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

back to previous text

Clause 182: Replacement of the Welfare Food Schemes: Northern Ireland

426.     Clause 182 will enable Northern Ireland to replicate the provisions in clause 181 of the Bill by way of Order in Council subject to negative resolution procedure. This will ensure that women and children in Northern Ireland have the same access to the reformed welfare food scheme as women and children in England, Scotland and Wales. Currently women and children in Northern Ireland, under the separate Northern Ireland Welfare Food Scheme, have access to the same benefits as those in the rest of the UK. This has been the position since the Scheme's inception in 1940 and we would wish to maintain this position.

427.     During suspension of the Northern Ireland Assembly, Northern Ireland legislation may be made by Order in Council under the Northern Ireland Act 2000. Such Orders are normally subject to the affirmative resolution procedure. However, if there is a requirement for immediate parity in legislative provisions between Northern Ireland and Great Britain the Northern Ireland Act 2000 provides for Orders to be made subject to the negative resolution procedure. This is permitted only if the provisions of the Order will correspond in their purpose to the relevant provisions of the GB Act.

Clause 183: Appointments to certain health and social care bodies

428.     Clause 183 makes provision in respect of appointments to certain health and social care bodies. The Secretary of State currently has the power, under section 16D of the 1977 Act, to direct a Special Health Authority to undertake any of his functions relating to the health service that he specifies in directions. Pursuant to this power, the Secretary of State currently directs the National Health Service Appointments Commission (the 'NHSAC'), a Special Health Authority established under section 11 of the 1977 Act, to exercise his powers of appointment in relation to many bodies that have functions within the health service.

429.     The power to direct the NHSAC to undertake a function of the Secretary of State of making appointments is currently limited to bodies whose functions fall within the meaning of the 'health service' in the 1977 Act. Because of this limitation, specific provision was made in the 2002 Act for the Secretary of State to direct a Special Health Authority to exercise his function of appointing members to certain bodies, including, for example, the Council for the Regulation of Health Care Professionals.

430.     Subsections (1), (2) and (3) enable the Secretary of State to direct a Special Health Authority to exercise the function of appointing persons to any body (whether or not established in legislation) that has functions relating to health, social care, or the regulation of professions associated with health or social care. The Government's intention is for this role to be delegated to the NHSAC.

431.     Subsections (4) and (5) make provision for the extent of the relevant provisions of the 1977 Act where the Secretary of State delegates an appointments function to the Special Health Authority in respect of appointments to a body that has functions in the United Kingdom.

432.     Subsection (6) provides for what is meant by 'appointments function', and subsection (7) provides that if a body has other functions falling outside those specified in subsection (1), this does not prevent the Secretary of State from delegating the appointments function to the Special Health Authority.

433.     Subsection (8) introduces Schedule 12 which amends the Pharmacy Act 1954, the Medical Act 1983, the Dentists Act 1984, the Opticians Act 1989, the Osteopaths Act 1993, the Chiropractors Act 1994, the Nursing and Midwifery Order 2001 and the Health Professions Order 2001. The effect of these amendments is to allow the Privy Council to direct a Special Health Authority to undertake its function of appointing members to the regulatory bodies established by those enactments, together with any function that the Privy Council has in removing members. The Privy Council may, in particular cases, decide instead to delegate only certain parts of these functions, retaining the rest itself. The Privy Council may only so direct a Special Health Authority if the Secretary of State has exercised his power of direction under the section.

434.     In respect of the Medical Act 1983 and the Dentists Act 1984, further provision is made for the appointments functions currently made by Her Majesty, on the advice of Her Privy Council, to be conferred on the Privy Council: this is consistent with provision made in the Pharmacy Act 1954, the Opticians Act 1989, the Osteopaths Act 1993, the Chiropractors Act 1994, the Nursing and Midwifery Order 2001 and the Health Professions Order 2001.

Clause 184: Appointments to certain health and social care bodies: joint functions

435.     Where there is a requirement for a Minister of the Crown to make appointments to certain health and social care bodies jointly or concurrently with another person, for example with the Northern Ireland Ministers or the Assembly, subsections (1) and (2) together provide that the Secretary of State may in these circumstances direct a Special Health Authority to undertake the appointments function, but only if he first consults the other person. Subsection (3) provides that if a direction is given in respect of an appointments function that has to be exercised jointly or concurrently, that function is exercisable by the Special Health Authority acting alone.

