The Health and Personal Social Services (Northern Ireland) Order 1991

IntroductoryN.I.

Title and commencementN.I.

1.—(1) This Order may be cited as the Health and Personal Social Services (Northern Ireland) Order 1991.

(2) Subject to paragraph (3), this Order shall come into operation on such day or days as the Head of the Department may by order appointF1.

(3) The following provisions shall come into operation on 1st April 1991, namely—

(a)this Article;

(b)Articles 2, 3, 4, 6, 29(1)(a) and (b), 30, 32 and 33;

(c)Schedule 1;

(d)Part I of Schedule 5 and Article 34 so far as it relates to that Part;

(e)Part I of Schedule 6 and Article 35 so far as it relates to that Part.

(4) An order under paragraph (2) may contain such transitional provisions and savings (whether or not involving the modification of any statutory provision) as appear to the Head of the Department necessary or expedient in connection with the provisions brought into operation.

InterpretationN.I.

2.—(1) The Interpretation Act (Northern Ireland) 1954F2 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

(2) In this Order—

• “goods” includes accommodation;

• “the principal Order” means the Health and Personal Social Services (Northern Ireland) Order 1972F3;

• [F4“provide” includes manage;]

• “services” includes services of any description, whether or not being services under the principal Order.

(3) Article 2(2) of the principal Order (interpretation) shall apply for the purposes of this Order as it applies for the purposes of that Order.

Health and social services bodiesN.I.

Constitution of Health and Social Services BoardsN.I.

3.—(1) Schedule 1 to the principal Order shall be amended in accordance with paragraphs (2) to (7).

(2) For paragraph 3 (constitution of Health and Social Services Board) there shall be substituted the following paragraph—

“3.—(1) A Health and Social Services Board shall consist of—

(a)a chairman appointed by the Head of the Department;

(b)a prescribed number of persons appointed by the Head of the Department;

(c)the chief officer of the Board;

(d)such other officers as may be prescribed; and

(e)not more than a prescribed number of other officers of the Board appointed by the chairman and the members specified in heads (b) and (c).

(2) Except in so far as regulations otherwise provide, no person who is an officer of the Board may be appointed under sub-paragraph (1)(a) or (b).

(3) Subject to sub-paragraph (4), regulations may provide that all or any of the persons appointed under sub-paragraph (1)(b) must fulfil prescribed conditions or hold posts of a prescribed description.

(4) In the case of a prescribed Board, at least one of the persons appointed under sub-paragraph (1)(b) must hold a post in a university with a medical or dental school.”.

(3) For paragraph 4 (tenure of office) there shall be substituted the following paragraph—

“4.—(1) The term of office of members of a Health and Social Services Board appointed under paragraph 3(1)(a), (b) or (e) shall be four years or such other period as may be determined by the Head of the Department at the time the appointments are made.

(2) A member of a Health and Social Services Board specified in paragraph 3(1)(c), (d) or (e) shall—

(a)if he ceases to hold the qualifying office, cease to be a member of the Board;

(b)if he is suspended from the qualifying office, be suspended from membership of the Board for so long as he remains suspended from that office.

(3) In sub-paragraph (2) “the qualifying office” in relation to a member of a Health and Social Services Board means the office under the Board which he held at the time he became a member of the Board.”.

(4) For paragraph 5 (resignation, removal or death of member) there shall be substituted the following paragraph—

“5.—(1) A member of a Health and Social Services Board appointed under paragraph 3(1)(a) or (b)—

(a)may resign his membership by serving notice on the Head of the Department;

(b)may be removed from office by the Head of the Department.

(2) A member of a Health and Social Services Board appointed under paragraph 3(1)(e) may be removed from office by the chairman and members specified in paragraph 3(1)(b) and (c).

(3) Where any member of a Health and Social Services Board—

(a)is absent from the meetings of the Board for more than six months consecutively, except for an approved reason;

(b)has been adjudged bankrupt or has made a composition or arrangement with his creditors; or

(c)is convicted of an indictable offence,

the Board shall forthwith, by resolution, declare the office to be vacant and shall notify that fact in such manner as it thinks fit, and thereupon the office shall become vacant.

(4) In sub-paragraph (3)(a) “approved reason” means a reason approved—

(a)in the case of members appointed under paragraph 3(1)(e), by the chairman and the members specified in paragraph 3(1)(b) and (c);

(b)in the case of any other member, by the Department.

(5) Where the place of a member specified in paragraph 3(1)(a), (b) or (e) becomes vacant before the expiration of his term of office whether by death, resignation or otherwise, the vacancy shall be filled by appointment—

(a)in the case of a member specified in paragraph 3(1)(a) or (b), by the Head of the Department;

(b)in the case of a member specified in paragraph 3(1)(e), by the chairman and the members specified in paragraph 3(1)(b) and (c);

and any person so appointed shall hold office for the remainder of the term of office of the former member.”.

(5) In paragraph 8(3) (committees) the words “, so however that a majority of the members of the committee shall be members of the Board” shall cease to have effect.

(6) For paragraph 13 (the seal) there shall be substituted the following paragraph—

“13.  The seal of a Health and Social Services Board shall be authenticated by the signatures of—

(a)at least one member of the Board appointed under paragraph 3(1)(a) or (b); and

(b)the chief officer of the Board.”.

(7) After paragraph 14 there shall be added the following paragraph—

“15.  Regulations may make provision (including provision modifying this Schedule) to deal with cases where the post of chief officer or any other officer of a Health and Social Services Board is held jointly by two or more persons or where the functions of such an officer are in any other way performed by more than one person.”.

