Office of Public Sector Information
390.Paragraph 6 enables regulations made by the Secretary of State to confer functions on Ministers of the Crown. It also enables regulations made by the Welsh Ministers to confer functions on the Welsh Ministers. For example, regulations might enable a Minister to pay grants to a body. Any conferment of functions would be subject to paragraph 8.
391.Paragraph 7 limits the new criminal offence that can be created using this power to one which, on summary conviction, leads to a fine not exceeding level 5 on the standard scale.
392.Paragraph 8 provides that regulations cannot abolish either the GSCC or the CCW. Paragraphs 8(2) and (3) state that regulations may not transfer to any other person certain functions conferred on the Councils (or any of their committees or officers) by the Care Standards Act 2000. These functions are: the keeping of the register of social care workers; determining standards of education and training required as a condition of registration; giving advice about standards of conduct and performance; and administering procedures relating to misconduct, removal from registration and similar matters.
393.Paragraph 9 obliges the Secretary of State, before making regulations under section 124 (in relation to England), to consult persons appearing to him appropriate to represent social care workers affected by the regulations and to represent those provided with services by them and to consult other persons that the Secretary of State considers it appropriate to consult. The consultation will be on the basis of the draft regulations. The Secretary of State must publish these in draft three months before they are laid before Parliament. Following consultation, the draft regulations will be laid before Parliament (as originally drafted or with appropriate amendments) accompanied by a report about the consultation. Draft regulations will be subject to Parliamentary scrutiny under the affirmative procedure.
394.Paragraph 10 imposes requirements, similar to those contained in paragraph 9, upon the Welsh Ministers in relation to the procedure for making regulations in relation to Wales.
395.Section 125 makes provision for the civil standard of proof to be used in any proceedings which relate to a social care worker’s suitability to be or remain registered. The civil standard is to be used in all such proceedings whether before the GSCC or the CCW, or before one of their committees or any of their officers. It ensures that the civil standard of proof is applied consistently by all of the health and social care professions’ regulatory bodies.
396.Subsection (4) prevents regulations made under section 124 from amending section 125 or making any provision that is inconsistent with the requirement to adopt the civil standard of proof. This means that any change to the requirement to use the civil standard can only be made through another Act of Parliament.
397.The Mental Health Act (as amended by the Mental Health Act 2007) provides for the approval of persons to act as AMHPs and confers functions on the Councils in relation to the education and training of people who are or wish to become AMHPs. When the relevant provisions come into force, AMHPs will take on the functions previously exercised by approved social workers, including making applications for a patient’s admission and detention in hospital under Part 2 of the Mental Health Act. In addition to social workers, a wider group of professionals (for example nurses, occupational therapists and psychologists) will potentially be eligible for approval as AMHPs as long as they have the right skills, experience and training.
398.Section 126 allows the Secretary of State in relation to the GSCC and the Welsh Ministers in relation to the CCW to make regulations modifying the functions of the Councils that relate to the education and training of AMHPs. This might cover, for example, their functions that relate to the approval of courses for social workers when acting as AMHPs.
399.Subsection (2) provides that the regulation-making power may be used to amend, repeal or apply (with or without modifications) any provision of any enactment, instrument or document.
400.Subsection (3) provides that certain paragraphs of Schedule 9 also apply (with modifications) to regulations made under this section. For example, the regulations may provide for fees to be charged and payments to be made by the Councils (paragraph 5 of Schedule 9). The same procedure for making regulations under section 124 applies to regulations made under this section (paragraphs 9 and 10 of Schedule 9).
401.Section 129 inserts a new Part 2A into the Public Health Act 1984. This new Part 2A replaces the existing Part 2 of the Act.
402.Newsection 45A defines certain terms used in the new Part. It provides that reference to infection or contamination is to that which presents or could present significant harm to human health. It also provides that reference to disinfection or decontamination includes the removal of any vector, agent or source of infection or contamination.
403.Newsection 45B enables the appropriate Minister (defined in new section 45T(6) as the Secretary of State for England, or the Welsh Ministers for Wales) to make regulations for preventing danger to public health from conveyances (or the persons or articles on those conveyances) arriving at any place or for preventing the spread of infection or contamination by conveyances leaving any place. It also provides a power for regulations to give effect to international agreements or arrangements, for example World Health Organisation recommendations. It gives examples of particular measures the regulations might include. The powers are needed to enable similar provision to be made to that contained in the Public Health (Aircraft) Regulations 1979 (S.I. 1979/1434), the Public Health (Ships) Regulations 1979 (S.I. 1979/1435), or the Public Health (International Trains) Regulations 1994 (S.I. 1994/311), all of which are made under section 13 of the Public Health Act 1984.