436.     Subsection (4) provides that subsections (2) and (3) do not apply to any appointments to be made jointly or concurrently with the Scottish Ministers: the Secretary of State may, in these circumstances, only give a direction to the Special Health Authority in relation to any function he has. Subsection (5) provides that "appointments function" has the same meaning as in clause 183.

Clause 185: Validity of clearance for employment in certain NHS posts

437.     Section 7 of the Protection of Children Act 1999 requires that before a person can be appointed to a child-care position, a check must be made against the Protection of Children Act List. The List is maintained by the Secretary of State and checks against it are made through the Criminal Records Bureau which will charge £12 for a criminal record check, which will include a check against the POCA List wherever appropriate.

438.     The Act provides for an easement to this rule in cases where the person was supplied by an employment agency or business. In such cases, it is sufficient for the employer to satisfy himself that the List has been checked within the last 12 months by the employment agency or business. This provision was included to avoid the need for checks against the List for the same person to be repeated at very frequent intervals. Normally, once a check has been made on appointment to a child-care position, there is no requirement for it to be repeated while the person remains in that child-care position.

439.     In the majority of cases, the persons supplied for temporary work by agencies are also employed permanently in the NHS - often in the same Trust where they do the agency work. Increasingly, temporary workers will be supplied by NHS Professionals, the NHS's own "in-house" agency, which is set to become the main provider of temporary staff of all kinds in the NHS. In circumstances where a person is supplied by an agency (which may include NHS Professionals) and has substantive employment with the NHS and has previously been checked against the List, it is felt that an annual check, while being a costly overhead on the operations of NHS Professionals and other agencies, will add nothing to the safety of children.

440.     Thus subsection (1) of clause 185 inserts new subsections (3A), (3B) and (3C) into section 7 of the Protection of Children Act 1999 which have the effect of disapplying the requirement to check against the Protection of Children Act List where a person is offered employment in a child care position and certain conditions are met. These conditions are that at the time the offer of employment is made, the person concerned is already employed by an NHS body (as defined) and that NHS body (or another NHS body) has ascertained that he is not on the List. In addition, he must not have been placed on the list subsequently and, if he accepts the offer of employment, he must not be placed on the List for the duration of the employment to which the offer relates.

441.     Part VII of the CSA 2000 provides for the Secretary of State to maintain a List of persons who are considered unsuitable to work with vulnerable adults (the POVA List). Once the POVA List is introduced, before a person can be appointed to a position caring for vulnerable adults, a check will need to be made against the POVA List. Checks against this POVA List will again be carried out through the mechanism of the CRB. The POVA List will (when it is introduced) work in a very similar way to the Protection of Children Act List referred to above. For this reason, the amendments made by subsection (2) to section 89 of the CSA 2000 mirror those made to the Protection of Children Act 1999.

442.     Subsection (3) is a transitory provision and is needed because the amendments made to the Protection of Children Act 1999 by paragraph 121 of schedule 21 to the Education Act 2002 are not yet in force.

Clause 186: Abolition of the Public Health Laboratory Service Board

443.     This clause abolishes the Public Health Laboratory Service Board ('PHLS'). The intention to do so was announced in Health Protection Agency ('HPA') Newsletter Number 10 on 15th November 2002 16.

    16 A copy of the HPA letter is available in the Library.

444.     The PHLS was established in 1946 and its statutory powers are broadly defined by the 1977 Act (as amended by the Public Health Laboratory Service Act 1979). Section 5(2)(c) of that Act, as amended, provides for "a microbiological service for the control of the spread of infectious diseases and carry[ing] on such other activities as in his [the Secretary of State's] opinion can conveniently be carried on in conjunction with that service".

445.     The PHLS's corporate purpose, as described in its Business Plan for 2001-2, was to protect the population from infection by maintaining a national capability of the highest quality for the detection, diagnosis, surveillance, prevention and control of infectious and communicable diseases in England and Wales. From 1st April 2003, all but one of the functions of the PHLS transferred to the Health Protection Agency ('HPA') - a new Special Health Authority - or to other parts of the National Health Service. The only function remaining with the PHLS is provision of microbiological culture media for use in microbiology laboratories. It is not intended that this function should remain with the PHLS in the longer term. The PHLS is carrying out an appraisal of the options for the future of this service, after which it will make appropriate recommendations to the Secretary of State. It is intended that the repeal of the PHLS provisions will be brought into force after the Secretary of State has transferred the remaining function.

Clause 187: Loans by Secretary of State to NHS trusts

446.     This clause provides that the Secretary of State may make loans to NHS trusts without the consent of Treasury in the same way that clause 11 provides for him to make loans to NHS foundation trusts.

