National Health Service Act 2006

2006 c. 41

An Act to consolidate certain enactments relating to the health service.

Enacted[8th November 2006] ^I1

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—^C87^C61^C18^C86

Part 1 Promotion and provision of the health service in England¶

The Secretary of State and the health service in England¶

1 Secretary of State's duty to promote comprehensive health service¶

1 The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—

a in the physical and mental health of the people of England, and

b in the prevention, diagnosis and treatment of physical and mental illness.

2 For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act.

3 The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.

4 The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

1A Duty as to improvement in quality of services¶

1 The Secretary of State must exercise the functions of the Secretary of State in relation to the health service with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with—

a the prevention, diagnosis or treatment of illness, or

b the protection or improvement of public health.

2 In discharging the duty under subsection (1) the Secretary of State must, in particular, act with a view to securing continuous improvement in the outcomes that are achieved from the provision of the services.

3 The outcomes relevant for the purposes of subsection (2) include, in particular, outcomes which show—

a the effectiveness of the services,

b the safety of the services, and

c the quality of the experience undergone by patients.

4 In discharging the duty under subsection (1), the Secretary of State must have regard to the quality standards prepared by NICE under section 234 of the Health and Social Care Act 2012.

1B Duty as to the NHS Constitution¶

1 In exercising functions in relation to the health service, the Secretary of State must have regard to the NHS Constitution.

2 In this Act, “NHS Constitution” has the same meaning as in Chapter 1 of Part 1 of the Health Act 2009 (see section 1 of that Act).

1C Duty as to reducing inequalities¶

In exercising functions in relation to the health service, the Secretary of State must have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service.

^F1011D Duty as to promoting autonomy¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1E Duty as to research¶

In exercising functions in relation to the health service, the Secretary of State must facilitate or otherwise promote—

a research on matters relevant to the health service, and

b the use in the health service of evidence obtained from research.

^C1021F Duty as to education and training¶

1 The Secretary of State must exercise the functions of the Secretary of State under any relevant enactment so as to secure that there is an effective system for the planning and delivery of education and training to persons who are employed, or who are considering becoming employed, in an activity which involves or is connected with the provision of services as part of the health service in England.

2 Any arrangements made with a person under this Act for the provision of services as part of that health service must include arrangements for securing that the person co-operates with the Secretary of State and NHS England in the discharge of the duty under subsection (1) (or, where a Special Health Authority is discharging that duty by virtue of a direction under section 7, with the Special Health Authority).

3 In subsection (1), “relevant enactment” means—

a section 63 of the Health Services and Public Health Act 1968,

b this Act,

c the Health and Social Care Act 2008,

d the Health Act 2009, and

e the Health and Social Care Act 2012.

1G Secretary of State's duty as to reporting on and reviewing treatment of providers¶

1 The Secretary of State must, within one year of the passing of the Health and Social Care Act 2012, lay a report before Parliament on the treatment of NHS health care providers as respects any matter, including taxation, which might affect their ability to provide health care services for the purposes of the NHS or the reward available to them for doing so.

2 The report must include recommendations as to how any differences in the treatment of NHS health care providers identified in the report could be addressed.

3 The Secretary of State must keep under review the treatment of NHS health care providers as respects any such matter as is mentioned in subsection (1).

4 In this section—

a “NHS health care providers” means persons providing or intending to provide health care services for the purposes of the NHS, and

b “health care services for the purposes of the NHS” has the same meaning as in Part 3 of the Health and Social Care Act 2012.

1GA Secretary of State’s duty to report on workforce systems¶

1 The Secretary of State must, at least once every five years, publish a report describing the system in place for assessing and meeting the workforce needs of the health service in England.

2 NHS England ^F24...must assist in the preparation of a report under this section, if requested to do so by the Secretary of State.

Role of NHS England in the health service in England¶

1H NHS England and its general functions¶

1 There is to be a body corporate known as NHS England.

2 NHS England is subject to the duty under section 1(1) concurrently with the Secretary of State except in relation to the part of the health service that is provided in pursuance of the public health functions of the Secretary of State or local authorities.

3 For the purpose of discharging that duty, NHS England—

a has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act, and

b must exercise the functions conferred on it by this Act in relation to integrated care boards , NHS trusts established under section 25 and NHS foundation trusts so as to secure that services are provided for those purposes in accordance with this Act.

4 Schedule A1 makes further provision about NHS England.

5 In this Act—

a any reference to the public health functions of the Secretary of State is a reference to the functions of the Secretary of State under sections 2A and 2B and paragraphs 7C, 8 and 12 of Schedule 1, and

b any reference to the public health functions of local authorities is a reference to the functions of local authorities under sections 2B and 111 and paragraphs 1 to 7B and 13 of Schedule 1.

Role of integrated care boards in the health service in England¶

1I General functions of integrated care boards¶

An integrated care board established under Chapter A3 of Part 2 has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act.

General power¶

2. General power¶

1 The Secretary of State may do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any function conferred on the Secretary of State by this Act.

2 NHS England or an integrated care board may do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of its functions.

Provision for protection or improvement of public health¶

2A Secretary of State's duty as to protection of public health¶

1 The Secretary of State must take such steps as the Secretary of State considers appropriate for the purpose of protecting the public in England from disease or other dangers to health.

2 The steps that may be taken under subsection (1) include—

a the conduct of research or such other steps as the Secretary of State considers appropriate for advancing knowledge and understanding;

b providing microbiological or other technical services (whether in laboratories or otherwise);

c providing vaccination, immunisation or screening services;

d providing other services or facilities for the prevention, diagnosis or treatment of illness;

e providing training;

f providing information and advice;

g making available the services of any person or any facilities.

3 Subsection (4) applies in relation to any function under this section which relates to—

a the protection of the public from ionising or non-ionising radiation, and

b a matter in respect of which a relevant body has a function.

4 In exercising the function, the Secretary of State must—

a consult the relevant body, and

b have regard to its policies.

5 For the purposes of subsections (3) and (4), each of the following is a relevant body—

a the Health and Safety Executive;

b the Office for Nuclear Regulation.

2B Functions of local authorities and Secretary of State as to improvement of public health¶

^C95^C341 Each local authority must take such steps as it considers appropriate for improving the health of the people in its area.

2 The Secretary of State may take such steps as the Secretary of State considers appropriate for improving the health of the people of England.

3 The steps that may be taken under subsection (1) or (2) include—

a providing information and advice;

b providing services or facilities designed to promote healthy living (whether by helping individuals to address behaviour that is detrimental to health or in any other way);

c providing services or facilities for the prevention, diagnosis or treatment of illness;

d providing financial incentives to encourage individuals to adopt healthier lifestyles;

e providing assistance (including financial assistance) to help individuals to minimise any risks to health arising from their accommodation or environment;

f providing or participating in the provision of training for persons working or seeking to work in the field of health improvement;

g making available the services of any person or any facilities.

4 The steps that may be taken under subsection (1) also include providing grants or loans (on such terms as the local authority considers appropriate).

5 In this section, “local authority” means—

a a county council in England;

b a district council in England, other than a council for a district in a county for which there is a county council;

c a London borough council;

d the Council of the Isles of Scilly;

e the Common Council of the City of London.

Arrangements for the provision of certain health services¶

3. Duties of integrated care boards as to commissioning certain health services¶

1 An integrated care board must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the people for whom it has responsibility—

a hospital accommodation,

b other accommodation for the purpose of any service provided under this Act,

c medical services other than primary medical services (for primary medical services, see Part 4),

d dental services other than primary dental services (for primary dental services, see Part 5),

e ophthalmic services other than primary ophthalmic services (for primary ophthalmic services, see Part 6),

f nursing and ambulance services,

g such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as the board considers are appropriate as part of the health service,

h such other services or facilities for palliative care as the board considers are appropriate as part of the health service,

i such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the board considers are appropriate as part of the health service, and

j such other services or facilities as are required for the diagnosis and treatment of illness.

2 For the purposes of this section an integrated care board has responsibility for—

a the group of people for whom it has core responsibility (see section 14Z31), and

b such other people as may be prescribed (whether generally or in relation to a prescribed service or facility).

3 The duty imposed on an integrated care board by subsection (1) to arrange for the provision of services or facilities does not apply to the extent that—

a NHS England has a duty to arrange for their provision;

b another integrated care board has a duty to arrange for their provision by virtue of subsection (2)(b).

4 In exercising its functions under this section, an integrated care board must act consistently with—

a the discharge by the Secretary of State and NHS England of their duty under section 1(1) (duty to promote a comprehensive health service), and

b the objectives and requirements for the time being specified in the mandate published under section 13A.

3A. Power of integrated care boards to commission certain health services¶

1 Each integrated care board may arrange for the provision of such services or facilities as it considers appropriate for the purposes of the health service that relate to securing improvement—

a in the physical and mental health of the people for whom it has responsibility, or

b in the prevention, diagnosis and treatment of illness in those people.

2 For the purposes of this section an integrated care board has responsibility for—

a the group of people for whom it has core responsibility (see section 14Z31), and

b such other people as may be prescribed (whether generally or in relation to a prescribed service or facility).

3 An integrated care board may not arrange for the provision of a service or facility under subsection (1) if NHS England has a duty to arrange for its provision by virtue of section 3B or 4.

4 In exercising its functions under this section, an integrated care board must act consistently with—

a the discharge by the Secretary of State and NHS England of their duty under section 1(1) (duty to promote a comprehensive health service), and

b the objectives and requirements for the time being specified in the mandate published under section 13A.

3B Secretary of State's power to require NHS England to commission services¶

1 Regulations may require NHS England to arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision as part of the health service of—

a dental services of a prescribed description;

b services or facilities for members of the armed forces or their families;

c services or facilities for persons who are detained in a prison or in other accommodation of a prescribed description;

d such other services or facilities as may be prescribed.

^C502 A service or facility may be prescribed under subsection (1)(d) only if the Secretary of State considers that it would be appropriate for NHS England to arrange for the provision of that service or facility (whether by NHS England making arrangements itself or by giving directions under section 13YB or making arrangements under section 65Z5).

3 In deciding whether it would be so appropriate, the Secretary of State must have regard to—

a the number of individuals who require the provision of the service or facility;

b the cost of providing the service or facility;

c the number of persons able to provide the service or facility;

^F722d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 Before deciding whether to make regulations under this section, the Secretary of State must—

a obtain advice appropriate for that purpose, and

b consult NHS England.

4A If the Secretary of State refuses a request by NHS England to revoke provision made by regulations under subsection (1)(d) prescribing a service or facility, the Secretary of State must explain why to NHS England.

5 The reference in subsection (1)(b) to members of the armed forces is a reference to persons who are members of—

a the regular forces within the meaning of the Armed Forces Act 2006, or

b the reserve forces within the meaning of that Act.

4 High security psychiatric services¶

1 NHS England must arrange for the provision of hospital accommodation and services for persons who—

a are liable to be detained under the Mental Health Act 1983 (c. 20), and

b in the opinion of the Secretary of State require treatment under conditions of high security on account of their dangerous, violent or criminal propensities.

2 The hospital accommodation and services mentioned in subsection (1) are referred to in this section and paragraph 15 of Schedule 4 (NHS trusts) as “high security psychiatric services”.

3 High security psychiatric services may be provided —

a only at hospital premises at which services are provided only for the persons mentioned in subsection (1), and

b only by a person approved by the Secretary of State for the purposes of this subsection.

3A The Secretary of State may—

a give directions to a person who provides high security psychiatric services about the provision by that person of those services;

b give directions to NHS England about the exercise of its functions in relation to high security psychiatric services.

4 “Hospital premises” means—

a a hospital, or

b any part of a hospital which is treated as a separate unit.

5 Other services¶

Schedule 1 makes further provision about the provision of services for the purposes of the health service in England.

Provision of services otherwise than in England¶

6 Performance of functions outside England¶

1 Where the Secretary of State has a duty or power to provide anything under section 2A or 2B or Schedule 1, that thing may be provided outside England.

1A Where an integrated care board or NHS England has a duty or power to arrange for the provision of anything under section 3, 3A, 3B or 4 or Schedule 1, it may arrange for that thing to be provided outside England.

2 The functions of the Secretary of State, NHS England and integrated care boards may be performed outside England and Wales, in so far as they relate to—

a holidays for patients,

b the transfer of patients to or from Scotland, Northern Ireland, the Isle of Man or the Channel Islands, or

c the return of patients who have received treatment in England and Wales, to countries or territories outside the British Islands (including for this purpose the Republic of Ireland).

^F7996A Reimbursement of cost of services provided in another EEA state¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F12296B Prior authorisation for the purposes of section 6A¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F4726BA Reimbursement of cost of services provided in another EEA state where expenditure incurred on or after 25 October 2013.¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F6426BB Prior authorisation for the purposes of section 6BA¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulations as to the exercise of functions¶

6C Regulations as to the exercise by local authorities of certain public health functions¶

1 Regulations may require a local authority to exercise any of the public health functions of the Secretary of State (so far as relating to the health of the public in the authority's area) by taking such steps as may be prescribed.

^C382 Regulations may require a local authority to exercise its public health functions by taking such steps as may be prescribed.

3 Where regulations under subsection (1) require a local authority to exercise any of the public health functions of the Secretary of State, the regulations may also authorise or require the local authority to exercise any prescribed functions of the Secretary of State that are exercisable in connection with those functions (including the powers conferred by section 12).

4 The making of regulations under subsection (1) does not prevent the Secretary of State from taking any step that a local authority is required to take under the regulations.

5 Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a local authority of any of its functions under regulations under subsection (1) are enforceable by or against the local authority (and no other person).

6 In this section, “local authority” has the same meaning as in section 2B.

^F13096D Regulations relating to EU obligations¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6E Regulations as to the exercise of functions by NHS England or integrated care boards¶

1 Regulations must impose requirements (to be known as “standing rules”) in accordance with this section on NHS England and on integrated care boards.

1A The regulations must make provision as to the arrangements that NHS England and integrated care boards must make, in exercising their commissioning functions, for enabling persons to whom specified treatments or other specified services are to be provided to make choices with respect to specified aspects of them.

1B The regulations may make other provision for the purpose of securing that, in exercising their commissioning functions, NHS England and integrated care boards protect and promote the rights of persons to make choices in relation to treatments or other services, where those rights—

a arise by virtue of regulations under subsection (1A), or

b are described in the NHS Constitution.

2 The regulations may, in relation to the commissioning functions of NHS England or integrated care boards, make provision—

a requiring NHS England or integrated care boards to arrange for specified treatments or other specified services to be provided or to be provided in a specified manner or within a specified period;

b as to the arrangements that NHS England or integrated care boards must make for the purpose of making decisions as to—

i the treatments or other services that are to be provided;

ii the manner in which or period within which specified treatments or other specified services are to be provided;

iii the persons to whom specified treatments or other specified services are to be provided;

^F855c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 Regulations by virtue of paragraph (b) of subsection (2) may, in particular, make provision—

a requiring NHS England or an integrated care board to take specified steps before making decisions as to the matters mentioned in that paragraph;

b as to reviews of, or appeals from, such decisions.

4 The regulations may—

a specify matters for which provision must be made in commissioning contracts entered into by NHS England or integrated care boards;

b require NHS England to draft terms and conditions making provision for those matters;

c require NHS England or integrated care boards to incorporate the terms and conditions drafted by virtue of paragraph (b) in commissioning contracts entered into by NHS England or (as the case may be) integrated care boards.

5 The regulations must—

a require NHS England to draft such terms and conditions as NHS England considers are, or might be, appropriate for inclusion in commissioning contracts entered into by NHS England or integrated care boards (other than terms and conditions that NHS England is required to draft by virtue of subsection (4)(a));

b authorise NHS England to require integrated care boards to incorporate terms and conditions prepared by virtue of paragraph (a) in their commissioning contracts;

c authorise NHS England to draft model commissioning contracts.

6 The regulations may require NHS England to consult prescribed persons before exercising any of its functions by virtue of subsection (4)(b) or (5).

7 The regulations may require NHS England or integrated care boards in the exercise of any of its or their functions—

a to provide information of a specified description to specified persons in a specified manner;

^F658b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c to do such other things as the Secretary of State considers necessary for the purposes of the health service.

8 The regulations may not impose a requirement on only one integrated care board.

9 If regulations under this section are made so as to come into force on a day other than 1 April, the Secretary of State must—

a publish a statement explaining the reasons for making the regulations so as to come into force on such a day, and

b lay the statement before Parliament.

10 In this section—

a “commissioning contracts”, in relation to NHS England or integrated care boards, means contracts entered into by NHS England or (as the case may be) integrated care boards in the exercise of its or their commissioning functions;

b “commissioning functions”, in relation to NHS England or integrated care boards, means the functions of NHS England or (as the case may be) integrated care boards in arranging for the provision of services as part of the health service;

c “specified” means specified in the regulations.

6F Enforcement of section 6E regulations relating to patient choice¶

1 NHS England may investigate whether an integrated care board has failed or is likely to fail to comply with a requirement imposed by regulations under section 6E(1A) or (1B) (a “patient choice requirement”).

2 NHS England may direct an integrated care board—

a to put in place measures for the purpose of preventing failures to comply with patient choice requirements or mitigating the effect of such failures, or

b where an investigation under subsection (1) has been carried out, to remedy a failure to comply with patient choice requirements.

3 Where an investigation under subsection (1) is being or has been carried out, NHS England may accept from the integrated care board an undertaking that it will take any action falling within subsection (2)(a) or (b) that is specified in the undertaking, within a period that is so specified.

4 Where NHS England accepts an undertaking under subsection (3), NHS England may not—

a continue to carry out any ongoing investigation under subsection (1) so far as relating to matters to which the undertaking relates, or

b give a direction under subsection (2) in relation to those matters,

unless the integrated care board fails to comply with the undertaking.

5 If an integrated care board from which NHS England has accepted an undertaking under subsection (3) complies partially with the undertaking, NHS England must take the partial compliance into account in deciding whether to do something mentioned in subsection (4)(a) or (b).

6 Schedule 1ZA makes further provision about undertakings.

6G Guidance relating to patient choice¶

1 NHS England must publish guidance about how it intends to exercise powers conferred on it by section 6F and Schedule 1ZA.

2 Before publishing guidance under this section, NHS England must obtain the approval of the Secretary of State.

Functions of Special Health Authorities ¶

7 Functions of Special Health Authorities ¶

^C291 The Secretary of State may direct a Special Health Authority to exercise any functions of the Secretary of State or any other person which relate to the health service in England and are specified in the direction.

1A Subsection (1) does not apply to any function of the Secretary of State of making an order or regulations.

1B Before exercising the power in subsection (1) in relation to a function of a person other than the Secretary of State, the Secretary of State must consult that person.

1C Regulations may provide that a Special Health Authority specified in the regulations is to have such additional functions in relation to the health service in England as may be so specified.

^F13642 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13643 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exercise of Secretary of State's public health functions¶

7A. Exercise of Secretary of State’s public health functions¶

1 The Secretary of State may arrange for any of the public health functions of the Secretary of State to be exercised by one or more relevant bodies.

2 In this section “relevant body” means—

a NHS England,

b an integrated care board,

c a local authority (within the meaning of section 2B),

d a combined authority, or

da a combined county authority, or

e such other body as may be prescribed.

3 Arrangements under this section may be made on such terms as may be agreed between the parties including—

a terms as to payment;

b terms prohibiting or restricting a relevant body from making delegation arrangements in relation to a function that is exercisable by it by virtue of arrangements under this section.

4 In subsection (3)(b) “delegation arrangements” means arrangements made by a person for the exercise of a function by someone else.

5 Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a relevant body of any function by virtue of this section are enforceable by or against that body (and no other person).

6 The reference in subsection (1) to the public health functions of the Secretary of State includes any functions of the Secretary of State exercisable in connection with those functions (including the powers conferred by section 12).

7B Directions requiring NHS bodies to exercise public health functions¶

1 The Secretary of State may by direction provide for any of the public health functions of the Secretary of State to be exercised by one or more relevant bodies.

2 In this section “relevant body” means—

a NHS England, or

b an integrated care board.

3 A direction under subsection (1) may include provision prohibiting or restricting the relevant body from making delegation arrangements in relation to a function that is exercisable by it by virtue of the direction.

4 In subsection (3) “delegation arrangements” means arrangements made by a person for the exercise of a function by someone else.

5 The Secretary of State may make payments to a relevant body in respect of the exercise by it of a function by virtue of a direction under subsection (1).

6 The Secretary of State may give directions to an integrated care board as to the exercise by it of any functions by virtue of this section.

7 For power to give directions to NHS England as to the exercise of functions, see section 13ZC.

8 As soon as reasonably practicable after giving a direction under subsection (1) or (6), the Secretary of State must publish it.

9 Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a relevant body of any function by virtue of this section are enforceable by or against it (and no other person).

10 The reference in subsection (1) to the public health functions of the Secretary of State includes any functions of the Secretary of State exercisable in connection with those functions (including the powers conferred by section 12).

7C Power of direction: investigation functions¶

1 The Secretary of State may direct—

a NHS England, or

b any other public body,

to exercise any of the investigation functions which are specified in the direction.

2 A direction under subsection (1) may include provision prohibiting or restricting the body directed from making delegation arrangements in relation to a function that is exercisable by it by virtue of the direction.

3 In subsection (2) “delegation arrangements” means arrangements made by a person for the exercise of a function by someone else.

4 The Secretary of State may make payments to NHS England or any other body in respect of the exercise by it of a function by virtue of a direction under subsection (1).

5 The Secretary of State may give directions to any body on whom functions are conferred by virtue of subsection (1)(b) as to the exercise of those functions.

6 For power to give directions to NHS England as to the exercise of functions, see section 13ZC.

7 As soon as reasonably practicable after giving a direction under subsection (1) or (5), the Secretary of State must publish it.

8 Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by NHS England or any other body of any function by virtue of this section are enforceable by or against it (and no other person).

9 In this section “the investigation functions” are functions which, immediately before the coming into force of section 36 of the Health and Care Act 2022, were exercised by the Special Health Authority called the National Health Service Trust Development Authority pursuant to—

a the National Health Service Trust Development Authority (Healthcare Safety Investigation Branch) Directions 2016 made under sections 7 and 8 of the National Health Service Act 2006, or

b the National Health Service Trust Development Authority (Healthcare Safety Investigation Branch) (Additional Investigatory Functions in respect of Maternity Cases) Directions 2018 made under sections 7 and 8 of the National Health Service Act 2006.

7D Transfer schemes in connection with a direction under section 7C¶

1 The Secretary of State may, in connection with a direction under section 7C, make one or more transfer schemes.

2 A “transfer scheme” is a scheme for the transfer to NHS England or any other public body of any property, rights or liabilities relating to the discharge of functions pursuant to any directions made by the Secretary of State under the power conferred by section 7C.

3 The things that may be transferred under a transfer scheme include—

a property, rights and liabilities that could not otherwise be transferred;

b property acquired, and rights and liabilities arising, after the making of the scheme;

c criminal liabilities.

4 A transfer scheme may—

a create rights, or impose liabilities, in relation to property or rights transferred;

b make provision about the continuing effect of things done by, or on behalf of or in relation to the transferor in respect of anything transferred;

c make provision about the continuation of things (including legal proceedings) in the process of being done by, on behalf of or in relation to the transferor in respect of anything transferred;

d make provision for references to the transferor in an instrument or other document in respect of anything transferred to be treated as references to the transferee;

e make provision for the shared ownership or use of property;

f make provision which is the same as or similar to the TUPE regulations;

g make other consequential, supplementary, incidental or transitional provision.

5 A transfer scheme may provide—

a for modifications by agreement;

b for modifications to have effect from the date when the original scheme came into effect.

6 In subsection (4)(f), “the TUPE regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246).

7 For the purposes of this section—

a references to rights and liabilities include rights and liabilities relating to a contract of employment;

b references to the transfer of property include the grant of a lease.

8 For the purposes of subsection (7)(a)—

a an individual who holds employment in the civil service of the State is to be treated as employed by virtue of a contract of employment, and

b the terms of the individual’s employment in the civil service are to be regarded as constituting the terms of the contract of employment.

7E Transfer schemes under section 7D: taxation¶

1 The Treasury may by regulations make provision varying the way in which a relevant tax has effect in relation to—

a anything transferred under a scheme under section 7D, or

b anything done for the purposes of, or in relation to, a transfer under such a scheme.

2 The provision which may be made under subsection (1)(a) includes in particular provision for—

a a tax provision not to apply, or to apply with modifications, in relation to anything transferred;

b anything transferred to be treated in a specified way for the purposes of a tax provision;

c the Secretary of State to be required or permitted to determine, or specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to anything transferred.

3 The provision which may be made under subsection (1)(b) includes in particular provision for—

a a tax provision not to apply, or to apply with modifications, in relation to anything done for the purposes of or in relation to the transfer;

b anything done for the purposes of, or in relation to, the transfer to have or not have a specified consequence or be treated in a specified way;

4 In this section references to the transfer of property include the grant of a lease.

5 In this section—

“relevant tax” means income tax, corporation tax, capital gains tax, value added tax, stamp duty or stamp duty reserve tax;
“tax provision” means a provision of an enactment about a relevant tax.

Directions to certain NHS bodies¶

8 Secretary of State's directions to certain health service bodies¶

1 The Secretary of State may give directions to any of the bodies mentioned in subsection (2) about its exercise of any functions.

2 The bodies are—

^F60a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1021b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c NHS trusts, and

d Special Health Authorities.

3 Nothing in provision made by or under this or any other Act affects the generality of subsection (1).

NHS contracts¶

^C2^C5^C649 NHS contracts¶

1 In this Act, an NHS contract is an arrangement under which one health service body (“the commissioner”) arranges for the provision to it by another health service body (“the provider”) of goods or services which it reasonably requires for the purposes of its functions.

2 Section 139(6) (NHS contracts and the provision of local pharmaceutical services under pilot schemes) makes further provision about acting as commissioner for the purposes of subsection (1).

3 Paragraph 15 of Schedule 4 (NHS trusts and NHS contracts) makes further provision about an NHS trust acting as provider for the purposes of subsection (1).

^C624 “Health service body” means any of the following—

za NHS England,

zb an integrated care board,

^F1378a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1285b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c an NHS trust,

d a Special Health Authority,

e a Local Health Board,

f a Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978 (c. 29),

fa a Special Health Board constituted under that section,

g the Regional Agency for Public Health and Social Well-being,

h the Common Services Agency for the Scottish Health Service,

i the Wales Centre for Health,

^F963j . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

k the Care Quality Commission,

ka NICE,

^F1653kb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1056kc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

kd the Health Services Safety Investigations Body,

l the Scottish Dental Practice Board,

m the Secretary of State,

n the Welsh Ministers,

na the Scottish Ministers,

nb Healthcare Improvement Scotland,

o the Regional Business Services Organisation,

p a special health and social services agency established under the Health and Personal Social Services (Special Agencies) (Northern Ireland) Order 1990 (S.I. 1990/247 (N.I.3)),

q a Health and Social Care trust trust established under the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I.1)),

r the Department of Health, Social Services and Public Safety.

^C83^C95 Whether or not an arrangement which constitutes an NHS contract would apart from this subsection be a contract in law, it must not be regarded for any purpose as giving rise to contractual rights or liabilities.

6 But if any dispute arises with respect to such an arrangement, either party may refer the matter to the Secretary of State for determination under this section.

7 If, in the course of negotiations intending to lead to an arrangement which will be an NHS contract, it appears to a health service body—

a that the terms proposed by another health service body are unfair by reason that the other is seeking to take advantage of its position as the only, or the only practicable, provider of the goods or services concerned or by reason of any other unequal bargaining position as between the prospective parties to the proposed arrangement, or

b that for any other reason arising out of the relative bargaining position of the prospective parties any of the terms of the proposed arrangement cannot be agreed,

that health service body may refer the terms of the proposed arrangement to the Secretary of State for determination under this section.

8 Where a reference is made to the Secretary of State under subsection (6) or (7), he may determine the matter himself or appoint a person to consider and determine it in accordance with regulations.

9 “The appropriate person” means the Secretary of State or the person appointed under subsection (8).

10 By the determination of a reference under subsection (7) the appropriate person may specify terms to be included in the proposed arrangement and may direct that it be proceeded with.