(8) Any person who immediately before this Article comes into operation is a member of a Health and Social Services Board shall on its coming into operation cease to be such a member, but shall be eligible to become a member of the Board as constituted under Schedule 1 to the principal Order as amended by this Article.

Health and Social Services CouncilsN.I.

4.—(1) The Department shall establish a council, to be known as a Health and Social Services Council, for the area of each Health and Social Services Board.

(2) Schedule 1 shall have effect in relation to Health and Social Services Councils.

(3) District committees established under Article 20 of the principal Order are hereby abolished.

Art. 5 rep. by 2001 c. 3 (NI)

Abolition of Northern Ireland Health and Social Services Training CouncilN.I.

6.  The Northern Ireland Health and Social Services Training Council established under Article 28 of the principal Order is hereby abolished.

Removal of Crown immunitiesN.I.

7.—(1) Subject to the following provisions of this Article, on and after the day appointed for the coming into operation of this paragraph, no health and social services body shall be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and so far as concerns land in which the Department has an interest, at any time when—

(a)by virtue of directions under any provision of the principal Order, the Health and Medicines (Northern Ireland) Order 1988F5 or the Health and Personal Social Services (Special Agencies) (Northern Ireland) Order 1990F6 , powers of management with respect to the land are conferred on a health and social services body, or

(b)the land is otherwise used or occupied by a health and social services body,

the interest of the Department shall be treated for the purposes of any statutory provision or rule of law relating to Crown land or interests as if it were an interest held otherwise than by the Department (or any other emanation of the Crown).

(2) In Schedule 2—

(a)Part I has effect to continue certain exemptions for health and social services bodies and property held, used or occupied by such bodies; and

(b)the transitional provisions in Part II have effect in connection with the operation of paragraph (1).

(3) Where, as a result of the provisions of paragraph (1), by virtue of his employment during any period after the day appointed for the coming into operation of that paragraph—

(a)an employee has contractual rights against a health and social services body to benefits in the event of his redundancy, and

(b)he also has statutory rights against the health and social services body under[F7 Part XII of the Employment Rights (Northern Ireland) Order 1996] (redundancy payments),

any benefits provided to him by virtue of the contractual rights referred to in sub-paragraph (a) shall be taken as satisfying his entitlement to benefits under the said[F7 Part].

(4) Nothing in paragraph (1) affects the extent of the expression “the services of the Crown” where it appears in—

(a)Schedule 1 to the Registered Designs Act 1949F8 (provisions as to the use of registered designs for the services of the Crown etc.); and

(b)sections 55 to 59 of the Patents Act 1977F9 (use of patented inventions for services of the Crown);

and, accordingly, services provided in pursuance of any power or duty of the Department under Part II or V of the principal Order shall continue to be regarded as included in that expression, whether the services are in fact provided by a health and social services body, an HSS trust or any other person.

(5) The Department may by order made subject to affirmative resolution provide that, in relation to any provision contained in a local Act and specified in the order, the operation of paragraph (1) shall be excluded or modified to the extent specified in the order.

(6) In this Article “health and social services body” means—

(a)a Health and Social Services Board;

(b)the Agency; and

(c)a special agency.

Provision of goods and servicesN.I.

Health and social services contractsN.I.

8.—(1) The bodies mentioned in sub-paragraphs (a) to (e) of paragraph (2) may, for the purpose of carrying out their functions and without prejudice to any other power they may have in that regard, enter into arrangements for the provision of goods or services to or by them with—

(a)one another; or

(b)any of the bodies or persons mentioned in sub-paragraphsF10 (f) to (j) of that paragraph.

(2) The bodies and persons referred to in paragraph (1) are—

(a)Health and Social Services Boards;

(b)the Agency;

(c)special agencies;

(d)Health and Social Services trusts;

(e)the Department;

(g)any of the following within the meaning of the National Health Service Act 1977F11

[F12(i)Health Authorities;

(ii)Special Health Authorities;]

(iii)NHS trusts;

(v)the Dental Practice Board;

[F13(vi)the Health Protection Agency;]

(h)any of the following within the meaning of the National Health Service (Scotland) Act 1978F14

(i)Health Boards;

(ii)the Common Services Agency for the Scottish Health Service;

(iii)the Scottish Dental Practice Board;

(iv)NHS trusts;

(i)a State Hospital Management Committee constituted under section 91 of the Mental Health (Scotland) Act 1984F15;

(j)the Secretaries of State respectively concerned with health in England, in Wales and in Scotland.

[F16(2A) The bodies mentioned in paragraph (2) may be referred to as “health services bodies”.]

(3) An arrangement falling within paragraph (1) shall be known as a health and social services contract and is referred to in this Order as an “HSS contract”.

(4) Whether or not an arrangement which constitutes an HSS contract would, apart from this paragraph, be a contract in law, it shall not be regarded for any purpose as giving rise to contractual rights or liabilities, but if any dispute arises with respect to such an arrangement, either party may refer the matter to the Department for determination under the following provisions of this Article.

(5) If, in the course of negotiations intending to lead to an arrangement which will be an HSS contract, it appears to either of the prospective parties that—

(a)the terms proposed by the other party are unfair by reason that that party 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)for any other reason arising out of the relative bargaining positions of the prospective parties any of the terms of the proposed arrangement cannot be agreed,

that party may refer the terms of the proposed arrangement to the Department for determination under the following provisions of this Article.

(6) Where a reference is made to the Department under paragraph (4) or (5), the Department may determine the matter itself or, if the Department considers it appropriate, appoint a person to consider and determine it in accordance with regulations.

