House of Lords - Explanatory Note
Health And Social Care (Community Health And Standards) Bill - continued          House of Lords

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Clause 159: Regulations governing lump sums, periodical payments etc.

321.     As explained above in relation to clause 146, liability for payment of NHS charges is triggered by any payment of compensation, whether it is a single payment, an interim payment or a second or subsequent payment of compensation. Subsection (1) enables regulations to be made as to the application of the scheme to particular types of payments which are made in personal injury cases. These are:

  • multiple payments (subsection (1)(a)).

  • structured settlements (subsection (1)(b)). In such cases it is envisaged that regulations might allow for the settlement agreement to count as a single payment of compensation and for no further liability in respect of NHS costs to arise when payments are made in accordance with the agreement;

  • interim payments of damages which are ordered to be repaid by a court (subsection (1)(c)). In such cases, it is envisaged that regulations might provide for repayment to the compensator of any payment of NHS costs made as a result of the interim payment.

322.     Under subsection (2), regulations relating to multiple payments may give credit for amounts already paid or provide for the payment of balances or recovery of excesses. For example, regulations might allow the amount of NHS charges due in respect of a later payment to be reduced to take account of earlier payments; or if, as a result of a finding of contributory negligence, the final sum due was less than an earlier payment, they might provide for refund of the overpayment.

323.     Subsection (3) enables regulations to be made to deal with the particular situation of payments into court and the circumstances in which such payments - which are made to the court rather than to the injured person - are to count as compensation payments. It allows regulations to modify the scheme as it applies in such cases - for example by providing that the period within which a compensator must apply for a certificate under clause 147 runs from the date on which any payment is accepted rather than the date on which it is made or that the date of acceptance of the payment is to count as the settlement date for the purposes of clause 150.

Clause 160: Liability of insurers

324.     Clause 160 provides that where an insurance policy covers, to any extent, a compensation payment made by an insured person in consequence of an injury, that policy will also cover any NHS costs for which the insured person is liable in respect of that injury and that this cover cannot be restricted or excluded. Subsection (4) enables regulations to be made limiting an insurer's liability in circumstances set out in the regulations. It is envisaged that this might be appropriate, for example, to enable a reduction in the NHS costs payable in cases where an insurer has only covered a proportion of the total compensation due as a result of a cap on the amount payable under the insurance policy.

Clause 161: Power to apply Part 3 to treatment at non-health service hospitals

325.     Clause 161 enables regulations to be made extending the scheme for recovery of NHS costs to cases in which treatment has been provided at a non-health service hospital under an arrangement with one of the NHS bodies listed in subsection (3)(b) and in which an injured person has been provided with ambulance services to take him to such a hospital for treatment. This would cover, for example, treatment at private or voluntary hospitals paid for by the NHS. The regulations could cover such issues as the bodies who would receive any payments recovered under the extended scheme. Subsection (2) excludes from any such extension treatment which, had it taken place at an NHS hospital, would have been private treatment or treatment under arrangements for primary dental services or general or personal medical or dental services. This mirrors the exclusions from the main scheme set out in clause 146(7).

Clause 162: The Crown

326.     This clause provides that the scheme for recovery of NHS costs will extend to the Crown (i.e.: the Queen and Government Departments) except, as a result of the definition of compensation payment in clause 146(3)(a), in circumstances where the person concerned can have no legal liability. This applies, for example, to ex gratia payments made by or on behalf of the Queen in her personal capacity

PART 4 - DENTAL AND MEDICAL SERVICES

Clause 166: Provision of primary dental services

327.     Clause 166 inserts a new section 16CA into the 1977 Act. The new section 16CA directly confers on each PCT and LHB a duty to provide or secure the provision of primary dental services in its area to the extent it considers necessary to meet all reasonable requirements (16CA(1)). This new duty replaces the existing duty in section 35 of the 1977 Act (arrangements for general dental services) which requires a PCT to make arrangements with dental practitioners for the provision of dental services where a dental practitioner has agreed to provide dental treatment and appliances to a patient.

328.     Subsection (2) confers a power for PCTs and LHBs to provide dental services themselves. This is the power that will underpin what will be known in England as PCT Dental Services ('PCTDS'). This will enable a PCT/LHB to employ dentists.