11 A determination of a reference under subsection (6) may contain such directions (including directions as to payment) as the appropriate person considers appropriate to resolve the matter in dispute.

^C4^C3212 The appropriate person may by the determination in relation to an NHS contract vary the terms of the arrangement or bring it to an end (but this does not affect the generality of the power of determination under subsection (6)).

^C3213 Where an arrangement is so varied or brought to an end—

a subject to paragraph (b), the variation or termination must be treated as being effected by agreement between the parties, and

b the directions included in the determination by virtue of subsection (11) may contain such provisions as the appropriate person considers appropriate in order to give effect to the variation or to bring the arrangement to an end.

10 Provision for bodies in Northern Ireland¶

1 Subsection (2) applies where the Regional Agency for Public Health and Social Well-being or a body mentioned in paragraph (o), (p), (q) or (r) of section 9(4) is a party or prospective party to an arrangement or proposed arrangement which—

a falls within the definition of NHS contract in section 9(1), and

b also falls within the definition of HSS contract in Article 8 of the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I.1)).

2 Subsections (5) to (13) of section 9 apply in relation to the arrangement or proposed arrangement with the substitution for references to the Secretary of State of references to the Secretary of State and the Department of Health, Social Services and Public Safety acting jointly.

10A Provision for bodies in Scotland¶

1 Subsection (2) applies where the Scottish Ministers are, or a body mentioned in paragraph (f), (fa), (h), (l) or (nb) of section 9(4) is, a party or prospective party to an arrangement or proposed arrangement which—

a falls within the definition of NHS contract in section 9(1), and

b also falls within the definition of NHS contract in section 17A of the National Health Service (Scotland) Act 1978.

2 Subsections (5) to (13) of section 9 apply in relation to the arrangement or proposed arrangement (except in so far as it relates to reserved matters within the meaning of the Scotland Act 1998) with the substitution for references to the Secretary of State of references to the Secretary of State and the Scottish Ministers acting jointly.

3 Subsection (4) applies (and subsection (2) does not apply) where a cross-border Special Health authority is a party or prospective party to an arrangement or proposed arrangement which—

a falls within the definition of NHS contract in section 9(1), and

b also falls within the definition of NHS contract in section 17A of the National Health Service (Scotland) Act 1978 and the definition of NHS contract in section 7(1) of the National Health Service (Wales) Act 2006.

4 Subsections (5) to (13) of section 9 apply in relation to that arrangement or proposed arrangement (except in so far as it relates to reserved matters within the meaning of the Scotland Act 1998) with the substitution for references to the Secretary of State—

a where the cross-border Special Health Authority is exercising functions in relation to England only, of references to the Secretary of State and the Scottish Ministers acting jointly; and

b where the Authority is exercising functions in relation to England and Wales, of references to the Secretary of State and the Welsh Ministers acting concurrently with each other and jointly with the Scottish Ministers.

5 In subsections (3) and (4), “cross-border Special Health Authority” means a Special Health Authority which is established under the National Health Service Act 2006 and the National Health Service (Wales) Act 2006 by virtue of—

a paragraph 1(2) of Schedule 2 to the National Health Service (Consequential Provisions) Act 2006, or

b the power under section 28 of the National Health Service Act 2006 and the power under section 22 of the National Health Service (Wales) Act 2006 being exercised together.

^C1011 Arrangements to be treated as NHS contracts¶

1 This section applies to any arrangement under which NHS England, ^F1463... ^F244... or such other health service body as may be prescribed arrange for the provision to it—

a by a contractor under a general ophthalmic services contract,

b by a person on an ophthalmic list,

c by a person on a pharmaceutical list, or

d by a person who has entered into a pharmaceutical care services contract under section 17Q of the National Health Service (Scotland) Act 1978 (c. 29),

of the goods or services mentioned in subsection (2).

2 The goods or services are those that the body reasonably requires for the purposes of its functions, other than functions under—

a section 115 (primary ophthalmic services),

b Chapter 1 or 2 of Part 7 (pharmaceutical services and local pharmaceutical services under pilot schemes), or

c Part 6 of, or Chapter 1 or 2 of Part 7 of, the National Health Service (Wales) Act 2006 (c. 42) (general ophthalmic services and pharmaceutical services and local pharmaceutical services under pilot schemes).

3 Any such arrangement must be treated as an NHS contract for the purposes of section 9 (other than subsections (7) and (10)).

4 “Health service body” means a body which is a health service body for the purposes of section 9.

5 “Ophthalmic list” means a list published in accordance with regulations made under—

a section 72(1)(a) of the National Health Service (Wales) Act 2006,

b section 26(2)(a) of the National Health Service (Scotland) Act 1978, or

c Article 62(2)(a) of the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I.14)).

6 The reference to a list published in accordance with regulations made under paragraph (a) of section 26(2) of the National Health Service (Scotland) Act 1978 is a reference to the first part of the list (referred to in sub-paragraph (i) of that paragraph) which is published in accordance with regulations under that paragraph.

7 “Pharmaceutical list” includes a list published in accordance with regulations made under—

a section 83(2)(a) of the National Health Service (Wales) Act 2006, or

b Article 63(2A)(a) of the Health and Personal Social Services (Northern Ireland) Order 1972.

Arrangements with other bodies¶

12 Secretary of State's arrangements with other bodies¶

1 The Secretary of State may arrange with any person or body to provide, or assist in providing, anything which the Secretary of State has a duty or power to provide, or arrange for the provision of, under section 2A or 2B or Schedule 1.

2 The bodies with whom arrangements may be made under subsection (1) include—

a NHS England,

b integrated care boards,

c any other public authorities, and

d voluntary organisations.

3 The Secretary of State may make available any facilities provided by the Secretary of State under section 2A or 2B or Schedule 1 to any service provider or to any eligible voluntary organisation.

3A In subsection (3)—

“eligible voluntary organisation” means a voluntary organisation eligible for assistance under section 64 or section 65 of the Health Services and Public Health Act 1968;
“service provider” means a person or body with whom the Secretary of State has made an arrangement under subsection (1).

4 Where facilities are made available under subsection (3), the Secretary of State may make available the services of any person employed in connection with the facilities by—

a the Secretary of State,

aa NHS England,

ab an integrated care board,

ac a local authority,

^F802b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F571c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

d a Special Health Authority, or

e a Local Health Board.

4A In subsection (4), “local authority” has the same meaning as in section 2B.

5 Powers under this section may be exercised on such terms as may be agreed, including terms as to the making of payments by or to the Secretary of State.

6 Goods or materials may be made available either temporarily or permanently.

7 Any power to supply goods or materials under this section includes—

a a power to purchase and store them, and

b a power to arrange with third parties for the supply of goods or materials by those third parties.

12ZA Commissioning arrangements by NHS England or integrated care boards¶

1 This section applies in relation to arrangements made by NHS England or an integrated care board in the exercise of functions under section 3, 3A, 3B or 4 or Schedule 1.

2 The arrangements may be made with any person or body (including public authorities and voluntary organisations).

2A The arrangements may confer discretions on a person with whom they are made in relation to anything to be provided under the arrangements.

3 If NHS England or an integrated care board arranges for the provision of facilities by a service provider, it may also make arrangements for those facilities to be made available to another service provider or to an eligible voluntary organisation.

4 NHS England or an integrated care board may make available any of its facilities to—

a a service provider, or

b an eligible voluntary organisation.

5 Where facilities are made available under subsection (4) any of the following persons may make available the services of any employee of that person who is employed in connection with the facilities—

a the Secretary of State,

b NHS England,

c an integrated care board,

d a Special Health Authority, or

e a Local Health Board.

6 Goods or materials may be made available under this section either temporarily or permanently.

7 Any power to supply goods or materials under this section includes—

a a power to purchase or store them, and

b a power to arrange with third parties for the supply of goods or materials by those third parties.

8 Powers under this section may be exercised on such terms as may be agreed, including terms as to the making of payments.

9 In this section—

“eligible voluntary organisation” means a voluntary organisation eligible for assistance under section 64 or section 65 of the Health Services and Public Health Act 1968;
“service provider” means a person or body with whom NHS England or an integrated care board has made arrangements in the exercise of the functions mentioned in subsection (1).

Procurement¶

12ZB Procurement regulations¶

1 Regulations may make provision in relation to the processes to be followed and objectives to be pursued by relevant authorities in the procurement of—

a health care services for the purposes of the health service in England, and

b other goods or services that are procured together with those health care services.

2 Regulations under subsection (1) must include provision specifying steps to be taken when following a competitive tendering process.

3 Regulations under subsection (1) must, in relation to the procurement of all health care services to which they apply, make provision for the purposes of—

a ensuring transparency;

b ensuring fairness;

c ensuring that compliance can be verified;

d managing conflicts of interest.

4 NHS England must publish such guidance as it considers appropriate about compliance with the regulations.

5 A relevant authority must have regard to guidance published under this section.

6 Before publishing guidance under this section, NHS England must obtain the approval of the Secretary of State.

7 In this section—

“health care service” has the same meaning as in Part 3 of the Health and Social Care Act 2012 (see section 150 of that Act);
“relevant authority” means—
1. a combined authority;
2. a combined county authority;
3. an integrated care board;
4. a local authority in England;
5. NHS England;
6. an NHS foundation trust;
7. an NHS trust established under section 25.

12ZC Eradicating slavery and human trafficking in supply chains¶

1 The Secretary of State must by regulations make such provision as the Secretary of State thinks appropriate with a view to eradicating the use in the health service in England of goods or services that are tainted by slavery and human trafficking.

2 The regulations may, in particular, include—

a provision in connection with the processes to be followed by public bodies in the procurement of goods or services for the purposes of the health service in England (including provision as to circumstances in which a supplier is excluded from consideration for the award of a contract);

b provision as to steps that must be taken by public bodies for assessing and addressing the risk of slavery and human trafficking taking place in relation to people involved in health service supply chains;

c provision as to matters for which provision must be made in contracts for goods or services entered into by public bodies for the purposes of the health service in England.

3 In this section—

“health service supply chains” means supply chains for providing goods or services for the purposes of the health service in England;
“public body” means a body exercising functions of a public nature;
“slavery and human trafficking” has the meaning given by section 54(12) of the Modern Slavery Act 2015;
“tainted”: goods or services are “tainted” by slavery and human trafficking if slavery and human trafficking takes place in relation to anyone involved in the supply chain for providing those goods or services.

Direct payments for health care¶

12A Direct payments for health care¶

1 The Secretary of State , NHS England, an integrated care board or a local authority may, for the purpose of securing the provision to a patient of anything to which this subsection applies, make payments, with the patient's consent, to the patient or to a person nominated by the patient.

2 Subsection (1) applies to—

a anything that the Secretary of State or a local authority has a duty or power to provide or arrange under section 2A or 2B or Schedule 1;

aa anything that NHS England or an integrated care board may or must arrange for the provision of under this Act or any other enactment.

^F573b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F573c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 Subsection (1) is subject to any provision made by regulations under section 12B.

4 If regulations so provide, an integrated care board may, for the purpose of securing the provision for a patient of services that the board must provide under section 117 of the Mental Health Act 1983 (after-care), make payments, with the patient's consent, to the patient or to a person nominated by the patient ; and the references in this subsection to an integrated care board are, so far as necessary for the purposes of regulations under subsection (2E) of that section, to be read as references to NHS England.

5 A payment under subsection (1) ^F1501... is referred to in this Part as a “direct payment”.

^F6066 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 In this section and sections 12B to 12D, “local authority” has the same meaning as in section 2B.

12B Regulations about direct payments¶

1 The Secretary of State may make regulations about direct payments.

2 The regulations may in particular make provision—

a as to circumstances in which, and descriptions of persons and services in respect of which, direct payments may or must be made;

b as to circumstances in which direct payments may or must be made to a person nominated by the patient;

c as to the making of direct payments (and, in particular, as to persons to whom payments may or must be made) where the patient lacks capacity to consent to the making of the payments;

d as to conditions that the Secretary of State , NHS England, an integrated care board or a local authority must comply with before, after or at the time of making a direct payment;

e as to conditions that the patient or (if different) the payee may or must be required to comply with before, after, or at the time when a direct payment is made;

f as to the amount of any direct payment or how it is to be calculated;

g as to circumstances in which the Secretary of State , NHS England, an integrated care board or a local authority may or must stop making direct payments;

h as to circumstances in which the Secretary of State , NHS England, an integrated care board or a local authority may or must require all or part of a direct payment to be repaid, by the payee or otherwise;

i as to monitoring of the making of direct payments, of their use by the payee, or of services which they are used to secure;

j as to arrangements to be made by the Secretary of State , NHS England, an integrated care board or a local authority for providing patients, payees or their representatives with information, advice or other support in connection with direct payments;

k for such support to be treated to any prescribed extent as a service in respect of which direct payments may be made.

3 If the regulations make provision in the case of a person who lacks capacity to consent to direct payments being made, they may apply that provision, or make corresponding provision, with or without modifications, in the case of a person who has lacked that capacity but no longer does so (whether because of fluctuating capacity, or regaining or gaining capacity).

4 The regulations may provide for a sum which must be repaid to the Secretary of State , NHS England, an integrated care board or a local authority by virtue of a condition or other requirement imposed by or under the regulations to be recoverable as a debt due to the Secretary of State NHS England, a clinical commissioning group or a local authority (as the case may be).

5 The regulations may make provision—

a for a service in respect of which a direct payment has been made under section 12A(1) to be regarded, only to such extent and subject to such conditions as may be prescribed, as provided or arranged for by the Secretary of State or a local authority or as arranged for by NHS England or an integrated care board (as the case may be) under an enactment mentioned in section 12A(2);

b displacing functions or obligations of NHS England, an integrated care board or a local authority with respect to the arrangement for the provision of after-care services under section 117 of the Mental Health Act 1983, only to such extent and subject to such conditions as may be prescribed.

6 In this section—

a “service” includes anything in respect of which direct payments may be made;

b references to a person lacking capacity are references to a person lacking capacity within the meaning of the Mental Capacity Act 2005.

12C Direct payments pilot schemes¶

^F13731 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13732 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13733 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13734 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 Provision as to the review of a pilot scheme may in particular include provision—

a for a review to be carried out by an independent person;

b for publication of the findings of a review;

c as to matters to be considered on a review.

6 Those matters may in particular include any of the following—

a the administration of the scheme;

b the effect of direct payments on the cost or quality of care received by patients;

c the effect of direct payments on the behaviour of patients, carers or persons providing services in respect of which direct payments are made.

7 After any review of one or more pilot schemes, the Secretary of State may make an order under subsection (8) or (10).

8 An order under this subsection is an order making provision for either or both of the following—

a repealing section 12A(6) and subsections (1) to (4) of this section;

b amending, repealing, or otherwise modifying any other provision of this Act.

9 An order may make provision within subsection (8)(b) only if it appears to the Secretary of State to be necessary or expedient for the purpose of facilitating the exercise of the powers conferred by section 12A(1) or by regulations under section 12A(4).

10 An order under this subsection is an order repealing sections 12A, 12B, 12D and this section.

12D Arrangements with other bodies relating to direct payments¶

1 The Secretary of State , NHS England, an integrated care board or a local authority may arrange with any person or body to give assistance in connection with direct payments.

2 Arrangements may be made under subsection (1) with voluntary organisations.

3 Powers under this section may be exercised on such terms as may be agreed, including terms as to the making of payments by the Secretary of State , NHS England, an integrated care board or a local authority.

Miscellaneous¶

12E Secretary of State's duty as respects variation in provision of health services¶

1 The Secretary of State must not exercise the functions mentioned in subsection (2) for the purpose of causing a variation in the proportion of services provided as part of the health service that is provided by persons of a particular description if that description is by reference to—

a whether the persons in question are in the public or (as the case may be) private sector, or

b some other aspect of their status.

2 The functions mentioned in this subsection are the functions of the Secretary of State under—

a section 6E;

b section 12ZB;

c section 13A.

12F Expected mental health spending¶

1 The Secretary of State must, in respect of each financial year, publish and lay before Parliament a document—

a stating, by comparison with the previous financial year—

i whether the Secretary of State expects there to be an increase in the amount of expenditure incurred by NHS England and integrated care boards (taken together) in relation to mental health, and

ii whether the Secretary of State expects there to be an increase in the proportion of the expenditure incurred by NHS England and integrated care boards (taken together) that relates to mental health, and

b explaining why.

2 The Secretary of State must publish and lay the document before the financial year to which it relates.

Part 2 Health service bodies¶

CHAPTER A1 NHS England¶

Secretary of State's mandate to NHS England¶

13A Mandate to NHS England¶

1 ^F1403... The Secretary of State must publish and lay before Parliament a document to be known as “the mandate”.

2 The Secretary of State must specify in the mandate—

a the objectives that the Secretary of State considers NHS England should seek to achieve in the exercise of its functions ^F361..., and

b any requirements that the Secretary of State considers it necessary to impose on NHS England for the purpose of ensuring that it achieves those objectives.

2A The objectives specified by the Secretary of State under subsection (2)(a) for NHS England must include objectives relating to outcomes for cancer patients, and those objectives are to be treated by NHS England as having priority over any other objectives relating specifically to cancer.

^F14123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F15784 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 The Secretary of State may also specify in the mandate the matters by reference to which the Secretary of State proposes to assess NHS England’s performance^F590....

6 The Secretary of State may not specify in the mandate an objective or requirement about the exercise of NHS England’s functions in relation to only one integrated care board.

6A The Secretary of State may revise the mandate.

6B If the Secretary of State revises the mandate, the Secretary of State must publish and lay before Parliament the mandate as revised.

7 NHS England must—

a seek to achieve the objectives specified in the mandate, and

b comply with any requirements so specified.

8 Before specifying any objectives or requirements in the mandate, the Secretary of State must consult—

a NHS England,

b the Healthwatch England committee of the Care Quality Commission, and

c such other persons as the Secretary of State considers appropriate.

9 Requirements included in the mandate have effect only if regulations so provide.

13B Review of NHS England’s performance in implementing the mandate¶

1 The Secretary of State must keep NHS England’s performance in achieving any objectives or requirements specified in the mandate under review.

^F14702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F14703 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F14704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F14705 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

General duties of NHS England¶

13C Duty to promote NHS Constitution¶

1 NHS England must, in the exercise of its functions—

a act with a view to securing that health services are provided in a way which promotes the NHS Constitution, and

b promote awareness of the NHS Constitution among patients, staff and members of the public.

2 In this section, “patients” and “staff” have the same meaning as in Chapter 1 of Part 1 of the Health Act 2009 (see section 3(7) of that Act).

13D Duty as to effectiveness, efficiency etc.¶

NHS England must exercise its functions effectively, efficiently and economically.

13E Duty as to improvement in quality of services¶

1 NHS England must exercise its functions with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with—

a the prevention, diagnosis or treatment of illness, or

b the protection or improvement of public health.

2 In discharging its duty under subsection (1), NHS England must, in particular, act with a view to securing continuous improvement in the outcomes that are achieved from the provision of the services.

3 The outcomes relevant for the purposes of subsection (2) include, in particular, outcomes which show—

a the effectiveness of the services,

b the safety of the services, and

c the quality of the experience undergone by patients.

4 In discharging its duty under subsection (1), NHS England must have regard to—

a any document published by the Secretary of State for the purposes of this section, and

b the quality standards prepared by NICE under section 234 of the Health and Social Care Act 2012.

^F49113F Duty as to promoting autonomy¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13G Duty as to reducing inequalities¶

NHS England must, in the exercise of its functions, have regard to the need to—

a reduce inequalities between persons with respect to their ability to access health services, and

b reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services (including the outcomes described in section 13E(3)).

13H Duty to promote involvement of each patient¶

NHS England must, in the exercise of its functions, promote the involvement of patients, and their carers and representatives (if any), in decisions which relate to—

a the prevention or diagnosis of illness in the patients, or

b their care or treatment.

13I Duty as to patient choice¶

NHS England must, in the exercise of its functions, act with a view to enabling patients to make choices with respect to aspects of health services provided to them.

13J Duty to obtain appropriate advice¶

1 NHS England must obtain advice appropriate for enabling it effectively to discharge its functions from persons who (taken together) have a broad range of professional expertise in—

a the prevention, diagnosis or treatment of illness, and

b the protection or improvement of public health.

2 Subsection (1) does not apply in relation to NHS England’s education and training functions (see section 102 of the Care Act 2014 for the obtaining of advice in relation to those functions).

13K Duty to promote innovation¶

1 NHS England must, in the exercise of its functions, promote innovation in the provision of health services (including innovation in the arrangements made for their provision).

2 NHS England may make payments as prizes to promote innovation in the provision of health services.

3 A prize may relate to—

a work at any stage of innovation (including research);

b work done at any time (including work before the commencement of section 23 of the Health and Social Care Act 2012).

13L Duty in respect of research¶

NHS England must, in the exercise of its functions, facilitate or otherwise promote—

a research on matters relevant to the health service, and

b the use in the health service of evidence obtained from research.

13M Duty as to promoting education and training¶

NHS England must, in exercising its functions other than its education and training functions, have regard to the need to promote education and training for the persons mentioned in section 1F(1) so as to assist ^F951... in the discharge of the duty under that section.

13N Duty as to promoting integration¶

1 NHS England must exercise its functions with a view to securing that health services are provided in an integrated way where it considers that this would—

a improve the quality of those services (including the outcomes that are achieved from their provision),

b reduce inequalities between persons with respect to their ability to access those services, or

c reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.

2 NHS England must exercise its functions with a view to securing that the provision of health services is integrated with the provision of health-related services or social care services where it considers that this would—

a improve the quality of the health services (including the outcomes that are achieved from the provision of those services),

b reduce inequalities between persons with respect to their ability to access those services, or

c reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.

2A Subsections (1) and (2) do not apply in relation to the exercise of NHS England’s education and training functions.

3 NHS England must encourage integrated care boards to enter into arrangements with local authorities in pursuance of regulations under section 75 where it considers that this would secure—

a that health services are provided in an integrated way and that this would have any of the effects mentioned in subsection (1)(a) to (c), or

b that the provision of health services is integrated with the provision of health-related services or social care services and that this would have any of the effects mentioned in subsection (2)(a) to (c).

4 In this section—

“health-related services” means services that may have an effect on the health of individuals but are not health services or social care services;
“social care services” means services that are provided in pursuance of the social services functions of local authorities (within the meaning of the Local Authority Social Services Act 1970 or for the purposes of the Social Services and Well-being (Wales) Act 2014).

5 For the purposes of this section, the provision of housing accommodation is a health-related service.

13NA Duty to have regard to wider effect of decisions¶

1 In making a decision about the exercise of its functions, NHS England must have regard to all likely effects of the decision in relation to—

a the health and well-being of the people of England;

b the quality of services provided to individuals—

i by relevant bodies, or

ii in pursuance of arrangements made by relevant bodies,

for or in connection with the prevention, diagnosis or treatment of illness, as part of the health service in England;

c efficiency and sustainability in relation to the use of resources by relevant bodies for the purposes of the health service in England.

2 In subsection (1)—

a the reference to a decision does not include a reference to a decision about the services to be provided to a particular individual for or in connection with the prevention, diagnosis or treatment of illness;

b the reference to effects of a decision in relation to the health and well-being of the people of England includes a reference to its effects in relation to inequalities between the people of England with respect to their health and well-being;

c the reference to effects of a decision in relation to the quality of services provided to individuals includes a reference to its effects in relation to inequalities between individuals with respect to the benefits that they can obtain from those services.

3 In discharging the duty under this section, NHS England must have regard to guidance published by it under section 13NB.

4 In this section “relevant bodies” means—

a NHS England,

b integrated care boards,

c NHS trusts established under section 25, and

d NHS foundation trusts.

13NB Guidance about discharge of duty¶

1 NHS England may publish guidance about the discharge of—

a the duty imposed on it by section 13NA;

b the duty imposed on integrated care boards by section 14Z43;

c the duty imposed on NHS trusts by section 26A;

d the duty imposed on NHS foundation trusts by section 63A.

2 NHS England must consult any persons NHS England considers it appropriate to consult—

a before first publishing guidance under this section, and

b before publishing any revised guidance containing changes that are, in the opinion of NHS England, significant.

13NC Duties as to climate change etc¶

1 NHS England must, in the exercise of its functions, have regard to the need to—

a contribute towards compliance with—

i section 1 of the Climate Change Act 2008 (UK net zero emissions target), and

ii section 5 of the Environment Act 2021 (environmental targets), and

b adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008.

2 In discharging the duty under this section, NHS England must have regard to guidance published by it under section 13ND.

13ND Guidance about discharge of duty under section 13NC etc¶

NHS England may publish guidance about the discharge of—

a the duty imposed on it by section 13NC;

b the duty imposed on integrated care boards by section 14Z44;

c the duty imposed on NHS trusts by section 26B;

d the duty imposed on NHS foundation trusts by section 63B.

13O Duty to have regard to impact on services in certain areas¶

1 In making commissioning decisions, NHS England must have regard to the likely impact of those decisions on the provision of health services to persons who reside in an area of Wales or Scotland that is close to the border with England.

2 In this section, “commissioning decisions”, in relation to NHS England, means decisions about the carrying out of its functions in arranging for the provision of health services.

13P Duty as respects variation in provision of health services¶

NHS England must not exercise its functions for the purpose of causing a variation in the proportion of services provided as part of the health service that is provided by persons of a particular description if that description is by reference to—

a whether the persons in question are in the public or (as the case may be) private sector, or

b some other aspect of their status.

13PA Duty to cooperate for education and training functions and specified functions¶

1 NHS England must, in exercising its education and training functions, co-operate with the Secretary of State in the exercise of the public health functions of the Secretary of State.

2 Regulations may require NHS England and a person specified in those regulations to co-operate with each other in the exercise of—

a NHS England’s education and training functions;

b the functions of the specified person;

c such of the functions in paragraphs (a) or (b) as may be specified.

Public involvement¶

13Q Public involvement and consultation by NHS England¶

1 This section applies in relation to any health services which are, or are to be, provided pursuant to arrangements made by NHS England in the exercise of its functions (“commissioning arrangements”).

2 NHS England must make arrangements to secure that individuals to whom the services are being or may be provided , and their carers and representatives (if any), are involved (whether by being consulted or provided with information or in other ways)—

a in the planning of the commissioning arrangements by NHS England,

b in the development and consideration of proposals by NHS England for changes in the commissioning arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and

c in decisions of NHS England affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact.

3 The reference in subsection (2)(b) to the delivery of services is a reference to their delivery at the point when they are received by users.

4 This section does not require NHS England to make arrangements in relation to matters to which a trust special administrator’s draft or final report under section 65F or 65I relates before—

a in a case where the administrator’s report relates to an NHS trust, NHS England and the Secretary of State have made their decisions under section 65K(1) and (2), or

b in a case where the administrator’s report relates to an NHS foundation trust, the Secretary of State is satisfied as mentioned in section 65KB(1) or 65KD(1) or makes a decision under section 65KD(9).

Functions in relation to information¶

13R Information on safety of services provided by the health service¶

1 NHS England must establish and operate systems for collecting and analysing information relating to the safety of the services provided by the health service.

2 NHS England must make information collected by virtue of subsection (1), and any other information obtained by analysing it, available to such persons as NHS England considers appropriate.

3 NHS England may impose charges, calculated on such basis as it considers appropriate, in respect of information made available by it under subsection (2).

4 NHS England must give advice and guidance, to such persons as it considers appropriate, for the purpose of maintaining and improving the safety of the services provided by the health service.

5 NHS England must monitor the effectiveness of the advice and guidance given by it under subsection (4).

6 An integrated care board must have regard to any advice or guidance given to it under subsection (4).

7 NHS England may arrange for any other person (including another NHS body) to exercise any of NHS England’s functions under this section.

8 Arrangements made under subsection (7) do not affect the liability of NHS England for the exercise of any of its functions.

13S Guidance in relation to processing of information¶

1 NHS England must publish guidance for registered persons on the practice to be followed by them in relation to the processing of—

a patient information, and

b any other information obtained or generated in the course of the provision of the health service.

2 Registered persons who carry on an activity which involves, or is connected with, the provision of health care must have regard to any guidance published under this section.

3 In this section, “patient information”, “processing” and “registered person” have the same meaning as in section 20A of the Health and Social Care Act 2008.