404.New section 45C provides a power for the appropriate Minister to make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination in England and Wales. The threat can come from outside England and Wales.
405.Section 45C(3) and (4) give examples of particular provision which might be made. For example new section 45C(3)(a) would enable the Secretary of State or the Welsh Ministers to set out standing national requirements for notification of cases of specified diseases by registered medical practitioners to the local authority. Section 45C(3)(c) allows the Secretary of State or the Welsh Ministers to impose restrictions or requirements directly on persons, or in relation to things or premises, or to enable another body, such as the local authority, or indeed the Secretary of State or the Welsh Ministers, to do so. Section 45C(4)(a) to (d) provide examples of the restrictions or requirements that might be imposed, including special restrictions or requirements.
406.Section 45C(6)(a) defines special restrictions or requirements by reference to the measures that a justice of the peace can include in a court order by virtue of new section 45G(2), 45H(2) or 45I(2). The following measures are not regarded as special restrictions or requirements: a requirement to keep a child away from school; a restriction on the holding of an event; or a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the handling, transport or disposal of human remains.
407.Newsection 45D contains restrictions on the exercise of the power under section 45C. Section 45D(1) prohibits the appropriate Minister from making regulations containing restrictions or requirements under section 45C(3)(c) unless the Minister considers when making the regulations that the measures are proportionate to what is being sought to be achieved. Similarly, under section 45D(2), regulations which enable imposition of a restriction or requirement under section 45C(3)(c) must provide that the person who decides to impose such a measure must consider when taking the decision that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.
408.Section 45D(3) prohibits regulations from directly imposing a special restriction or requirement restricting or requiring medical examination, removal to or detention in hospital or another suitable establishment, or isolation or quarantine. However, regulations may enable the imposition of these restrictions or requirements by a decision-maker, if either of the conditions in section 45D(4) are met. Those conditions are that there is a serious and imminent threat to public health when the regulations are made or the decision to impose the restrictions or requirements is expressed in the regulations to be contingent on there being such a threat at the time the decision to impose them is made.
409.New section 45E excludes compulsory medical treatment, including vaccination, from the ambit of the regulation-making powers in sections 45B and 45C.
410.Newsection 45F makes further provision about regulations under section 45B or 45C. This includes, at new section 45F(3), details of when the regulations may be used to amend primary or secondary legislation. Section 45F(5) outlines the penalties for the offences that can be created using the regulations. These are a fine not exceeding £20,000 and a daily penalty not exceeding an amount equal to 2% of level 5 on the standard scale (£100) for continuing to commit an offence after initial conviction. Under subsection (2)(f) regulations may permit or prohibit the levy of charges. It is intended that where charges are levied, the level of those charges will not exceed the costs incurred in exercising the function to which the charges relate.
411.New section 45F(6), (7) and (8) make provision about the reviews and appeals in relation to special restrictions or requirements imposed by virtue of a decision taken under regulations made under section 45C. Subsection (6) provides that, where a special restriction or requirement is imposed on or in relation to a person, thing or premises the regulations must include provision for an individual (or business) to have a right of appeal to a magistrates’ court against the decision. Subsection (7) requires that the regulations also make available a right of review at specified intervals to specified persons for special restrictions or requirements which continue in force in relation to any person, thing or premises for more than a specified period. Furthermore, subsection (8) provides that where the restriction or requirement imposed is detention, isolation or quarantine, the period prior to review and the interval between reviews must not exceed 28 days, and the regulations must require the continuation to be reviewed without the need for an application.
412.Newsections 45G to 45J make new provision for court orders. The powers conferred on justices of the peace are wider than previously provided for under the Public Health Act 1984. For example, court orders could not previously be made under the Act in relation to things or premises. In some cases, requirements which could previously be imposed by a local authority under the Public Health Act 1984 will now be subject to a court order.