329.     Subsection (3) place a duty on PCTs and LHBs to publish information about the services they commission or provide. This will assist patients in identifying providers of NHS dental care in the PCT's area and the range of services offered. The duty is in response to the recommendations in Options for Change for "improving the patient experience".

330.     Subsection (4) imposes a duty on PCTs and LHBs in Wales to co-operate with other PCTs and LHBs in making arrangements for primary dental services. In particular, PCTs will need to co-operate with LHBs where practices straddle the England and Wales border.

331.     Subsections (5) and (6) provide regulation making powers to define what should, or should not, be considered as primary dental services. This would allow for services in care homes, for example, to be provided not as primary dental services, but as a community health service under Part 1 of the 1977 Act.

Clause 167: Dental public health

332.     Clause 167 inserts a new section 16CB into the 1977 Act. Section 16CB gives power to confer on PCTs, LHBs and the Assembly dental public health functions. The existing duty for dental treatment and dental education in schools (section 5(1A) of the 1977 Act) will cease to have effect under subsection (2). Functions likely to be prescribed under section 16CB(1) include school screening as well as oral health promotion and local oral health surveys to help plan services. PCTs and LHBs may involve other agencies in discharging dental public health functions, such as independent contractors or dental practices. For example, a PCT or LHB might wish to involve a dental practice in providing an oral health promotion or smoking cessation programme.

Clause 168: General dental services contracts

333.     Clause 168 inserts six new sections 28K to 28P, into the 1977 Act.

334.     New section 28K(1) and (2) provide for a PCT or LHB to enter into a general dental services contract. A general dental services contract is a contract for primary dental services, but it may also include services which are not primary dental services, for example, specialised services such as orthodontics. The general dental service contract replaces the current statutory arrangements for the provision of general dental services as set out in the National Health Service (General Dental Services) Regulations 1992 (S.I. 1992/661). Subsection (3) of section 28K provides for PCTs and LHBs to negotiate the terms of a GDS contract with individual practices seeking to provide dental services under a GDS contract.

335.     Section 28L(1) provides regulation-making power for the Secretary of State or the Assembly to prescribe the services that must be provided under a general dental services contract. Subsection (2) would allow the services to be prescribed by reference to the manner or circumstances in which they are provided. So, for example, the regulations could provide for certain services to be provided on weekdays only between 9am and 6pm.

336.     Section 28M provides for the PCT or LHB to enter into a GDS contract either with a dental practitioner, dental corporation 13 or a group of individuals practising in partnership. Where the contract is to be with a partnership at least one member of the partnership must be a dental practitioner. Subsection (2)(b) of new section 28M provides that where any partner is not a dental practitioner, that person must be either a health care professional or individual who is engaged in the provision of services under the NHS Act. This will enable persons who are not dentists to be a party to a GDS contract. Subsection (1) of new section 28M provides that regulations may place conditions on the persons who may enter into GDS contracts. It is envisaged that these regulations will disqualify certain individuals, such as those convicted of a serious offence, from holding a contract.

    13 A dental corporation is a limited company permitted to carry on the business of dentistry under s40 of the Dentists Act 1984

337.     Section 28M(2)(b)(iv) will allow regulations to prescribe the period during which a person must have been providing primary dental services or primary medical services in order to fall within the list of potential contractors. The purpose of the provision is to cover the situation where a person was a provider of such services, but the GDS contract terminates before a new contract is agreed. The exercise of the power will allow such a person to enter into a new contract notwithstanding the fact that he is not currently a provider.

338.     Section 28M(3) will allow regulations to make provision about the effect on a GDS contract of a change of partnership. It is intended that in prescribed circumstances the GDS contract should not fall despite a change in the partnership such as when a partnership splits with a majority of the partners wishing to continue under the existing contract.

339.     New section 28N replaces the existing system of remuneration for dentists providing general dental services under section 35 of the 1977 Act. Currently, the rules setting out the remuneration for dentists are contained in the Statement of Dental Remuneration ('SDR'). The SDR is a determination made by the Secretary of State or the Assembly under regulation 19 of the National Health Service (General Dental Services) Regulations 1992 (which in turn are made under section 35 and 36 of the 1977 Act).

340.     Section 28N(1) will allow the Secretary of State or Assembly to give directions regarding payments to be made under the new contract. Where directions are made, the GDS contract must require that payments are made under the contract in accordance with the directions (subsection (2)). In this way, payments in respect of any particular matter under the contract can be set on a national basis. Directions may relate to payments to be made by a PCT to a GDS provider or by a GDS provider to a PCT. Where there are no applicable directions, the parties to the GDS contract are free to determine the remuneration to be paid under the contract.