Clause 188: Amendment of provision relating to reform of Welsh Health Authorities

447.     This clause amends section 27(7)(a) of the Government of Wales Act 1998 (as amended by paragraph 26 of Schedule 8 to the 2002 Act). Paragraph 26 amended the cross-reference to section 8 of the NHS Act 1977 in section 27(7)(a) in the light of the substitution of section 8 by section 1 of the 2002 Act. The correct cross-reference should be to "section 8(1)(b) and (7)(b)" rather than to "section 8(1)(b) and (5)(b)" and this clause corrects that error.


Clause 194: Commencement

448.     Clause 194 provides that all of the Bill provisions may come into force on such days as the appropriate authority in each case may appoint by order, except for those order or regulation making powers which will come into force on Royal Assent and the provisions in clauses 182 and 188 explained below. Subsection (2) gives the meaning of 'appropriate authority' in relation to the provisions of each Part of the Bill.

449.     Clause 182 provides that an Order in Council to replicate the Welfare Food Scheme provisions in clause 181 for Northern Ireland be made subject to the negative resolution procedure. To enable the corresponding Northern Ireland legislation to be made as soon as possible after the Bill receives Royal Assent, clause 194 provides that clause 182 may come into force as soon as Royal Assent is granted.

450.     Clause 188 comes into force when this Bill receives Royal Assent as it merely corrects an error in the Government of Wales Act 1998.


Part 1 - NHS foundation trusts

451.     In Part 1, the setting up of an independent regulator to authorise NHS foundation trusts, issue terms to their authorisation, and monitor compliance will entail some costs and a staff requirement. The extent of these costs and the number of additional staff required will depend on the number of NHS foundation trusts. It is estimated that the running costs will be £2.3m in the first full financial year (2004/5). As more NHS trusts make the transition to NHS foundation trusts, Department of Health and Strategic Health Authorities' running costs will decrease. The functions of the Independent Regulator and Strategic Health Authorities will exist in parallel during the transition phase.

452.     Modest start-up costs are likely to be incurred by those seeking NHS foundation trust status. The Secretary of State will have the power to give grants to NHS foundation trusts as he currently does for NHS trusts.

Part 2 - Quality and Standards

453.     The new health inspectorate, CHAI, and the inspectorate for social care, the CSCI, outlined in clauses 40 to 145 will respectively replace the CHI and NCSC. There will be set up costs for each body, estimated up to £15m for CHAI and £7m for CSCI. This money has already been allocated to the Department. Estimated running costs per year for CHAI are £60 million and £143 million for CSCI.

454.     With regard to the National Assembly for Wales, no significant extra costs are expected to arise from the establishment of the new Assembly healthcare unit. The costs of the new arrangements (i.e. the costs of the new healthcare unit and the payments to CHAI for its services) will be met from the Assembly's existing vote of £2 million (from which part is currently used for the Commission for Health Improvement). In respect of social care functions in Wales, no changes to structures will be made and any additional costs will be minimal a proportion of the funds.

Part 3 - Recovery of NHS charges

455.     The provisions in clauses 146 to 165 about the recovery of NHS costs would recover costs for the NHS in addition to those already collected currently following road traffic accidents. Clause 158 requires the Secretary of State to pay NHS charges recovered to the NHS trust or other body responsible for the hospital. This ensures that any funding raised is protected for the provision of services to benefit the patients receiving NHS treatment. It is intended that the scheme will be administered by the Compensation Recovery Unit (CRU), a Department of Work and Pensions body, which currently administers the road traffic scheme. The Department of Health currently pays CRU £1.9 million (for 2002/03) for administering the road traffic scheme. Under the expanded scheme, it is estimated that CRU will be handling a further 30% more claims. Running costs, including staff costs, are expected to be around £1 million more than the £1.9 million for the road traffic recovery scheme. These costs will be offset by the generation of in the region of £150m in Great Britain per year - this is based on the road traffic accident scheme's tariff of costs.

Part 4 - Dental and Medical services

456.     The implementation of the new primary dental services provisions (contained within clauses 166 to 180) is expected to take place over a 2 to 3 year period. PCTs are to be given new duties to provide, or secure the provision of primary dental services. There will be small cost implications for PCTs whose role it will be to agree contracts with dental practices and review these contracts in successive years. These costs are as yet unquantifiable, but are expected to be modest. It is not expected that in themselves the new contracts will lead to a requirement for extra Government funding beyond that already used for the provision of these dental services.