413.New section 45G(1) sets out the criteria that must be met for a justice of the peace to make an order under the legislation in relation to a person. The justice of the peace must be satisfied that:
the person is or may be infected or contaminated;
the infection or contamination presents or could present significant harm to human health;
there is a risk that the person might infect or contaminate others; and
it is necessary to make the order to remove or reduce that risk.
414.The measures that an order can provide for are described at section 45G(2). They are that a person be required to submit to medical examination, be removed to or detained in a hospital or other suitable establishment, be kept in quarantine or isolation, be disinfected or decontaminated, wear protective clothing, provide information, have their health monitored, attend training or advice sessions, or be restricted as to where they go or with whom they have contact or from working or trading.
415.Section 45G(3) and (4) enable the justice of the peace to make an order requiring an individual who is, or may be, infected or contaminated to provide information about the identity of another individual where that other individual may also be infected or contaminated and there is a risk that that person might infect or contaminate others. This is known as contact tracing.
416.New section 45G(7) requires the appropriate Minister to make regulations setting out what evidence must be available to the justice of the peace before the justice can be satisfied that there are grounds for making an order. Sections 45H(7) and 45I(7) enable the appropriate Minister to make similar regulations in relation to evidence for orders regarding things and premises, and in relation to evidence for orders regarding contact tracing in relation to things and premises.
417.New sections 45H(1) and 45I(1) enable a justice of the peace to make an order if conditions similar to those in section 45G(1) are satisfied, but in relation to things and premises respectively. An order in relation to a thing might require, under section 45H(2), that the thing be seized or retained, kept in isolation or quarantine or disinfected or decontaminated. It might also require, in the case of a dead body, that the body be buried or cremated or, in any other case, that the thing be destroyed or disposed of. Similar measures are available under section 45I(2) in relation to premises (which include conveyances) except that instead of quarantine or isolation an order could require premises to be closed. New sections 45H(3) and (4) and 45I(3) and (4) also enable contact tracing in relation to things and premises respectively.
418.New section 45J makes provision in relation to groups of people, things or premises with regard to the powers in new sections 45G, 45H and 45I. This will assist the justice of the peace to make the same provision in one order where, for example, more than one person has been contaminated by the same contaminant.
419.New section 45K makes supplementary provision about what can be included in an order of a justice of the peace, known as a “Part 2A order”. It includes at new section 45K(3) provision that a measure in a Part 2A order may be conditional. For example, an order might state that if an individual refuses to be decontaminated, he must stay in isolation until the risk of contaminating others has passed.
420.Section 45K(5) allows the justice of the peace to include in a Part 2A order directions as to any action that might be appropriate to give effect to the order. This might, for example, include putting in place support provisions for a person undergoing a measure such as quarantine.
421.Section 61 of the Public Health Act 1984 as amended by paragraph 17 of Schedule 11 to this Act provides for a right of entry or warrant authorising entry to enable a relevant health protection authority to enter premises other than a private dwelling, or a warrant authorising entry to premises including a private dwelling. Section 45K(6) provides that a Part 2A order can include authority to enter premises including a private dwelling instead of having to apply separately for a warrant under section 61. If an order includes such authority, subsections (1) and (1A) (as inserted by paragraph 18 of Schedule 11 to this Act) of section 62 of the Public Health Act 1984 apply as if a warrant had been issued under section 61. This means, for example, that there can be tests of the premises or of anything found on them and that samples of the premises or anything found on them can be taken and retained.
422.Newsection 45L makes provision with regard to the length of time for which any restriction or requirement imposed by or under a Part 2A order may be in force. Section 45L(1) requires any restriction or requirement in an order to have a specified time limit. Section 45L(2) enables further orders to be made extending the period for which the restriction or requirement is imposed beyond that time limit. Section 45L(3) provides a maximum period of 28 days where the order imposes detention in a hospital or other suitable establishment, or quarantine or isolation of a person. This applies both to the initial period specified in the order and any extension of it. There is a power by regulations to prescribe a shorter period. Section 45L(4) enables the appropriate Minister to specify in regulations the maximum period for which any restriction or requirement other than one for detention in hospital etc., quarantine or isolation may be imposed and the maximum period of any extension of that period.