341.     Subsection (3) sets out how the power to make directions may be exercised. It will enable directions to provide for payments to be determined by reference to the meeting of particular standards for example. Directions may also be made in respect of individual practitioners and so would enable, for example, payments to be made in respect of a dental practitioner's maternity.

342.     Subsection (4) of new section 28N recreates the existing requirement in section 43B of the 1977 Act for the Secretary of State or the Assembly to consult representative bodies on remuneration matters. Under the new multi-professional GDS contract this extends consultation rights to other groups whose members can become GDS providers, for example representatives of other groups of dental health care professionals whose remuneration might also be affected.

343.     Subsection (5) provides for directions to be made by regulations or by an instrument in writing and provides where directions are made by an instrument in writing for them to be revoked or varied. Where directions are made by regulations the Interpretation Act 1889 makes equivalent provision.

344.     Subsection (6) sets out some examples of what payments under this section include, namely fees, allowances, reimbursements, loans and repayments.

345.     New section 28O(1) provides for the Secretary of State to make regulations to determine terms which the contract must include or the contract must make provision about. Section 28O(2) gives examples of what the regulations under section 28O(1) may cover, such as, the circumstances as to the variation of contracts, details about rights of entry to, and inspection of, practice premises in connection with, for example health and safety legislation, and the dispute resolution procedure.

346.     New section 28P(1) and (2) provide for regulations concerning the resolution of pre-contractual disputes to be made. In particular, the regulations may provide for the Secretary of State or the Assembly or a person appointed by him or it to determine the terms on which any GDS contract may be entered into. Section 4(4) of the National Health Service and Community Care Act 1990 makes similar provision in relation to NHS contracts to be entered into by health service bodies 14.

    14 Section 4(1) of the 1990 Act defines an "NHS contract" and section 4(2) defines by way of a list "health service body".

347.     New section 28P(3) to (5) allows GDS contractors to be treated as health service bodies for contracting purposes. The effect is that the contract is treated as a health service contract under section 4 of the 1990 Act, and any disputes arising under the GDS contract once it has been entered into will be determined by the Secretary of State or his appointee. Subsection (5) provides for regulations to make payments relating to NHS contracts enforceable through the courts. No GDS contractor will be forced to health service body status (and therefore a NHS contract). If a contractor is not a health service body, then the contract is enforceable as an ordinary legal contract before the courts unless the contract itself sets out an alternative route for resolution of disputes.

348.     New section 28P(4) allows regulations under subsection (3) to make provision about the effect of a change in the partnership of a GDS contractor. The purpose would be to ensure that a change in the partnership should not affect the health service status of the contractor.

349.     Clause 167(2) provides for the repeal of sections 35 and 36 of the 1977 Act. As stated above the new GDS contract will replace the existing statutory arrangements for the provision of general dental services.

Clause 169: General dental services: transitional

350.     Subsection (1) requires the Secretary of State or the Assembly to make an Order in respect of dentists who are providing GDS under section 35 of the 1977 Act immediately prior to the coming into force of clause 168. An Order may require a PCT to enter into a new GDS contract with such a person. An Order may also require a PCT to enter into a contract for the provision of dental services. A contract under clause 169(3) may be appropriate where it has not been possible to enter into a GDS contract before the coming into force of clause 168. An Order may prescribe the circumstances in which a PCT or LHB must enter into a contract, the terms of the contract, remuneration and the resolution of any disputes.

Clause 170: Provision of Primary Medical Services

351.     Clause 170 inserts new section 16CC into the 1977 Act. The new section 16CC directly confers on each PCT and LHB a duty to provide or secure the provision of primary medical services within its area to the extent that it considers necessary to meet all reasonable requirements (new section 16CC (1)). This is modelled on the Secretary of State duty in section 3 of the 1977 Act. This new duty replaces the existing duty in section 29 of the 1977 Act (arrangements and regulations for general medical services) which requires a PCT to make arrangements with medical practitioners for the provision of general medical services for all persons in the area who wish to take advantage of the arrangements.