(7) In the determination of a reference under paragraph (5), the Department or, as the case may be, the person appointed under paragraph (6) may specify terms to be included in the proposed arrangement and may direct that it be proceeded with; and it shall be the duty of the prospective parties to the proposed arrangement to comply with any such directions.

(8) A determination of a reference under paragraph (4) may contain such directions (including directions as to payment) as the Department or, as the case may be, the person appointed under paragraph (6) considers appropriate to resolve the matter in dispute; and it shall be the duty of the parties to the HSS contract in question to comply with any such directions.

(9) Without prejudice to the generality of the powers exercisable on a reference under paragraph (4), the Department or, as the case may be, the person appointed under paragraph (6) may in a determination in relation to an arrangement constituting an HSS contract vary the terms of the arrangement or bring it to an end; and where the arrangement is so varied or brought to an end—

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

(b)directions included in the determination by virtue of paragraph (8) may contain such provisions as the Department or, as the case may be, the person appointed under paragraph (6) considers appropriate in order satisfactorily to give effect to the variation or to bring the arrangement to an end.

(10) Where a body or person mentioned in paragraph (2)(g), (h), (i) or (j) is a party or prospective party to an arrangement or proposed arrangement which—

(a)falls within paragraph (1); and

(b)also falls within the definition of NHS contract in section 4 of the National Health Service and Community Care Act 1990F17 or section 17A of the National Health Service (Scotland) Act 1978F18 ,

paragraphs (4) to (9) shall apply in relation to that arrangement or proposed arrangement with the substitution for references to the Department of references to the Department and the Secretary of State acting jointly.

[F19Provision of certain services under HSS contractsN.I.

8A.—(1) This Article applies to any arrangement under which a Health and Social Services Board or such other health services body as may be prescribed arranges for the provision to it—

(a)by a person on an ophthalmic list, or

(b)by a person on a pharmaceutical list,

of goods or services that it reasonably requires for the purposes of functions which it is exercising under Part II of the principal Order.

(2) Any such arrangement is to be treated as an HSS contract for the purposes of Article 8 (other than paragraphs (5) and (7)).

(3) In this Article—

• “ophthalmic list” means a list published in accordance with regulations made under—

  (a)

  Article 62(2)(a) of the principal Order;

  (b)

  section 39(a) of the National Health Service Act 1977; or

  (c)

  section 26(2)(a) of the National Health Service (Scotland) Act 1978;

• “pharmaceutical list” means a list published in accordance with regulations made under—

  (a)

  Article 63(2A)(a) of the principal Order;

  (b)

  section 42(2)(a) of the National Health Service Act 1977; or

  (c)

  section 27(2) of the National Health Service (Scotland) Act 1978.]

Primary and other functions of Health and Social Services Boards and special agenciesN.I.

9.—(1) Nothing in the principal Order or this Order affects the power of a Health and Social Services Board or a special agency at any time to provide goods or services under the principal Order for the benefit of an individual where—

(a)the provision of those goods or services is neither within the primary functions of the Health and Social Services Board or special agency nor carried out pursuant to an HSS contract; but

(b)the condition of the individual is such that he needs those goods or services and, having regard to his condition, it is not practicable before providing them to enter into an HSS contract for their provision.

(2) In any case where—

(a)a Health and Social Services Board or a special agency provides goods or services for the benefit of an individual as mentioned in paragraph (1); and

(b)the provision of those goods or services—

(i)is within the primary functions of another Health and Social Services Board or special agency or of[F20 a Health Authority or Special Health Authority] within the meaning of the National Health Service Act 1977F21; or

(ii)is a function of a Health Board, within the meaning of the National Health Service (Scotland) Act 1978,

the Health and Social Services Board or special agency providing the goods or services shall be remunerated in respect of that provision by that other Health and Social Services Board, special agency,[F20 Health Authority, Special Health Authority] or Health Board.

(3) The rate of any remuneration payable by virtue of paragraph (2) shall be calculated in such manner or on such basis as may be determined by the Department.

(4) In any case where—

(a)a Health and Social Services Board or special agency provides goods or services for the benefit of an individual; and

(b)the provision of those goods and services is not pursuant to an HSS contract; and

(c)the individual is resident outside the United Kingdom and is of a description (being a description associating the individual with another country) specified for the purposes of this paragraph by a direction made by the Department,

the Health and Social Services Board or special agency shall be remunerated by the Department in respect of the provision of the goods or services at such rate or rates as the Department considers appropriate.

(5) In this Article—

(a)any reference to the primary functions of a Health and Social Services Board is a reference to those functions specified as such in directions given to the Board under Article 17 of the principal Order;

(b)any reference to the primary functions of a special agency is a reference to those functions specified as such in directions given to the agency under Article 4 of the Health and Personal Social Services (Special Agencies) (Northern Ireland) Order 1990F22; and

(c)any reference to the primary functions of a[F20 Health Authority or Special Health Authority] within the meaning of the National Health Service Act 1977F23 shall be construed in accordance with section 3(1) of the National Health Service and Community Care Act 1990F24.

Health and Social Services trustsN.I.

Health and Social Services trustsN.I.

10.—[F25(1) Subject to paragraph (2), the Department may by order establish bodies, to be known as Health and Social Services trusts (in this Order referred to as HSS trusts)—

(a)to provide goods and services for the purposes of the health and personal social services; or

(b)to exercise, on behalf of Health and Social Services Boards, such functions as are so exercisable by virtue of authorisations for the time being in operation under Article 3(1) of the Health and Personal Social Services (Northern Ireland) Order 1994.