13SA Information about inequalities¶

1 NHS England must publish a statement setting out—

a a description of the powers available to relevant NHS bodies to collect, analyse and publish information relating to—

i inequalities between persons with respect to their ability to access health services;

ii inequalities between persons with respect to the outcomes achieved for them by the provision of health services (including the outcomes described in section 13E(3)); and

b the views of NHS England about how those powers should be exercised in connection with such information.

2 NHS England may from time to time publish a revised statement under subsection (1).

3 In this section “relevant NHS bodies” means—

a integrated care boards,

b NHS trusts established under section 25, and

c NHS foundation trusts.

Regulatory functions¶

13SB Minimising conflicts between regulatory and other functions¶

1 NHS England must make arrangements for—

a minimising the risk of conflicts between the exercise of its regulatory functions and its other functions;

b managing any conflicts that arise.

2 In this Act “regulatory functions”, in relation to NHS England, means—

a its functions under the provisions listed in subsection (3),

b its functions under Chapter 5A of Part 2 (trust special administrators) in relation to NHS foundation trusts, except for any functions that are conferred on it under section 65DA, 65F or 65G as a commissioner, and

c any other functions of NHS England so far as exercisable in connection with functions within paragraph (a) or (b).

3 Those provisions are—

a in Part 2 of this Act, Chapter 5 (NHS foundation trusts);

b in Part 3 of the Health and Social Care Act 2012—

i Chapter 3 (licensing);

ii Chapter 4 (NHS payment scheme);

iii Chapter 5 (health special administration);

iv Chapter 6 (financial assistance in special administration cases).

13SC Provision of regulatory information or assistance to the CMA¶

1 NHS England must give the Competition and Markets Authority (“the CMA”)—

a any regulatory information that the CMA may require to enable the CMA to exercise its relevant functions,

b any other regulatory information it considers would assist the CMA in exercising its relevant functions, and

c any other assistance the CMA may require to assist the CMA in exercising its relevant functions.

2 In this section—

“regulatory information” means information held by NHS England in connection with—
1. its regulatory functions falling within section 13SB(2)(a) or (b), or
2. its functions under—
  1. sections 6F and Schedule 1ZA (patient choice: enforcement);
  2. sections 27A and 27C (NHS trusts: oversight and support and recommendations about restructuring);
“relevant functions”, in relation to the CMA, means its functions under the Competition Act 1998 and the Enterprise Act 2002 so far as those functions are exercisable on behalf of the CMA by the CMA Board or a CMA group (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013).

Business plan and report¶

13T Business plan¶

1 Before the start of each financial year, NHS England must publish a business plan setting out how it proposes to exercise its functions in that year and each of the next two financial years.

2 The business plan must, in particular, explain how NHS England proposes to discharge its duties under—

a sections 13E, 13G , 13L and 13Q, and

b sections 223C to 223E.

3 The business plan must, in particular, explain how NHS England proposes to achieve the objectives, and comply with the requirements, specified in the mandate ^F97....

3A The fact that the mandate is revised during the period to which a business plan relates does not require NHS England to revise the plan.

4 NHS England may revise the plan.

5 NHS England must publish any revised plan.

13U Annual report¶

1 As soon as practicable after the end of each financial year, NHS England must publish an annual report on how it has exercised its functions during the year.

2 The annual report must, in particular, contain an assessment of—

a the extent to which, in that year, it met any objectives or requirements specified in the mandate,

b the extent to which it gave effect to the proposals for that year in its business plan, ^F1636...

c how effectively it discharged its duties under or by virtue of—

section 6E(1A) and (1B);
section 13E;
section 13G;
section 13I;
section 13L;
section 13Q.

d how effectively it discharged its relevant data functions (as defined by section 253(3) of the Health and Social Care Act 2012), and

e how effectively it has discharged its education and training functions including, in particular, the extent to which it has during the year achieved the outcomes set by the Secretary of State for the purpose of section 100(2) of the Care Act 2014.

2A The annual report must include a statement explaining what NHS England has done, during the financial year, to comply with its duties under section 13SB.

2B The annual report must include—

a a statement of the amount of expenditure incurred by NHS England and integrated care boards during the year (taken together) in relation to mental health,

b a calculation of the proportion of the expenditure incurred by NHS England and integrated care boards during the year (taken together) that relates to mental health, and

c an explanation of the statement and calculation.

3 NHS England must—

a lay the annual report before Parliament, and

b once it has done so, send a copy of it to the Secretary of State.

4 The Secretary of State must, having considered the annual report, set out in a letter to NHS England the Secretary of State's assessment of NHS England’s performance of its functions in the financial year in question.

5 The letter must, in particular, contain the Secretary of State's assessment of the matters mentioned in subsection (2)(a) to (c).

6 The Secretary of State must—

a publish the letter to NHS England, and

b lay it before Parliament.

Joint appointments¶

13UA Guidance about joint appointments¶

1 NHS England may publish guidance for a relevant NHS body about the making of a joint appointment to which this section applies.

2 A joint appointment to which this section applies is an appointment of a person to a position in—

a one or more relevant NHS commissioner and one or more relevant NHS provider,

b one or more relevant NHS body and one or more local authority, ^F603...

c one or more relevant NHS body and one or more combined authority, or

d one or more relevant NHS body and one or more combined county authority.

3 A relevant NHS body must have regard to guidance published under this section.

4 NHS England must consult such persons as NHS England considers appropriate—

a before it first publishes guidance under this section, and

b before it publishes any revised guidance containing changes that are, in the opinion of NHS England, significant.

5 In this section—

“local authority” has the same meaning as in section 2B;
“relevant NHS body” means—
1. a relevant NHS commissioner;
2. a relevant NHS provider;
“relevant NHS commissioner” means—
1. NHS England;
2. an integrated care board;
“relevant NHS provider” means—
1. an NHS trust established under section 25;
2. an NHS foundation trust.

Additional powers¶

13V Establishment of pooled funds¶

1 NHS England and one or more integrated care boards may establish and maintain a pooled fund.

2 A pooled fund is a fund—

a which is made up of contributions by the bodies which established it, and

b out of which payments may be made, with the agreement of those bodies, towards expenditure incurred in the discharge of any of their commissioning functions.

3 In this section, “commissioning functions” means functions in arranging for the provision of services as part of the health service.

13W NHS England’s power to generate income, etc.¶

1 NHS England has power to do anything specified in section 7(2) of the Health and Medicines Act 1988 (provision of goods, services, etc.) for the purpose of making additional income available for improving the health service.

2 NHS England may exercise a power conferred by subsection (1) only to the extent that its exercise does not to any significant extent interfere with the performance by NHS England of its functions.

13X Power to make grants etc.¶

1 NHS England may make payments by way of grant or loan to a voluntary organisation which provides or arranges for the provision of services which are similar to the services in respect of which NHS England has functions.

2 The payments may be made subject to such terms and conditions as NHS England considers appropriate.

13Y NHS England’s incidental powers: further provision¶

The power conferred on NHS England by section 2 includes, in particular, power to—

a enter into agreements,

b acquire and dispose of property, and

c accept gifts (including property to be held on trust for the purposes of NHS England).

Assistance and support¶

13YA Power of NHS England to provide assistance and support¶

1 NHS England may provide assistance or support to—

a any person providing or proposing to provide services as part of the health service;

b any person, not within paragraph (a), exercising functions in relation to the health service.

c any public authority, where the assistance or support is in relation to the education or training of health care workers.

1A In subsection (1), “health care workers” means persons in relation to whom the Secretary of State’s duty under section 1F(1) is to be performed.

2 The assistance that may be provided under subsection (1) includes making available the services of NHS England’s employees or any other resources of NHS England.

3 The assistance that may be provided under subsection (1)(a) or (c), or that may be provided under subsection (1)(b) to integrated care boards, also includes financial assistance.

4 Assistance or support provided under this section may be provided on such terms, including terms as to payment, as NHS England considers appropriate.

5 In this section, a reference to a public authority—

a includes a public authority in the Channel Islands or the Isle of Man, but

b subject to that, does not include a reference to a public authority outside the United Kingdom.

Discharge of functions¶

13YB Directions in respect of functions relating to provision of services¶

^C661 NHS England may by direction provide for any of its relevant functions to be exercised by one or more integrated care boards.

2 In this section “relevant function” means—

a any function of NHS England under section 3B(1) (commissioning functions);

b any function of NHS England, not within paragraph (a), that relates to the provision of—

i primary medical services,

ii primary dental services,

iii primary ophthalmic services, or

iv services that may be provided as pharmaceutical services, or as local pharmaceutical services, under Part 7;

c any function of NHS England by virtue of section 7A or 7B (exercise of Secretary of State’s public health functions);

d any other functions of NHS England so far as exercisable in connection with any functions within paragraphs (a) to (c).

3 Regulations may—

a provide that the power in subsection (1) does not apply, or applies only to a prescribed extent, in relation to a prescribed function;

b impose conditions on the exercise of the power.

4 A direction under subsection (1) may include provision prohibiting or restricting the integrated care board from making delegation arrangements in relation to a function that is exercisable by it by virtue of the direction.

5 In subsection (4) “delegation arrangements” means arrangements made by a person for the exercise of a function by someone else.

6 NHS England may make payments to an integrated care board in respect of the exercise by it of a function by virtue of a direction under subsection (1).

7 NHS England may give directions to an integrated care board as to the exercise by it of any functions in pursuance of a direction under subsection (1).

8 As soon as reasonably practicable after giving a direction under subsection (1), NHS England must publish it.

9 Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by an integrated care board of any function by virtue of this section are enforceable by or against it (and no other person).

^F710...¶

^F71013Z Exercise of functions¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F71013ZA Section 13Z: further provision in relation to devolved arrangements¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F71013ZB Section 13Z: arrangements in relation to the function under section 3B(1)(d)¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Powers of direction¶

13ZC Secretary of State directions as to exercise of NHS England functions¶

1 The Secretary of State may give NHS England directions as to the exercise of any of its functions.

2 The directions that may be given include a direction as to whether a power is to be exercised or not.

3 The directions that may be given include a direction as to—

a when or how a function is, or is not, to be exercised;

b conditions that must be met before a function is exercised (for example, conditions relating to the provision of information, consultation or approval);

c matters to be taken into account in exercising a function.

4 For exceptions to the power to give directions under subsection (1), see section 13ZD.

5 A direction under subsection (1) must include a statement that the Secretary of State considers the direction to be in the public interest.

6 As soon as reasonably practicable after giving a direction under subsection (1), the Secretary of State must publish it.

7 The fact that the Secretary of State has a function under any other enactment in relation to NHS England’s exercise of functions is not to be read as limiting the power conferred by subsection (1).

8 The reference in subsection (7) to a function of the Secretary of State does not include a function of making subordinate legislation.

13ZD Power to give directions: exceptions¶

1 A direction under section 13ZC may not be given in relation to a function relating to the appointment or employment of a person.

2 A direction under section 13ZC may not be given in relation to a decision about the services to be provided to a particular individual for or in connection with the prevention, diagnosis or treatment of illness.

3 A direction under section 13ZC may not be given in relation to the provision of any drug, medicine or other treatment, or the use of any diagnostic technique, unless NICE has made a recommendation or issued guidance as to its clinical and cost effectiveness and the direction is not inconsistent with that recommendation or guidance.

13ZE Compliance with directions: significant failure¶

1 This section applies where—

a NHS England is given a direction under section 13ZC,

b the direction —

i states that the Secretary of State considers that NHS England is failing or has failed to discharge any of its functions, and

ii states that the Secretary of State considers that the failure is significant and explains why,

c the direction states that it is given for the purposes of addressing that failure, and

d NHS England fails to comply with the direction.

2 The Secretary of State may—

a discharge the functions to which the direction relates, or

b make arrangements for any other person to discharge them on the Secretary of State’s behalf.

3 Where the Secretary of State exercises the power under subsection (2), the Secretary of State must publish the reasons for doing so.

4 For the purpose of this section—

a a failure to discharge a function includes a failure to discharge it properly, and

b a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service.

13ZF Secretary of State directions to provide information¶

1 The Secretary of State may direct NHS England to provide the Secretary of State with any documents or other information that may be specified in the direction.

2 The directions that may be given include a direction to provide documents or other information that NHS England would need to obtain from others in the exercise of some other power.

3 The directions may include provision as to—

a the form or manner in which the documents or information must be provided;

b the time at which or period within which the documents or information must be provided.

Power to confer additional functions¶

13Z1 Power to confer additional functions on NHS England¶

1 Regulations may provide that NHS England is to have such additional functions in relation to the health service as may be specified in the regulations.

2 A function may be specified in regulations under subsection (1) only if the function is connected to another function of NHS England.

^F1136...¶

^F113613Z2 Failure by the Board to discharge any of its functions¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disclosure of information¶

13Z3 Permitted disclosures of information¶

1 NHS England may disclose information obtained by it in the exercise of its functions if—

a the information has previously been lawfully disclosed to the public,

b the disclosure is made under or pursuant to regulations under section 113 or 114 of the Health and Social Care (Community Health and Standards) Act 2003 (complaints about health care or social services),

c the disclosure is made in accordance with any enactment or court order,

d the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual,

e the disclosure is made to any person in circumstances where it is necessary or expedient for the person to have the information for the purpose of exercising functions of that person under any enactment,

f the disclosure is made for the purpose of facilitating the exercise of any of NHS England’s functions,

g the disclosure is made in connection with the investigation of a criminal offence (whether or not in the United Kingdom), or

h the disclosure is made for the purpose of criminal proceedings (whether or not in the United Kingdom).

2 Paragraphs (a) to (c) and (h) of subsection (1) have effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure.

Interpretation¶

13Z4 Interpretation¶

1 In this Chapter—

“the health service” means the health service in England;
“health services” means services provided as part of the health service and, in sections 13O and 13Q, also includes services that are to be provided as part of the health service.

^F5952 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F5953 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F5954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1328CHAPTER A2 Clinical commissioning groups¶

Establishment of clinical commissioning groups¶

^F132814A General duties of Board in relation to clinical commissioning groups¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814B Applications for the establishment of clinical commissioning groups¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814C Determination of applications¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814D Effect of grant of application¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Variation of constitution¶

^F132814E Applications for variation of constitution¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814F Variation of constitution otherwise than on application¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Mergers, dissolution etc.¶

^F132814G Mergers¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814H Dissolution¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Supplemental provision about applications, variation, mergers etc.¶

^F132814I Transfers in connection with variation, merger, dissolution etc.¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814J Publication of constitution of clinical commissioning groups¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814K Guidance about the establishment of clinical commissioning groups etc.¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Governing bodies of clinical commissioning groups¶

^F132814L Governing bodies of clinical commissioning groups¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814M Audit and remuneration committees of governing bodies¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814N Regulations as to governing bodies of clinical commissioning groups¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Conflicts of interest¶

^F132814O Registers of interests and management of conflicts of interest¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

General duties of clinical commissioning groups¶

^F132814P Duty to promote NHS Constitution¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Q Duty as to effectiveness, efficiency etc.¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814R Duty as to improvement in quality of services¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814S Duty in relation to quality of primary medical services¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814T Duties as to reducing inequalities¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814U Duty to promote involvement of each patient¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814V Duty as to patient choice¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814W Duty to obtain appropriate advice¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814X Duty to promote innovation¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Y Duty in respect of research¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z Duty as to promoting education and training¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z1 Duty as to promoting integration¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Public involvement¶

^F132814Z2 Public involvement and consultation by clinical commissioning groups¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Arrangements with others¶

^F132814Z3 Arrangements by clinical commissioning groups in respect of the exercise of functions¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z3A Joint exercise of functions with combined authorities¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z4 Joint exercise of functions with Local Health Boards¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Additional powers of clinical commissioning groups¶

^F132814Z5 Raising additional income¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z6 Power to make grants¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Board's functions in relation to clinical commissioning groups¶

^F132814Z7 Responsibility for payments to providers¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z8 Guidance on commissioning by the Board¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z9 Exercise of functions by, or jointly with, the Board¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z10 Power of Board to provide assistance or support¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commissioning plans and reports¶

^F132814Z11 Commissioning plan¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z12 Revision of commissioning plans¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z13 Consultation about commissioning plans¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z14 Opinion of Health and Wellbeing Boards on commissioning plans¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z15 Reports by clinical commissioning groups¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Performance assessment of clinical commissioning groups¶

^F132814Z16 Performance assessment of clinical commissioning groups¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Powers to require information etc.¶

^F132814Z17 Circumstances in which powers in sections 14Z18 and 14Z19 apply¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z18 Power to require documents and information etc.¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z19 Power to require explanation¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F132814Z20 Use of information¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Intervention powers¶

^F132814Z21 Power to give directions, dissolve clinical commissioning groups etc.¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedural requirements in connection with certain powers¶

^F132814Z22 Procedural requirements in connection with certain powers¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disclosure of information¶

^F132814Z23 Permitted disclosures of information¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation¶

^F132814Z24 Interpretation¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER A3 Integrated care boards¶

Establishment of integrated care boards (including by re-purposing clinical commissioning groups)¶

14Z25 Duty to establish integrated care boards¶

1 NHS England must establish bodies called integrated care boards in accordance with this Chapter.

2 Each integrated care board is to be established by order made by NHS England for an area within England.

3 The area for which an integrated care board is established must not coincide or overlap with the area of any other integrated care board.

4 NHS England must ensure that, at all times on and after the appointed day, the areas of integrated care boards together cover the whole of England.

5 An order establishing an integrated care board must provide for the constitution of the board, either by setting out the constitution or by making provision by reference to a published document where it is set out.

6 In Schedule 1B—

a Part 1 is about the constitution of an integrated care board (including its area);

b Part 2 is about the status and powers of an integrated care board and its accounts.

7 Before varying or revoking an order under this section NHS England must consult any integrated care board that it considers likely to be affected.

8 NHS England must publish orders under this section.

9 In this section “the appointed day” means a day appointed under this subsection by regulations made by the Secretary of State.

14Z26 Process for establishing initial integrated care boards¶

1 NHS England must publish a list of the initial areas for which integrated care boards are to be established (each of which is referred to in this section as an “initial area”).

2 The relevant clinical commissioning group or groups for an initial area must propose the constitution of the first integrated care board to be established for that area.

3 Before making a proposal under subsection (2), the relevant clinical commissioning group or groups must consult any persons they consider it appropriate to consult (and it is immaterial for this purpose whether the consultation is carried out before or after this section comes into force).

4 When establishing the first integrated care board under section 14Z25 for an initial area, NHS England must give effect to any proposal under subsection (2) unless it considers that—

a the proposal is inappropriate, or

b the relevant clinical commissioning group or groups have not carried out an appropriate consultation under subsection (3),

and in that case NHS England must determine the terms of the constitution itself.

5 Nothing in this section—

a prevents NHS England from establishing the first integrated care board for an initial area in a case where the relevant clinical commissioning group or groups have failed within a reasonable period to make a proposal under subsection (2), or

b limits the re-exercise of the power in section 14Z25.

6 NHS England may publish guidance for clinical commissioning groups about the exercise of their functions under this section.

7 A clinical commissioning group must have regard to guidance published under this section.

8 In this section “the relevant clinical commissioning group or groups” means—

a in relation to an area that coincides with the area of a clinical commissioning group, that group;

b in relation to an area that includes the whole or part of the area of more than one clinical commissioning group, those groups acting jointly.

14Z27 Abolition of clinical commissioning groups¶

1 Any clinical commissioning group in existence immediately before the appointed day is abolished at the beginning of that day.

2 In this section “the appointed day” has the same meaning as in section 14Z25.

14Z28 Transfer schemes in connection with integrated care boards¶

1 NHS England may, in connection with the abolition of a clinical commissioning group under section 14Z27, make a scheme for the transfer of the group’s property, rights or liabilities to NHS England or an integrated care board.

2 NHS England may, in connection with the establishment of an integrated care board, make a scheme for the transfer of property, rights or liabilities to the board from—

a NHS England,

b an NHS trust established under section 25,

c an NHS foundation trust, or

d a Special Health Authority established under section 28.

3 NHS England may, in connection with the variation of the constitution of an integrated care board or the abolition of an integrated care board, make a scheme for the transfer of the board’s property, rights or liabilities to NHS England or an integrated care board.

4 The reference in subsection (3) to the variation of the constitution of an integrated care board is to its variation by order under section 14Z25 or under provision included in its constitution by virtue of paragraph 14 of Schedule 1B.

5 NHS England must exercise its powers under subsection (1) or (3) so as to ensure that—

a on the abolition of a clinical commissioning group whose area coincides with that of an integrated care board, all of the group’s property, rights and liabilities (other than criminal liabilities) are transferred to that board;

b on the abolition of a clinical commissioning group whose area does not coincide with that of an integrated care board, all of the group’s property, rights and liabilities (other than criminal liabilities) are transferred to one or more integrated care boards;

c on the abolition of an integrated care board, all of the board’s liabilities (other than criminal liabilities) are transferred.

6 The things that may be transferred under a transfer scheme include—

a property, rights and liabilities that could not otherwise be transferred;

b property acquired, and rights and liabilities arising, after the making of the scheme;

c criminal liabilities.

7 A transfer scheme may—

a create rights, or impose liabilities, in relation to property or rights transferred;

b make provision about the continuing effect of things done by, on behalf of or in relation to the transferor in respect of anything transferred;

c make provision about the continuation of things (including legal proceedings) in the process of being done by, on behalf of or in relation to the transferor in respect of anything transferred;

d make provision for references to the transferor in an instrument or other document in respect of anything transferred to be treated as references to the transferee;

e make provision for the shared ownership or use of property;

f make provision which is the same as or similar to the TUPE regulations;

g make other consequential, supplementary, incidental or transitional provision.

8 A transfer scheme may provide—

a for modifications by agreement;

b for modifications to have effect from the date when the original scheme came into effect.

9 In subsection (7)(f), “the TUPE regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246).

10 In this section—

a references to rights and liabilities include rights and liabilities relating to a contract of employment;

b references to the transfer of property include the grant of a lease.

Constitution: publication¶

14Z29 Duty for integrated care board to publish constitution¶

Each integrated care board must publish its constitution (as varied from time to time by order under section 14Z25 or under provision included in its constitution by virtue of paragraph 15 of Schedule 1B).

Conflicts of interest¶

14Z30 Register of interests and management of conflicts of interests¶

1 Each integrated care board must maintain one or more registers of the interests of—

a members of the board,

b members of its committees or sub-committees, and

c its employees.

2 Each integrated care board must publish the registers maintained under subsection (1) or make arrangements to ensure that members of the public have access to the registers on request.

3 Each integrated care board must make arrangements to ensure—

a that a person mentioned in subsection (1) declares any conflict or potential conflict of interest that the person has in relation to a decision to be made in the exercise of the commissioning functions of the integrated care board,

b that any such declaration is made as soon as practicable after the person becomes aware of the conflict or potential conflict and, in any event, within 28 days of the person becoming aware, and

c that any such declaration is included in the registers maintained under subsection (1).

4 Each integrated care board must make arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the board’s decision-making processes.

5 For the purposes of this section, the commissioning functions of an integrated care board are the functions of the board in arranging for the provision of services as part of the health service.

People for whom integrated care board has responsibility¶

14Z31 ^C43People for whom integrated care board has responsibility¶

1 NHS England must from time to time publish rules for determining the group of people for whom each integrated care board has core responsibility.

2 The rules must ensure that the following are allocated to at least one group—

a everyone who is provided with NHS primary medical services, and

b everyone who is usually resident in England and is not provided with NHS primary medical services.

3 Regulations may create exceptions to subsection (2) in relation to people of a prescribed description (which may include a description framed by reference to the primary medical services with which the people are provided).

4 References in this Act to the group of people for whom an integrated care board has core responsibility are to be read in accordance with this section.

5 In this section, “NHS primary medical services” means services provided by a person, other than NHS England or an integrated care board, in pursuance of—

a a general medical services contract to provide primary medical services of a prescribed description,

b arrangements under section 83(2) for the provision of primary medical services of a prescribed description, or

c section 92 arrangements for the provision of primary medical services of a prescribed description.

General duties of integrated care boards¶

14Z32 Duty to promote NHS Constitution¶

1 Each integrated care board must, in the exercise of its functions—

a act with a view to securing that health services are provided in a way which promotes the NHS Constitution, and

b promote awareness of the NHS Constitution among patients, staff and members of the public.

2 In this section, “patients” and “staff” have the same meaning as in Chapter 1 of Part 1 of the Health Act 2009 (see section 3(7) of that Act).

14Z33 Duty as to effectiveness, efficiency etc¶

Each integrated care board must exercise its functions effectively, efficiently and economically.

14Z34 Duty as to improvement in quality of services¶

1 Each integrated care board must exercise its functions with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness.

2 In discharging its duty under subsection (1), an integrated care board must, in particular, act with a view to securing continuous improvement in the outcomes that are achieved from the provision of the services.

3 The outcomes relevant for the purposes of subsection (2) include, in particular, outcomes which show—

a the effectiveness of the services,

b the safety of the services, and

c the quality of the experience undergone by patients.

14Z35 Duties as to reducing inequalities¶

Each integrated care board must, in the exercise of its functions, have regard to the need to—

a reduce inequalities between persons with respect to their ability to access health services, and

b reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services (including the outcomes described in section 14Z34(3)).

14Z36 Duty to promote involvement of each patient¶

Each integrated care board must, in the exercise of its functions, promote the involvement of patients, and their carers and representatives (if any), in decisions which relate to—

a the prevention or diagnosis of illness in the patients, or

b their care or treatment.

14Z37 Duty as to patient choice¶

Each integrated care board must, in the exercise of its functions, act with a view to enabling patients to make choices with respect to aspects of health services provided to them.

14Z38 Duty to obtain appropriate advice¶

Each integrated care board must obtain advice appropriate for enabling it effectively to discharge its functions from persons who (taken together) have a broad range of professional expertise in—

a the prevention, diagnosis or treatment of illness, and

b the protection or improvement of public health.

14Z39 Duty to promote innovation¶

Each integrated care board must, in the exercise of its functions, promote innovation in the provision of health services (including innovation in the arrangements made for their provision).

14Z40 Duty in respect of research¶

Each integrated care board must, in the exercise of its functions, facilitate or otherwise promote—

a research on matters relevant to the health service, and

b the use in the health service of evidence obtained from research.

14Z41 Duty to promote education and training¶

Each integrated care board must, in exercising its functions, have regard to the need to promote education and training for the persons mentioned in section 1F(1) so as to assist the Secretary of State and NHS England in the discharge of the duty under that section.

14Z42 Duty to promote integration¶

1 Each integrated care board must exercise its functions with a view to securing that health services are provided in an integrated way where it considers that this would—

a improve the quality of those services (including the outcomes that are achieved from their provision),

b reduce inequalities between persons with respect to their ability to access those services, or

c reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.

2 Each integrated care board must exercise its functions with a view to securing that the provision of health services is integrated with the provision of health-related services or social care services where it considers that this would—

a improve the quality of the health services (including the outcomes that are achieved from the provision of those services),

b reduce inequalities between persons with respect to their ability to access those services, or

c reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.

3 In this section—

“health-related services” means services that may have an effect on the health of individuals but are not health services or social care services;
“social care services” means services that are provided in pursuance of the social services functions of local authorities (within the meaning of the Local Authority Social Services Act 1970 or for the purposes of the Social Services and Well-being (Wales) Act 2014).

4 For the purposes of this section, the provision of housing accommodation is a health-related service.

14Z43 Duty to have regard to wider effect of decisions¶

1 In making a decision about the exercise of its functions, an integrated care board must have regard to all likely effects of the decision in relation to—

a the health and well-being of the people of England;

b the quality of services provided to individuals—

i by relevant bodies, or

ii in pursuance of arrangements made by relevant bodies,

for or in connection with the prevention, diagnosis or treatment of illness, as part of the health service in England;

c efficiency and sustainability in relation to the use of resources by relevant bodies for the purposes of the health service in England.

2 In subsection (1)—

3 In discharging the duty under this section, integrated care boards must have regard to guidance published by NHS England under section 13NB.

4 In this section “relevant bodies” means—

a NHS England,

b integrated care boards,

c NHS trusts established under section 25, and

d NHS foundation trusts.