457.     The Dental Practice Board for England and Wales is responsible for verification of payment claims and making payments to around 18,000 dentists and has running costs of over £20 million per year. Assets, liabilities and staff (subject to consultation) of the DPB (clause 177) are intended to be transferred to its successor body, a Special Health Authority established under section 11 of the 1977 Act.

458.     The successor Special Health Authority will have similar responsibilities in relation to primary dental services, but in relation to approximately 9,000 practice based new GDS contracts.

459.     The new primary medical services provisions, also in part 4, are intended to be fully implemented by 1st April 2004. Funding will increase, for England and Wales, from about £5 billion in 2002/2003 to about £7 billion by 2005/2006. The new increased funding is for all primary care services - including for GMS contracts, PMS and for out of hours services if the PCT has to make other provision for those services where GPs have opted out of providing them.

460.     There will be small cost implications for PCTs whose role it will be to agree contracts with providers of primary medical services and to review these contracts in the successive years. These costs have not been quantified but are expected to be modest. It's not expected that in themselves these PCT costs will lead to a requirement for additional Government funding.

Part 5 - Miscellaneous

461.     The replacement of the Welfare Food Scheme (clause 181) will be met from within the same votes as the current scheme, which is currently £119 million from the Department of Health vote (which bears all of administration costs for the scheme), £14 million from the Scottish Executive vote and £9 million from the Assembly vote. The total cost of the Welfare Food Scheme, therefore, is in the region of £142 million.

462.     Clause 186 provides for the abolition of the Public Health Laboratory Service Board. The PHLS currently employs around 70 staff and receives core funding of £481,000 revenue, plus £450,000 capital, from the Department of Health during 2003/4. The bulk of the funds, approximately £4m, which it requires to produce around 30% of the microbiology culture media used by the National Health Service, is raised from charges for the media. (The remainder of the NHS culture media requirement is made locally or purchased from commercial manufacturers). The PHLS is currently conducting an appraisal of the options for the future provision of this function.

463.     The intention is that the PHLS's staff and other assets (such as premises and equipment) should be transferred elsewhere, by agreement with those concerned, before the Board is wound up. Subsection (3) of clause 186 is included to provide for the possibility, however remote, that some property, rights and liabilities might remain with the Board at the time it is wound up.


464.     Department of Health officials have consulted the Cabinet Office, the Small Business Service, the devolved administrations and key stakeholders over development of the Bill's Regulatory Impact Assessments ('RIAs'). The majority of these measures will have minimal impact on businesses and voluntary organisations. The two proposals which are likely to have any real impact will be those for introducing recovery of NHS treatment and ambulance costs where people claim and receive compensation for injuries and those for proposals to replace the Welfare Food Scheme. A summary of these two RIAs is below. Health and social care bodies are currently subject to a number of elements of regulation and assessment or inspection. It is not anticipated that these new arrangements will add to the administrative burden on private or voluntary health and social care bodies.

Recovery of NHS Costs

465.     Any business or voluntary organisation, large or small, with potential liabilities where people receive compensation as either an employer, a producer of goods or transacting business in a public place, may be affected. Insurance companies providing cover in these areas would also be affected by the administrative costs and by the need to apportion costs amongst holders of policies. Citizens may also be affected. Local Authorities and Government Departments and NHS trusts are likely to be affected by these proposals as set out in the RIA. The estimated cost to the taxpayer of meeting these costs is approximately £150m in Great Britain per year, based on the road traffic tariff, and this is the intended amount to be recovered through the scheme.

Welfare Food Scheme

466.     The proposed scheme could have an impact on some doorstep deliverers as the scheme will no longer exclusively supply milk. Welfare food milk sales currently account for 5% of doorstep milk sales throughout GB. Figures submitted to the Department of Health by suppliers indicate that fewer than 1% of doorstep delivery businesses are dependent on the scheme for more than 7.5% of their total sales.

467.     A copy of the full Regulatory Impact Assessment of the costs and benefits that this Bill would have is available to the public from or contact Anita Sharma, Bill Team, Room 309, Richmond House, 79 Whitehall, LONDON SW1A 2NS, email: [email protected], telephone 0207 972 5054.