(2) Before making an order under paragraph (1), the Department shall consult—

(a)such Health and Social Services Councils; and

(b)such other persons and bodies,

as the Department considers appropriate.]

(3) In this Article, Articles 11 to 13 and Schedule 3 “a relevant body” means—

(a)a Health and Social Services Board;

(b)the Agency; or

(c)a special agency.

(4) Every HSS trust—

(a)shall be a body corporate having a board of directors consisting of a chairman appointed by the Department and, subject to paragraph 5(2) of Schedule 3, executive and non-executive directors (that is to say, directors who, subject to paragraph (6), respectively are and are not employees of the trust);

(b)shall have the functions conferred on it by an order under paragraph (1) and by Schedule 3; and

(c)shall be a body to which section 19 of the Interpretation Act (Northern Ireland) 1954F26 applies.

[F25(5) The functions which may be specified in an order under paragraph (1) include a duty to provide goods or services so specified at or from a hospital or other establishment or facility so specified.]

[F27(5A) The functions of an HSS trust also include power to provide services in accordance with arrangements made under Article 15B of the principal Order, and to do so as a member of a qualifying body (within the meaning of Article 15C of that Order).]

(6) The Department may by regulations make general provision with respect to—

(a)the qualifications for and the tenure of office of the chairman and directors of an HSS trust (including the circumstances in which they shall cease to hold, or may be removed from, office or may be suspended from performing the functions of the office);

(b)the persons by whom the directors and any of the officers are to be appointed and the manner of their appointment;

(c)the maximum and minimum numbers of the directors;

(d)the circumstances in which a person who is not an employee of the trust is nevertheless, on appointment as a director, to be regarded as an executive rather than a non-executive director;

(e)the proceedings of the trust (including the validation of proceedings in the event of a vacancy or defect in appointment); and

(f)the appointment, constitution and exercise of functions by committees and sub-committees of the trust (whether or not consisting of or including any members of the board);

and, without prejudice to the generality of the power, any such regulations may make provision to deal with cases where the post of any officer of an HSS trust is held jointly by two or more persons or where the functions of such an officer are in any other way performed by more than one person.

(7) Part I of Schedule 3 shall have effect with respect to orders under paragraph (1); Part II of that Schedule shall have effect, subject to paragraph (8), with respect to the general duties and the powers and status of HSS trusts; the supplementary provisions of Part III of that Schedule shall have effect; and Part IV of that Schedule shall have effect with respect to the dissolution of HSS trusts.

[F25(8) A power conferred by paragraph 14 or 15 of Part II of Schedule 3 may only be exercised—

(a)to the extent that its exercise does not to any significant extent interfere with the performance by the HSS trust of its functions or of its obligations under HSS contracts; and

(b)in circumstances specified in directions under paragraph 6 of that Schedule, with the consent of the Department.]

(9) The Department may by order confer on HSS trusts specific powers additional to those contained in paragraphs 10 to 15 of Schedule 3.

Transfer of staff to HSS trustsN.I.

11.—(1) Subject to paragraph (5), this Article applies to any person who, immediately before an HSS trust's operational date—

(a)is employed by a relevant body to work solely at, or for the purposes of, a hospital or other establishment or facility which is to become the responsibility of the trust; or

(b)is employed by a relevant body to work at, or for the purposes of, such a hospital, establishment or facility and is designated for the purposes of this Article by a scheme made by the relevant body specified as mentioned in paragraph 3(1)(f) of Schedule 3.

(2) A scheme under this Article shall not have effect unless approved by the Department.

(3) Subject to Article 12, the contract of employment between a person to whom this Article applies and the relevant body by which he is employed shall have effect from the operational date as if originally made between him and the HSS trust.

(4) Without prejudice to paragraph (3)—

(a)all the relevant body's rights, powers, duties and liabilities under or in connection with a contract to which that paragraph applies shall by virtue of this Article be transferred to the HSS trust on its operational date; and

(b)anything done before that date by or in relation to the relevant body in respect of that contract or the employee shall be deemed from that date to have been done by or in relation to the HSS trust.

(5) In any case where—

(a)an order under Article 10(1) provides for the establishment of an HSS trust with effect from a date earlier than the operational date of the trust, and

(b)on or after that earlier date but before its operational date the HSS trust makes an offer of employment by the trust to a person who at that time is employed by a relevant body to work (whether solely or otherwise) at, or for the purposes of, the hospital or other establishment or facility which is to become the responsibility of the trust, and

(c)as a result of the acceptance of the offer, the person to whom it was made becomes an employee of the HSS trust,

paragraphs (3) and (4) shall have effect in relation to that person's contract of employment as if he were a person to whom this Article applies and any reference in those paragraphs to the operational date of the trust were a reference to the date on which he takes up employment with the trust.

(6) Paragraphs (3) and (4) are without prejudice to any right of an employee to terminate his contract of employment if a substantial change is made to his detriment in his working conditions; but no such right shall arise by reason only of the change in employer effected by this Article.

(7) A scheme under this Article may designate a person either individually or as a member of a class or description of employees.

Supplementary provisions as to transfer of staffN.I.

12.—(1) In the case of a person who falls within Article 11(1)(b), a scheme under that Article may provide that, with effect from the HSS trust's operational date, his contract of employment (in this Article referred to as “his original contract”) shall be treated in accordance with the scheme as divided so as to constitute—

(a)a contract of employment with the HSS trust; and

(b)a contract of employment with the relevant body by which he was employed before that date.