423.New section 45M sets out the procedures for making, changing or revoking a Part 2A order. Only a local authority may apply for a Part 2A order (subsection (1) of section 45M), but an affected person, in addition to the local authority or any other authority with the function of executing or enforcing the order in question, can apply for the order to be varied or revoked (subsection (5)). Section 45M(6) sets out who is an affected person in the case of an order under section 45G, and enables regulations by the appropriate Minister to prescribe any other person as an affected person. Sections 45M(7)(c), (8)(c) and (9) provide similar regulation-making powers in relation to who may be an affected person for applications in respect of orders under sections 45H(2) and (4) and 45I(2) and (4). Section 45M(10) provides that varying or revoking a Part 2A order does not invalidate any action already taken under the order. Section 45M(3) requires the appropriate Minister to prescribe in regulations the persons to whom a local authority is required to give notice of the making of an application for a Part 2A order. However, Part 2A orders can be made without a person being given the notice that would ordinarily be required under regulations made under section 45M(3) or under rules of court if the justice of the peace considers it necessary to do so (subsection (4) of section 45M).
424.Newsection 45N enables the Secretary of State or the Welsh Ministers to make regulations dealing with matters relating to the taking of measures pursuant to Part 2A orders including the provisions described at section 45N(2).
425.New section 45O provides that it is an offence to fail to comply, without reasonable excuse, with a restriction or requirement imposed by or under an order of a justice of the peace or to wilfully obstruct anyone executing the order. The offence is punishable with a fine of up to £20,000. Subsections (4) and (5) of section 45O provide that a constable may take into custody and return a person who leaves a place contrary to an order detaining or isolating or quarantining the person in that place.
426.Newsection 45P provides that regulations under Part 2A of the Public Health Act 1984 may make different provision for different cases or different areas.
427.Newsection 45Q sets out the different Parliamentary procedures for making regulations under the powers at new sections 45B and 45C and those covering Part 2A orders. In general, regulations, including those under section 45B, are made under the negative resolution procedure. Regulations made under section 45C are subject to the affirmative resolution procedure unless they contain a declaration under section 45Q(3) that the person making them is of the opinion that the regulations do not contain any provision made by virtue of section 45C(3)(c) imposing special restrictions or requirements, or other restrictions or requirements that would have a significant effect on a person’s rights. Regulations which amend an enactment for the purpose of giving effect to an international agreement are also subject to the affirmative resolution procedure. The first set of regulations to be made under sections 45G(7), 45L(4) and 45N will be subject to the affirmative resolution procedure.
428.Regulations of a kind to which draft affirmative procedure would normally apply may be made and brought into effect immediately under section 45R(2) if they contain a declaration from the Minister who makes the regulations that the person making them is of the opinion that it is necessary by reason of urgency for them to be made without a draft being approved under that procedure. If either House of Parliament (for English regulations) or the National Assembly for Wales (for Welsh regulations) decides to reject the regulations, then they will cease to have effect at the end of the day on which they are rejected (section 45R(5)). They will also cease to have effect after 28 days if a resolution approving them has not been passed by each House of Parliament (for English regulations) or the National Assembly for Wales (for Welsh regulations) (section 45R(4)).
429.Newsection 45S provides that the provisions in Part 2A of the Public Health Act 1984 have effect in relation to the territorial sea adjacent to England or Wales.
430.New section 45T defines a number of terms used in new Part 2A of the Public Health Act 1984.
431.Section 130 repeals Part 2 of the Public Health Act 1984 and gives effect to Schedule 11 to this Act.
432.Schedule 11 amends or repeals provisions in other legislation consequent on changes made by the repeal and replacement of Part 2 of the Public Health Act 1984. It also amends other provisions of the Public Health Act 1984.
433.Paragraph 2 removes from section 159 of the Local Government, Planning and Land Act 1980 a reference to provisions in Part 2 which refer to common lodging houses.
434.Paragraphs 3 to 30 amend the Public Health Act 1984. Paragraphs 3 to 6 define local authorities in section 1 (authorities administering Act), update sections 5 (financial provisions as to port health authorities) and 7 (port health district and authority for Port of London) and make repeals consequent on the replacement of Part 2 (of sections 1(2) and (4) and 9).
435.Paragraph 7 updates section 48 in line with modern scientific understanding of the spread of disease, so that the powers to deal with the removal of dead bodies are not limited to a particular building.
436.Paragraphs 8 to 10 remove references to infectious disease from sections 49 to 51 of Part 4 of the Public Health Act 1984, which deals with canal boats. These references are unnecessary, as the powers in Part 2A will cover canal boats.