14Z44 Duties as to climate change etc¶

1 Each integrated care board must, in the exercise of its functions, have regard to the need to—

a contribute towards compliance with—

i section 1 of the Climate Change Act 2008 (UK net zero emissions target), and

ii section 5 of the Environment Act 2021 (environmental targets), and

b adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008.

2 In discharging the duty under this section, integrated care boards must have regard to guidance published by NHS England under section 13ND.

Involvement of the public¶

14Z45 Public involvement and consultation by integrated care boards¶

1 This section applies in relation to any health services which are, or are to be, provided pursuant to arrangements made by an integrated care board in the exercise of its functions (“commissioning arrangements”).

2 The integrated care board must make arrangements to secure that individuals to whom the services are being or may be provided, and their carers and representatives (if any), are involved (whether by being consulted or provided with information or in other ways)—

a in the planning of the commissioning arrangements by the integrated care board,

b in the development and consideration of proposals by the integrated care board for changes in the commissioning arrangements where the implementation of the proposals would have an impact on—

i the manner in which the services are delivered to the individuals (at the point when the service is received by them), or

ii the range of health services available to them, and

c in decisions of the integrated care board affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact.

3 This section does not require an integrated care board to make arrangements in relation to matters to which a trust special administrator’s draft or final report under section 65F or 65I relates before—

a in a case where the administrator’s report relates to an NHS trust, NHS England and the Secretary of State have made their decisions under section 65K(1) and (2), or

Joint exercise of functions with Local Health Boards¶

14Z46 Joint exercise of functions with Local Health Boards¶

1 Regulations may provide for any prescribed functions of an integrated care board to be exercised jointly with a Local Health Board.

2 The regulations may permit or require any functions that are exercisable jointly by an integrated care board and a Local Health Board by virtue of the regulations to be exercised by a joint committee of those bodies.

3 Arrangements made by virtue of this section do not affect the liability of an integrated care board for the exercise of any of its functions.

Additional powers of integrated care boards¶

14Z47 Raising additional income¶

1 An integrated care board has power to do anything specified in section 7(2)(a), (b) and (e) to (h) of the Health and Medicines Act 1988 (provision of goods etc) for the purpose of making additional income available for improving the health service.

2 An integrated care board may exercise a power conferred by subsection (1) only to the extent that its exercise does not to any significant extent interfere with the exercise by the board of its other functions.

14Z48 Power to make grants¶

1 An integrated care board may make payments—

a by way of grant to any of its partner NHS trusts or NHS foundation trusts;

b by way of grant or loan to a voluntary organisation which provides or arranges for the provision of services which are similar to the services in respect of which the integrated care board has functions.

2 The payments may be made subject to such terms as the integrated care board considers appropriate.

3 For the purposes of this Act an NHS trust or NHS foundation trust is a “partner” of an integrated care board if the trust—

a provides services for the purposes of the health service within the integrated care board’s area, and

b has the function, under the integrated care board’s constitution, of participating in the nomination of members as a result of falling within a description prescribed for the purposes paragraph 8(2)(a) of Schedule 1B.

Experience of members¶

14Z49 Duty to keep experience of members under review etc¶

An integrated care board must—

a keep under review the skills, knowledge and experience that it considers necessary for members of the board to possess (when taken together) in order for the board effectively to carry out its functions, and

b if it considers that the board as constituted lacks the necessary skills, knowledge and experience, take such steps as it considers necessary to address or mitigate that shortcoming.

NHS England’s functions in relation to integrated care boards¶

14Z50 Responsibility for payments to providers¶

1 NHS England may publish a document specifying—

a circumstances in which an integrated care board is liable to make a payment to a person in respect of services provided by that person in pursuance of arrangements made by another integrated care board in the discharge of commissioning functions, and

b how the amount of any such payment is to be determined.

2 An integrated care board is required to make payments in accordance with any document published under subsection (1).

3 Where an integrated care board is required to make a payment by virtue of subsection (2), no other integrated care board is liable to make it.

4 Accordingly, any obligation of another integrated care board to make the payment ceases to have effect.

5 Any sums payable by virtue of subsection (2) may be recovered summarily as a civil debt (but this does not affect any other method of recovery).

6 NHS England may publish guidance for integrated care boards for the purpose of assisting them in understanding and applying any document published under subsection (1).

7 In this section “commissioning functions” means the functions of integrated care boards in arranging for the provision of services as part of the health service.

14Z51 Guidance by NHS England¶

1 NHS England must publish guidance for integrated care boards on the discharge of their functions.

2 Each integrated care board must have regard to guidance under this section.

Forward planning and reports¶

14Z52 Joint forward plans for integrated care board and its partners¶

1 Before the start of each financial year, an integrated care board and its partner NHS trusts and NHS foundation trusts must prepare a plan setting out how they propose to exercise their functions in the next five years.

2 The plan must, in particular—

a describe the health services for which the integrated care board proposes to make arrangements in the exercise of its functions by virtue of this Act;

b explain how the integrated care board proposes to discharge its duties under—

i sections 14Z34 to 14Z45 (general duties of integrated care boards), and

ii sections 223GB to 223N (financial duties);

c set out any steps that the integrated care board proposes to take to implement any joint local health and wellbeing strategy to which it is required to have regard under section 116B(1) of the Local Government and Public Involvement in Health Act 2007;

d set out any steps that the integrated care board proposes to take to address the particular needs of children and young persons under the age of 25;

e set out any steps that the integrated care board proposes to take to address the particular needs of victims of abuse (including domestic abuse and sexual abuse, whether of children or adults).

3 The integrated care board and its partner NHS trusts and NHS foundation trusts must publish the plan.

4 The integrated care board and its partner NHS trusts and NHS foundation trusts must give a copy of the plan to—

a the integrated care partnership for the board’s area,

b each relevant Health and Wellbeing Board, and

c NHS England.

5 NHS England may give a direction as to the date by which subsection (4) must be complied with.

6 An integrated care board and its partner NHS trusts and NHS foundation trusts must have regard to the plan under subsection (1).

7 In this Chapter “relevant Health and Wellbeing Board”, in relation to an integrated care board (or an integrated care board and its partner NHS trusts and NHS foundation trusts), means a Health and Wellbeing Board established by a local authority whose area coincides with, or includes the whole or any part of, the area of the integrated care board.

8 In this Act “financial year”, in relation to an integrated care board, means—

a the period beginning with the date on which the integrated care board is established and ending with the 31 March following that date, and

b each successive period of twelve months.

14Z53 Revision of forward plans¶

1 An integrated care board and its partner NHS trusts and NHS foundation trusts may revise a plan published under section 14Z52.

2 If the integrated care board and its partner NHS trusts and NHS foundation trusts revise the plan in a way that they consider to be significant, section 14Z52(3) and (4) apply in relation to the revised plan as they applied in relation to the original plan.

3 If the integrated care board and its partner NHS trusts and NHS foundation trusts revise the plan in any other way they must—

a publish a document setting out the changes, and

b give a copy of the document to—

i the integrated care partnership for the board’s area,

ii each relevant Health and Wellbeing Board, and

iii NHS England.

14Z54 Consultation about forward plans¶

1 This section applies where an integrated care board and its partner NHS trusts and NHS foundation trusts are—

a preparing a plan under section 14Z52, or

b revising a plan under section 14Z53 in a way that they consider to be significant.

2 The integrated care board and its partner NHS trusts and NHS foundation trusts must consult—

a the group of people for whom the integrated care board has core responsibility, and

b any other persons they consider it appropriate to consult.

3 The integrated care board and its partner NHS trusts and NHS foundation trusts must involve each relevant Health and Wellbeing Board in preparing or revising the plan.

4 The integrated care board and its partner NHS trusts and NHS foundation trusts must, in particular—

a give each relevant Health and Wellbeing Board a draft of the plan or (as the case may be) the plan as revised, and

b consult each relevant Health and Wellbeing Board on whether the draft takes proper account of each joint local health and wellbeing strategy published by it which relates to the period (or any part of the period) to which the plan relates.

5 Where a Health and Wellbeing Board is consulted under subsection (4)(b)—

a it must respond with its opinion on the matter mentioned there;

b it may also give that opinion to NHS England.

6 Where a Health and Wellbeing Board gives its opinion to NHS England under subsection (5)(b) it must inform the integrated care board and its partner NHS trusts and NHS foundation trusts that it has done so (unless it informed them, in advance, that it was planning to do so).

7 If an integrated care board and its partner NHS trusts and NHS foundation trusts revise or further revise a draft after it has been given to each relevant Health and Wellbeing Board under subsection (4), subsections (4) and (5) apply in relation to the revised draft as they applied in relation to the original draft.

8 An integrated care board and its partner NHS trusts and NHS foundation trusts must include in a plan published under section 14Z52(3)—

a a summary of the views expressed by anyone consulted under subsection (2),

b an explanation of how they took account of those views, and

c a statement of the final opinion of each relevant Health and Wellbeing Board consulted in relation to the plan under subsection (4).

9 In this section, “joint local health and wellbeing strategy” means a strategy under section 116A of the Local Government and Public Involvement in Health Act 2007.

14Z55 Opinion of Health and Wellbeing Boards on forward plan¶

1 A relevant Health and Wellbeing Board—

a may give NHS England its opinion on whether a plan published by an integrated care board and its partner NHS trusts and NHS foundation trusts under section 14Z52(3) takes proper account of each joint local health and wellbeing strategy published by the Health and Wellbeing Board which relates to the period (or any part of the period) to which the plan relates, and

b if it does so, must give the integrated care board and its partner NHS trusts and NHS foundation trusts a copy of its opinion.

2 In this section, “joint local health and wellbeing strategy” has the same meaning as in section 14Z54(9).

14Z56 Joint capital resource use plan for integrated care board and its partners¶

1 Before the start of each financial year, an integrated care board and its partner NHS trusts and NHS foundation trusts must prepare a plan setting out their planned capital resource use.

2 The plan must relate to such period as may be specified in a direction by the Secretary of State.

3 The Secretary of State must publish any direction under subsection (2).

4 The integrated care board and its partner NHS trusts and NHS foundation trusts must publish the plan.

5 The integrated care board and its partner NHS trusts and NHS foundation trusts must give a copy of the plan to—

a the integrated care partnership for the board’s area,

b each relevant Health and Wellbeing Board, and

c NHS England.

6 NHS England may give a direction as to the date by which subsection (5) must be complied with.

7 NHS England may publish guidance about the discharge by an integrated care board and its partner NHS trusts and NHS foundation trusts of their functions under this section.

8 An integrated care board and its partner NHS trusts and NHS foundation trusts must have regard to any guidance published under subsection (7).

9 NHS England may give directions, in relation to a financial year—

a specifying descriptions of resources which must, or must not, be treated as capital resources for the purposes of this section;

b specifying uses of capital resources which must, or must not, be taken into account for the purposes of this section.

10 The reference in subsection (1) to the use of capital resources is a reference to its expenditure, consumption or reduction in value.

14Z57 Revision of joint capital resource use plans¶

1 An integrated care board and its partner NHS trusts and NHS foundation trusts may revise a plan published under section 14Z56.

2 If the integrated care board and its partner NHS trusts and NHS foundation trusts revise the plan in a way that they consider to be significant, section 14Z56(4) and (5) apply in relation to the revised plan as they applied in relation to the original plan.

3 If the integrated care board and its partner NHS trusts and NHS foundation trusts revise the plan in any other way, they must—

a publish a document setting out the changes, and

b give a copy of the document to—

i the integrated care partnership for the board’s area,

ii each relevant Health and Wellbeing Board, and

iii NHS England.

14Z58 Annual report¶

1 An integrated care board must, in each financial year, prepare a report (an “annual report”) on how it has discharged its functions in the previous financial year.

2 An annual report must, in particular—

a explain how the integrated care board has discharged its duties under sections 14Z34 to 14Z45 and 14Z49 (general duties of integrated care boards),

b review the extent to which the board has exercised its functions in accordance with the plans published under—

section 14Z52 (forward plan), and
section 14Z56 (capital resource use plan),

c review the extent to which the board has exercised its functions consistently with NHS England’s views set out in the latest statement published under section 13SA(1) (views about how functions relating to inequalities information should be exercised), and

d review any steps that the board has taken to implement any joint local health and wellbeing strategy to which it was required to have regard under section 116B(1) of the Local Government and Public Involvement in Health Act 2007.

3 In undertaking the review required by subsection (2)(d), an integrated care board must consult each relevant Health and Wellbeing Board.

4 An annual report must include—

a a statement of the amount of expenditure incurred by the integrated care board during the financial year in relation to mental health,

b a calculation of the proportion of the expenditure incurred by the integrated care board during the financial year that relates to mental health, and

c an explanation of the statement and calculation.

5 NHS England may give directions to integrated care boards as to the form and content of an annual report.

6 An integrated care board must—

a give a copy of its annual report to NHS England before the date specified by NHS England in a direction, and

b publish a copy of the annual report.

Performance assessment of integrated care boards¶

14Z59 Performance assessment of integrated care boards¶

1 NHS England must conduct a performance assessment of each integrated care board in respect of each financial year.

2 A performance assessment is an assessment of how well the integrated care board has discharged its functions during that year.

3 The assessment must, in particular, include an assessment of how well the integrated care board has discharged its duties under—

a section 14Z34 (improvement in quality of services),

b section 14Z35 (reducing inequalities),

c section 14Z38 (obtaining appropriate advice),

d section 14Z40 (duty in respect of research),

e section 14Z43 (duty to have regard to effect of decisions),

f section 14Z45 (public involvement and consultation),

g sections 223GB to 223N (financial duties), and

h section 116B(1) of the Local Government and Public Involvement in Health Act 2007 (duty to have regard to assessments and strategies).

4 In conducting a performance assessment, NHS England must consult each relevant Health and Wellbeing Board as to its views on any steps that the board has taken to implement any joint local health and wellbeing strategy to which the board was required to have regard under section 116B(1) of that Act of 2007.

5 In conducting a performance assessment, NHS England must, in particular, have regard to—

a any guidance published by the Secretary of State for the purposes of this section, and

b any guidance published under section 14Z51.

6 NHS England must publish a report in respect of each financial year containing a summary of the results of each performance assessment conducted by NHS England in respect of that year.

Power of NHS England to obtain information¶

14Z60 Power of NHS England to obtain information¶

1 NHS England may require an integrated care board to provide NHS England with information.

2 The information must be provided in such form, and at such time or within such period, as NHS England may require.

Intervention powers¶

14Z61 Power to give directions to integrated care boards¶

1 This section applies if NHS England is satisfied that—

a an integrated care board is failing or has failed to discharge any of its functions, or

b there is a significant risk that an integrated care board will fail to do so.

2 NHS England may direct the integrated care board to discharge such of those functions in such manner and within such period or periods as may be specified in the direction.

3 NHS England may direct—

a the integrated care board, or

b the chief executive of the integrated care board,

to cease to perform any functions for such period or periods as may be specified in the direction.

4 NHS England may—

a terminate the appointment of the integrated care board’s chief executive, and

b direct the chair of the board as to which individual to appoint as a replacement and on what terms.

5 Where a direction is given under subsection (3)(a) NHS England may—

a exercise, on behalf of the integrated care board, any of the functions that are the subject of the direction;

b direct another integrated care board to perform any of those functions on behalf of the integrated care board, in such manner and within such period or periods as may be specified in the direction.

6 A direction under subsection (5)(b) may include provision prohibiting or restricting the integrated care board from making delegation arrangements in relation to a function that is exercisable by it by virtue of the direction.

7 In subsection (6) “delegation arrangements” means arrangements made by a person for the exercise of a function by someone else.

8 Where a direction is given under subsection (3)(b) NHS England may—

a exercise, on behalf of the chief executive, any of the functions that are the subject of the direction;

b direct the chief executive of another integrated care board to perform any of those functions on behalf of the chief executive, in such manner and within such period or periods as may be specified in the direction.

9 For the purposes of this section—

a a failure to discharge a function includes a failure to discharge it properly, and

b a failure to discharge a function properly includes a failure to discharge it consistently with what NHS England considers to be the interests of the health service.

14Z62 Section 14Z61 directions: consultation and cooperation¶

1 Before exercising the power conferred by section 14Z61(5)(b) or (8)(b) NHS England must consult the integrated care board to which it is proposing to give the direction or to whose chief executive it is proposing to give the direction.

2 Where a direction is given under section 14Z61(3)(b) to the chief executive of an integrated care board, that board must co-operate with any chief executive to whom a direction is given under subsection (8)(b).

Disclosure of information¶

14Z63 Permitted disclosures of information¶

1 An integrated care board may disclose information obtained by it in the exercise of its functions if—

a the information has previously been lawfully disclosed to the public,

c the disclosure is made in accordance with any enactment or court order,

d the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual,

f the disclosure is made for the purpose of facilitating the exercise of any of the integrated care board’s functions,

g the disclosure is made in connection with the investigation of a criminal offence (whether or not in the United Kingdom), or

h the disclosure is made for the purpose of criminal proceedings (whether or not in the United Kingdom).

2 Subsection (1)(a) to (c) and (h) have effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure.

Interpretation¶

14Z64 Interpretation¶

In this Chapter—

“the health service” means the health service in England;
“health services” means services provided as part of the health service;
“integrated care partnership” has the meaning given by section 116ZA(1) of the Local Government and Public Involvement in Health Act 2007;
“relevant Health and Wellbeing Board”, in relation to an integrated care board, has the meaning given by section 14Z52(7).

^F610Chapter 1 Strategic Health Authorities¶

^F61013 Strategic Health Authorities¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F61014 Exercise of Strategic Health Authority functions¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F61015 Strategic Health Authorities' directions¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F61016 Section 92 arrangements and section 107 arrangements and LPS schemes ¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F61017 Advice for Strategic Health Authorities¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F61017A Reports on consultation¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F28Chapter 2 Primary Care Trusts¶

^F2818 Primary Care Trusts¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2819 Exercise of Primary Care Trust functions¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2820 Strategic Health Authority directions to Primary Care Trusts¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2821 Provision of services etc¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2822 Administration and management of services¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2823 Advice for Primary Care Trusts¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2823A Arrangements for improving quality of health care¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2824 Plans for improving health etc¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2824A Report on consultation¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 3 NHS trusts¶

25 NHS trusts¶

1 The Secretary of State may by order establish bodies, called National Health Service trusts (“NHS trusts”), to provide goods and services for the purposes of the health service.

2 An order under subsection (1) is referred to in this Act as “an NHS trust order”.

3 No NHS trust order may be made until after the completion of such consultation as may be prescribed.

4 Schedule 4 makes further provision about NHS trusts.

26 General duty of NHS trusts¶

An NHS trust must exercise its functions effectively, efficiently and economically.

26A Duty to have regard to wider effect of decisions¶

1 In making a decision about the exercise of its functions, an NHS trust established under section 25 must have regard to all likely effects of the decision in relation to—

a the health and well-being of the people of England;

b the quality of services provided to individuals—

i by relevant bodies, or

ii in pursuance of arrangements made by relevant bodies,

for or in connection with the prevention, diagnosis or treatment of illness, as part of the health service in England;

c efficiency and sustainability in relation to the use of resources by relevant bodies for the purposes of the health service in England.

2 In subsection (1)—

3 In discharging the duty under this section, NHS trusts must have regard to guidance published by NHS England under section 13NB.

4 In this section “relevant bodies” means—

a NHS England,

b integrated care boards,

c NHS trusts established under section 25, and

d NHS foundation trusts.

26B Duties in relation to climate change etc¶

1 An NHS trust established under section 25 must, in the exercise of its functions, have regard to the need to—

a contribute towards compliance with—

i section 1 of the Climate Change Act 2008 (UK net zero emissions target), and

ii section 5 of the Environment Act 2021 (environmental targets), and

b adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008.

2 In discharging the duty under this section, NHS trusts must have regard to guidance published by NHS England under section 13ND.

27 Financial provisions relating to NHS trusts¶

Schedule 5 makes provision about the financing of NHS trusts.

27A Oversight and support of NHS trusts¶

NHS England must—

a monitor NHS trusts established under section 25 in the carrying out of their functions, and

b provide such advice, guidance or other support as it considers appropriate to help NHS trusts established under section 25 in the carrying out of their functions.

27B NHS England’s directions to NHS trusts¶

1 NHS England may give directions to an NHS trust established under section 25 about its exercise of any functions.

2 In so far as a direction under this section conflicts with a direction under section 8 or paragraph 25(3) of Schedule 4, it is of no effect.

27C Recommendations about restructuring¶

1 NHS England may—

a make recommendations to NHS trusts for or in connection with the making of restructuring applications;

b take such other steps as it considers appropriate to facilitate restructuring applications involving NHS trusts.

2 In this section “restructuring application”, in relation to an NHS trust, means an application by the NHS trust under—

a section 56 (mergers involving NHS foundation trusts);

b section 56A (acquisitions by NHS foundation trusts);

c section 69A (transfer of property etc between NHS bodies);

d paragraph 28 of Schedule 4 (dissolution of NHS trusts).

27D Intervention in NHS trusts: recommendations etc by NHS England¶

1 If NHS England considers that Secretary of State ought to make an order under section 66(2) or 68(2) in relation to an NHS trust established under section 25, NHS England must—

a make a recommendation to that effect,

b set out its reasons for the recommendation, and

c make any recommendations it considers appropriate as to the contents of the order.

2 NHS England must make any inquiries, and provide any other assistance, that the Secretary of State may require in connection with deciding whether to make an order under section 66(2) or 68(2) in relation to an NHS trust established under section 25 and, if so, on what terms.

Chapter 4 Special Health Authorities¶

28 Special Health Authorities¶

1 The Secretary of State may by order establish special bodies for the purpose of exercising any functions which may be conferred on them by or under this Act.

2 The Secretary of State may make such further provision relating to a body established under subsection (1) as he considers appropriate.

3 A body established under this section is called a Special Health Authority.

4 An order may, in particular, contain provisions as to—

a the membership of the body established by the order,

b the transfer to the body of officers, property and liabilities, and

c the name of the body.

5 The liabilities which may be transferred by virtue of this section, section 272(8) and section 273(1) to an NHS body on the abolition of a Special Health Authority include criminal liabilities.

^F1366 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 The Secretary of State must, before he makes an order under this section, consult with respect to the order such bodies as he may recognise as representing officers who in his opinion are likely to be transferred or affected by transfers in pursuance of the order.

8 Schedule 6 makes further provision about Special Health Authorities.

^F35628A Special Health Authorities: further provision¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

29 Exercise of Special Health Authority functions¶

1 Regulations may provide for any functions which are exercisable by a Special Health Authority under section 7 to be exercised—

a by another Special Health Authority, or

b jointly with one or more other Special Health Authorities.

2 Regulations may provide—

a for any functions which are exercisable by a Special Health Authority under section 7 ^F1497... ^F1317... or this section to be exercised on behalf of that Special Health Authority by a committee, sub-committee or officer of the Special Health Authority,

b for any functions exercisable jointly under subsection (1)(b) to be exercised, on behalf of the Special Health Authorities in question, by a joint committee or joint sub-committee.

29A Special Health Authorities: accounts and audit¶

1 In this section a reference to a Special Health Authority is to a Special Health Authority which—

a performs functions only or mainly in respect of England, or

b neither performs functions only or mainly in respect of England, nor performs functions only or mainly in respect of Wales.

2 A Special Health Authority must keep proper accounts and proper records in relation to the accounts.

3 The Secretary of State may give a Special Health Authority directions as to the form in which its accounts must be kept.

4 A Special Health Authority must prepare, in respect of each financial year, annual accounts in such form as the Secretary of State may direct.

5 A Special Health Authority must send copies of any annual accounts prepared by it under subsection (4)—

a to the Secretary of State, by such date as the Secretary of State may direct, and

b to the Comptroller and Auditor General, as soon as is reasonably practicable following the end of the financial year in question.

6 The Comptroller and Auditor General must examine, certify and report on the annual accounts.

7 The Special Health Authority must lay before Parliament—

a a copy of the annual accounts, and

b the Comptroller and Auditor General’s report on them.

8 Nothing in subsection (2) requires any annual accounts prepared by a Special Health Authority to include matters relating to a charitable trust of which it is a trustee.

9 Nothing in subsection (4) has effect in relation to accounts relating to a charitable trust of which the Special Health Authority is a trustee.

Chapter 5 NHS foundation trusts¶

Introductory¶

30 NHS foundation trusts¶

1 An NHS foundation trust is a public benefit corporation the function of which is to provide in accordance with this Chapter goods and services for the purposes of the health service in England.

2 A public benefit corporation is a body corporate which, in pursuance of an application under this Chapter, is constituted in accordance with Schedule 7.

^F139931 Independent Regulator of NHS Foundation Trusts¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F119932 General duty of regulator¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Authorisation¶

33 Applications by NHS trusts¶

1 An NHS trust may make an application to NHS England for authorisation to become an NHS foundation trust ^F644....

2 The application must—

^F954a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b be accompanied by a copy of the proposed constitution of the NHS foundation trust,

and must give any further information which NHS England requires the applicant to give.

3 The applicant may modify the application with the agreement of NHS England at any time before authorisation is given under section 35.

4 Once an NHS trust has made the application—

a the provisions of the proposed constitution which give effect to paragraphs 3 to 19 of Schedule 7 have effect, but only for the purpose of establishing the initial membership of the NHS foundation trust and of the council of governors, and the initial directors, and enabling the council of governors and board of directors to make preparations for the performance of their functions,

b the NHS trust may do anything (including the things mentioned in paragraph 14 of Schedule 4) which appears to it to be necessary or expedient for the purpose of preparing it for NHS foundation trust status.

^F32634 Other applications¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35 Authorisation of NHS foundation trusts¶

1 NHS England may give an authorisation under this section—

a to an NHS trust which has applied under section 33, ^F1391...

^F1391b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

if the Secretary of State approves the authorisation and NHS England is satisfied as to the following matters.

2 The matters are that—

a the applicant's constitution will be in accordance with Schedule 7 and will otherwise be appropriate,

b the applicant has taken steps to secure that (taken as a whole) the actual membership of any public constituency, and (if there is one) of the patients' constituency, will be representative of those eligible for such membership,

c there will be a council of governors, and a board of directors, constituted in accordance with the constitution,

d the steps necessary to prepare for NHS foundation trust status have been taken,

e the applicant will be able to provide goods and services for the purposes of the health service in England,

f any other requirements which NHS England considers appropriate are met.

3 In deciding whether it is satisfied as to the matters referred to in subsection (2)(e), NHS England must consider (among other things)—

a any report or recommendation in respect of the applicant made by the Care Quality Commission,

b the financial position of the applicant.

^F15634 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 NHS England must not give an authorisation unless it is satisfied that the applicant has sought the views about the application of the following—

^F775a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b individuals who live in any area specified in the proposed constitution as the area for a public constituency,

c any local authority that would be authorised by the proposed constitution to appoint a member of the council of governors,

d if the proposed constitution provides for a patients' constituency, individuals who would be able to apply to become members of that constituency,

e any prescribed persons.

6 If regulations make provision about consultation, NHS England may not give an authorisation unless it is satisfied that the applicant has complied with the regulations.

^F1087 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

36 Effect of authorisation¶

1 On an authorisation being given to a body corporate which is an NHS trust—

a it ceases to be an NHS trust and becomes an NHS foundation trust,

b the proposed constitution has effect, and

c any order under section 25(1) is revoked.

^F11352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 The authorisation is conclusive evidence that the body in question is an NHS foundation trust.

4 Subsections (1) to (3) do not affect the continuity of the body or of its property or liabilities (including its criminal liabilities).

5 The validity of any act of an NHS foundation trust is not affected by any vacancy among the directors or by any defect in the appointment of any director.

6 An NHS foundation trust must not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and an NHS foundation trust's property must not be regarded as property of, or property held on behalf of, the Crown.

37 Amendments of constitution¶

1 An NHS foundation trust may make amendments of its constitution only if—

a more than half of the members of the council of governors of the trust voting approve the amendments, and

b more than half of the members of the board of directors of the trust voting approve the amendments.

2 Amendments made under this section take effect as soon as the conditions in subsection (1)(a) and (b) are satisfied.

3 But an amendment is of no effect in so far as the constitution would, as a result of the amendment, not accord with Schedule 7.