(2) Where a scheme makes provision as mentioned in paragraph (1),—

(a)the scheme shall secure that the benefits to the employee under the two contracts referred to in that paragraph, when taken together, are not less favourable than the benefits under his original contract;

(b)Article 11 shall apply in relation to the contract referred to in paragraph (1)(a) as if it were a contract transferred under that Article from the relevant body mentioned in paragraph (1)(b) to the HSS trust;

(c)so far as necessary to preserve any rights and obligations, the contract referred to in paragraph (1)(b) shall be regarded as a continuation of the employee's original contract; and

(4) Where, as a result of the provisions of Article 11, by virtue of his employment during any period after the operational date of the HSS trust,—

(a)an employee has contractual rights against an HSS trust to benefits in the event of his redundancy, and

(b)he also has statutory rights against the trust under[F28 Part XII of the Employment Rights (Northern Ireland) Order 1996] (redundancy payments),

any benefits provided to him by virtue of the contractual rights referred to in sub-paragraph (a) shall be taken as satisfying his entitlement to benefits under the said[F28 Part].

Transfer of assets and liabilities to HSS trustsN.I.

13.—(1) The Department may by order transfer or provide for the transfer to an HSS trust, with effect from such date as may be specified in the order, of such of the assets and liabilities of the Department or of a relevant body as, in the Department's opinion, need to be transferred to the trust for the purpose of enabling it to carry out its functions.

(2) An order under this Article may create or impose such new rights or liabilities in respect of what is transferred or what is retained by the Department or a relevant body as appear to the Department to be necessary or expedient.

(3) Nothing in this Article affects the power of the Department or any power of a relevant body to transfer assets or liabilities to an HSS trust otherwise than under paragraph (1).

(4) Stamp duty shall not be chargeable in respect of any transfer to an HSS trust effected by or by virtue of an order under this Article.

(5) Where an order under this Article provides for the transfer—

(a)of land held on lease from a third party, or

(b)of any other asset leased or hired from a third party or in which a third party has an interest,

the transfer shall be binding on the third party notwithstanding that, apart from this paragraph, it would have required his consent or concurrence.

(6) Any assets and liabilities which are to be transferred to an HSS trust shall be identified by agreement between the trust and a relevant body or, in default of agreement, by direction of the Department.

(7) Where, for the purpose of a transfer pursuant to an order under this Article, it becomes necessary to apportion any assets or liabilities, the order may contain such provisions as appear to the Department to be appropriate for the purpose; and where any such assets fall within paragraph (5), the order shall contain such provisions as appear to the Department to be appropriate to safeguard the interests of third parties, including, where appropriate, provision for the payment of compensation of an amount to be determined in accordance with the order.

(8) In the case of any transfer made by or pursuant to an order under this Article, a certificate issued by the Department that any asset or liability specified in the certificate is vested in the HSS trust specified in the order shall be conclusive evidence of that fact for all purposes.

(9) An order under this Article may include provision for matters to be settled by arbitration by a person determined in accordance with the order.

(10) In this Article “third person” means a person other than the Department or a relevant body.

Originating capital debt of, and other financial provisions relating to, HSS trustsN.I.

14.—(1) Each HSS trust shall have an[F29 originating capital] of an amount specified in an order made by the Department, being an amount representing, subject to paragraph (2), the excess of the valuation of the assets which, on or in connection with the establishment of the trust, are or are to be transferred to it (whether before, on or after its operational date) over the amounts of the liabilities which are or are to be so transferred.

(2) In determining the[F29 originating capital] of an HSS trust, there shall be left out of account such assets or, as the case may be, liabilities as are, or are of a class, determined for the purposes of this Article by the Department.

(3) An HSS trust's[F29 originating capital] shall be deemed to have been issued out of moneys appropriated by Measure and shall constitute an asset of the Consolidated Fund.

[F29(4) An HSS trust's orginating capital shall be public dividend capital.]

(7) The Department may determineF29

[F29(a)the dividend which is to be payable at any time on any public dividend capital issued, or treated as issued, under this Order;

(b)the amount of any such public dividend capital which is to be repaid at any time;

(c)any other terms on which any public dividend capital is so issued or treated as issued.]

(8) An order under paragraph (1) and a determination under paragraph (2)F29. . . or (7) shall be made with the consent of the Department of Finance and Personnel.

(9) Schedule 4 shall have effect with respect to—

(a)borrowing by HSS trusts;

(b)the limits on their indebtedness;

(c)the payment of additional public dividend capital to them; and

(d)the application of any surplus funds of HSS trusts.

Financial obligations of HSS trustsN.I.

15.—(1) Every HSS trust shall ensure that its revenue is not less than sufficient, taking one financial year with another, to meet outgoings properly chargeable to revenue account.

(2) It shall be the duty of every HSS trust to achieve such financial objectives as may from time to time be set by the Department with the consent of the Department of Finance and Personnel and as are applicable to it; and any such objectives may be made applicable to HSS trusts generally, or to a particular HSS trust or to HSS trusts of a particular description.

Trust funds and trustees for HSS trustsN.I.

16.—(1) The Department may by order provide for the appointment of trustees for an HSS trust; and any trustees so appointed shall have power to accept, hold and administer any property on trust for the general or any specific purposes of the HSS trust (including the purposes of any specific hospital or other establishment or facility[F30 at or from which services are provided] by the trust).

(2) An order under paragraph (1) may—

(a)make provision as to the persons by whom trustees are to be appointed and generally as to the method of their appointment;

(b)make any appointment subject to such conditions as may be specified in the order (including conditions requiring the consent of the Department);

(c)make provision as to the number of trustees to be appointed, including provision under which that number may from time to time be determined by the Department after consultation with such persons as it considers appropriate; and

(d)make provision with respect to the term of office of any trustee and his removal from office.