437.Paragraph 11 repeals provision for criminal offences in section 52 under Part 4 which have become unnecessary in light of changes made to section 2 of the Magistrates’ Courts Act 1980 by the Courts Act 2003.
438.Paragraph 12 omits Part 5 (miscellaneous) and section 57 (general provision for compensation) in Part 6 of the Public Health Act 1984. The provisions are either out of date or are intended to be replaced by or under Part 2A.
439.Paragraphs 13 to 15 bring sections 58 to 60 in line with new Part 2A by substituting for local authorities, relevant health protection authorities which include local authorities and making other consequential amendments.
440.Paragraph 16 updates the Public Health Act 1984 by introducing a new section 60A which provides a regulation-making power to enable notices, orders and other documents to be given or served electronically.
441.Paragraph 17 updates and amends the powers to enter premises in section 61 to bring them into line with Part 2A. New subsection (2A) of section 61 curtails the right of entry in subsection (1) of section 61 so that it does not apply in respect of a private dwelling, but without affecting the power of a justice of the peace to issue a warrant under subsection (3) of section 61.
442.Paragraph 18 amends section 62 to elaborate on how the right of entry or authorisation by warrant to enter under section 61 can be used.
443.Paragraph 19 substitutes a new section 63 to provide for the wilful obstruction offence that continues to apply to Parts 3, 4 and 6 of the Public Health Act 1984 and bring the maximum fine, other than in relation to Part 4, into line with the maximum fine payable under Part 2A.
444.Paragraph 20 inserts new sections 63A and 63B which concern offences by bodies corporate and unincorporated associations respectively. An officer of a body corporate may be liable for an offence as well as the body corporate by virtue of new section 63A. An officer or member of an unincorporated association may be liable for an offence as well as the unincorporated association by virtue of new section 63B.
445.Paragraph 21 updates and amends section 64 to restrict who can bring a prosecution under the Public Health Act 1984.
446.Paragraph 22 inserts new section 64A to extend time limits in the Magistrates’ Courts Act 1980 for bringing a prosecution for an offence created by or under the Public Health Act 1984.
447.The amendment at paragraph 23 to section 67 is needed to ensure that the right of appeal under section 67 applies to decisions of a magistrates’ court under regulations made in Part 2A.
448.Paragraph 24 substitutes a new section 69 to extend protection from personal liability in or under the Act to all those who could carry out functions by virtue of new Part 2A.
449.Paragraph 25 removes the power for the Secretary of State to hold local inquiries under section 70 by omitting the section.
450.Paragraph 26 substitutes a new section 71 to update the default powers setting out the process to be followed if the appropriate Minister believes a relevant health protection authority is not carrying out its functions correctly.
451.Paragraph 27 extends the “cumulative effects” provision in section 72 to include regulations made under new Part 2A and other provision under the Act.
452.Paragraph 28 makes a consequential amendment to the provisions on Crown property in section 73 to reflect the new definition of premises which includes vessels.
453.Paragraph 29 makes consequential amendments and adds definitions to, or updates the definitions in, section 74 (interpretation) to reflect changes in Part 2A.
454.Paragraph 30 repeals section 76, which made provision for the Isle of Man and the Channel Islands.
455.Paragraph 31 repeals a reference to a repealed provision in the Public Health Act 1984 from the Planning and Compensation Act 1991.
456.Section 131 amends the Contributions and Benefits Act. It inserts new Part 8A to provide that a woman who has satisfied prescribed conditions in relation to a pregnancy is entitled to payment of the Health in Pregnancy Grant.
457.New section 140A of the Contributions and Benefits Act establishes conditions of entitlement to the grant. It covers such matters as prescribed conditions in relation to a woman’s pregnancy, in particular, the specified stage that a woman must have reached in order to become entitled, residence conditions and the requirement that the woman receive maternal health advice from a health professional. It introduces the powers to enable HM Treasury to make regulations under this section.
458.Newsection 140B(1) and (2) enable HM Treasury to prescribe in regulations the amount of the grant and to prescribe different amounts in relation to different cases.