352.     Subsection (2) allows a PCT or LHB to provide primary medical services itself. This will enable the PCT/LHB to employ general practitioners. Alternatively they can make other arrangements as they see fit, for example, through contractual arrangements.

353.     Subsection (3) places a duty on PCTs and LHBs to publish information about the primary medical services they commission and/or provide. This will assist patients in identifying providers of NHS primary medical services in the PCT's or LHB's area and the range of services they offer.

354.     Subsection (4) imposes a duty on PCTs and LHBs to co-operate with other PCTs and LHBs and each other in making arrangements for primary medical services. In particular they will need to co-operate where practices straddle PCT and/or LHB boundaries, including practices that straddle the England/Wales border.

355.     Subsections (5) and (6) provide regulation powers to clarify what should, or should not, be considered as primary medical services for which PCTs and LHBs have the duty to secure provision. For example, this could be used, if necessary, to maintain a consistent national level of primary medical services that must be provided across all PCTs.

Clause 171: General Medical Services contracts

356.     Clause 171 inserts six new sections 28Q to 28V, into the 1977 Act providing for new GMS contracts that replace GMS arrangements under Part 2 of the 1977 Act.

357.     New section 28Q(1) and (2) give power for PCTs and LHBs to enter into GMS contracts. A GMS contract is a contract for primary medical services, but it may also include services which are not primary medical services, for example, enhanced services that are on the boundaries of primary and secondary care such as certain more specialised services in areas like drug and alcohol misuse, sexual health or depression (as set out in paragraph 2.15(iii) of the NHS Confederation/GPC agreement). The GMS contract replaces the current statutory arrangement for the provision of general medical services set out in the National Health Service (General Medical Services) Regulations 1992 (S.I. 1992/635). Subsection (3) of section 28Q provides for PCTs and LHBs to negotiate the terms of a GMS contract with individual practices seeking to provide medical services under a GMS contract.

358.     Section 28R provides regulation-making power for the Secretary of State or the Assembly to prescribe the services that must be provided under a GMS contract. These will include 'essential services' as set out in paragraph 2.8 of the NHS Confederation/GPC agreement as 'firstly the management of patients who are ill or believe themselves to be ill, with conditions from which recovery is generally expected, for the duration of that condition, including relevant health promotion advice and referral as appropriate, reflecting patient choice wherever practical. Secondly the general management of patients who are terminally ill and thirdly the management of chronic disease in a manner determined by the practice, in discussion with the patient'. Subsection (2) would allow the services to be prescribed by reference to the manner or circumstances in which they are provided. So, for example, the regulations could provide for certain services provided outside certain times (say, before 8 am and after 6:30 pm on weekdays) would not count as services to be provided under the contract. This means that GPs do not have to provide services 24 hours a day.

359.     Section 28S provides for the PCT or LHB to enter into a GMS contract either with a medical practitioner or a group of individuals practising in partnership, or a company where certain conditions are satisfied. Where the contract is with members of a partnership at least one member of the partnership must be a medical practitioner. Subsection (1) of new section 28S provides that regulations may place conditions on persons who may enter into GMS contracts. It is envisaged that these regulations will disqualify certain individuals, such as those convicted of a serious offence, from holding a contract. Subsections (1) and (3) provides that limited companies can hold a GMS contract subject to at least one share being legally and beneficially owned by a medical practitioner and any shares not so owned by medical practitioners are legally and beneficially owned by an individual who could otherwise enter into a GMS contract, for example a health care professional. Subsection (2)(b) of new section 28S provides that where any partner is not a medical practitioner that person must either be a health care professional as defined in section 28M who is engaged in the provision of NHS services, an NHS employee as defined in section 28D, a person employed by a provider of primary medical or primary dental services under section 28C or an individual who is (or within a prescribed period, was) providing services under a general medical contract, a general dental contract, under a PMS arrangement or under a PDS arrangement. This will enable persons who are not medical practitioners to be a party to a GMS contract.

360.     Subsection (4) of new section 28S allows for the Secretary of State or the Assembly to make regulations to make provision about the effect on a GMS contract of a change in the membership of the partnership. For example, such provision may allow a partnership to continue where over time partners come and go due to routine events such as a career change or retirement.

361.     Section 28T replaces the existing system of remuneration for medical practitioners providing general medical services under section 29 of the 1977 Act. Currently the rules setting out the remuneration for medical practitioners are contained in the "Statement of Fees and Allowances" (SFA). The SFA is determined by the Secretary of State or the Assembly under regulation 34 of the National Health Service (General Medical Services) Regulations 1992.