(3) Where, under paragraph (1), trustees have been appointed for an HSS trust—

(a)the Department may by order transfer or provide for the transfer of endowments or other property held on trust from the HSS trust to the trustees so appointed; and

(b)an order under Article 13 may transfer or provide for the transfer of endowments or other property held on trust by a Health and Social Services Board to the trustees for an HSS trust and, accordingly, in relation to such endowments or other property, references in Article 13 to an HSS trust shall be construed as including references to the trustees for that trust.

(4) Paragraphs (4), (5) and (8) of Article 13 apply, with appropriate modifications, in relation to an order under paragraph (3)(a) as they apply in relation to an order under that Article.

(5) Subject to paragraphs (6) to (8) and to any provision made by an order under Article 13, the transfer under Article 13 or paragraph (3)(a) of any property held on trust shall not affect the trusts on which the property is held.

(6) Any discretion given by a trust instrument to the trustees of property transferred under Article 13 or paragraph (3)(a) shall be exercisable by the body to which or persons to whom the property is so transferred.

(7) Where—

(a)Schedule 14 to the principal Order applies to an endowment held by a Health and Social Services Board; and

(b)that endowment is transferred—

(i)to an HSS trust or the trustees for an HSS trust under Article 13; or

(ii)to the trustees for an HSS trust under paragraph (3)(a), having previously been transferred to the HSS trust under Article 13,

the said Schedule 14 shall apply to the use of that endowment by the HSS trust or, as the case may be, the trustees for the HSS trust as it applied to the use thereof by the Health and Social Services Board.

(8) Where—

(a)Article 81 of the principal Order applies to any property held by a Health and Social Services Board; and

(b)that property is transferred—

(i)to an HSS trust or the trustees for an HSS trust under Article 13; or

(ii)to the trustees for an HSS trust under paragraph (3)(a), having previously been transferred to the HSS trust under Article 13,

the said Article 81 shall apply to the administration of that property by the HSS trust or, as the case may be, the trustees for the HSS trust as it applied to the administration thereof by the Health and Social Services Board.

(9) References in this Article—

(a)to property include references to the rights and liabilities arising from property;

(b)to endowments and property held on trust include references to the income and accumulated income thereof.

Fund-holding practicesN.I.

Arts. 17‐20 rep. by 2001 c. 3 (NI)

Indicative amountsN.I.

Indicative amounts for doctors' practicesN.I.

21.—(1) Subject to[F31 paragraphs (2) and (8)], for each financial year, every Health and Social Services Board shall, by notice given to each practice in relation to which it is the relevant Health and Social Services Board, specify an amount of money (in this Order referred to as an “indicative amount”) representing the basic price of the drugs, medicines and listed appliances which, in the opinion of the Board, it is reasonable to expect will be supplied in that year pursuant to orders given by or on behalf of the members of that practice.

(3) For the purposes of this Article, a “practice” means—

[F32(a)a person or body who has entered into a contract under Article 57 of the principal Order, otherwise than in partnership; or

(b)two or more individuals practising in partnership who together have entered into such a contract;]

and any reference to the members of a practice shall be construed accordingly.

(4) The members of a practice shall seek to secure that, except with the consent of the relevant Health and Social Services Board or for good cause, the orders for drugs, medicines and listed appliances given by them or on their behalf are such that the basic price of the items supplied pursuant to those orders in any financial year does not exceed the indicative amount notified to the practice for that year under paragraph (1).

(5) For the purpose of measuring the extent to which a practice is operating within the indicative amount notified to it under paragraph (1) for any financial year, a Health and Social Services Board shall set against that indicative amount an amount equal to the basic price of the drugs, medicines and listed appliances supplied in that year pursuant to orders given by or on behalf of members of the practice.

(6) For the purposes of this Article, regulations may make provision as to the specification of, or means of calculating, the basic price of any drugs, medicines or listed appliances.

(7) In this Article “relevant Health and Social Services Board” in relation to a practice means—

(a)where all the members in that practice have entered into arrangements under Article 56 of the principal Order with the same Board and none of those members has entered into such arrangements with any other Board, the Board with which all the members have entered into such arrangements;

(b)in any other case, the Board in whose area resides the largest number of individuals who are on the lists of patients of the members of the practice.

(8) In this Article “listed” has the same meaning as in Article 63 of the principal Order.

[F32(8A) In this Article, references to the relevant Health and Social Services Board, in relation to a practice, are to the Health and Social Services Board with which it has entered into a contract under Article 57 of the principal Order.]

[F31(9) This Article does not apply in relation to the performance or provision of personal medical services in accordance with arrangements made under Article 15B of the principal Order.]

Financial provisionsN.I.

Art. 22 rep. by 2003 NI 5

Power of Boards, special agencies and HSS trusts to raise funds by appeals, collections, etc.N.I.

23.—(1) The Department may by regulations confer power on Health and Social Services Boards, special agencies and HSS trusts (in this Article referred to as “relevant bodies”) to engage in activities to which this Article applies, but before making any regulations under this Article the Department shall consult the relevant bodies and such other bodies as the Department thinks fit.

(2) This Article applies to activities intended to stimulate the giving (whether on trust or otherwise) of money or other property to assist the relevant bodies in providing or improving any services or any facilities or accommodation which is or are or is or are to be provided as part of the health and personal social services or to assist the relevant bodies in connection with their functions with respect to research, including, subject to paragraph (3),—

(a)public appeals or collections and competitions, entertainments, bazaars, sales of produce or other goods and other similar activities; and

(b)activities involving the use of land, premises or other property held by or for the benefit of the relevant bodies, subject however to any restriction on the purposes for which trust property may be used.