4 The trust must inform NHS England of amendments made under this section; but NHS England’s functions do not include a power or duty to determine whether or not the constitution, as a result of the amendments, accords with Schedule 7.

^F129138 Variation of authorisation¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39 Register of NHS foundation trusts¶

1 NHS England must continue to maintain a register of NHS foundation trusts.

2 The register must contain in relation to each NHS foundation trust—

a a copy of the current constitution,

^F1483b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c a copy of the latest annual accounts and of any report of the auditor on them,

d a copy of the latest annual report,

^F146e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F492f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

g a copy of any order made under section 65D, 65J, 65KC, 65L or 65LA,

h a copy of any report laid under section 65D,

i a copy of any information published under section 65D,

j a copy of any draft report published under section 65F,

k a copy of any statement provided under section 65F,

l a copy of any notice published under section 65F, 65G, 65H, 65J, 65KA, 65KB, 65KC or 65KD,

m a copy of any statement published or provided under section 65G,

n a copy of any final report published under section 65I,

o a copy of any statement published under section 65J or 65KC,

p a copy of any information published under section 65M.

3 In relation to any time before an NHS foundation trust is first required to send an annual report to NHS England, the register must contain a list of the persons who were first elected or appointed as—

a the members of the council of governors,

b the directors.

4 Members of the public may inspect the register at any reasonable time.

5 Any person who requests it must be provided with a copy of, or extract from, any document contained in the register on payment of a reasonable charge.

39A Panel for advising governors¶

1 NHS England may appoint a panel of persons to which a governor of an NHS foundation trust may refer a question as to whether the trust has failed or is failing—

a to act in accordance with its constitution, or

b to act in accordance with provision made by or under this Chapter.

2 A governor may refer a question to the panel only if more than half of the members of the council of governors voting approve the referral.

3 The panel—

a may regulate its own procedure, and

b may establish such procedures, and make such other arrangements, as it considers appropriate for the purpose of determining questions referred to it under this section.

4 The panel may decide whether, or to what extent, to carry out an investigation on a question referred to it under this section.

5 The panel may for that purpose, or for the purpose of carrying out such an investigation, request information or advice.

6 Where the panel has carried out such an investigation, it must publish a report of its determination of the question referred to it.

7 If a person refuses to comply with a request made under subsection (5), the report under subsection (6) may refer to the refusal.

8 On any proceedings before a court or tribunal relating to a question referred to the panel under this section, the court may take the panel's report of its determination of the question into account.

9 NHS England—

a must pay expenses properly incurred by the panel, and

b must make administrative support available to the panel.

10 Regulations may make provision as to—

a eligibility for membership of the panel;

b the number of persons that may be appointed as members;

c the terms of appointment of members;

d circumstances in which a person ceases to be a member or may be suspended.

Financial matters¶

40 Power of Secretary of State to give financial assistance¶

1 The Secretary of State may give financial assistance to any NHS foundation trust.

2 The financial assistance may be given by way of loan, public dividend capital, grant or other payment.

3 The Secretary of State may guarantee the payment of any amount payable by an NHS foundation trust under an externally financed development agreement.

4 “Externally financed development agreement” has the same meaning as in paragraph 23 of Schedule 4, reading references in sub-paragraphs (3) and (5) of that paragraph to the NHS trust as references to the NHS foundation trust.

5 As soon as is practicable after the end of each financial year, the Secretary of State must prepare a report on the exercise of the power under subsection (1).

6 In relation to each exercise of the power under that subsection during the year to which the report relates, the report must specify the amount of the loan, issue of public dividend capital, grant or other payment and—

a in the case of a loan, the amount (if any) outstanding at the end of the year and the other terms on which the loan was made,

b in the case of an issue of public dividend capital, the terms on which it was issued (or, where a decision under section 42(3) is made in relation to it during that year, the terms so decided as those on which it is treated as having been issued), and

c in the case of a grant or other payment, the terms on which it was made.

7 In relation to each loan made under that subsection during a previous financial year but not repaid by the beginning of the year to which the report relates, the report must specify—

a the amount outstanding at the beginning of the year,

b the amount (if any) outstanding at the end of the year, and

c the other terms on which the loan was made.

8 A report under subsection (5) must, in relation to each NHS foundation trust, specify—

a the amount of the public dividend capital of that trust at the end of the year to which the report relates, and

b the conditions on which it is held.

9 The Secretary of State must publish a report under subsection (5).

^F6741 Prudential borrowing code¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

42 Public dividend capital¶

1 Where an NHS trust becomes an NHS foundation trust, the amount which was the public dividend capital of the NHS trust immediately before the giving of the authorisation continues as public dividend capital of the NHS foundation trust held on the same conditions (“initial public dividend capital”), but subject to this section.

2 Any amount issued to an NHS foundation trust as public dividend capital under section 40 is (like initial public dividend capital) an asset of the Consolidated Fund.

3 The Secretary of State may, with the consent of the Treasury, decide the terms on which any public dividend capital of an NHS foundation trust must be treated as having been issued.

^F13934 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F9155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 Any amount paid to the Secretary of State by an NHS foundation trust by way of repayment of public dividend capital must be paid into the Consolidated Fund.

7 The terms which may be decided under subsection (3) include terms to which the exercise of any power of an NHS foundation trust to do any of the following will be subject as a consequence—

a providing goods or services,

b borrowing or investing money,

c providing financial assistance,

d acquiring or disposing of property,

e entering into contracts, or making other arrangements, to do anything referred to in paragraphs (a) to (d),

f applying for dissolution (whether or not when also applying for the establishment of one or more other trusts),

g applying to acquire another body.

42A Criteria for making loans etc.¶

1 The Secretary of State must publish guidance on the powers conferred by sections 40 and 42.

2 The guidance on the power to make a loan under section 40(1) must in particular—

a explain that, in exercising the power, the Secretary of State will apply the principle that a loan should be made only where there is a reasonable expectation that it will be repaid in accordance with the terms on which it is made;

b include other criteria that the Secretary of State will apply when determining whether to exercise the power and, if so, the terms on which to make the loan.

3 The guidance on that power must also explain—

a the process for applying for a loan under section 40(1);

b the consequences of failing to comply with terms on which a loan is made under that provision.

4 The guidance on the power to decide terms under section 42(3) must, in particular, include the criteria that the Secretary of State will apply when deciding the terms.

5 The guidance on that power must also explain the consequences of failing to comply with the terms decided.

6 In preparing guidance under this section, the Secretary of State must have regard (among other things) to any generally accepted principles used by financial institutions to determine whether to make loans to bodies corporate and the terms on which to make loans to them.

7 Before publishing the guidance, the Secretary of State must consult—

a the Treasury,

b NHS England, and

c such other persons as the Secretary of State considers appropriate.

42B Limits on capital expenditure¶

1 NHS England may make an order imposing a limit on the capital expenditure of an NHS foundation trust in respect of a single financial year.

2 The order must specify—

a the trust,

b the capital expenditure limit, and

c the financial year to which the limit relates.

3 NHS England must consult the trust before making the order.

4 NHS England must publish each order under this section.

5 An order under this section may be made at any time during or before the financial year to which it relates.

6 A trust that is the subject of an order under this section must not exceed the capital expenditure limit imposed by the order during the financial year to which it relates.

7 In this section “capital expenditure”, in relation to an NHS foundation trust, means expenditure of the trust which falls to be capitalised in its annual accounts.

42C Guidance in relation to orders under section 42B¶

1 NHS England must publish guidance about the exercise of its power to make orders under section 42B, including guidance about—

a the circumstances in which it is likely to make an order, and

b the method it will use to determine the capital expenditure limit.

2 NHS England must consult the Secretary of State before it publishes guidance, or revised guidance, under this section.

3 NHS England must have regard to the guidance in exercising its power to make orders under section 42B.

Functions¶

43 Provision of goods and services¶

1 The principal purpose of an NHS foundation trust is the provision of goods and services for the purposes of the health service in England.

2 An NHS foundation trust may provide goods and services for any purposes related to—

a the provision of services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness, and

b the promotion and protection of public health.

2A An NHS foundation trust does not fulfil its principal purpose unless, in each financial year, its total income from the provision of goods and services for the purposes of the health service in England is greater than its total income from the provision of goods and services for any other purposes.

3 An NHS foundation trust may also carry on activities other than those mentioned in subsection (2) ^F851... for the purpose of making additional income available in order better to carry on its principal purpose.

3A Each annual report prepared by an NHS foundation trust must give information on the impact that income received by the trust otherwise than from the provision of goods and services for the purposes of the health service in England has had on the provision by the trust of goods and services for those purposes.

^F12873B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F5623C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3D An NHS foundation trust which proposes to increase by 5% or more the proportion of its total income in any financial year attributable to activities other than the provision of goods and services for the purposes of the health service in England may implement the proposal only if more than half of the members of the council of governors of the trust voting approve its implementation.

^F11084 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11085 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11086 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11087 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

44 Power to charge for accommodation etc.¶

^F1881 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F13952 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2292A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F15463 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F15464 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F15465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 According to the nature of its functions, an NHS foundation trust may, in the case of patients being provided with goods and services for the purposes of the health service, make accommodation or further services available for patients who give undertakings (or for whom undertakings are given) to pay any charges imposed by the NHS foundation trust in respect of the accommodation or services.

7 An NHS foundation trust may exercise the power conferred by subsection (6) only to the extent that its exercise does not to any significant extent interfere with the performance by the NHS foundation trust of its functions.

^F11945 Protection of property¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

46 Financial powers¶

1 An NHS foundation trust may borrow money for the purposes of or in connection with its functions.

^F7842 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F7843 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 An NHS foundation trust may invest money (other than money held by it as trustee) for the purposes of or in connection with its functions.

5 The investment may include investment by—

a forming, or participating in forming, bodies corporate,

b otherwise acquiring membership of bodies corporate.

6 An NHS foundation trust may give financial assistance (whether by way of loan, guarantee or otherwise) to any person for the purposes of or in connection with its functions.

47 General powers¶

1 An NHS foundation trust may do anything which appears to it to be necessary or expedient for the purpose of or in connection with its functions.

2 In particular it may—

a acquire and dispose of property,

b enter into contracts,

c accept gifts of property (including property to be held on trust for the purposes of the NHS foundation trust or for any purposes relating to the health service),

d employ staff.

3 Any power of the NHS foundation trust to pay remuneration and allowances to any person includes power to make arrangements for providing, or securing the provision of, pensions or gratuities (including those payable by way of compensation for loss of employment or loss or reduction of pay).

4 “The purposes of the NHS foundation trust” means the general or any specific purposes of the trust (including the purposes of any specific hospital at or from which services are provided by the trust).

47A Joint exercise of functions¶

An NHS foundation trust may enter into arrangements for the carrying out, on such terms as the NHS foundation trust considers appropriate, of any of its functions jointly with any other person.

48 Information¶

1 The Secretary of State may require an NHS foundation trust to provide the Secretary of State with such information as the Secretary of State considers it necessary to have for the purposes of the functions of the Secretary of State in relation to the health service.

1A An integrated care board may require any of its partner NHS foundation trusts to provide it with any information that it requires.

2 Information required under this section must be provided in such form, and at such time or within such period, as may be specified by the person imposing the requirement.

^F27549 Entry and inspection of premises¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

50 Fees¶

An NHS foundation trust must pay to NHS England such fee as NHS England may determine in respect of its exercise of functions under—

a section 39;

b section 39A.

^F124451 Trust funds and trustees¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

51A Significant transactions¶

1 An NHS foundation trust may enter into a significant transaction only if more than half of the members of the council of governors of the trust voting approve entering into the transaction.

2 “Significant transaction” means a transaction or arrangement of such description as may be specified in the trust's constitution.

3 If an NHS foundation trust does not wish to specify any descriptions of transaction or arrangement for the purposes of subsection (2), the constitution of the trust must specify that it contains no such descriptions.

Failure¶

^F1452 Failing NHS foundation trusts¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F165252A Application of sections 52B to 52E¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F164552B De-authorisation: regulator's notice¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F158552C Grounds for de-authorisation notice¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F163352D De-authorisation¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F163152E Secretary of State's request¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F37553 Voluntary arrangements¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F37554 Dissolution etc¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F37555 Sections 53 and 54: supplementary¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Mergers, acquisitions and separations¶

56 Mergers¶

1 An application may be made jointly by—

a an NHS foundation trust, and

b another NHS foundation trust or an NHS trust established under section 25,

to NHS England for the dissolution of the trusts and the establishment of a new NHS foundation trust.

1A An application under this section may be made only with the approval of more than half of the members of the council of governors of each applicant (that is an NHS foundation trust).

2 The application must—

^F45a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b specify the property and liabilities proposed to be transferred to the new NHS foundation trust,

c ^F927...and

d be accompanied by a copy of the proposed constitution of the new trust,

^F558...

^F4623 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 NHS England must grant the application if—

a it is satisfied that such steps as are necessary to prepare for the dissolution of the trusts and the establishment of the new trust have been taken, and

b the Secretary of State approves the grant of the application,

and must otherwise refuse the application.

^F9055 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F9056 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F9057 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F9058 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F9059 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F90510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11 On the grant of the application, the proposed constitution of the NHS foundation trust has effect, but the directors of the applicants may exercise the functions of the trust on its behalf until a board of directors is appointed in accordance with the constitution.

56A Acquisitions¶

1 An application may be made jointly by—

a an NHS foundation trust (A), and

b another NHS foundation trust or an NHS trust established under section 25 (B),

to NHS England for the acquisition by A of B.

2 An application under this section may be made only with the approval of more than half of the members of the council of governors of each applicant (that is an NHS foundation trust).

3 The application must—

^F670a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b be accompanied by a copy of the proposed constitution of A, amended on the assumption that A acquires B.

4 NHS England must grant the application if—

a it is satisfied that such steps as are necessary to prepare for the acquisition have been taken, and

b the Secretary of State approves the grant of the application,

and must otherwise refuse the application.

4A Where NHS England proposes to grant the application, it may by order make provision for the transfer of employees of B to A on the grant of the application.

5 On the grant of the application, the proposed constitution has effect, but where a person who is specified as a director of A in the constitution has yet to be appointed as such, the directors of A may exercise that person's functions under the constitution.

56AA Acquisitions under section 56A: supplementary¶

1 On the grant of an application under section 56A—

a any order made by NHS England under section 56A(4A) takes effect,

b the property and liabilities of the acquired NHS foundation trust or NHS trust are transferred to the acquiring NHS foundation trust (other than rights and liabilities which may be dealt with by order under section 56A(4A)),

c the acquired NHS foundation trust or NHS trust is dissolved, and

d where the acquired trust is an NHS trust, the NHS trust order establishing it is revoked.

2 So far as may be necessary for the purposes of subsection (1)(b)—

a anything done before the grant of the application by or in relation to the acquired trust is to be treated (on and after the grant) as having been done by or in relation to the acquiring trust;

b any reference in a document to the acquired trust is to be read as a reference to the acquiring trust.

3 Anything (including legal proceedings) that, immediately before the grant of the application, is in the process of being done by or in relation to the acquired trust may continue to be done afterwards by or in relation to the acquiring trust.

4 In subsection (1)—

a “liabilities” includes criminal liabilities;

b “property” includes trust property.

56B Separations¶

1 An application may be made to NHS England by an NHS foundation trust for the dissolution of the trust and the establishment of two or more new NHS foundation trusts.

2 An application under this section may be made only with the approval of more than half of the members of the council of governors of the applicant.

3 The application must, by reference to each of the proposed new trusts—

a specify the property and liabilities proposed to be transferred to it;

b be accompanied by a copy of its proposed constitution.

4 NHS England must grant the application if—

a it is satisfied that such steps as are necessary to prepare for the dissolution of the trust and the establishment of each of the proposed new trusts have been taken, and

b the Secretary of State approves the grant of the application,

and must otherwise refuse the application.

5 On the grant of the application, the proposed constitution of each of the new trusts has effect but, in the case of each of the new trusts, the proposed directors may exercise the functions of the trust on its behalf until a board of directors is appointed in accordance with the constitution.

57 Sections 56 to 56B: supplementary¶

1 Where an application is granted under section 56 or 56B, NHS England must specify the property and liabilities to be transferred to the new NHS foundation trust or trusts.

2 Where such an application is granted, NHS England must make an order—

a dissolving the trust or trusts in question, and

b transferring, or providing for the transfer of, the property and liabilities specified by NHS England to the new NHS foundation trust or trusts.

2A An order under section 56 or 56B is conclusive evidence of incorporation and conclusive evidence that the corporation is an NHS foundation trust.

3 The order may—

a transfer, or provide for the transfer of, any of the remaining property or liabilities to another NHS foundation trust, an NHS trust established under section 25 or the Secretary of State,

^F1458b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3A The order may include provision for the transfer of employees of the trust or trusts dissolved by the order.

4 In sections 56(2) and 56B(3), and subsections (1) and (2) of this section, “liabilities” includes criminal liabilities; and an order under subsection (3) of this section may transfer any remaining criminal liabilities to another NHS foundation trust or an NHS trust established under section 25.

5 Where one of the parties to an application under section 56 or 56A is an NHS trust, the powers conferred on the Secretary of State or NHS England by Part 3 of Schedule 4 are not exercisable in relation to the trust.

^F10796 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

57A Dissolution¶

1 An application may be made by an NHS foundation trust to NHS England for dissolution.

2 An application under this section may be made only with the approval of more than half of the members of the council of governors of the applicant.

3 NHS England must grant the application if it is satisfied that—

^F648a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b such steps as are necessary to prepare for the dissolution have been taken.

4 Where an application under this section is granted, NHS England must make an order—

a dissolving the trust in question, and

b transferring, or providing for the transfer of, the property and liabilities (including criminal liabilities) to another NHS foundation trust, an NHS trust established under section 25 or the Secretary of State.

5 The order must include provision for the transfer of any employees of the NHS foundation trust that is dissolved.

Miscellaneous¶

^F124758 Taxation¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

59 Conduct of elections¶

1 Regulations may make provision as to the conduct of elections for membership of the council of governors of an NHS foundation trust.

2 The regulations may in particular provide for—

a nomination of candidates and obligations to declare their interests,

b systems and methods of voting, and the allocation of places on the council of governors, at contested elections,

c filling of vacancies,

d supervision of elections,

e elections expenses and publicity,

f questioning of elections and the consequences of irregularities.

3 Regulations under this section may create offences punishable on summary conviction with a maximum fine not exceeding level 4 on the standard scale.

4 An NHS foundation trust must secure that its constitution is in accordance with regulations under this section.

5 Pending the coming into force of regulations under this section, elections for membership of the council of governors of an NHS foundation trust, if contested, must be by secret ballot.

60 Voting and standing for election¶

1 A person may not vote at an election for the council of governors of an NHS foundation trust unless, within the specified period, he has made a declaration in the specified form of the particulars of his qualification to vote as a member of the constituency, or class within a constituency, for which the election is being held.

2 A person may not stand for election to the council unless—

a he has within the specified period made a declaration in the specified form of the particulars of his qualification to vote as a member of the constituency, or class within a constituency, for which the election is being held, and

b he is not prevented from being a member of the council by paragraph 8 of Schedule 7.

3 A person elected to the council may not vote at a meeting of the council unless—

a he has within the specified period made a declaration in the specified form of the particulars of his qualification to vote as a member of the trust, and

b he is not prevented from being a member of the council by paragraph 8 of Schedule 7.

4 This section does not apply to an election held for the staff constituency.

5 “Specified” means specified in the trust's constitution.

6 A person is guilty of an offence if he—

a makes a declaration under this section which he knows to be false in a material particular, or

b recklessly makes such a declaration which is false in a material particular.

7 A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

61 Representative membership¶

1 An NHS foundation trust must take steps to secure that (taken as a whole) the actual membership of any public constituency and (if there is one) of the patients' constituency is representative of those eligible for such membership.

2 In deciding which areas are to be areas for public constituencies, or in deciding whether there is to be a patients' constituency, an NHS foundation trust must have regard to the need for those eligible for such membership to be representative of those to whom the trust provides services.

62 Audit¶

Schedule 10 makes provision in relation to the audit of accounts of NHS foundation trusts.

63 General duty of NHS foundation trusts¶

An NHS foundation trust must exercise its functions effectively, efficiently and economically.

63A Duty to have regard to wider effect of decisions¶

1 In making a decision about the exercise of its functions, an NHS foundation trust must have regard to all likely effects of the decision in relation to—

a the health and well-being of the people of England;

b the quality of services provided to individuals—

i by relevant bodies, or

ii in pursuance of arrangements made by relevant bodies,

for or in connection with the prevention, diagnosis or treatment of illness, as part of the health service in England;

c efficiency and sustainability in relation to the use of resources by relevant bodies for the purposes of the health service in England.

2 In subsection (1)—

3 In discharging the duty under this section, NHS foundation trusts must have regard to guidance published by NHS England under section 13NB.

4 In this section “relevant bodies” means—

a NHS England,

b integrated care boards,

c NHS trusts established under section 25, and

d NHS foundation trusts.

63B Duties in relation to climate change etc¶

1 An NHS foundation trust must, in the exercise of its functions, have regard to the need to—

a contribute towards compliance with—

i section 1 of the Climate Change Act 2008 (UK net zero emissions target), and

ii section 5 of the Environment Act 2021 (environmental targets), and

b adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008.

2 In discharging the duty under this section, NHS foundation trusts must have regard to guidance published by NHS England under section 13ND.

Supplementary¶

64 Orders and regulations under this Chapter¶

1 Any power under this Chapter to make an order or regulations , other than the power to make an order under section 42B, is exercisable by statutory instrument.

2 Subject to subsections (3) and (4), a statutory instrument made by virtue of this Chapter is subject to annulment in pursuance of a resolution of either House of Parliament.

3 A statutory instrument containing—

a the first regulations under section 55(4) or 59,

aa regulations under paragraph 30(1) of Schedule 7, or

b an order or regulations under this Chapter making, by virtue of subsection (5)(b), provision which amends or repeals any part of the text of an Act,

may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

4 Subsection (2) does not apply to a statutory instrument containing an order under—

a section 51,

^F841b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ba section 56A(4A),

c section 57 , or

d section 57A.

4A The Statutory Instruments Act 1946 applies in relation to the power of NHS England to make an order under section 56A(4A), 57 or 57A as if NHS England were a Minister of the Crown.

5 Any order or regulations under this Chapter—

a may make different provision for different purposes, and

b may make incidental, supplementary, consequential, transitory or transitional or saving provision.

6 Any power under this Chapter to make an order or regulations (as well as being exercisable in relation to all cases to which it extends) may be exercised in relation to all those cases subject to exceptions or in relation to any particular case or class of case.

65 Interpretation of this Chapter¶

1 In this Chapter—

“authorisation” means an authorisation under section 35 or 56,
“health service body” means a Strategic Health Authority, a Primary Care Trust, an NHS trust, a Special Health Authority or an NHS foundation trust.

2 Any references in this Chapter to goods and services include, in particular, facilities, education and training.

Chapter 5A Trust special administrators: NHS trusts and NHS foundation trusts¶

Application¶

65A Application¶

1 This Chapter applies to—

a an NHS trust all or most of whose hospitals, establishments and facilities are in England;

b any NHS foundation trust.

^F4372 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appointment¶

65B NHS trusts: appointment of trust special administrator¶

1 NHS England may make an order in accordance with this section authorising the appointment of a trust special administrator to exercise the functions of the chair and directors of an NHS trust to which this Chapter applies.

2 NHS England—

a must make an order under subsection (1) if required to do so by the Care Quality Commission, and

b may otherwise make an order under subsection (1) only if—

i NHS England considers it appropriate to do so in the interests of the health service, and

ii the Secretary of State has approved the making of the order.

3 The Care Quality Commission may require NHS England to make an order under subsection (1) only if it is satisfied that there is a serious failure by the NHS trust to provide services that are of sufficient quality to be provided under this Act.

4 Before requiring NHS England to make an order under subsection (1) the Care Quality Commission must—

a consult the Secretary of State and NHS England, and

b having done that, consult—

i the trust,

ii any integrated care board in whose area the trust has hospitals, establishments or facilities, and

iii any person to which the trust provides goods or services under this Act and which the Commission considers it appropriate to consult.

5 Before making an order under subsection (1) in a case where it is not required to do so by the Care Quality Commission, NHS England must consult—

a the trust,

b any integrated care board in whose area the trust has hospitals, establishments or facilities,

c any other person to which the trust provides goods or services under this Act and which NHS England considers it appropriate to consult, and

d the Care Quality Commission.

6 An order under subsection (1) must specify the date when the appointment is to take effect, which must be within the period of 5 working days beginning with the day on which the order is made.

7 NHS England must lay before Parliament (with the statutory instrument containing the order) a report stating the reasons for making the order.

8 If an order is made under subsection (1), NHS England must—

a appoint a person as the trust special administrator with effect from the day specified in the order, and

b publish the name of the person appointed.

9 A person appointed as a trust special administrator holds and vacates office in accordance with the terms of the appointment.

10 NHS England may pay remuneration and expenses to a trust special administrator appointed under this section.

65BA Care Quality Commission report on safety and quality of services¶

1 This section applies where the Care Quality Commission require NHS England to make an order under section 65B(1) in relation to an NHS trust.

2 The Care Quality Commission must, as soon as reasonably practicable after the making of the order, provide to NHS England and the Secretary of State a report on the safety and quality of the services that the trust provides under this Act.

65C Suspension of directors¶

1 When the appointment of a trust special administrator takes effect, the trust's chairman and executive and non-executive directors are suspended from office.

2 Subsection (1) does not affect the employment of the executive directors or their membership of any committee or sub-committee of the trust.

^F442 ...¶

65D NHS foundation trusts: appointment of trust special administrator¶

1 This section applies if NHS England is satisfied that —

a an NHS foundation trust is, or is likely to become, unable to pay its debts , or

b there is a serious failure by an NHS foundation trust to provide services that are of sufficient quality to be provided under this Act and it is appropriate to make an order under subsection (2).

1A This section also applies if the Care Quality Commission—

a is satisfied that there is a serious failure by an NHS foundation trust to provide services that are of sufficient quality to be provided under this Act and that it is appropriate to make an order under subsection (2),

b informs NHS England that it is satisfied as mentioned in paragraph (a) and gives NHS England its reasons for being so satisfied, and

c requires NHS England to make an order under subsection (2).

2 NHS England may or, where this section applies as a result of subsection (1A), must make an order authorising the appointment of a trust special administrator to exercise the functions of the governors, chairman and directors of the trust.

2A Where NHS England is not required to make an order under this section as a result of subsection (1A), it may do so only if the Secretary of State has approved the making of the order.

3 As soon as reasonably practicable after the making of an order under subsection (2), the Care Quality Commission must provide to NHS England a report on the safety and quality of the services that the trust provides under this Act.

3A Before imposing a requirement as mentioned in subsection (1A)(c), the Care Quality Commission must—

a consult the Secretary of State and NHS England, and

b having done that, consult—

i the trust,

ii ^F696... and

iii any other person to which the trust provides services under this Act and which the Commission considers it appropriate to consult.

4 Before making an order under this section in a case where it is not required to do so as a result of subsection (1A), NHS England must consult—

a the trust,

b any person to which the trust provides services under this Act and which NHS England considers it appropriate to consult, and

c the Care Quality Commission.

5 An order under subsection (2) must specify the date when the appointment is to take effect, which must be within the period of 5 working days beginning with the day on which the order is made.

6 NHS England must lay before Parliament (with the statutory instrument containing the order) a report stating the reasons for making the order.

7 If NHS England makes an order under subsection (2), it must—

a appoint a person as the trust special administrator with effect from the day specified in the order, and

b publish the name of the person appointed.

8 A person appointed as a trust special administrator under this section holds and vacates office in accordance with the terms of the appointment.

9 A person appointed as a trust special administrator under this section must manage the trust's affairs, business and property, and exercise the trust special administrator's functions, so as to achieve the objective set out in section 65DA as quickly and as efficiently as is reasonably practicable.

10 When the appointment of a trust special administrator under this section takes effect, the trust's governors, chairman and executive and non-executive directors are suspended from office; and Chapter 5 of this Part, in its application to the trust, is to be read accordingly.

11 But subsection (10) does not affect the employment of the executive directors or their membership of any committee or sub-committee of the trust.

