcare professionals—

  • Arts Therapists e.g. Music, Drama, Art

  • Clinical Scientists e.g. Biochemists

  • Dieticians

  • Health Visitors

  • Medical Laboratory Scientific Officers (MLSOs)

  • Medical Physicists

  • Medical Physics Technicians (Medical Technical Officers: MTOs)

  • Midwives

  • Nurses

  • Occupational Therapists

  • Orthoptists

  • Paramedics

  • Physiological Measurement Technicians e.g. Cardiac Technicians

  • Physiotherapists

  • Podiatrists/Chiropodists

  • Prosthetists and Orthotists

  • Radiographers

  • Speech and Language Therapists

     Provisions within the Health (Wales) Bill provide the Assembly with powers, to be exercised by subordinate legislation, to extend the remit of HPW to include other professions or disciplines.

 
 
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Prepared: 10 January 2003