459.Subsections (1) and (2) enable the Commissioners for HM Revenue and Customs to make regulations about the administration of the Health in Pregnancy Grant. The regulations may, for example, provide for a claim to be made in a manner, and within a time, prescribed by the regulations. The regulations may also require persons prescribed by the regulations to provide information to enable the Commissioners to determine if the conditions for eligibility are met.
460.Subsection (3) inserts new section 12A (necessity of application for health in pregnancy grant) into the Social Security Administration Act 1992. The new section provides that entitlement to the grant depends on making a claim in the required manner. It specifies that no person is to have entitlement to the grant without having a National Insurance Number or providing the evidence in order for a National Insurance Number to be allocated. It also enables the Commissioners for HM Revenue and Customs to prescribe exceptions to this requirement.
461.Subsections (4) and (5) enable the Commissioners for HM Revenue and Customs to recover overpayments of the grant made as a result, for example, of fraud, mistake or failure to disclose accurate information.
462.Subsections (6) and (7) amend sections 121E and 121F of the Social Security Administration Act 1992, to include information obtained by HMRC in connection with its functions relating to the Health in Pregnancy Grant. This will allow DWP and HMRC to share information to help develop and refine policies for pregnant women.
463.Subsection (8) applies Chapter 2 of Part 1 of the Social Security Act 1998, which makes provision about decisions and appeals and provides for those functions to be exercised by the Commissioners for HM Revenue and Customs.
464.Section 133 amends the Social Security Administration Act 1992. It inserts new Schedule 3A to set out circumstances in which the Commissioners for HM Revenue and Customs may impose civil penalties on a person and sets out the power for the amount of the penalty to be prescribed by the Commissioners for HM Revenue and Customs. It also introduces the right to appeal for those on whom a civil penalty has been imposed and establishes time limits in which a penalty may be imposed and recovered.
465.Paragraph 2(6) of the new Schedule 3A provides the power for the Commissioners for HM Revenue and Customs to apply, by regulations, provision contained in the Social Security Act 1998 in relation to an appeal against a penalty.
466.Part 8A of the Northern Ireland Contributions and Benefits Act will provide for the payment of the Health in Pregnancy Grant in Northern Ireland. New sections 136A and 136B mirror the provisions in sections 140A and 140B of the Contributions and Benefits Act.
467.Section 135(1), (2), (3), (4), (6) and (7) amend the Social Security Administration (Northern Ireland) Act 1992 in the same manner as section 132 (1), (2), (3), (4), (6) and (7) amend the Social Security Administration Act 1992.
468.Section 135(8) applies Chapter 2 of Part 2 of the Social Security (Northern Ireland) Order 1998, which makes provision about decisions and appeals and provides for those functions to be exercised by the Commissioners for HM Revenue and Customs.
469.Section 136 amends the Social Security Administration (Northern Ireland) Act 1992 in the same manner as section 133 amends the Social Security Administration Act 1992. It also provides the power for the Commissioners for HM Revenue and Customs to apply, by regulations, provision contained in the Social Security (Northern Ireland) Order 1998 in relation to an appeal against a penalty.
470.Section 137 inserts a reference to the Health in Pregnancy Grant into Schedule 2 to the Northern Ireland Act 1998, thus making it an excepted matter for the purposes of the devolution settlement in Northern Ireland (and therefore outside the competence of the Northern Ireland Assembly).
471.Section 138(1) provides for HM Revenue and Customs to be responsible for the payment and management of the Health in Pregnancy Grant.
472.Section 138(2) and (3) amend section 115 of the Immigration and Asylum Act 1999, to insert a reference to the Health in Pregnancy Grant. The effect is that no person subject to immigration control is entitled to the Health in Pregnancy Grant unless they satisfy prescribed conditions.
473.Section 138(4) exempts the Health in Pregnancy Grant from liability to income tax.
474.Section 139 amends the NHS Act 2006 by inserting a new section 23A which imposes a duty on PCTs to make arrangements to secure continuous improvement in the quality of health care provided by or for them. This duty replaces the current duty (on PCTs and other English NHS bodies) to improve quality in section 45 of the Health and Social Care (Community Health and Standards) Act 2003, requiring on-going improvement activity, and is aligned more closely with the duty imposed on English local authorities by section 3 of the Local Government Act 1999.
475.Subsection (2) of the new section 23A provides that in discharging this duty PCTs should have regard to standards set out in statements published by the Secretary of State under section 45.