12 NHS England may pay remuneration and expenses to a trust special administrator appointed under this section.

65DA Objective of trust special administration¶

1 The objective of a trust special administration is to secure—

a the continued provision of such of the services provided for the purposes of the NHS by the NHS foundation trust that is subject to an order under section 65D(2), at such level, as the commissioners of those services determine, and

aa that the services whose continuous provision is secured as mentioned in paragraph (a) are of sufficient safety and quality to be provided under this Act,

b that it becomes unnecessary for the order to remain in force for that purpose.

2 The commissioners may determine that the objective set out in subsection (1) is to apply to a service only if they are satisfied that the criterion in subsection (3) is met.

3 The criterion is that ceasing to provide the service under this Act would, in the absence of alternative arrangements for its provision under this Act, be likely to—

a have a significant adverse impact on the health of persons in need of the service or significantly increase health inequalities, or

b cause a failure to prevent or ameliorate either a significant adverse impact on the health of such persons or a significant increase in health inequalities.

4 In determining whether that criterion is met, the commissioners must (in so far as they would not otherwise be required to do so) have regard to—

a the current and future need for the provision of the service under this Act,

b whether ceasing to provide the service under this Act would significantly reduce equality between those for whom the commissioner arranges for the provision of services under this Act with respect to their ability to access services so provided, and

c such other matters as may be specified in relation to NHS foundation trusts in guidance published by NHS England.

5 NHS England may revise guidance under subsection (4)(c) and, if it does so, must publish the guidance as revised.

5A Before publishing guidance under subsection (4)(c), NHS England must consult the Care Quality Commission.

6 Before publishing guidance under subsection (4)(c) or (5), NHS England must obtain the approval of—

a the Secretary of State;

^F1430b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 NHS England must make arrangements for facilitating agreement between commissioners in determining the services provided by the trust under this Act to which the objective set out in subsection (1) is to apply.

8 Where commissioners fail to reach agreement in pursuance of arrangements under subsection (7), NHS England may make the determination (and the duty imposed by subsection (1)(a), so far as applying to the commissioners concerned, is to be regarded as discharged).

9 In this section—

“commissioners” means the persons to which the trust provides services under this Act, and
“health inequalities” means the inequalities between persons with respect to the outcomes achieved for them by the provision of services that are provided as part of the health service.

^F82265E NHS foundation trusts: de-authorisation and appointment of trust special administrator¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consultation and report¶

65F Draft report¶

1 A trust special administrator appointed in relation to an NHS trust must, within the period of 65 working days beginning with the day on which the administrator’s appointment takes effect—

a provide NHS England and the Secretary of State with a draft report recommending any action that NHS England or the Secretary of State should take in relation to the trust, and

b publish a copy of that draft report.

1A A trust special administrator appointed in relation to an NHS foundation trust must, within the period of 65 working days beginning with the day on which the administrator’s appointment takes effect—

a provide NHS England with a draft report recommending the action that NHS England should take in relation to the trust, and

b publish a copy of that draft report,

unless unable to obtain the statements required by subsections (1B) and (1C).

1B A trust special administrator may not provide a draft report under subsection (1A)—

a without having obtained a statement from each commissioner that the commissioner considers that the recommendation in the draft report—

i would achieve the objective set out in section 65DA(1)(a), and

ii would do so without harming essential services provided for the purposes of the NHS by any other NHS foundation trust or NHS trust that provides services under this Act to the commissioner, or

b where the administrator is unable to obtain a statement to that effect from one or more of the commissioners (other than NHS England), without having obtained a statement to that effect from NHS England.

1C A trust special administrator may not provide a draft report under subsection (1A) without having obtained a statement from the Care Quality Commission that it considers that the recommendation in the draft report would achieve that part of the objective set out in section 65DA(1)(aa).

2 When preparing a draft report under subsection (1) or (1A), the administrator must consult—

a any person to which the trust provides goods or services under this Act and which NHS England directs the administrator to consult, and

b the Care Quality Commission.

3 After receiving a draft report under subsection (1) or (1A), NHS England must lay it before Parliament.

^F14324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F15835 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F2275A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 Where NHS England decides not to provide to the administrator a statement to the effect mentioned in subsection (1B)(b), NHS England must—

a give a notice of the reasons for its decision to the administrator,

b publish the notice, and

c lay a copy of it before Parliament.

6A Where the Care Quality Commission decides not to provide to the administrator a statement to the effect mentioned in subsection (1C), the Commission must—

a give a notice of the reasons for its decision to the administrator and to NHS England,

b publish the notice, and

c lay a copy of it before Parliament.

7 In subsection (5), “commissioner” means a person to which the trust provides services under this Act.

8 Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (5) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.

9 A service provided by an NHS foundation trust or an NHS trust is an essential service for the purposes of subsection (5) if the person making the statement in question is satisfied that the criterion in section 65DA(3) is met.

10 Section 65DA(4) applies to the person making the statement when that person is determining whether that criterion is met.

65G Consultation plan¶

1 At the same time as publishing a draft report under section 65F, a trust special administrator must publish a statement setting out the means by which the administrator will seek responses to the draft report.

2 The statement must specify a period of 40 working days within which the administrator seeks responses (the “consultation period”).

3 The first day of the consultation period must be within the period of 5 working days beginning with the day on which the draft report is published.

4 In the case of an NHS foundation trust, the administrator may not make a variation to the draft report following the consultation period—

a without having obtained from each commissioner a statement that the commissioner considers that the recommendation in the draft report as so varied —

i would achieve the objective set out in section 65DA(1)(a), and

ii would do so without harming essential services provided for the purposes of the NHS by any other NHS foundation trust or NHS trust that provides services under this Act to the commissioner, or

b where the administrator does not obtain a statement to that effect from one or more commissioners (other than NHS England), without having obtained a statement to that effect from NHS England.

4A Nor may the administrator make a variation to the draft report following the consultation period without having obtained from the Care Quality Commission a statement that it considers that the recommendation in the draft report as so varied would achieve that part of the objective set out in section 65DA(1)(aa).

5 Where NHS England decides not to provide to the administrator a statement to the effect mentioned in subsection (4)(b), NHS England must—

a give a notice of the reasons for its decision to the administrator,

b publish the notice, and

c lay a copy of it before Parliament.

5A Where the Care Quality Commission decides not to provide to the administrator a statement to the effect mentioned in subsection (4A), the Commission must—

a give a notice of the reasons for its decision to the administrator and to NHS England,

b publish the notice, and

c lay a copy of it before Parliament.

6 In subsection (4), “commissioner” means a person to which the trust provides services under this Act.

7 Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (4) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.”

8 A service provided by an NHS foundation trust or an NHS trust is an essential service for the purposes of subsection (4) if the person making the statement in question is satisfied that the criterion in section 65DA(3) is met.

9 Section 65DA(4) applies to the person making the statement when that person is determining whether that criterion is met.

65H Consultation requirements¶

1 The following duties apply during the consultation period.

2 The trust special administrator must publish a notice stating that the administrator is seeking responses to the draft report and describing how people can give their responses.

3 A notice under subsection (2) must include details of how responses can be given in writing.

4 The trust special administrator must —

a hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust , and

b in the case of each affected trust, hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust.

5 The trust special administrator must hold at least one other meeting to seek responses from any person who wishes to attend, after publishing notice of the date, time and place of the meeting.

6 Notices under subsections (2) and (5) must be published at least once in the first 5 working days of the consultation period.

7 The trust special administrator must request a written response from—

^F1630za . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1600a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b any ^F1625... person to which the trust provides goods or services under this Act ^F1078...;

bza any affected trust;

bzb any person to which an affected trust provides goods or services under this Act that would be affected by the action recommended in the draft report;

bzc any local authority in whose area the trust provides goods or services under this Act;

bzd any local authority in whose area an affected trust provides goods or services under this Act;

bze any Local Healthwatch organisation for the area of a local authority mentioned in paragraph (bzc) or (bzd);

ba the Care Quality Commission;

c the member of Parliament for any constituency, if required by directions given by NHS England;

d any other person specified in a direction given by NHS England.

^F16398 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9 The trust special administrator must —

a hold at least one meeting to seek responses from representatives of ^F1638... each of the persons from whom the administrator must request a written response under subsection (7)(b), (bzb), (ba), (c) or (d),

b hold at least one meeting to seek responses from representatives of each of the trusts from which the administrator must request a written response under subsection (7)(bza), and

c hold at least one meeting to seek responses from representatives of each of the local authorities and Local Healthwatch organisations from which the administrator must request a written response under subsection (7)(bzc), (bzd) and (bze).

9A NHS England may direct the administrator to hold a meeting to seek a response from any person.

10 The Secretary of State may direct NHS England as to the persons from whom it should direct the administrator to—

a request a written response (for NHS England’s powers of direction, see subsection (7)(c) and (d));

b seek a response by holding a meeting (for NHS England’s power of direction, see subsection (9A)).

11 In subsection (4) “staff of the trust” means persons employed by the trust or otherwise working for the trust (whether as or on behalf of a contractor, as a volunteer or otherwise).

11A In this section, “affected trust” means—

a where the trust in question is an NHS trust, another NHS trust, or an NHS foundation trust, which provides goods or services under this Act that would be affected by the action recommended in the draft report;

b where the trust in question is an NHS foundation trust, another NHS foundation trust, or an NHS trust, which provides services under this Act that would be affected by the action recommended in the draft report.

11B In this section, a reference to a local authority includes a reference to the council of a district only where the district is comprised in an area for which there is no county council.

12 For the purposes of this section in its application to the case of an NHS foundation trust—

a in subsection (7)(b) , (bzb), (bzc) and (bzd), the words “goods or” are to be ignored, ^F1658...

^F1658b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F163513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65I Final report¶

1 A trust special administrator appointed in relation to an NHS trust must, within the period of 15 working days beginning with the end of the consultation period, provide NHS England and the Secretary of State with a final report stating any action that the administrator recommends that NHS England or Secretary of State should take in relation to the trust.

1A A trust special administrator appointed in relation to an NHS foundation trust must, within the period of 15 working days beginning with the end of the consultation period, provide NHS England with a final report stating the action that the administrator recommends that NHS England should take in relation to the trust.

2 The administrator must attach to the final report mentioned in subsection (1) or (1A) a summary of all responses to the draft report which were received by the administrator in the period beginning with the publication of the draft report and ending with the last day of the consultation period.

3 After receiving the administrator's final report, NHS England must publish it and lay it before Parliament.

^F11484 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65J Power to extend time¶

1 This section applies to—

a the duty of a trust special administrator to provide a draft report within the period specified in section 65F(1) or (1A);

b the duty of a trust special administrator to consult in the consultation period specified under section 65G(2);

c the duty of a trust special administrator to provide a final report within the period specified in section 65I(1) or (1A).

2 If NHS England thinks it is not reasonable in the circumstances for the administrator to be required to carry out the duty within the specified period, NHS England may by order extend the period.

3 If an order is made extending the period mentioned in subsection (1)(a) or (c) the trust special administrator must publish a notice stating the new date on which the period will expire.

4 If an order is made extending the period mentioned in subsection (1)(b) the trust special administrator must—

a publish a notice stating the new date on which the period will expire, and

b publish a statement setting out the means by which the administrator will seek responses to the draft report during the extended consultation period.

^F8375 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Action by the Secretary of State and NHS England¶

65K. Decision of NHS England or Secretary of State in case of NHS trust¶

1 Within the period of 20 working days beginning with the day on which NHS England receives a final report under section 65I relating to an NHS trust, NHS England must decide what (if any) action to take in relation to the trust.

2 Within the period of 20 working days beginning with the day on which the Secretary of State receives a final report under section 65I relating to an NHS trust, the Secretary of State must decide what (if any) action to take in relation to the trust.

3 NHS England and the Secretary of State must consult one another before taking the decision under subsection (1) or (2).

4 After taking a decision under subsection (1) or (2) NHS England or the Secretary of State (as the case may be) must, as soon as reasonably practicable—

a publish a notice of the decision and of the reasons for it;

b lay a copy of the notice before Parliament.

65KA NHS England’s decision in case of NHS foundation trust¶

1 Within the period of 20 working days beginning with the day on which NHS England receives a final report under section 65I relating to an NHS foundation trust, NHS England must decide whether it is satisfied—

a that the action recommended in the final report would achieve the objective set out in section 65DA, and

b that the trust special administrator has carried out the administration duties.

2 In subsection (1)(b), “administration duties” means the duties imposed on the administrator by—

a this Chapter,

b a direction under this Chapter, or

c the administrator's terms of appointment.

3 If NHS England is satisfied as mentioned in subsection (1), it must as soon as reasonably practicable provide to the Secretary of State—

a the final report, and

b the report provided to NHS England by the Care Quality Commission under section 65D(3).

4 If NHS England is not satisfied as mentioned in subsection (1), it must as soon as reasonably practicable give a notice of that decision to the administrator.

5 Where NHS England gives a notice under subsection (4), sections 65F to 65J apply in relation to the trust to such extent, and with such modifications, as NHS England may specify in the notice.

6 NHS England must as soon as reasonably practicable after giving a notice under subsection (4)—

a publish the notice;

b lay a copy of it before Parliament.

65KB Secretary of State's response to NHS England’s decision¶

1 Within the period of 30 working days beginning with the day on which the Secretary of State receives the reports referred to in section 65KA(3), the Secretary of State must decide whether the Secretary of State is satisfied—

a that the persons to which the NHS foundation trust in question provides services under this Act have discharged their functions for the purposes of this Chapter,

b that the trust special administrator has carried out the administration duties (within the meaning of section 65KA(1)(b)),

c that NHS England has discharged its functions for the purposes of this Chapter,

ca that the Care Quality Commission has discharged its functions for the purposes of this Chapter,

d that the action recommended in the final report would secure the continued provision of the services provided by the trust to which the objective set out in section 65DA applies,

e that the recommended action would secure the provision of services that are of sufficient safety and quality to be provided under this Act, and

f that the recommended action would provide good value for money.

2 If the Secretary of State is not satisfied as mentioned in subsection (1), the Secretary of State must as soon as reasonably practicable—

a give the trust special administrator a notice of the decision and of the reasons for it;

b give a copy of the notice to NHS England and the Care Quality Commission;

c publish the notice;

d lay a copy of it before Parliament.

65KC Action following Secretary of State's rejection of final report¶

1 Within the period of 20 working days beginning with the day on which the trust special administrator receives a notice under section 65KB(2), the administrator must provide to NHS England the final report varied so far as the administrator considers necessary to secure that the Secretary of State is satisfied as mentioned in section 65KB(1).

2 Where the administrator provides to NHS England a final report under subsection (1), section 65KA applies in relation to the report as it applies in relation to a final report under section 65I; and for that purpose, that section has effect as if—

a in subsection (1), for “20 working days” there were substituted “10 working days”, and

b subsection (3)(b) were omitted.

3 If the Secretary of State thinks that, in the circumstances, it is not reasonable for the administrator to be required to carry out the duty under subsection (1) within the period mentioned in that subsection, the Secretary of State may by order extend the period.

4 If an order is made under subsection (3), the administrator must—

a publish a notice stating the date on which the period will expire, and

b where the administrator is proposing to carry out consultation in response to the notice under section 65KB(2), publish a statement setting out the means by which the administrator will consult during the extended period.

65KD Secretary of State's response to re-submitted final report¶

1 Within the period of 30 working days beginning with the day on which the Secretary of State receives a final report under section 65KA(3) as applied by section 65KC(2), the Secretary of State must decide whether the Secretary of State is, in relation to the report, satisfied as to the matters in section 65KB(1)(a) to (f).

2 If the Secretary of State is not satisfied as mentioned in subsection (1), the Secretary of State must as soon as reasonably practicable—

a publish a notice of the decision and the reasons for it;

b lay a copy of the notice before Parliament.

3 Where the Secretary of State publishes a notice under subsection (2)(a), subsections (5), (6) and (8A) apply.

^F9394 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 If the notice states that an integrated care board has failed to discharge a function—

a the board is to be treated for the purposes of this Act as having failed to discharge the function,

b the Secretary of State may exercise the functions of NHS England under section 14Z61(2), (3)(a) and (5)(a), and

c NHS England may not exercise any of its functions under section 14Z61.

6 Where, by virtue of subsection (5)(b), the Secretary of State exercises the function of NHS England under section 14Z61(3)(a), the integrated care board to which the direction is given must cooperate with the Secretary of State.

^F11847 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F3038 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8A If the notice states that the Care Quality Commission has failed to discharge a function—

a the Care Quality Commission is to be treated for the purposes of this Act as having failed to discharge the function, and

b the failure is to be treated for those purposes as significant (and section 82 of the Health and Social Care Act 2008 applies accordingly).

9 Within the period of 60 working days beginning with the day on which the Secretary of State publishes a notice under subsection (2)(a), the Secretary of State must decide what action to take in relation to the trust.

10 The Secretary of State must as soon as reasonably practicable—

a publish a notice of the decision and the reasons for it;

b lay a copy of the notice before Parliament.

65L Trusts coming out of administration¶

1 Subsection (2) applies, in relation to an NHS trust, if NHS England and the Secretary of State both decide under section 65K not to dissolve the trust.

2 NHS England must make an order specifying a date when the following come to an end—

a the appointment of the trust special administrator, and

b the suspension of the chair and directors of the trust.

2A Subsection (2B) applies, in relation to an NHS foundation trust, if—

a the Secretary of State decides under section 65KD(9) not to dissolve the trust, or

b the Secretary of State decides under section 65KB(1) or 65KD(1) that the Secretary of State is satisfied of the matters mentioned there, and the action recommended in the final report is to do something other than dissolve the trust.

2B NHS England must make an order specifying a date when the following come to an end—

a the appointment of the trust special administrator, and

b the suspension of the governors, chair and directors of the trust.

^F4093 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F4094 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F4095 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 Subsection (7) applies in the case of an NHS foundation trust.

7 If it appears to NHS England to be necessary in order to comply with Schedule 7, NHS England may by order—

a terminate the office of any governor or of any executive or non-executive director of the trust;

b appoint a person to be a governor or an executive or non-executive director of the trust.

65LA Trusts to be dissolved¶

1 This section applies if—

a the Secretary of State is satisfied as mentioned in section 65KB(1) or 65KD(1), and

b the action recommended in the final report is to dissolve the NHS foundation trust in question.

2 This section also applies if the Secretary of State decides under section 65KD(9) to dissolve the NHS foundation trust in question.

3 NHS England may make an order—

a dissolving the trust, and

b transferring, or providing for the transfer of, the property and liabilities of the trust —

i to an NHS body;

ii to the Secretary of State;

iii between more than one NHS body or between one or more NHS bodies and the Secretary of State.

4 An order under subsection (3) may include provision for the transfer of employees of the trust.

5 The liabilities that may be transferred to an NHS body by virtue of subsection (3)(b) include criminal liabilities.

Supplementary¶

65M Replacement of trust special administrator¶

1 If a trust special administrator ceases to hold office for any reason before an order is made under section 65L(2) or (2B) or the trust is dissolved, NHS England must—

a appoint another person as the trust special administrator, and

b publish the name of the person appointed.

2 Where a person is appointed under subsection (1) in relation to a trust, anything done by or in relation to a previous trust special administrator has effect as if done by or in relation to that person, unless NHS England directs otherwise.

^F13403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65N Guidance¶

1 NHS England must publish guidance for trust special administrators.

1A It must, in so far as it applies to NHS trusts, include guidance about—

a seeking the support of commissioners for an administrator's recommendation;

^F694b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 It must include guidance about the publication of notices under sections 65H and 65J.

2A It must include guidance about the publication of—

a notices under section 65KC(4)(a);

b statements under section 65KC(4)(b).

3 It must include guidance about the preparation of draft reports, as to—

a persons to be consulted;

b factors to be taken into account;

c relevant publications.

3A Before publishing guidance under this section, NHS England must consult the Care Quality Commission.

^F5054 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65O Interpretation of this Chapter¶

1 In this Chapter—

“trust special administrator” means a person appointed under section 65B(8)(a) , section 65D(2) or section 65M(1)(a);
“working day” means any day which is not Saturday, Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.

2 The references in this Chapter to taking action in relation to an NHS trust include a reference to taking action, including in relation to another NHS trust or an NHS foundation trust, which is necessary for and consequential on action taken in relation to that NHS trust.

3 The references in this Chapter to taking action in relation to an NHS foundation trust include a reference to taking action, including in relation to another NHS foundation trust or an NHS trust, which is necessary for and consequential on action taken in relation to that NHS foundation trust.

^F58Chapter 5B Trust special administrators: Primary Care Trusts¶

^F58Appointment¶

^F5865P Appointment of trust special administrator¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F5865Q Displacement of functions¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 6 Miscellaneous¶

Consolidated accounts¶

65Z4 Consolidated accounts for NHS trusts and NHS foundation trusts¶

1 NHS England must, in respect of each financial year, prepare a set of accounts that consolidates the annual accounts of—

a all NHS trusts established under section 25, and

b all NHS foundation trusts.

2 The Secretary of State may give NHS England directions as to—

a the content and form of the consolidated accounts, and

b the methods and principles to be applied in preparing them.

3 NHS England must, within such period as the Secretary of State may direct, send a copy of the consolidated accounts to—

a the Secretary of State, and

b the Comptroller and Auditor General.

4 The accounts must be accompanied by such reports or other information as the Secretary of State may direct.

5 The Comptroller and Auditor General must—

a examine, certify and report on the consolidated accounts, and

b send a copy of the report to the Secretary of State and NHS England.

6 NHS England must lay before Parliament a copy of—

a the consolidated accounts, and

b the Comptroller and Auditor General’s report on them.

Joint working arrangements and delegation¶

65Z5 Joint working and delegation arrangements¶

^C19^C631 A relevant body may arrange for any functions exercisable by it to be exercised by or jointly with any one or more of the following—

a a relevant body;

b a local authority (within the meaning of section 2B);

c a combined authority.

d a combined county authority.

2 In this section “relevant body” means—

a NHS England,

b an integrated care board,

c an NHS trust established under section 25,

d an NHS foundation trust, or

e such other body as may be prescribed.

3 Regulations may—

a provide that the power in subsection (1) does not apply, or applies only to a prescribed extent, in relation to prescribed functions;

b impose conditions on the exercise of the power.

4 Arrangements under this section may be made on such terms as may be agreed between the parties, including—

a terms as to payment;

b terms prohibiting or restricting a body from making delegation arrangements in relation to a function that is exercisable by it by virtue of arrangements under this section.

5 In subsection (4)(b) “delegation arrangements” means arrangements made by a body for the exercise of a function by someone else.

6 Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a body of any function by virtue of this section are enforceable by or against that body (and no other person).

65Z6 Joint committees and pooled funds¶

1 This section applies where a function is exercisable jointly (by virtue of section 65Z5 or otherwise) by a relevant body and any one or more of the following—

a a relevant body;

b a local authority (within the meaning of section 2B);

c a combined authority;

d a combined county authority.

2 The bodies by whom the function is exercisable jointly may—

a arrange for the function to be exercised by a joint committee of theirs;

b arrange for one or more of the bodies, or a joint committee of the bodies, to establish and maintain a pooled fund.

3 A pooled fund is a fund—

a which is made up of payments received in accordance with the arrangements from relevant bodies that are party to the arrangements, and

b out of which payments may be made in accordance with the arrangements towards expenditure incurred in the exercise of functions in relation to which the arrangements are made.

4 Arrangements under this section may be made on such terms as may be agreed between the parties, including terms as to payment.

5 In this section “relevant body” has the meaning given by section 65Z5(2).

65Z7 Joint working and delegation: guidance by NHS England¶

1 NHS England may publish guidance for relevant bodies about the exercise of their powers under sections 65Z5 and 65Z6.

2 A relevant body must have regard to any guidance published under this section.

3 In this section “relevant body” has the meaning given by section 65Z5(2).

Intervention orders and default powers¶

^C5966 Intervention orders¶

1 This section applies to NHS bodies other than NHS foundation trusts.

2 If the Secretary of State—

a considers that a body to which this section applies is not performing one or more of its functions adequately or at all, or that there are significant failings in the way the body is being run, and

b is satisfied that it is appropriate for him to intervene under this section,

he may make an order under this section in respect of the body (an “intervention order”).

3 An intervention order may make any provision authorised by section 67 (including any combination of such provisions).

67 Effect of intervention orders¶

1 In this section—

a “member” means a member of a ^F1397... ^F1174... Special Health Authority or Local Health Board, or a member of the board of directors of an NHS trust,

b “employee member” means a member of a ^F896... ^F86... Special Health Authority or Local Health Board, who is an officer of the body, or an executive director of an NHS trust.

2 An intervention order may provide for the removal from office of—

a all the members, or

b those specified in the order,

and for their replacement with individuals specified in or determined in accordance with the order (who need not be the same in number as the removed individuals).

3 An intervention order may provide for the suspension (either wholly, or in respect only of powers and duties specified in or determined in accordance with the order) of—

a all the members, or

b those specified in the order,

and for the powers of the suspended members to be exercised, and their duties performed, during their suspension by individuals specified in or determined in accordance with the order (who need not be the same in number as the suspended individuals).

4 The powers and duties referred to in subsection (3) are, in the case of an employee member, only those which he has in his capacity as a member.

5 An intervention order may contain directions to the body to which it relates to secure that a function of the body specified in the directions—

a is performed, to the extent specified in the directions, on behalf of the body and at its expense, by such person as is specified in the directions, and

b is so performed in such a way as to achieve such objectives as are so specified,

and the directions may require that any contract or other arrangement made by the body with that person contains such terms and conditions as may be so specified.

6 If the person referred to in subsection (5)(a) is a body to which section 66 applies, the functions of that body include the performance of the functions specified in the directions under subsection (5).

7 Subsection (8) applies in relation to any provision in this Act, or in any order or regulations made, or directions given, under this Act, relating to—

a the membership of the body to which an intervention order relates (or in the case of an NHS trust to the membership of its board of directors), or

b the procedure of the body.

8 The intervention order may provide in relation to any provision specified in the order—

a that it does not apply in relation to the body while the order remains in force, or

b that it applies in relation to the body, while the order remains in force, with modifications specified in the order.

9 An intervention order may contain such supplementary directions to the body to which it relates as the Secretary of State considers appropriate for the purpose of giving full effect to the order.

^C1268 Default powers¶

1 This section applies to NHS bodies other than NHS foundation trusts.

2 If the Secretary of State considers that a body to which this section applies—

a has failed to carry out any functions conferred or imposed on it by or under this Act, or

b has in carrying out those functions failed to comply with any regulations or directions relating to those functions,

he may after such inquiry as he considers appropriate make an order declaring it to be in default.

3 The members of the body in default must immediately vacate their office, and the order—

a must provide for the appointment, in accordance with the provisions of this Act, of new members of the body, and

b may contain such provisions as seem to the Secretary of State expedient for authorising any person to act in the place of the body pending the appointment of new members.

4 An order under this section may contain such supplementary and incidental provisions as appear to the Secretary of State to be necessary or expedient, including—

a provision for the transfer to the Secretary of State of property and liabilities of the body in default, and

b where any such order is varied or revoked by a subsequent order, provision in the subsequent order for the transfer to the body in default of any property or liabilities acquired or incurred by the Secretary of State in discharging any of the functions transferred to him.

Reconfiguration of NHS services¶

68A Reconfiguration of NHS services¶

Schedule 10A confers intervention powers on the Secretary of State in relation to the reconfiguration of NHS services.

Protection of members and officers of health service bodies¶

69 Protection from personal liability¶

1 Section 265 of the Public Health Act 1875 (c. 55) (which relates to the protection of members and officers of certain authorities) has effect as if there were included in the authorities referred to in that section a reference to an NHS body.

2 Any reference in that section to the Public Health Act 1875 has effect as if it included a reference to this Act and the National Health Service (Wales) Act 2006 (c. 42).

Transfer schemes¶

69A Transfer schemes: NHS trusts and NHS foundation trusts¶

1 NHS England may make one or more schemes for the transfer of property, rights and liabilities from a relevant NHS body to another relevant NHS body on an application made to it under this section.

2 The application must—

a be made jointly by the relevant NHS bodies, and

b state the property, rights or liabilities to be transferred.

3 NHS England may grant an application under this section only if it is satisfied that such steps as are necessary to prepare for the transfer have been taken.

