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

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Clause 172: General medical services: transitional

375.     Subsection (1) requires the Secretary of State or the Assembly to make an Order in respect of medical practitioners who are providing GMS under section 29 of the 1977 Act immediately prior to the coming into force of clause 171. An Order may require a PCT to enter into a new GMS contract with such a person. An Order under clause 172(3) may also require a PCT to enter into a contract for the provision of medical services. A contract under subsection (3) may be appropriate where it has not been possible to enter into a GMS contract before the coming into force of clause 171 to ensure continuity of service. 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 173: Arrangements under section 28C of the NHS Act 1977

376.     Clause 173 amends the existing provisions in section 28D(1) which sets out who can enter into a primary medical services or personal dental services arrangements. The existing section 28D(1)(b) and (c) are replaced by new paragraphs (b) to (bc). These paragraphs include a number of changes to the categories of who may enter into PMS or PDS arrangements. For example, a dentist will be able to enter into a PMS contract and a medical practitioner may enter into a PDS contract. In such cases the services under these contracts will have to be performed by appropriately qualified individuals. NHS foundation trusts are added to the list of permitted providers; NHS trusts are already permitted to be providers.

377.     New regulation making powers in section 28D(1) provide that the Secretary of State or the Assembly may set conditions that providers of PMS or PDS must meet before they can enter into PMS or PDS arrangement. They are intended to ensure that the conditions that are to be prescribed in respect of GMS contractors under section 28S and GDS contractors under section 28M may be applied, where appropriate, to providers of PMS and PDS under section 28C arrangements.

378.     Subsection (5) provides a new definition of NHS employee, that will apply equally to PMS and PDS, to replace that in section 28D(2).

379.     Subsection (7) inserts in section 28E new subsections (3)(ca), (cb) and (cc).

380.     Subsection (3)(ca) provides that the Secretary of State or the Assembly may set out conditions that apply to persons performing primary dental or primary medical services under section 28C. For example, conditions may set out the qualifications and experience required of healthcare professionals performing PMS or PDS.

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

382.     Subsection (3)(cc) provides for regulations concerning the right of a patient of a PMS or PDS provider to exercise choice as to the person from whom they will receive their services.

383.     Subsection (8) provides that regulations may require payments under PMS or PDS arrangements to be made in accordance with any direction given by the Secretary of State or the Assembly. The PMS/PDS contract is locally negotiated and PCTs are free to agree the consequent level of financial reward. The amendment allows the Secretary of State or the Assembly to require certain payments to be provided for within the contractual terms, for example to ensure that maternity payments made to dentists under a PDS agreement are the same as those under a GDS contract or that seniority payments are made to PMS general practitioners in the same way as to a GMS practitioner.

384.     Subsection (9) introduces new section 28E(3C) which allows the Secretary of State or the Assembly to make regulations as to the circumstances under which a PCT or LHB must enter into a GMS or GDS contract with an existing provider of PMS or PDS when asked to do so. This replaces the existing regulation making powers in the section 28E (3)(g) and (7) of the 1977 Act that permit a PMS medical practitioner to have a preferential right of return to the PCT or LHB medical list. The preferential right of return provides an assurance to a GMS GP who removes themselves from the medical list to become a PMS medical practitioner that should they, in the future, wish to revert to providing services under GMS they will, in most cases, be able to do so as of right.

385.     Subsection (10) repeals Section 28F and section 28G of the 1977 Act. These sections relate to the choice of medical practitioner and choice of dental practitioner; matters now covered in the new GMS/GDS contracts and PMS/PDS arrangements. Section 28H is also repealed. Section 28H requires the Secretary of State to ensure that every person providing or performing PMS has the opportunity to participate in arrangements for vaccinations and immunisations. In future PMS arrangements might not be for the full range of primary medical services, for example a PCT might choose to enter into a PMS contract where an existing GMS practice has decided not to deliver certain services, such as vaccinations and immunisations or contraceptive services, as being the most appropriate way of ensuring that patients still have access to those services. Consequently section 28H is repealed, immunisation services will be a matter for both GMS contracts and PMS arrangements

Clause 174: Abolition of pilot schemes

386.     Clause 174 repeals the power in Part 1 of the National Health Service (Primary Care) Act 1997 concerning pilot schemes for the provision of personal medical and personal dental services in England and Wales.