476.In England the funding arrangement for pharmaceutical services is governed by sections 228 to 231 of, and Schedule 14 to, the NHS Act 2006 and in Wales by sections 174 to 177 of, and Schedule 8 to, the NHS (Wales) Act 2006. Section 140 provides for changes to these provisions in order to move the Global Sum to baseline allocations.
477.Section 140 introduces Schedule 12, which in turn makes amendments to sections 228 to 230 of, and Schedule 14 to, the NHS Act 2006 to change the classification of pharmaceutical services expenditure and bring it within PCT baseline allocations. Schedule 12 also makes the changes that are needed to the NHS (Wales) Act 2006 to change the classification of pharmaceutical services, which will transfer the Global Sum to the baseline allocations of Local Health Boards in Wales.
478.Paragraph 2 of Schedule 12 revises the definition of a PCT’s “expenditure” within section 228 of the NHS Act 2006 to include expenditure on pharmaceutical services. Paragraphs 3 and 4 make consequential changes.
479.Paragraph 5(1) and (2) make further consequential amendments. Paragraph 5(3) inserts a new provision to make it possible to charge the dispensing fees, and other fees payable for the provision of pharmaceutical services, back to the PCT where a prescription was issued. This corresponds to similar provisions for the cost of medicines which are already charged to the PCT in which the prescription was issued.
480.Paragraph 5(4) makes consequential changes.
481.Paragraph 5(5) ensures that remuneration paid by PCTs for pharmaceutical services which is met by an NHS Trust or NHS Foundation Trust under section 234(4) of the NHS Act 2006 can be charged back to the PCT in which the prescription was issued.
482.Part 2, paragraphs 6 to 10, of Schedule 12 makes corresponding provision for Wales.
483.Section 141 amends section 164 of the NHS Act 2006 and section 88 of the NHS (Wales) Act 2006. These sections make provision relating to the making or varying of determinations on the remuneration of those providing NHS pharmaceutical services. Under section 164, remuneration may be determined by the Secretary of State or by persons appointed by him referred to in the legislation as “determining authorities”. Where the Secretary of State devolves this function to determining authorities, he is required to do so via an “instrument of appointment”. Previously, the legislation provided that this “instrument of appointment” may be, but was not required to be, set out in regulations. Similar powers are conferred on the Welsh Ministers under section 88 of the NHS (Wales) Act 2006. Section 141 amends section 164 of the NHS Act 2006 to remove this discretion in the case of services that are provided pursuant to the power in section 126 of that Act. It also makes a similar amendment to section 88 of the NHS (Wales) Act 2006 in relation to services provided pursuant to section 80 of that Act. The new provisions require the Secretary of State and the Welsh Ministers respectively to set out an instrument of appointment in respect of these services in regulations.
484.Subsections (2) and (3) of section 142 expand membership eligibility of indemnity schemes to the Secretary of State, who may secure health services directly. They also expand membership to non-NHS bodies who provide services or secure the provision of services on behalf of one or more of Strategic Health Authorities, PCTs, NHS trusts, Special Health Authorities, NHS Foundation Trusts, CHAI (or, in future, the Commission), the Health Protection Agency or the Secretary of State.
485.Subsection (4) (which inserts new subsection (2A) into section 71 of the NHS Act 2006) limits the losses and liabilities that an indemnity scheme may cover in respect of the Secretary of State or non-NHS bodies to functions in respect of the National Health Service. This is because both the Secretary of State and some of the eligible non-NHS bodies may have functions not related to care provided through the NHS, and these functions should not be covered by these schemes.
486.Currently, membership of the existing schemes is voluntary, although the Secretary of State may direct a body that is eligible to be a member to become a member of any of the schemes established under section 71 of the NHS Act 2006. However, subsection (6) (which substitutes subsection (5) of section 71) provides that the Secretary of State may not direct a non-NHS body to become a member of a scheme. NHS Foundations Trusts are already excluded, and continue to be excluded, from this power of direction. This provision essentially reserves the right of the Secretary of State to direct certain eligible members to become members of an established or future scheme.
487.Provision for medical inspections for pupils in England and Wales is set out in Schedule 1 to the NHS Act 2006 and in Schedule 1 to the NHS (Wales) Act 2006 respectively. New paragraphs are inserted into each of these Schedules to make provision about weighing and measuring children.
Health and Social Care Act 2008