4 The things that may be transferred under a transfer scheme include—

a property, rights and liabilities that could not otherwise be transferred;

b property acquired, and rights and liabilities arising, after the making of the scheme;

c criminal liabilities.

5 A transfer scheme may—

a create rights, or impose liabilities, in relation to property or rights transferred;

b make provision about the continuing effect of things done by the transferor in respect of anything transferred;

c make provision about the continuation of things (including legal proceedings) in the process of being done by, on behalf of or in relation to the transferor in respect of anything transferred;

d make provision for references to the transferor in an instrument or other document in respect of anything transferred to be treated as references to the transferee;

e make provision for the shared ownership or use of property;

f make provision which is the same as or similar to the TUPE regulations;

g make other consequential, supplementary, incidental or transitional provision.

6 A transfer scheme may provide—

a for modifications by agreement;

b for modifications to have effect from the date when the original scheme came into effect.

7 In this section—

a references to rights and liabilities include rights and liabilities relating to a contract of employment;

b references to the transfer of property include the grant of a lease.

8 In this section—

“relevant NHS body” means—
1. an NHS trust established under section 25;
2. an NHS foundation trust;
“the TUPE regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246).

Transfer of residual liabilities¶

70 Transfer of residual liabilities of certain health service bodies¶

1 If ^F808...^F1254... an NHS trust or a Special Health Authority ceases to exist, the Secretary of State must exercise his functions so as to secure that all of the body's liabilities (other than any criminal liabilities) are dealt with.

2 A liability is dealt with by being transferred to an NHS body, the Secretary of State or the Welsh Ministers.

Losses and liabilities of certain health service bodies¶

71 Schemes for meeting losses and liabilities etc of certain health service bodies¶

1 The Secretary of State may by regulations made with the consent of the Treasury establish a scheme whereby any of the bodies or other persons specified in subsection (2) may make provision to meet—

a expenses arising from any loss of or damage to their property, and

b liabilities to third parties for loss, damage or injury arising out of the carrying out of the functions of the bodies or other persons concerned.

^C132 The bodies and other persons referred to in subsection (1) are—

za NHS England,

zb integrated care boards,

^F1033a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F1161b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c NHS trusts,

d Special Health Authorities,

da NICE,

^F1634db . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F864dc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

e NHS foundation trusts,

f the Care Quality Commission , and

fa the Health Research Authority;

fb the Health Services Safety Investigations Body,

^F1295g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ga the Commissioner for Patient Safety,

h the Secretary of State,

ha a company formed under section 223 and wholly or partly owned by the Secretary of State or NHS England,

hb a subsidiary of a company which is formed under that section and wholly owned by the Secretary of State, and

i a body or other person (other than a body or other person within any of paragraphs (za) to (hb) ) providing, or arranging the provision of, health services whose provision is the subject of arrangements with a body or other person within any of paragraphs (za) to (h) ,

but a scheme under this section may limit the class or description of bodies which , or other persons who, are eligible to participate in it.

2A In subsection (1)(b) “functions”—

a in relation to the Secretary of State, means the Secretary of State's functions in connection with the health service;

ab in relation to a company within paragraph (ha) or (hb) of subsection (2), means the company's activities in providing facilities or services to any person or body;

b in relation to a body or other person within paragraph (i) of subsection (2), means the body's or person's functions of providing, or arranging the provision of, health services whose provision is the subject of arrangements with a body or other person within any of paragraphs (za) to (h) of that subsection.

3 A scheme under this section may, in particular—

a provide for the scheme to be administered by the Secretary of State or NHS England or by a ^F582... ^F130...NHS trust, Special Health Authority or NHS foundation trust specified in the scheme,

b require any body which , or other person who, participates in the scheme to make payments in accordance with the scheme, and

c provide for the making of payments for the purposes of the scheme by the Secretary of State (whether or not a participator in the scheme and, if a participator, whether or not required to make payments as a participator) .

4 If the Secretary of State so directs, a body which is eligible to participate in a scheme must do so.

5 The Secretary of State may make a direction under subsection (4) in respect of a body only if the body is within any of paragraphs (c), (d) and (f) of subsection (2).

6 Where a scheme provides for the scheme to be administered by the Secretary of State, NHS England or a ^F1314... ^F704... NHS trust, Special Health Authority or NHS foundation trust must carry out such functions in connection with the administration of the scheme by the Secretary of State as he may direct.

7 Subsections (4) and (6) do not affect any other power of direction of the Secretary of State.

8 A person or body administering a scheme under this section does not require permission under any provision of the Financial Services and Markets Act 2000 (c. 8) as respects activities carried out under the scheme.

9 In subsection (2)(i), the reference to a person providing health services does not include a person providing health services under a contract of employment.

10 In this section “ health services ” means services provided as part of the health service.

Co-operation between NHS bodies¶

72 Co-operation between NHS bodies¶

1 It is the duty of NHS bodies to co-operate with each other in exercising their functions.

1A The Secretary of State may publish guidance on the discharge of the duty under subsection (1) in relation to England.

1B An NHS body other than a Welsh NHS body must have regard to any guidance published under subsection (1A).

2 For the purposes of this section, NICE is an NHS body.

^F16423 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F6014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 In this section “Welsh NHS body” means—

a an NHS trust established under the National Health Service (Wales) Act 2006,

b a Special Health Authority established under that Act, or

c a Local Health Board.

NHS trusts and foundation trusts: exemption from merger legislation¶

72A Exemption from Part 3 of the Enterprise Act 2002¶

1 For the purposes of Part 3 of the Enterprise Act 2002 (mergers), a relevant merger situation is not to be treated as having been created where two or more relevant NHS enterprises cease to be distinct enterprises.

2 But subsection (1) does not apply to a case where two or more relevant NHS enterprises and one or more enterprises that are not relevant NHS enterprises cease to be distinct enterprises.

3 In this section “relevant NHS enterprise” means the activities, or part of the activities, of—

a an NHS trust established under section 25;

b an NHS foundation trust.

Directions and regulations under this Part¶

73 Directions and regulations under this Part¶

1 This section applies to directions and regulations under any of—

a section 7,

aa section 7B,

ab section 7C,

b section 8,

ba section 13YB,

bb section 27B,

^F478c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F478d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F478e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F478f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

g section 29.

2 Except in prescribed cases, the directions and regulations must not preclude a person or body by whom the function is exercisable apart from the directions or regulations from exercising the function.

Part 3 Local authorities and the NHS¶

73A Appointment of directors of public health¶

1 Each local authority must, acting jointly with the Secretary of State, appoint an individual to have responsibility for —

a the exercise by the authority of its functions under section 2B, 111 or 249 or Schedule 1,

b the exercise by the authority of its functions by virtue of section 6C(1) or (3),

c anything done by the authority in pursuance of arrangements under section 7A,

ca the exercise by the authority of any public health functions of the Secretary of State in pursuance of arrangements made with another body by virtue of section 65Z5 or 75,

d the exercise by the authority of any of its functions that relate to planning for, or responding to, emergencies involving a risk to public health,

e the functions of the authority under section 325 of the Criminal Justice Act 2003, and

f such other functions relating to public health as may be prescribed.

2 The individual so appointed is to be an officer of the local authority and is to be known as its director of public health.

3 Subsection (4) applies if the Secretary of State—

a considers that the director has failed or might have failed to discharge (or to discharge properly) the responsibilities of the director under—

i subsection (1)(b), or

ii subsection (1)(c) where the arrangements relate to the Secretary of State's functions under section 2A, and

b has consulted the local authority.

4 The Secretary of State may direct the local authority to—

a review how the director has discharged the responsibilities mentioned in subsection (3)(a);

b investigate whether the director has failed to discharge (or to discharge properly) those responsibilities;

c consider taking any steps specified in the direction;

d report to the Secretary of State on the action it has taken in pursuance of a direction given under any of the preceding paragraphs.

5 A local authority may terminate the appointment of its director of public health.

6 Before terminating the appointment of its director of public health, a local authority must consult the Secretary of State.

7 A local authority must have regard to any guidance given by the Secretary of State in relation to its director of public health, including guidance as to appointment and termination of appointment, terms and conditions and management.

8 In this section, “local authority” has the same meaning as in section 2B.

^C4773B Exercise of public health functions of local authorities: further provision¶

^C301 A local authority must, in the exercise of any functions mentioned in subsection (2), have regard to any document published by the Secretary of State for the purposes of this section.

2 The functions mentioned in this subsection are—

a the exercise by the authority of its functions under section 2B, 111 or 249 or Schedule 1,

b the exercise by the authority of its functions by virtue of section 6C(1) or (3),

c anything done by the authority in pursuance of arrangements under section 7A,

ca any public health functions of the Secretary of State exercisable by the authority in pursuance of arrangements made with another body by virtue of section 65Z5 or 75,

d the functions of the authority under section 325 of the Criminal Justice Act 2003, and

e such other functions relating to public health as may be prescribed.

3 The Secretary of State may give guidance to local authorities as to the exercise of any functions mentioned in subsection (2).

4 A document published under subsection (1), and guidance given under subsection (3), may include guidance as to the appointment of officers of the local authority to discharge any functions mentioned in subsection (2), and as to their terms and conditions, management and dismissal.

^C855 The director of public health for a local authority must prepare an annual report on the health of the people in the area of the local authority.

^C856 The local authority must publish the report.

7 In this section, “local authority” has the same meaning as in section 2B.

73C Complaints about exercise of public health functions by local authorities¶

1 Regulations may make provision about the handling and consideration of complaints made under the regulations about —

a the exercise by a local authority of any of its public health functions;

b the exercise by a local authority of its functions by virtue of section 6C(1) or (3);

c anything done by a local authority in pursuance of arrangements made under section 7A;

ca anything done by a local authority in the exercise of public health functions of the Secretary of State in pursuance of arrangements made with another body by virtue of section 65Z5 or 75;

d the exercise by a local authority of any of its other functions—

i which relate to public health, and

ii for which its director of public health has responsibility;

e the provision of services by another person in pursuance of arrangements made by a local authority in the exercise of any function mentioned in paragraphs (a) to (d).

2 The regulations may provide for a complaint to be considered by one or more of the following—

a the local authority in respect of whose functions the complaint is made;

b an independent panel established under the regulations;

c any other person or body.

3 The regulations may provide for a complaint or any matter raised by a complaint—

a to be referred to a Local Commissioner under Part 3 of the Local Government Act 1974 for the Commissioner to consider whether to investigate the complaint or matter under that Part;

b to be referred to any other person or body for that person or body to consider whether to take any action otherwise than under the regulations.

4 Where the regulations make provision under subsection (3)(a) they may also provide for the complaint to be treated as satisfying sections 26A and 26B of the Act of 1974.

5 Section 115 of the Health and Social Care (Community Health and Standards) Act 2003 (health care and social services complaints regulations: supplementary) applies in relation to regulations under this section as it applies in relation to regulations under subsection (1) of section 113 of that Act.

6 In this section, “local authority” has the same meaning as in section 2B.

74 Supply of goods and services by local authorities¶

1 In the Local Authorities (Goods and Services) Act 1970 (c. 39) the expression “public body” includes—

a NHS England and any integrated care board or^F1246... Special Health Authority ^F797..., and

b so far as relates to his functions under this Act, the Secretary of State.

2 Subsection (1) has effect as if made by an order under section 1(5) of the Local Authorities (Goods and Services) Act 1970 and may be varied or revoked by such an order.

3 Each local authority must make services available to each NHS body acting in its area, so far as is reasonably necessary and practicable to enable the NHS body to discharge its functions under this Act.

4 “services” means—

a in relation to a local authority in England, the services of persons employed by the authority for the purposes of its functions under the Local Authority Social Services Act 1970 (c. 42);

b in relation to a local authority in Wales, the services of persons employed by the authority for the purposes of its functions which are social services functions for the purposes of the Social Services and Well-being (Wales) Act 2014 (anaw 4).

^C35^C7475 Arrangements between NHS bodies and local authorities¶

1 The Secretary of State may by regulations make provision for or in connection with enabling prescribed NHS bodies (on the one hand) and prescribed local authorities (on the other) to enter into prescribed arrangements in relation to the exercise of—

a prescribed functions of the NHS bodies, and

b prescribed health-related functions of the local authorities,

if the arrangements are likely to lead to an improvement in the way in which those functions are exercised.

2 The arrangements which may be prescribed include arrangements—

a for or in connection with the establishment and maintenance of a fund—

i which is made up of contributions by one or more NHS bodies and one or more local authorities, and

ii out of which payments may be made towards expenditure incurred in the exercise of both prescribed functions of the NHS body or bodies and prescribed health-related functions of the authority or authorities,

b for or in connection with the exercise by an NHS body on behalf of a local authority of prescribed health-related functions of the authority in conjunction with the exercise by the NHS body of prescribed functions of the NHS body,

c for or in connection with the exercise by a local authority on behalf of an NHS body of prescribed functions of the NHS body in conjunction with the exercise by the local authority of prescribed health-related functions of the local authority,

d as to the provision of staff, goods or services in connection with any arrangements mentioned in paragraph (a), (b) or (c),

e as to the making of payments by a local authority to an NHS body in connection with any arrangements mentioned in paragraph (b),

f as to the making of payments by an NHS body to a local authority in connection with any arrangements mentioned in paragraph (c).

3 Regulations under this section may make provision—

a as to the cases in which NHS bodies and local authorities may enter into prescribed arrangements,

b as to the conditions which must be satisfied in relation to prescribed arrangements (including conditions in relation to consultation),

c for or in connection with requiring the consent of the Secretary of State to the operation of prescribed arrangements (including provision in relation to applications for consent, the approval or refusal of such applications and the variation or withdrawal of approval),

d in relation to the duration of prescribed arrangements,

e for or in connection with the variation or termination of prescribed arrangements,

f as to the responsibility for, and the operation and management of, prescribed arrangements,

g as to the sharing of information between NHS bodies and local authorities.

4 The provision which may be made by virtue of subsection (3)(f) includes provision in relation to—

a the formation and operation of joint committees of NHS bodies and local authorities,

b the exercise of functions which are the subject of prescribed arrangements (including provision in relation to the exercise of such functions by joint committees or employees of NHS bodies and local authorities),

c the drawing up and implementation of plans in respect of prescribed arrangements,

d the monitoring of prescribed arrangements,

e the provision of reports on, and information about, prescribed arrangements,

f complaints and disputes about prescribed arrangements,

g accounts and audit in respect of prescribed arrangements.

5 Arrangements made by virtue of this section do not affect—

a the liability of NHS bodies for the exercise of any of their functions,

b the liability of local authorities for the exercise of any of their functions, or

c any power or duty to recover charges in respect of services provided in the exercise of any local authority functions.

6 The Secretary of State may issue guidance to NHS bodies and local authorities in relation to consultation or applications for consent in respect of prescribed arrangements.

7 The reference in subsection (1) to an improvement in the way in which functions are exercised includes an improvement in the provision to any individuals of any services to which those functions relate.

7A For the purposes of this section, a combined authority that exercises a prescribed function within subsection (1)(a) of an NHS body under voluntary arrangements is to be treated as an NHS body.

7B “Voluntary arrangements” means arrangements made with the combined authority under—

a section 7A (exercise of Secretary of State's public health functions), or

b section 65Z5 (joint working and delegation arrangements).

7C Regulations under this section, so far as made before or in the same Session as that in which the Cities and Local Government Devolution Act 2016 is passed, apply to a combined authority that is treated as an NHS body by virtue of subsection (7A) as if it were a prescribed NHS body for the purposes of those regulations.

7D But a combined authority to which regulations under this section apply by virtue of subsection (7C) may enter into prescribed arrangements in relation to the exercise only of functions within subsection (1)(a) that are exercisable by the authority under voluntary arrangements.

7E Regulations under this section may provide for the regulations to apply in relation to a combined authority subject to any prescribed limitations or conditions.

7F Nothing in subsection (7D) prevents a combined authority from being a party to arrangements made by virtue of this section in relation to any prescribed functions of an NHS body that are exercisable by the authority as a result of an order under section 105A of the Local Democracy, Economic Development and Construction Act 2009 (public authority functions exercisable by combined authorities).

7G For the purposes of this section, a combined county authority that exercises a prescribed function within subsection (1)(a) of an NHS body under voluntary arrangements is to be treated as an NHS body.

7H “Voluntary arrangements” means arrangements made with the combined county authority under—

a section 7A (exercise of Secretary of State’s public health functions), or

b section 65Z5 (joint working and delegation arrangements).

7I Regulations under this section, so far as made before or in the same Session as that in which the Levelling-up and Regeneration Act 2023 is passed, apply to a combined county authority that is treated as an NHS body by virtue of subsection (7G) as if it were a prescribed NHS body for the purposes of those regulations.

7J But a combined county authority to which regulations under this section apply by virtue of subsection (7I) may enter into prescribed arrangements in relation to the exercise only of functions within subsection (1)(a) that are exercisable by the authority under voluntary arrangements.

7K Regulations under this section may provide for the regulations to apply in relation to a combined county authority subject to any prescribed limitations or conditions.

7L Nothing in subsection (7J) prevents a combined county authority from being a party to arrangements made by virtue of this section in relation to any prescribed functions of an NHS body that are exercisable by the authority as a result of regulations under section 19 of the Levelling-up and Regeneration Act 2023 (public authority functions exercisable by combined county authorities).

^C1008 In this section—

“health-related functions”, in relation to a local authority, means functions of the authority which, in the opinion of the Secretary of State—
1. have an effect on the health of any individuals,
2. have an effect on, or are affected by, any functions of NHS bodies, or
3. are connected with any functions of NHS bodies,
“NHS body” does not include a Special Health Authority.

9 Schedule 18 makes provision with respect to the transfer of staff in connection with arrangements made by virtue of this section.

76 Power of local authorities to make payments¶

^C541 A local authority may make payments to NHS England, an integrated care board ^F1330... ^F649... or a Local Health Board towards expenditure incurred or to be incurred by the body in connection with the performance by it of prescribed functions.

2 A payment under this section may be made in respect of expenditure of a capital or of a revenue nature or in respect of both kinds of expenditure.

3 The Secretary of State may by directions prescribe conditions relating to payments under this section.

4 The power under subsection (3) may in particular be exercised so as to require, in such circumstances as may be specified—

a repayment of the whole or part of a payment under this section, or

b in respect of property acquired with payments under this section, payment of an amount representing the whole or part of an increase in the value of the property which has occurred since its acquisition.

5 No payment may be made under this section in respect of any expenditure unless the conditions relating to it conform with the conditions prescribed for payments of that description under subsection (3).

77 Care Trusts¶

1 Where—

a ^F668... an integrated care board, an NHS trust or an NHS foundation trust is, or will be, a party to any existing or proposed LA delegation arrangements, ^F1259...

b the body and the local authority concerned consider that designation of the body as a Care Trust would be likely to promote the effective exercise by the body of prescribed health-related functions of the local authority (in accordance with the arrangements) in conjunction with prescribed NHS functions of the body , and

c the requirements in subsection (1A) are satisfied,

the body and the local authority may jointly designate the body as a Care Trust.

1A The body and the local authority must, before designating the body as a Care Trust under this section—

a publish in the prescribed form and manner—

i the reasons why they consider that the proposed designation would be likely to have the result mentioned in subsection (1)(b), and

ii information about the proposed governance arrangements of the Care Trust, and

b consult on the proposed designation in accordance with regulations.

1B Where a body has been designated as a Care Trust under this section, the body and the local authority must notify prescribed persons of the designation.

^F4842 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F4843 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 A body designated as a Care Trust under this section may (in addition to exercising health-related functions of the local authority as mentioned in subsection (1)(b)) exercise such prescribed health-related functions of the local authority as are agreed in relation to persons in any area so agreed, even though it does not exercise any NHS functions in relation to persons in that area; and “agreed” means agreed by the body and the local authority.

5 Where a body is designated as a Care Trust under this section, the body and the local authority may jointly revoke that designation.

5A Before revoking a designation as a Care Trust under this section, the body and the local authority must consult on the proposed revocation of the designation in accordance with regulations.

5B Where the designation of a body as a Care Trust under this section has been revoked, the body and the local authority must notify prescribed persons of the revocation.

5C Regulations under subsection (1A)(b) or (5A) may include provision requiring a body and a local authority to publish prescribed information following a consultation.

5D Where a duty is imposed by or by virtue of this section on a body and a local authority, they may make arrangements for the function to be discharged—

a by both of them acting jointly,

b by each of them acting separately, or

c by one of them acting on behalf of both of them.

^F12456 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11527 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 Regulations may make such incidental, supplementary or consequential provision (including provision amending, repealing or revoking enactments) as the Secretary of State considers expedient in connection with the preceding provisions of this section.

9 Regulations under subsection (8) may, in particular, make provision—

^F1516a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F580b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F138c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

d for supplementing or modifying, in connection with the operation of subsection (4), any provision made by regulations under section 75.

10 The designation of a body as a Care Trust under this section does not affect any of the functions, rights or liabilities of that body in its capacity as ^F107... an integrated care board, NHS trust or NHS foundation trust.

11 In connection with the exercise by a body so designated of any relevant social services functions of a local authority in England under LA delegation arrangements—

a section 7 of the Local Authority Social Services Act 1970 (c. 42) (authorities to exercise social services functions under guidance), and

b section 7A of that Act (directions as to exercise of such functions),

apply to the body as if it were a local authority within the meaning of that Act.

11A In connection with the exercise by a body so designated of any relevant social services functions under LA delegation arrangements, sections 145 to 149 of the Social Services and Well-being (Wales) Act 2014 (codes on the exercise of social services functions) apply to the body as if it were a local authority within the meaning of that Act.

12 In this section—

“health-related functions” has the meaning given by section 75(8),
“LA delegation arrangements” means arrangements falling within section 75(2)(b), whether or not made in conjunction with any pooled fund arrangements,
“NHS functions” means functions exercisable by ^F1023... an integrated care board, NHS trust or NHS foundation trust in its capacity as such,
“pooled fund arrangements” means arrangements falling within section 75(2)(a),
“relevant social services functions” means—
1. in relation to a local authority in England, health-related functions which are social services functions within the meaning of the Local Authority Social Services Act 1970;
2. in relation to a local authority in Wales, health-related functions which are social services functions within the meaning of the Social Services and Well-being (Wales) Act 2014.

78 Directed partnership arrangements¶

1 If the Secretary of State is of the opinion—

a that a body to which this section applies (“the failing body”) is not exercising any of its functions adequately, and

b that it would be likely to lead to an improvement in the way in which that function is exercised if it were to be exercised—

i by another body to which this section applies under delegation arrangements, or

ii in accordance with pooled fund arrangements made with another such body,

the Secretary of State may direct those bodies to enter into such delegation arrangements or pooled fund arrangements in relation to the exercise of the appropriate function or functions as are specified in the direction.

2 In subsection (1) “the appropriate function or functions” means—

a the function of the failing body mentioned in that subsection, and

b such other function of that body (if any) as the Secretary of State considers would, if exercised under or in accordance with the arrangements in question, be likely to contribute to an improvement in the exercise of the function referred to in paragraph (a).

3 The bodies to which this section applies are—

^F234a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F572b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c NHS trusts established under section 25,

^F1368d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

e local authorities,

but in subsections (1) and (2) any reference to functions is, in relation to a local authority, a reference only to relevant social services functions of the authority.

4 In this section any reference to an improvement in the way in which any function is exercised includes an improvement in the provision to any individuals of any services to which that function relates.

5 In this section—

“delegation arrangements” means arrangements falling within section 75(2)(b) or (c), whether or not made in conjunction with any pooled fund arrangements,
“health-related functions” has the meaning given by section 75(8),
“pooled fund arrangements” means arrangements falling within section 75(2)(a),
“relevant social services functions” means health-related functions which are social services functions of local authorities in England within the meaning of the Local Authority Social Services Act 1970 (c. 42) or of local authorities in Wales within the meaning of the Social Services and Well-being (Wales) Act 2014 (anaw 4),

79 Further provision about directions and directed partnership arrangements¶

1 A direction under section 78(1) (a “principal direction”) may make provision with respect to—

a any of the matters with respect to which provision is required to be made by the specified arrangements by virtue of regulations under section 75, and

b such other matters as the Secretary of State considers appropriate.

2 The Secretary of State may in particular (either in a principal direction or in any subsequent direction) make provision—

a for the determination, whether—

i by agreement, or

ii (in default of agreement) by the Secretary of State or an arbitrator appointed by him,

of the amount of any payments which need to be made by one body to another for the purposes of the effective operation of the specified arrangements, and for the variation of any such determination,

b specifying the manner in which the amount of any such payments must be so determined (or varied),

c requiring a body specified in the direction to supply to the Secretary of State or an arbitrator, for the purpose of enabling any such amount to be so determined (or varied), such information or documents as may be so specified,

d requiring any amount so determined (or varied) to be paid by and to such bodies as are specified in the direction,

e requiring capital assets specified in the direction to be made available by and to such bodies as are so specified.

3 The Secretary of State may, when giving a principal direction to any bodies to which section 78 applies, give such directions to any other such body as he considers appropriate for or in connection with securing that full effect is given to the principal direction.

4 Before giving a principal direction to any bodies to which section 78 applies, the Secretary of State may—

a direct either or both of the bodies in question to take such steps specified in the direction, or

b give such other directions,

as he considers appropriate with a view to enabling him to determine whether the principal direction should be given.

5 The revocation of a principal direction does not affect the continued operation of the specified arrangements.

6 “The specified arrangements”, in relation to a principal direction, means the arrangements specified in the direction in pursuance of section 78(1).

^C4080 Supply of goods and services by the Secretary of State , NHS England and integrated care boards¶

1 The Secretary of State , NHS England or an integrated care board may supply to—

a local authorities, and

b such public bodies or classes of public bodies as the Secretary of State may determine,

any goods or materials of a kind used in the health service.

2 In subsection (1) “public bodies” includes public bodies in Northern Ireland.

3 The Secretary of State may make available to persons falling within subsection (1)—

a any facilities provided by him ^F1643... for any service under this Act, and

b the services of persons employed by the Secretary of State or by ^F787... ^F446... a Special Health Authority or a Local Health Board.

3A NHS England or an integrated care board may make available to persons falling within subsection (1)—

a any facilities the provision of which is arranged by NHS England or (as the case may be) the integrated care board in pursuance of its functions under this Act;

b any facilities of NHS England or (as the case may be) the integrated care board;

c the services of persons employed by NHS England or (as the case may be) the integrated care board.

4 The Secretary of State may carry out , and NHS England or an integrated care board may arrange for the carrying out of, maintenance work (including minor renewals, minor improvements and minor extensions) in connection with any land or building for the maintenance of which a local authority is responsible.

5 NHS England may supply or make available to persons—

a providing pharmaceutical services,

b providing services under a general medical services contract, a general dental services contract or a general ophthalmic services contract,

c providing services in accordance with section 92 arrangements or section 107 arrangements, or

d providing services under a pilot scheme established under section 134(1) of this Act or an LPS scheme,

such goods, materials or other facilities as may be prescribed.

6 The Secretary of State must make available to local authorities—

a any services (other than the services of any person) or other facilities provided by the Secretary of State under this Act,

b the services provided as part of the health service by any person employed by the Secretary of State, ^F974... ^F1385... a Special Health Authority or a Local Health Board, and

c the services of any medical practitioner, dental practitioner or nurse employed by the Secretary of State, ^F3... ^F1593... a Special Health Authority or a Local Health Board otherwise than to provide services which are part of the health service,

so far as is reasonably necessary and practicable to enable local authorities to discharge their functions relating to social services, education and public health.

6A NHS England and each integrated care board must make available to local authorities—

a any services (other than the services of any person) or other facilities the provision of which is arranged by NHS England or (as the case may be) the integrated care board in pursuance of its functions under this Act;

b the services of persons employed by NHS England or (as the case may be) the integrated care board;

c any facilities of NHS England or (as the case may be) the integrated care board,

so far as is reasonably necessary and practicable to enable local authorities to discharge their functions relating to social services, education and public health.

7 NHS England may arrange to make available to local authorities the services of persons—

a providing pharmaceutical services,

b performing services under a general medical services contract, a general dental services contract or a general ophthalmic services contract,

c providing services in accordance with section 92 arrangements or section 107 arrangements, or

d performing services under a pilot scheme established under section 134(1) of this Act or an LPS scheme, ^F592...