468.     The Department does not consider that the provisions of Part 1 of the Bill give rise to any convention issues.

469.     The Department does not consider, save for the two areas discussed here, that the main provisions of Part 2 give rise to any Convention issues. The provisions of this part give various rights to the CHAI, the CSCI and the National Assembly for Wales (NAW) to enter and inspect premises, to inspect and take copies of documents and to require information (including in certain circumstances medical information) and an explanation of information or documents obtained by the Commissions, or the Assembly in connection with the exercise of their functions under the Bill. These requirements may constitute an interference with Article 8 of the Convention (rights to private and family life). The Department is of the view that such interference is justified.

470.     These provisions of pursue a number of legitimate aims. The purpose of the powers is to enable the Commissions (or, in Wales, the Assembly) to assess the performance of NHS bodies and local authorities in connection with the provision of healthcare and local authority social services, monitor the safety and reliability of the services which they provide and their compliance with regulatory requirements, to assess quality standards and to ensure financial probity and that public money is being properly spent. In the Department's view, the powers are proportionate. Appropriate limitations and restrictions are imposed by the Bill (in particular the Bill provides that the powers may only be exercised where this is necessary or expedient for the body to exercise the power), or by will be imposed by regulations in the case of the power to require an explanation. The Department therefore takes the view that these clauses are compatible with Article 8 of the Convention. The Department also considers, for the same reasons, that these powers are compatible with Article 1 of the First Protocol.

471.     The Department also considers that the provisions of Chapter 9 of this Part which relate to the handling of complaints relating to NHS healthcare and local authority social services comply with the requirements of Article 6 of the Convention (right to a fair trial).

472.     In relation to Part 3, the Department considers that the independent appeals system provided for in clauses 148 to 150 met the requirements of Article 6 (right to a fair trial). It also considered whether the requirement for information to be provided by compensators and others under clause 151 might be an interference with an individual's rights under Article 8 (right to respect for private and family life, home and correspondence). It is envisaged that the information obtained would be confined to factual details, such as the nature of the injury, and would not include access to confidential medical records. The Department takes the view that this is a proportionate interference necessary to the effective working of the scheme.

473.     The Department considers that the main provisions of Part 4 (dental and medical services) do not give rise to any Convention issues. Power is provided for contracts for general dental services and general medical services to make provision about entry to premises and inspection of records by the PCT. The purpose is to enable PCTs to monitor compliance with the contract and quality standards, and the proper application of funds. The Department's view is that any interference with an individual's rights under Article 8 (right to respect for private and family life) of the Convention is justified if it is proportionate to the ends of the prevention of crime and the protection of the rights and freedoms of others. The Department also takes the view that this power is compatible with Article 1 of the First Protocol (right to respect for property) as any interference strikes a fair balance between the protection of an individual's right to property and the public interest as a whole.

474.     Paragraph 25 of Schedule 11 amends section 54 (sale of goodwill) of the 1977 Act. Section 54 makes it unlawful to sell the goodwill of a general medical services or a personal medical services pilot practice. Paragraph 25 provides for the extension of the prohibition to cover in prescribed circumstances the practice of a person who has provided medical services under section 16CC(2)(b) (inserted by clause 170) or a general medical services contract (section 28Q) (inserted by clause 171) or a personal medical services contract under section 28C. The Bill provides for a more complex system of provision of primary medical services both in terms of the providers concerned and the routes of delivery. This will need to be reflected in the prohibition on the sale of goodwill of a medical practice. Accordingly, a power has been taken to ensure that any prohibition can be applied proportionately.

475.     The Department is of the view that, save for the issue arising from the provisions for the replacement of the welfare food schemes discussed below, the provisions of Part 5 do not give rise to any Convention issues.

476.     The Department considers that the power to set conditions under the new schemes to provide benefits for improving the nutrition of certain pregnant women, mothers and children (clause 181) before a person may become entitled or continue to be entitled to a benefit could engage Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) (if the conditions affect only one part of the population) of the Convention. It is the Department's view that attendance at a hospital, clinic or doctor's surgery would be a minimal interference in a person's life and a requirement to submit to medical examination, proportionate, where evidence shows that those subject to the requirement are at greater risk of health inequalities than the population as a whole. The provisions appear to the Department to be in the public interest and to strike a fair balance between the interests of potential beneficiaries and those of the wider community. The Department therefore takes the view that these provisions are compatible with Convention rights.

477.     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 about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). This statement has to be made before second reading. On 8th July the Parliamentary Under Secretary of State in the Lords (the Lord Warner) made the following statement:

"In my view the provisions of the Health and Social Care (Community Health and Standards) Bill are compatible with the Convention rights."

previous Section contents continue
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries index

© Parliamentary copyright 2003
Prepared: 14 July 2003