387.     PMS and PDS will however continue under the arrangements (frequently referred to as PMS permanence) set out in sections 28C, 28D and 28E of the NHS Act 1977 (which are amended by clause 173). It is the intention that these clauses (as amended) will be commenced with effect from 1st April 2004 in respect of PMS schemes and 2005 for PDS. Amongst other things, this means that future decisions about individual PMS or PDS schemes will be made locally rather than nationally

388.     It is the intention to make transitional arrangements to ensure that existing PMS and PDS pilot agreements can continue once the "permanent" provisions have been commenced. There should therefore be little impact on existing PMS or PDS providers unless there are other reasons why the parties might seek to vary their agreements. However, it is likely that the changes being introduced in GMS and GDS may prompt PMS or PDS providers to seek changes to their agreements, for example in areas such as quality or out of hours provision.

Clause 175: Persons performing primary medical and dental services

389.     Clause 175(1) inserts new section 28W in the 1977 Act to allow regulations to provide that healthcare professionals (including medical and dental practitioners) may not perform primary or medical or dental services unless they are on an appropriate PCT/LHB list. It is intended to exercise this power in the first instance to create a list of medical practitioners and a list of dental practitioners.

390.     The new single medical list will replace the present medical list (section 29A of the 1977 Act), the medical supplementary list (section 43D of the 1977 Act) and services lists in PMS (sections 8ZA of the Primary Care Act and 28DA of the 1977 Act). Under the new arrangements a medical practitioner performing primary medical services need only be included in one appropriate PCT list - normally the one with whom he holds a contract.

391.     The new single dental list will replace the present dental list (section 36 of the 1977 Act), supplementary list (section 43D of the 1977 Act) and services lists in PDS (sections 8ZA of the Primary Care Act, and 28DA of the 1977 Act). Under the new arrangements a dentist who is performing primary dental services need only be on one PCT list - normally that of the PCT with whom he holds a contract.

392.     Subsection (4) provides for the regulations to make provision about eligibility for inclusion in a list, grounds for refusal for inclusion in a list and the procedure to be followed. It allows provision to be made corresponding to sections 49F to 49N of the 1977 Act, thereby providing for suspension and removal from the PCT/LHB's list and appeals to the Family Health Service Appeals Authority. Further, subsection (4)(e) allows for the regulations to make provision about requirements that a person who is included in a list must comply with if their name is to remain in the list. Subsection (4)(g) allows for regulations to make provision about the circumstances in which a person included in a list may not withdraw from it. Subsection (7) makes clear that information about applications, refusals, suspensions or removals may be shared with the NHS authorities which need the information.

393.     Section 49M(7) of the NHS Act enables regulations to be made about payments to practitioners who have been removed from lists by primary care organisations, whose appeals to the appeals body (the Family Health Services Appeals Authority) have been unsuccessful, but have been successful on further appeal to the Courts. Subsection (2) of clause 175 provides that the regulations may also include provision for the amount of any payment or the method of calculating the amount to be determined by the Secretary of State or someone appointed by the Secretary of State.

Clause 176: Assistance and support

394.     Clause 176 inserts a new section 28X in the 1977 Act. This new section gives PCTs and LHBs a power to assist and support providers and prospective providers of primary dental services and primary medical services who do so through GDS, PDS, GMS or PMS arrangements. Support and assistance includes financial support and the provision of premises on such terms as the PCT or LHB thinks fit.

395.     For dentistry, this will enable PCTs or LHBs, for example, to increase primary dental services capacity by giving financial assistance to establish or extend dental practice premises. In respect of medical services the PCT/LHB might employ a practice manager who would then work, for example, for two small practices who might not otherwise be able to avail themselves of such services. Equally the PCT/LHB might employ a general practitioner to support a practice temporarily to avoid the practice opting out of certain service provision. A PCT/LHB will be able to charge for the support given. It is expected that a charge would be made where PCT/LHB staff provide clerical functions for the practice or where a PCT/LHB dentist or general practitioner covered a vacancy within a practice. This is because in both these examples the practice will have received funding for those staff through the practice contract. It is not expected that a charge will be made where an additional dentist or general practitioner is provided on a temporary basis to help out in a crisis that might otherwise lead to a contract variation.