^F592e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

so far as is reasonably necessary and practicable to enable local authorities to discharge their functions relating to social services, education and public health.

8 The Secretary of State may arrange to make available to local authorities the services of persons providing Special Health Authorities or Local Health Boards with services of a kind provided as part of the health service, so far as is reasonably necessary and practicable to enable local authorities to discharge their functions relating to social services, education and public health.

9 NHS England or an integrated care board may arrange to make available to local authorities the services of persons providing services pursuant to arrangements made under this Act by NHS England or (as the case may be) the integrated care board in the exercise of its functions, so far as is reasonably necessary and practicable to enable local authorities to discharge their functions relating to social services, education and public health.

^F103110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

81 Conditions of supply under section 80¶

1 Before a person makes the services of any officer available under section 80(3)(b), (3A)(c), (6)(b) or (c) or (6A)(b), the person must —

a consult the officer or a body recognised by the person as representing the officer, or

b where the person is the Secretary of State and is not the officer's employer, satisfy himself that the body who employs the officer has consulted the officer about the matter.

2 The person concerned may disregard the provisions of subsection (1) in a case where it —

a considers it necessary to make the services of an officer available for the purpose of dealing temporarily with an emergency, and

b has previously consulted a body such as is mentioned in subsection (1)(b) about making services available in an emergency.

3 The Secretary of State may, for the purposes of subsection (3)(b) of section 80, or subsection (6)(b) or (c) of that section, give such directions to ^F1040... ^F410... Special Health Authorities and Local Health Boards to make the services of their officers available as he considers appropriate.

4 Powers under this section and section 80 may be exercised on such terms as may be agreed, including terms as to the making of payments to the person who makes the services available.

5 A person who makes services or facilities available under section 80(6) or (6A) may make such charges in respect of them as may be agreed between the person and the local authority or, in default of agreement, as may be determined by arbitration.

6 Any power to supply goods or materials under section 80 includes—

a a power to purchase and store them, and

b a power to arrange with third parties for the supply of goods or materials by those third parties.

82 Co-operation between NHS bodies and local authorities¶

1 In exercising their respective functions NHS bodies (on the one hand) and local authorities (on the other) must co-operate with one another in order to secure and advance the health and welfare of the people of England and Wales.

2 The Secretary of State may publish guidance on the discharge of the duty under this section in relation to England.

3 The following must have regard to any guidance published under subsection (2)—

a an NHS body other than a Welsh NHS body;

b a local authority in England.

4 In this section “Welsh NHS body” means—

a an NHS trust established under the National Health Service (Wales) Act 2006,

b a Special Health Authority established under that Act, or

c a Local Health Board.

Part 4 Medical services¶

Duty of NHS England in relation to primary medical services¶

83 Primary medical services¶

1 The Board must, to the extent that it considers necessary to meet all reasonable requirements, exercise its powers so as to secure the provision of primary medical services throughout England.

2 The Board may (in addition to any other power conferred on it) make such arrangements for the provision of primary medical services as it considers appropriate; and it may, in particular, make contractual arrangements with any person.

2A Arrangements made for the purposes of subsection (1) or (2) may include arrangements for the performance of a service outside England.

3 The Board must publish information about such matters as may be prescribed in relation to the primary medical services provided under this Act.

^F11724 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 Regulations may provide that services of a prescribed description must, or must not, be regarded as primary medical services for the purposes of this Act.

6 Regulations under this section may in particular describe services by reference to the manner or circumstances in which they are provided.

General medical services contracts¶

84. General medical services contracts: introductory¶

1 The Board may enter into a contract under which primary medical services are provided in accordance with the following provisions of this Part.

2 A contract under this section is called in this Act a “general medical services contract”.

3 A general medical services contract may make such provision as may be agreed between the Board and the contractor or contractors in relation to—

a the services to be provided under the contract,

b remuneration under the contract, and

c any other matters.

4 The services to be provided under a general medical services contract may include—

a services which are not primary medical services,

b services to be performed outside England.

5 In this Part, “contractor”, in relation to a general medical services contract, means any person entering into the contract with the Board.

85 Requirement to provide certain primary medical services¶

1 A general medical services contract must require the contractor or contractors to provide, for his or their patients, primary medical services of such descriptions as may be prescribed.

2 Regulations under subsection (1) may in particular describe services by reference to the manner or circumstances in which they are provided.

86. Persons eligible to enter into GMS contracts¶

1 The Board may, subject to such conditions as may be prescribed, enter into a general medical services contract with—

a a medical practitioner,

b two or more individuals practising in partnership where the conditions in subsection (2) are satisfied, or

c a company limited by shares where the conditions in subsection (3) are satisfied.

2 The conditions referred to in subsection (1)(b) are that—

a at least one partner is a medical practitioner, and

b any partner who is not a medical practitioner is either—

i an NHS employee,

ii a section 92 employee, section 107 employee, section 50 employee, section 64 employee, section 17C employee or Article 15B employee,

iii a health care professional who is engaged in the provision of services under this Act or the National Health Service (Wales) Act 2006 (c. 42), or

iv an individual falling within section 93(1)(d).

3 The conditions referred to in subsection (1)(c) are that—

a at least one share in the company is both legally and beneficially owned by a medical practitioner, and

b any share which is not so owned is both legally and beneficially owned by a person referred to in subsection (2)(b).

4 Regulations may make provision as to the effect, in relation to a general medical services contract entered into by individuals practising in partnership, of a change in the membership of the partnership.

5 In this section—

“health care professional”, “NHS employee”, “section 92 employee”, “section 107 employee”, “section 50 employee”, “section 64 employee”, “section 17C employee” and “Article 15B employee” have the meaning given by section 93.

87. GMS contracts: payments¶

1 The Secretary of State may give directions as to payments to be made under general medical services contracts.

2 A general medical services contract must require payments to be made under the contract in accordance with directions under this section.

3 Directions under subsection (1) may in particular—

a provide for payments to be made by reference to compliance with standards or the achievement of levels of performance,

b provide for payments to be made by reference to—

i any scheme or scale specified in the direction, or

ii a determination made by any person in accordance with factors specified in the direction,

c provide for the making of payments in respect of individual practitioners,

d provide that the whole or any part of a payment is subject to conditions (and may provide that payments are payable by the Board only if it is satisfied as to certain conditions),

e make provision having effect from a date before the date of the direction, provided that, having regard to the direction as a whole, the provision is not detrimental to the persons to whose remuneration it relates.

4 Before giving a direction under subsection (1), the Secretary of State—

a must consult any body appearing to him to be representative of persons to whose remuneration the direction would relate, and

b may consult such other persons as he considers appropriate.

5 “Payments” includes fees, allowances, reimbursements, loans and repayments.

88 GMS contracts: prescription of drugs, etc¶

1 A general medical services contract must contain provision requiring the contractor or contractors to comply with any directions given by the Secretary of State for the purposes of this section as to the drugs, medicines or other substances which may or may not be ordered for patients in the provision of medical services under the contract.

2 A direction under this section must, subject to subsection (3), be given by regulations.

3 A direction under this section may be given by an instrument in writing where it gives effect to a request made in writing to the Secretary of State by a person who is a holder of a UK marketing authorisation in respect of the drug, medicine or other substance to which the request relates.

4 “UK marketing authorisation” has the meaning given by regulation 8(1) of the Human Medicines Regulations 2012 (S.I. 2012/1916).

89 GMS contracts: other required terms¶

1 A general medical services contract must contain such provision as may be prescribed (in addition to the provision required by the preceding provisions of this Part).

^F11711A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11711B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11711C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11711D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11711E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 Regulations under subsection (1) may in particular make provision as to—

a the manner in which, and standards to which, services must be provided,

b the persons who perform services,

c the persons to whom services will be provided,

^C48d the variation of contract terms (other than terms required by or under this Part),

e rights of entry and inspection (including inspection of clinical records and other documents),

f the circumstances in which, and the manner in which, the contract may be terminated,

g enforcement,

h the adjudication of disputes.

3 Regulations making provision under subsection (2)(c) must make provision as to the circumstances in which a contractor or contractors—

a must or may accept a person as a patient to whom services are provided under the contract,

b may decline to accept a person as such a patient, or

c may terminate his or their responsibility for a patient.

4 Regulations under subsection (2)(d) may—

a make provision as to the circumstances in which the Board may impose a variation of contract terms,

b make provision as to the suspension or termination of any duty under the contract to provide services of a prescribed description.

5 Regulations making provision of the kind described in subsection (4)(b) may prescribe services by reference to the manner or circumstances in which they are provided.

6 Regulations under subsection (1) must make provision as to the right of patients to choose the persons from whom they receive services.

90 GMS contracts: disputes and enforcement¶

1 Regulations may make provision for the resolution of disputes as to the terms of a proposed general medical services contract.

2 Regulations under subsection (1) may make provision—

a for the referral of the terms of the proposed contract to the Secretary of State, and

b for the Secretary of State, or a person appointed by him, to determine the terms on which the contract may be entered into.

3 Regulations may make provision for a person or persons entering into a general medical services contract to be regarded as a health service body for any purposes of section 9, in circumstances where he or they so elect.

4 Regulations under subsection (3) may include provision as to the application of section 9 in cases where—

a persons practising in partnership elect to become a health service body, and

b there is a change in the membership of the partnership.

5 Where—

a by virtue of regulations under subsection (3), section 9(11) applies in relation to a general medical services contract, and

b a direction as to payments is made under that subsection in relation to the contract,

the direction is enforceable in the county court (if the court so orders) as if it were a judgment or order of that court.

Performance of primary medical services¶

91 Persons performing primary medical services¶

1 Regulations may provide that a health care professional of a prescribed description may not perform any primary medical service for which the Board is responsible unless he is included in a list maintained under the regulations by NHS England.

2 For the purposes of this section—

a “health care professional” means a person who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17),

b the Board is responsible for a medical service if it secures its provision by or under any enactment.

3 Regulations under this section may make provision in relation to lists under this section and in particular as to—

a the preparation, maintenance and publication of a list,

b eligibility for inclusion in a list,

c applications for inclusion (including provision ^F753... for the procedure for applications and the documents to be supplied on application),

d the grounds on which an application for inclusion may or must be granted or refused,

e requirements with which a person included in a list must comply (including the declaration of financial interests and gifts and other benefits),

f suspension or removal from a list (including provision for the grounds for, and consequences of, suspension or removal),

g circumstances in which a person included in a list may not withdraw from it,

h payments to be made in respect of a person suspended from a list (including provision for the amount of the payment, or the method of calculating the payment, to be determined by the Secretary of State or a person appointed by him),

i the criteria to be applied in making decisions under the regulations,

j appeals against decisions made by NHS England under the regulations, and

k disclosure of information about applicants for inclusion, grants or refusals of applications or suspensions or removals,

and may make any provision corresponding to anything in sections 151 to 159.

4 Regulations under this section may, in particular, also provide for—

a a person's inclusion in a list to be subject to conditions determined by NHS England,

b NHS England to vary the conditions or impose different ones,

c the consequences of failing to comply with a condition (including removal from a list),

d the review by NHS England of decisions made by it by virtue of the regulations.

5 The imposition of such conditions must be with a view to—

a preventing any prejudice to the efficiency of the services to which a list relates, or

b preventing fraud.

6 Regulations making provision as to the matters referred to in subsection (3)(k) may in particular authorise the disclosure of information—

a by NHS England to the Secretary of State, and

b by the Secretary of State to NHS England.

Other arrangements for the provision of primary medical services¶

92. Arrangements by the Board for the provision of primary medical services¶

1 The Board may make agreements, other than arrangements pursuant to section 83(2) or general medical services contracts, under which primary medical services are provided.

2 An agreement must be in accordance with regulations under section 94.

3 An agreement may not combine arrangements for the provision of primary medical services with arrangements for the provision of primary dental services.

4 An agreement may not combine arrangements for the provision of primary medical services with arrangements for the provision of local pharmaceutical services.

5 But an agreement may include arrangements for the provision of services which are not primary medical services but which may be provided under this Act, other than under Chapter 1 or 2 of Part 7 (pharmaceutical services and local pharmaceutical services under pilot schemes).

^F8276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F11537 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 In this Act, arrangements for the provision of services made under this section are called “section 92 arrangements”.

93. Persons with whom agreements may be made under section 92¶

1 The Board may make an agreement under section 92 only with one or more of the following—

a an NHS trust or an NHS foundation trust,

b a medical practitioner who meets the prescribed conditions,

c a health care professional who meets the prescribed conditions,

d an individual who is providing services—

i under a general medical services contract or a general dental services contract or a Welsh general medical services contract or a Welsh general dental services contract,

ii in accordance with section 92 arrangements, section 107 arrangements, section 50 arrangements, section 64 arrangements, section 17C arrangements or Article 15B arrangements, or

iii under section 17J or 25 of the 1978 Act or Article 57 or 61 of the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I.14)),

or has so provided them within such period as may be prescribed,

e an NHS employee, a section 92 employee, a section 107 employee, a section 50 employee, a section 64 employee, a section 17C employee or an Article 15B employee,

f a qualifying body,

^F75g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 The power under subsection (1) to make an agreement with a person falling within paragraph (d) or (e) of that subsection is subject to such conditions as may be prescribed.

3 In this section—

“the 1978 Act” means the National Health Service (Scotland) Act 1978 (c. 29),
“Article 15B arrangements” means arrangements for the provision of services made under Article 15B of the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I.14)),
“Article 15B employee” means an individual who, in connection with the provision of services in accordance with Article 15B arrangements, is employed by a person providing or performing those services,
“health care professional” means a person who is a member of a profession regulated by a body mentioned (at the time the agreement in question is made) in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17),
“NHS employee” means an individual who, in connection with the provision of services in the health service, the Scottish health service or the Northern Ireland health service, is employed by—
1. an NHS trust, an NHS foundation trust or (in Northern Ireland) a Health and Social Services Trust,
2. a ^F406... Local Health Board,
3. a person who is providing services under a general medical services contract or a general dental services contract or a Welsh general medical services contract or a Welsh general dental services contract,
4. an individual who is providing services as specified in subsection (1)(d)(iii),
“the Northern Ireland health service” means the health service within the meaning of the Health and Personal Social Services (Northern Ireland) Order 1972,
“qualifying body” means a company which is limited by shares all of which are both legally and beneficially owned by persons falling within paragraph (a), (b), (c), (d) or (e) of subsection (1),
“the Scottish health service” means the health service within the meaning of the National Health Service (Scotland) Act 1978,
“section 17C arrangements” means arrangements for the provision of services made under section 17C of the 1978 Act,
“section 17C employee” means an individual who, in connection with the provision of services in accordance with section 17C arrangements, is employed by a person providing or performing those services,
“section 50 arrangements” means arrangements for the provision of services made under section 50 of the National Health Service (Wales) Act 2006 (c. 42),
“section 64 arrangements” means arrangements for the provision of services made under section 64 of that Act,
“section 107 employee” means an individual who, in connection with the provision of services in accordance with section 107 arrangements, is employed by a person providing or performing those services,
“section 92 employee” means an individual who, in connection with the provision of services in accordance with section 92 arrangements, is employed by a person providing or performing those services,
“section 50 employee” means an individual who, in connection with the provision of services in accordance with section 50 arrangements, is employed by a person providing or performing those services,
“section 64 employee” means an individual who, in connection with the provision of services in accordance with section 64 arrangements, is employed by a person providing or performing those services,
“Welsh general medical services contract” means a contract under section 42(2) of the National Health Service (Wales) Act 2006 (c. 42), and
“Welsh general dental services contract” means a contract under section 57(2) of that Act.

94 Regulations about section 92 arrangements¶

1 The Secretary of State may make regulations about the provision of services in accordance with section 92 arrangements.

2 The regulations must include provision for participants other than the Board to withdraw from section 92 arrangements if they wish to do so.

3 The regulations may, in particular—

a provide that section 92 arrangements may be made only in prescribed circumstances,

b provide that section 92 arrangements may be made only in prescribed areas,

c provide that only prescribed services, or prescribed categories of service, may be provided in accordance with section 92 arrangements,

ca make provision with respect to the performance outside England of services to be provided in accordance with section 92 arrangements,

d impose conditions (including conditions as to qualifications and experience) to be satisfied by persons performing services in accordance with section 92 arrangements,

e require details of section 92 arrangements to be published,

^C55f make provision with respect to the variation and termination of section 92 arrangements,

g provide for parties to section 92 arrangements to be treated, in such circumstances and to such extent as may be prescribed, as health service bodies for the purposes of section 9,

h provide for directions, as to payments, made under section 9(11) (as it has effect as a result of regulations made by virtue of paragraph (g)) to be enforceable in the county court (if the court so orders) as if they were judgments or orders of that court.

^F12673A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F12673B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F12673C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F12673D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F12673E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 The regulations may also require payments to be made under the arrangements in accordance with directions given for the purpose by the Secretary of State.

5 A direction may make provision having effect from a date before the date of the direction, provided that, having regard to the direction as a whole, the provision is not detrimental to the persons to whose remuneration it relates.

6 The regulations may also include provision requiring the Board, in prescribed circumstances and subject to prescribed conditions, to enter into a general medical services contract on prescribed terms with any person who is providing services under section 92 arrangements and who so requests.

7 The regulations may also include provision for the resolution of disputes as to the terms of any proposed section 92 arrangements, and in particular may make provision—

a for the referral of the terms of the proposed arrangements to the Secretary of State, and

b for the Secretary of State or a person appointed by him to determine the terms on which the arrangements may be entered into.

8 The regulations must provide for the circumstances in which a person providing primary medical services under section 92 arrangements—

a must or may accept a person as a patient to whom such services are so provided,

b may decline to accept a person as such a patient,

c may terminate his responsibility for a patient.

9 The regulations must make provision as to the right of patients to choose the persons from whom they receive services under section 92 arrangements.

^F86095 Transfer of liabilities relating to section 92 arrangements¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Assistance and support¶

96. Assistance and support: primary medical services¶

1 The Board may provide assistance or support to any person providing or proposing to provide—

za primary medical services pursuant to section 83(2),

a primary medical services under a general medical services contract, or

b primary medical services in accordance with section 92 arrangements.

2 Assistance or support provided by the Board under subsection (1) is provided on such terms, including terms as to payment, as the Board considers appropriate.

3 “Assistance” includes financial assistance.

Local Medical Committees¶

97. Local Medical Committees¶

1 The Board may recognise a committee formed for an area, which it is satisfied is representative of—

a the persons to whom subsection (2) applies, and

b the persons to whom subsection (3) applies.

2 This subsection applies to—

a each medical practitioner who, under a general medical services contract entered into by him, is providing primary medical services in the area for which the committee is formed, and

b each medical practitioner who, under a general ophthalmic services contract entered into by him, is providing primary ophthalmic services in that area.

3 This subsection applies to each other medical practitioner—

a who is performing primary medical services or primary ophthalmic services in the area for which the committee is formed—

^F231i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ii in accordance with section 92 arrangements, or

iii under a general medical services contract or a general ophthalmic services contract, and

b who has notified the Board that he wishes to be represented by the committee (and has not notified it that he wishes to cease to be so represented).

4 A committee recognised under this section is called the Local Medical Committee for the area for which it is formed.

5 Any such committee may delegate any of its functions, with or without restrictions or conditions, to sub-committees composed of members of that committee.

6 Regulations may require the Board, in the exercise of its functions relating to primary medical services, to consult any committee recognised by it under this section on such occasions and to such extent as may be prescribed.

^F8697 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 A committee recognised under this section has such other functions as may be prescribed.

9 A committee recognised under this section must in respect of each year determine—

a the amount of its administrative expenses for that year attributable to persons of whom it is representative under subsection (1)(a), and

b the amount of its administrative expenses for that year attributable to persons of whom it is representative under subsection (1)(b).

10 The Board may—

a on the request of a committee recognised by it, allot to that committee such sums for defraying the expenses referred to in subsection (9)(a) as the Board may determine, and

b deduct the amount of such sums from the remuneration of persons of whom the committee is representative under subsection (1)(a) under the general medical services contracts entered into by those persons with the Board.

11 A committee recognised under this section must apportion the amount determined by it under subsection (9)(b) among the persons of whom it is representative under subsection (1)(b); and each such person must pay in accordance with the committee's directions the amount so apportioned to him.

12 The administrative expenses of a committee include the travelling and subsistence allowances payable to its members.

Provision of accommodation by the Secretary of State¶

98 Use of accommodation: provision of primary medical services¶

If the Secretary of State considers that any accommodation provided by him by virtue of this Act is suitable for use in connection with the provision of primary medical services, he may make the accommodation available on such terms as he considers appropriate to persons providing those services.

Directions¶

98A. Exercise of functions¶

1 The Secretary of State may direct the Board to exercise any of the Secretary of State's functions relating to the provision of primary medical services.

2 Subsection (1) does not apply to any function of the Secretary of State of making an order or regulations.

3 The Secretary of State may give directions to the Board about its exercise of any functions relating to the provision of primary medical services (including functions which the Board has been directed to exercise under subsection (1)).

4 The Board may direct a clinical commissioning group to exercise any of the Board's functions relating to the provision of primary medical services.

5 The Board may give directions to a clinical commissioning group about the exercise by it of any functions relating to the provision of primary medical services (including functions which the group has been directed to exercise under subsection (4)).

6 Subsection (4) does not apply to such functions, or functions of such descriptions, as may be prescribed.

7 Where the Board gives a direction under subsection (4) or (5), it may disclose to the clinical commissioning group information it has about the provision of the primary medical services in question, if the Board considers it necessary or appropriate to do so in order to enable or assist the group to exercise the function specified in the direction.

8 A clinical commissioning group exercising a function specified in a direction under subsection (4) or (5) must report to the Board on matters arising out of the group's exercise of the function.

9 A report under subsection (8) must be made in such form and manner as the Board may specify.

10 The Board may, in exercising its functions relating to the provision of the primary medical services in question, have regard to a report under subsection (8).

Part 5 Dental services¶

Duty of NHS England in relation to primary dental services¶

99. Primary dental services¶

1 The Board must, to the extent that it considers necessary to meet all reasonable requirements, exercise its powers so as to secure the provision of primary dental services throughout England.

1A Arrangements made for the purposes of subsection (1) may include arrangements for the performance of a service outside England.

^F4802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 The Board must publish information about such matters as may be prescribed in relation to the primary dental services for which provision is made under this Act.

^F2704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 Regulations may provide that services of a prescribed description must, or must not, be regarded as primary dental services for the purposes of this Act.

6 Regulations under subsection (5) may in particular describe services by reference to the manner or circumstances in which they are provided.

General dental services contracts¶

100 General dental services contracts: introductory¶

1 The Board may enter into a contract under which primary dental services are provided in accordance with the following provisions of this Part.

2 A contract under this section is called in this Act a “general dental services contract”.

3 A general dental services contract may make such provision as may be agreed between the Board and the contractor in relation to—

a the services to be provided under the contract (which may include services which are not primary dental services or services which are to be performed outside England),

b remuneration under the contract, and

c any other matters.

4 In this Part, “contractor”, in relation to a general dental services contract, means any person entering into the contract with the Board.

101 Requirement to provide certain primary dental services¶

1 A general dental services contract must require the contractor or contractors to provide, for his or their patients, primary dental services of such descriptions as may be prescribed.

2 Regulations under subsection (1) may in particular describe services by reference to the manner or circumstances in which they are provided.

102 Persons eligible to enter into GDS contracts¶

1 The Board may, subject to such conditions as may be prescribed, enter into a general dental services contract with—

a a dental practitioner,

b a dental corporation,

c two or more persons practising in partnership where the conditions in subsection (2) are satisfied ,

d a limited liability partnership where the conditions in subsection (2A) are satisfied.

2 The conditions referred to in subsection (1)(c) are that—

a at least one partner is a dental practitioner, and

b subsection (3A) or (3B) applies.

2A The conditions referred to in subsection (1)(d) are that—

a at least one member is a dental practitioner, and

b subsection (3A) or (3B) applies.

3 Regulations may make provision as to the effect, in relation to a general dental services contract entered into by individuals practising in partnership, of a change in the membership of the partnership.

3A This subsection applies if a partner or member who is a dental practitioner, or who falls within subsection (3C), has the power to secure that the partnership's affairs are conducted in accordance with that partner's or member's wishes.

3B This subsection applies if, in any combination of partners or members who, acting together, have the power (or who, if they were to act together, would have the power) to secure that the partnership's affairs are conducted in accordance with their wishes, at least one of them is a dental practitioner or a person who falls within subsection (3C).

3C A person falls within this subsection if the person is—

a an NHS employee,

b a section 92 employee, section 107 employee, section 50 employee, section 64 employee, section 17C employee or Article 15B employee,

c a health care professional who is engaged in the provision of services under this Act or the National Health Service (Wales) Act 2006, or

d an individual falling within section 108(1)(d).

4 In this section—

“dental corporation” means a body corporate which is carrying on the business of dentistry in accordance with the Dentists Act 1984 (c. 24)
“health care professional”, “NHS employee”, “section 92 employee”, “section 107 employee”, “section 50 employee”, “section 64 employee”, “section 17C employee” and “Article 15B employee” have the meaning given by section 108.

103 GDS contracts: payments¶

1 The Secretary of State may give directions as to payments to be made under general dental services contracts.

2 A general dental services contract must require payments to be made under the contract in accordance with directions under this section.

3 A direction under subsection (1) may in particular—

a provide for payments to be made by reference to compliance with standards or the achievement of levels of performance,

b provide for payments to be made by reference to—

i any scheme or scale specified in the direction, or

ii a determination made by any person in accordance with factors specified in the direction,

c provide for the making of payments in respect of individual practitioners,

d provide that the whole or any part of a payment is subject to conditions (and may provide that payments are payable by the Board only if it is satisfied as to certain conditions),

4 Before giving a direction under subsection (1), the Secretary of State—

a must consult any body appearing to him to be representative of persons to whose remuneration the direction would relate, and

b may consult such other persons as he considers appropriate.

5 “Payments” includes fees, allowances, reimbursements, loans and repayments.

104 GDS contracts: other required terms¶

1 A general dental services contract must contain such provision as may be prescribed (in addition to the provision required by the preceding provisions of this Part).

2 Regulations under subsection (1) may in particular make provision as to—

a the manner in which, and standards to which, services must be provided,

b the persons who perform services,

c the persons to whom services will be provided,

d the variation of contract terms (other than terms required by or under this Part),

e rights of entry and inspection (including inspection of clinical records and other documents),

f the circumstances in which, and the manner in which, the contract may be terminated,

g enforcement,

h the adjudication of disputes.

3 Regulations under subsection (2)(d) may make provision as to the circumstances in which the Board may impose a variation of contract terms.

4 Regulations under subsection (1) must make provision as to the right of patients to choose the persons from whom they receive services.

105 GDS contracts: disputes and enforcement¶

1 Regulations may make provision for the resolution of disputes as to the terms of a proposed general dental services contract.

2 Regulations under subsection (1) may make provision—

a for the referral of the terms of the proposed contract to the Secretary of State, and

b for the Secretary of State, or a person appointed by him, to determine the terms on which the contract may be entered into.

3 Regulations may make provision for a person or persons entering into a general dental services contract to be regarded as a health service body for any purposes of section 9, in circumstances where he or they so elect.

4 Regulations under subsection (3) may include provision as to the application of section 9 in cases where—

a persons practising in partnership elect to become a health service body, and

b there is a change in the membership of the partnership.

5 Where—

a by virtue of regulations under subsection (3), section 9(11) applies in relation to a general dental services contract, and

b a direction as to payments is made under that provision in relation to the contract,

the direction is enforceable in the county court (if the court so orders) as if it were a judgment or order of that court.

Performance of primary dental services¶

106 Persons performing primary dental services¶

1 Regulations may provide that a health care professional of a prescribed description may not perform any primary dental service for which the Board is responsible unless he is included in a list maintained under the regulations by NHS England.

2 For the purposes of this section—

b the Board is responsible for a dental service if it secures its provision by or under any enactment.

3 Regulations under this section may make provision in relation to lists under this section and in particular as to—

a the preparation, maintenance and publication of a list,

b eligibility for inclusion in a list,

c applications for inclusion (including provision ^F1198... for the procedure for applications and the documents to be supplied on application),