(3) Regulations under this Article may provide that this Article shall not apply to activities of a prescribed description.

(4) Subject to paragraphs (5) to (8), the relevant body at whose instance property is given in pursuance of this Article shall, after defraying out of it any expenses incurred in obtaining it, hold, administer and apply the property on trust for the purpose for which it was given.

(5) Where property is given in pursuance of this Article on trust for any purposes of an HSS trust for which trustees have been appointed under Article 16(1), then, if those trustees and the HSS trust agree, the property may be held, administered and applied by those trustees instead of by the HSS trust; and references in paragraphs (6) to (8) to a relevant body accordingly include references to trustees for an HSS trust.

(6) Where property held by a relevant body under this Article is more than sufficient to enable the purpose for which it was given to be fulfilled, the excess shall be applicable, in default of any provision for its application made by the trust or other instrument under or in accordance with which the property comprising the excess was given, for such purposes connected with any of the functions of the relevant body as the relevant body thinks fit.

(7) Where property held by a relevant body under this Article is insufficient to enable the purpose for which it was given to be fulfilled then—

(a)the relevant body may apply so much of the capital or income at its disposal as is needed to enable the purpose to be fulfilled subject, however, in the case of trust property, to any restrictions on the purposes for which the trust property may be applied, and in the case of money paid or payable bythe Department under Article 87(1) of the principal Order, to any directions it may give; but

(b)where the capital or income applicable under sub-paragraph (a) is insufficient or is not applied to enable the purpose to be fulfilled, the property so held by the relevant body shall be applicable, in default of any provision for its application made by the trust or other instrument under or in accordance with which the property was given, for such purposes connected with any of the functions of the relevant body as the relevant body thinks fit.

(8) Where under paragraph (6) or (7) property becomes applicable for purposes other than that for which it was given, the relevant body shall have regard to the desirability of applying the property for a purpose similar to that for which it was given.

Schemes for meeting losses and liabilities, etc., of certain health and social services bodiesN.I.

24.—(1) The Department may by regulations made with the consent of the Department of Finance and Personnel establish a scheme whereby any of the bodies mentioned in paragraph (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 concerned.

(2) The bodies referred to in paragraph (1) are—

(a)Health and Social Services Boards;

(b)the Agency;

(c)special agencies; and

(d)HSS trusts;

but a scheme under this Article may limit the class or description of bodies which are eligible to participate in it.

(3) Without prejudice to the generality of the power conferred by paragraph (1), a scheme under this Article may—

(a)provide for the scheme to be administered by the Department or by a body specified in the scheme (being a body mentioned in paragraph (2));

(b)require any body which 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 Department.

(4) Without prejudice to any other power of direction conferred on the Department,—

(a)if the Department so directs, a body which is eligible to participate in a scheme shall do so; and

(b)where a scheme provides for it to be administered by the Department, a body mentioned in paragraph (2) shall carry out such functions in connection with the administration of the scheme by the Department as the Department may direct.

[F33(5) A person or body administering a scheme under this Article does not require permission under any provision of the Financial Services and Markets Act 2000 as respects activities carried out under the scheme.]

Provision of accommodationN.I.

Arrangements by Department for provision of accommodation by voluntary organisations, etc.N.I.

25.  For Article 36 of the principal Order there shall be substituted the following Article—

“Provision of accommodation in premises maintained by voluntary organisations, etc.

36.—(1) Subject to paragraph (2) and Article 36A, arrangements made by the Department under Article 15 may include arrangements with—

(a)any voluntary organisation or other person, being an organisation or person who—

(i)manages a home for persons in need and is registered in accordance with Schedule 5 in respect of the home; or

(ii)manages premises which do not fall within the definition of a home for persons in need in Article 2(2) by reason only of their being managed or controlled by a public body constituted by special Act of Parliament or incorporated by Royal Charter; or

(b)any person in respect of his private home,

for the provision of accommodation in such home or premises.

(2) Arrangements under Article 15 for the provision of residential accommodation where nursing care is provided must be arrangements made with a voluntary organisation or other person, being an organisation or person managing premises—

(a)in respect of which the organisation or other person is registered under Part I of the Nursing Homes and Nursing Agencies Act (Northern Ireland) 1971F34; or

(b)which do not fall within the definition of nursing home in section 10(1) of that Act by reason only of being maintained or controlled by a body of persons constituted by special Act of Parliament or incorporated by Royal Charter.

(3) Any arrangements made by virtue of this Article shall provide for the making by the Department to the other party thereto of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements; and, subject to paragraph (7), the Department shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with the following provisions of this Article.

(4) Subject to the following provisions of this Article, a person for whom accommodation is provided under any such arrangements shall refund to the Department any payments made in respect of him under paragraph (3).

(5) Where a person for whom accommodation is provided, or proposed to be provided, under any such arrangements satisfies the Department that he is unable to make a refund at the full rate determined under paragraph (3), the Department shall assess his ability to pay, and accordingly determine at what lower rate he shall be liable to make a refund.

(6) Regulations may make provision for the assessment, for the purposes of paragraph (5), of a person's ability to pay.