Clause 177: Abolition of Dental Practice Board

396.     The DPB for England and Wales is responsible for the payment of remuneration of general dental practitioners who provide general dental services under section 35 of the 1977 Act or personal dental services under a pilot scheme. Secondly, the DPB approves some higher cost proposed treatments and the fees in relation to certain general dental services and personal dental services, not specifically provided for in the Statement of Dental Remuneration, and their associated patient charges under the NHS (Dental Charges) Regulations 1989. Thirdly, it has recently been directed under section 122A of the 1977 Act to recover charges and other payments.

397.     The current structure of the DPB is inflexible in that the DPB is prevented from taking on additional NHS functions that do not relate to general dental services. In addition, the DPB is currently restricted in that the Chair and the majority of its Board members must be dental practitioners.

398.     Clause 175 provides for the abolition of the DPB. A Special Health Authority is to be established under section 11 of the 1977 Act by the Secretary of State and the Assembly. The new Special Health Authority will be a cross border Special Health Authority undertaking functions in relation to both England and Wales. The assets, liabilities and staff (subject to consultation) of the DPB will be transferred under section 11 powers to the new Special Health Authority. Until the new arrangements for contracting for GDS are brought into force, the new Special Health Authority will carry out the existing functions of the DPB. Thereafter the new Special Health Authority will undertake monitoring and quality assurance functions in relation to the new primary dental service regime.

Clause 178: Special Health Authorities

399.     Subsection (1) amends section 16B of the 1977 Act in relation to the exercise of functions by PCTs. An Order may provide for the transfer to a Special Health Authority of the rights and liabilities of a PCT under a GDS contract where the Special Health Authority is to exercise functions on its behalf, and for transfer back should that function cease. Subsection (2) make similar provisions in relation to LHBs in Wales.

Clause 179: Charges for dental services

400.     Under current law (section 79A of the 1977 Act), the charge to be paid by a patient for dental treatment under general dental services is based on the remuneration paid to the dentist. In particular, the existing regulations provide for the charge to be calculated on an item of service basis. The existing system may act as an incentive for the dental practitioner to maximise the items of treatment provided to a patient to maintain income.

401.     Clause 179 inserts a new section 79 and a new schedule 12ZA to the 1977 Act replacing sections 78A, 79 and 79A which, as mentioned above, link the calculation of dental charges to the remuneration of a dental practitioner and set out the authority for the dental charging regime.

402.     Subsection (1) of new section 79 provides for regulations to prescribe the way in which patient charges can be made and recovered for dental services. Subsection (2) provides that regulations made under subsection (1) may for example, set a maximum charge and exempt certain treatments from a charge. It is intended that dental charges will continue to bear relation to the level of service provided such as per course of treatment or per visit. Subsection (5) ensures that charges apply to all primary dental services whether provided under a GDS contract, PDS or by the PCT/LHB, and to dental appliances under other Part 1 services. Subsection (3) enables regulations made under subsection (1) to provide for the amount that PCTs, LHBs or Special Health Authorities recompense dental clinics or practices to be reduced by the amount that has been collected in patient charges by that clinic or practice.

403.     Schedule 12ZA maintains the same exemptions from dental charges as under the current provisions set out in section 79 and Schedule 12 of the 1977 Act. Paragraphs 1, 2, 4 and 6 set out the circumstances in which dental charges will not apply. Paragraph 2 makes it clear that, normally, charges will not apply to the replacement or repair of appliances. Paragraph 3 provides that charges will, however, apply to the repair or replacement either of prescribed appliances, or of appliances which need to be repaired or replaced because of something that person supplied with the appliance has done (or where that person is under 16, something that their parent or guardian has done). Dental appliances will remain free of charge when provided by a hospital for its in-patients (paragraph 4). However, if dental appliances are provided for a hospital in-patient under GDS or PDS contracts or by a PCT as part of Primary Care Trust Dental Services, then the normal charges will apply (paragraph 5).