362.     Section 28T(1) will allow the Secretary of State or the Assembly to give directions regarding payments to be made under the new contract. Where directions are made, the GMS contract must require that payments are made under the contract in accordance with the directions (subsection (2)). In this way, payments in respect of any particular matter under the contract can be set on a national basis. Directions may relate to payments to be made by a PCT to a GMS provider or by a GMS provider to a PCT.

363.     Subsection (3) sets out how the power to make directions may be exercised. It will enable directions to provide for payments to be determined by reference, for example, to the meeting of standards. Directions may also be made in respect of individual practitioners and so would enable, for example, payments to be made that relate to the seniority of a medical practitioner.

364.     Subsection (4) of new section 28T recreates the existing requirement in section 43B of the 1977 Act for the Secretary of State or the Assembly to consult representative bodies on remuneration matters. The Secretary of State will continue to consult with the General Practitioners' Committee on these matters. However, given that other health care professionals will be able to become GMS providers, it may become necessary to separately discuss these matters with their representatives.

365.     Subsection (5) provides for directions to be made by regulation or by instruments in writing and provides that where directions are made by an instrument in writing for them to be revoked or varied. Where directions are made by regulation the Interpretation Act 1889 makes equivalent provision.

366.     Subsection (6) sets out some examples of what payments under this section include fees, allowances, reimbursements, loans and repayments.

367.     Section 28U (1) provides for the Secretary of State or the Assembly to make regulations to determine terms, which the contract must include, or what the contract must make provision about. Section 28U(2) gives examples of what the regulations under section 28U(1) may cover, such as the right of patients to choose the person from whom they are to receive services, the persons who perform services, the circumstances in which, and the manner in which, the contract may be terminated and the dispute resolution procedure.

368.     Subsection (3) provides for regulations to make provisions that set out the circumstances under which a contractor may or must accept a person as a patient for whom services are to be provided under the contract, the circumstances in which they can decline to accept such a person and how the contractor can terminate their responsibility for a patient.

369.      Subsections (4) and (5) provide for the regulations to set out the circumstances under which a PCT or LHB may impose a variation to a GMS contract and the circumstances under which any duty under the contract may be suspended or terminated. This will, for example, allow GMS contractors to seek to opt out of providing certain services, such as minor surgery, child health surveillance and contraceptive services (those services described as additional services in the NHS Confederation/GPC agreement), without having to terminate their contract.

370.     Subsection (6) of new section 28U provides that a GMS contract must require the contractor to comply with any directions given by the Secretary of State or the Assembly as to the drugs, medicines or other substances which may or may not be prescribed for patients being treated under the terms of the contract. This allows the new contractual provisions to replicate the existing controls on prescribing set out in paragraph 44 of Schedule 2, Schedule 10 and Schedule 11 of the National Health Service (General Medical Services) Regulations 1992.

371.      New Section 28V(1) provides for regulations concerning the resolution of pre-contract disputes. In particular, the regulations may provide for the Secretary of State or the Assembly or a person appointed by him or it to determine the terms on which any GMS contract may be entered into. Section 4(4) of the National Health Service and Community Care Act 1990 makes similar provision in relation to NHS contracts entered into by health service bodies.

372.     New section 28V(3) allows contractors to elect to be treated as a health service body for contracting purposes. The effect is that any contract is treated as a health service contract under section 4 of the 1990 Act, and any dispute arising under the GMS contract once it has been entered into will be determined by the Secretary of State or the Assembly or his or their appointee. Subsection (5) provides for regulations to make payments relating to NHS contracts enforceable through the courts. No GMS contractor will be forced to have health service body status (and therefore an NHS contract). If a contractor does not have the status of a health service body, then the contract is enforceable as an ordinary legal contract before the courts unless the contract itself sets out an alternative route for the resolution of disputes.

373.     Subsection (4) allows regulations under subsection (3) to make provision about the effect of a change in the partnership of a GMS contractor. The purpose would be, for example, to ensure that a routine change in the partnership should not affect the health service body status of the contractor.

374.     Clause 171(2) repeals the existing GMS provisions contained in sections 29 - 34A of the 1977 Act.

 
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Prepared: 14 July 2003