404.     Paragraph 7 enables regulations to prescribe the evidence that must be provided when a patient claims an exemption from charge. For example, a patient may be required to provide a birth certificate or FP92 Maternity Exemption Certificate issued through the Prescription Pricing Authority in England.

Clause 180: Minor and consequential amendments

405.      This clause introduces Schedule 11, which provides for minor and consequential amendments. Paragraph 22 inserts sections 45Aand 45Binto the 1977 Act. These sections cover the recognition of Local Medical Committees (LMCs) and Local Dental Committees (LDCs). Sections 45A(7) to (9) and 45B(7) to (9) allow the Secretary of State to make regulations that require PCTs/LHBs or Strategic Health Authorities to consult LMCs and LDCs and to prescribe other functions of these Committees. Sections 45A and 45B separate out the roles of these committees from the existing provisions in sections 44 and 45 of the 1977 Act and the new regulation making powers simply replace those in section 45(1) in respect of LMCs and LDCs.

406.     Paragraph 25 makes a number of amendments to section 54 of the 1977 Act in relation to the sale of goodwill in medical practices. Both the NHS Confederation and the GPC agreement agree that the existing ban on the sale of goodwill needs to continue (NHS Confederation/GPC agreement paragraph 7.21), and we will discuss the details of the regulations under this paragraph with the GPC and the Confederation.

PART 5 - MISCELLANEOUS.

Clause 181: Replacement of the Welfare Food Schemes

407.     The Welfare Food Scheme was established in 1940 to protect the health of mothers and children at a time of food shortages and price rises. The scheme currently provides tokens for milk (in both liquid and dried form) and vitamins to expectant mothers and children up to the age of 5. It also provides non means-tested milk to children up to age 5 in nurseries and day care and to a very few disabled children.

408.     The consultation document, 'Healthy Start: proposals for reform of the Welfare Food Scheme' 15, outlined the government's intention to set up a new scheme or schemes in 2004 with the aims of ensuring that children in low income families have access to a healthy diet and giving increased support for breastfeeding.

    15 For copies - postal address: PO Box 777, London SE1 6XH. Website address: www.doh.gov.uk/healthystart

409.     Clause 181 replaces section 13 of the Social Security Act 1988, which provided powers for a scheme or a number of schemes to be set up to distribute welfare food. The new section 13 provides powers for regulations to be made setting up a new scheme or schemes, better linked with health services, to help certain pregnant women, mothers and children to have access to and incorporate into their diets, food of a prescribed description.

410.     It is intended that the nutritional basis of the current scheme will be extended under the first new scheme to include a broader range of foods in addition to milk such as fruit, vegetables, cereal-based foods and other foods suitable for weaning. The aim is to use a voucher bearing a fixed value to enable beneficiaries to access these foods. It is also intended that the new scheme should be integrated with the NHS and health policies so that beneficiaries can receive appropriate advice on nutrition to accompany the prescribed food benefit.

411.     Subsection (1) supplies powers for regulations to establish one or more schemes to provide benefits for specified categories of pregnant women, mothers and children to have access to food of a prescribed description. It is intended that the new scheme, like the existing scheme, will continue to be targeted primarily at low income families in receipt of specified benefits such as Income Support, Income Based JobSeekers' Allowance and Tax Credits, and that the nursery element of the scheme will remain non means-tested.

412.     Subsection (2) obliges the Secretary of State to consult the Assembly and Scottish Ministers on the establishment or variation of a scheme. The scheme in Northern Ireland is governed by separate legislation.

413.     Subsection (3) introduces a new provision that enables requirements to be set in order that pregnant women, mothers and children can receive benefits under the scheme. Subsection (4) details some of the possible requirements that may be set, including that a beneficiary be registered to participate in the scheme, that she attend a hospital, clinic or doctor's surgery, or receive nutritional or dietary advice.

414.     The 'Healthy Start' consultation document set out a framework for registration, which included potential re-registration after the birth of a child to ensure that contact with the health service would be maximised. Such new requirements were intended to ensure that health service contact was an integral part of the scheme and that the beneficiary (or person with parental responsibility for the beneficiary) could receive advice on nutrition and matters relating to child and maternal health direct from a health professional. Provisions under subsection (4)(e) also would enable lay health workers, such as breastfeeding peer supporters, to assist in the delivery of appropriate nutrition and health advice.

415.     The current section 13 of the 1988 Act enables regulations to provide for the distribution or disposal of welfare food. Subsection (5)(a) of the new section 13 specifies on the face of the Bill the categories of providers who may supply food under the scheme. This could include food suppliers, providers of day care, and health service bodies. It is intended that retailers will supply the majority of foods in exchange for the voucher as they do presently with the current milk token and that nursery or day care institutions will provide the non-means-tested element of the scheme. Other suppliers, such as food co-operatives or voluntary and community organisations will also be encouraged to participate. As set out in the consultation document, 'Healthy Start', the government intends to shift the supply of dried milk (infant formula) to retail outlets and to end distribution via NHS clinics in order to remove a potential barrier to the promotion of breastfeeding.

416.     Subsection (5)(b) makes provision to enable beneficiaries to gain access to the prescribed food benefit by means of a voucher or other arrangement. The current scheme is based primarily upon the use of tokens that are exchangeable for specified quantities of liquid or formula milk. As it is the policy intention to provide a wider range of foods under a new scheme or schemes, different mechanisms for enabling access to the foods may be required. These may include, for example, a system based on vouchers of a fixed value which will enable parents to obtain food of a prescribed description from a wide variety of retailers.

417.     Paragraphs (d) and (e) of subsection (5) provide powers for the recompense of registered providers and the payment of beneficiaries, for example, those who fail to receive the benefit for whatever reason. These provisions, amongst other things, replace respectively subsections (4)(c) and (3)(b) of the current section 13.

418.     Paragraphs (f) and (g) of subsection (5) give the Secretary of State the power to delegate the operation of all or part of a scheme to health service or other bodies that are specified in regulations. The Department of Health, for example, may wish to contract-out elements of the scheme which relate to the distribution of vouchers to beneficiaries and reimbursement of suppliers.

419.     Subsections (5)(h) and (6) largely replace and update subsections (4)(d) and (5) of the current section 13 and provide for prescribed persons to be required to supply information to assist in the administration of the scheme. For instance, suppliers may be required to provide information to verify that vouchers have been properly exchanged in accordance with the provisions of the scheme. Subsection (6) provides for a requirement that information be provided in legible form. Such a provision could, for example, ensure that computerised records are made available in printed form.

420.     Subsection (7) provides new powers for the Assembly to prescribe the range of foods to be available under the scheme in relation to beneficiaries in Wales and to prescribe descriptions of the advice that is provided to them. Although the existing scheme is primarily based upon social security benefits, and is therefore reserved, it is recognised that the potential range of foods and nutritional advice are issues that link closely to the devolved health policies of the Assembly. These powers have therefore been transferred to the Assembly, with agreement that the scheme will be uniform across Great Britain at the outset.

421.      It has been agreed that powers to prescribe the range of foods and descriptions of advice will also be transferred to Scottish Ministers by means of an order under section 63 of the Scotland Act 1998 after the Bill receives Royal Assent.

422.      Subsection (8) provides the power for the Secretary of State to direct a body, such as a health body or contracted service provider, in relation to the operation of the scheme. Subsection (9) provides a power for the Assembly to direct bodies administering the scheme in relation to matters relating to the operation of the scheme (or that part of the scheme) in Wales. The subsection also requires the Assembly to gain the agreement of the Secretary of State to ensure that any proposed changes will not adversely affect the operation of the scheme throughout GB, beyond the boundaries of devolved responsibilities. It is intended that this power will also be transferred to Scottish Ministers by section 63 Order after Royal Assent.

423.     Subsection (10) replaces and updates the current power in section 13(4)(e) of the 1988 Act relating to the prosecution of some offences.

424.     Subsection (11) contains, among other definitions, a definition of "enactment" which takes account of changes made by the Scotland Act 1988 to the Interpretation Act 1978. It also contains a definition of "women" that includes persons under the age of 18.

425.     The amendment in subsection (2) of the clause to section 15A of the 1988 Act ensures that the Assembly's procedures regarding subordinate legislation are reflected in the primary legislation.

 
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Prepared: 14 July 2003