(7) Where accommodation in any home or premises is provided for any person under arrangements made by virtue of this Article and the Department, the person concerned and the voluntary organisation or other person managing the home or premises (in this paragraph referred to as “the provider”) agree that this paragraph shall apply—

(a)so long as the person concerned makes the payments for which he is liable under sub-paragraph (b), he shall not be liable to make any refund under paragraph (4) or (5) and the Department shall not be liable to make any payment under paragraph (3) in respect of the accommodation provided for him;

(b)the person concerned shall be liable to pay to the provider such sums as he would otherwise (under paragraph (4) or (5)) be liable to pay by way of refund to the Department; and

(c)the Department shall be liable to pay to the provider the difference between the sums paid by virtue of sub-paragraph (b) and the payments which, but for sub-paragraph (a), the Department would be liable to pay under paragraph (3).

(8) The Department may, on each occasion when it makes arrangements by virtue of this Article for the provision of accommodation for a person and irrespective of his means, limit to such amount as appears to the Department reasonable for him to pay the refunds required from him for his accommodation during a period commencing when the Department began to make the arrangements for accommodation for him and ending not more than 8 weeks after that.”.

Art. 26 rep. by 2002 c. 5 (NI)

Charges in respect of accommodation provided by the DepartmentN.I.

27.  For Article 99 of the principal Order there shall be substituted the following Article—

“Charges in respect of accommodation provided by Department under Article 15

99.—(1) Where a person is provided under Article 15 with accommodation in premises provided by the Department, the Department shall recover from him the amount of the payment which he is liable to make in accordance with the following provisions of this Article.

(2) Subject to the following provisions of this Article, the payment which a person is liable to make for any such accommodation shall be in accordance with a standard rate determined by the Department for that accommodation and that standard rate shall represent the full cost to the Department of providing that accommodation.

(3) Subject to paragraph (4), where a person for whom such accommodation is provided, or proposed to be provided, satisfies the Department that he is unable to pay for the accommodation at the standard rate, the Department shall assess his ability to pay, and accordingly determine at what lower rate he shall be liable to pay for the accommodation.

(4) The liability of any person to pay for accommodation under this Article may be reduced by reason of any work which he performs and which assists materially in the management of the premises.

(5) Regulations may make provision for the assessment, for the purposes of paragraph (3), of a person's ability to pay.

(6) The Department may, on each occasion when it provides accommodation mentioned in paragraph (1) for any person and irrespective of his means, limit to such amount as appears to the Department reasonable for him to pay the payments required from him for his accommodation during a period commencing when the Department began to provide the accommodation for him and ending not more than 8 weeks after that.”.

Recovery of charges due to Department for accommodationN.I.

28.  In Article 101A of the principal Order (recovery of cost of accommodation where persons have disposed of assets)—

(a)in paragraph (2) for the words from “Article 99” to the end there shall be substituted “ Article 36 or 99 the ability of the person for whom accommodation is provided to pay for it or (as the case may be) to make a refund to the Department in respect of it. ”;

(b)after paragraph (3) there shall be inserted the following paragraph—

“(3A) If the Department so directs, paragraph (1) shall not apply in such cases as may be specified in the direction.” .

General health servicesN.I.

General medical servicesN.I.

29.—(1) In Article 56 of the principal Order (general medical services)—

(a)in paragraph (2), sub-paragraph (d) (right of certain medical practitioners to be included in list of practitioners undertaking to provide general medical services other than maternity medical services) shall cease to have effect;

(b)in paragraph (2A) the words “be entitled to” shall cease to have effect;

(c)after paragraph (2A) there shall be inserted the following paragraph—

“(2B) The Department may by order specify the maximum number of medical practitioners with whom, in any year, all the Health and Social Services Boards, taken as a whole, may enter into arrangements under this Article; and any such order may contain such incidental and consequential provisions (including provisions amending this Part) as appear to the Department to be appropriate.” .

(2) In Article 107(1) of the principal Order (orders subject to negative resolution) after the words “Article 16(1)” there shall be inserted “ , 56(2B) ”.

Limitations on right to be included on list of dental practitioners providing general dental servicesN.I.

30.—(1) Article 61 of the principal Order (arrangements for general dental services) shall be amended in accordance with this Article.

(2) In paragraph (2)(b) (regulations to include provision conferring a right, subject to certain qualifications, to be entered on a list of dental practitioners providing general dental services) for the words “paragraph (2A)” there shall be substituted “ paragraphs (2A) and (2AA) ”.

(3) After paragraph (2A) there shall be inserted the following paragraph—

“(2AA) Regulations may make the exercise of the right conferred by virtue of sub-paragraph (b) of paragraph (2) subject to any provision made by or under the regulations, and, in such cases as may be prescribed, may confer a right of appeal to a prescribed body in respect of a refusal to include a dental practitioner on such a list as is referred to in sub-paragraph (a) of that paragraph.” .

Pharmaceutical servicesN.I.

31.—(1) In Article 63 of the principal Order (arrangements for pharmaceutical services)—

(a)in paragraph (1)—

(i)for the word “supply” there shall be substituted “ provision ”;

(ii)at the end of sub-paragraph (b) there shall be inserted

“and

(c)such services as may be prescribed;” ;

(b)in paragraph (2) after the word “mentioned” in the second place where it occurs there shall be inserted “ , or to whom services mentioned in paragraph (1)(c) are to be provided ”;

(c)in paragraphs (2A)(b), (c) and (d) and (2B) before the word “services” in each place where it occurs there shall be inserted “ pharmaceutical ”;

(d)in paragraph (2B)(d) for the words “a prescribed criterion” there shall be substituted “ prescribed criteria ”.

(2) Article 64 of the principal Order (persons authorised to provide pharmaceutical services) shall be renumbered as paragraph (1) of that Article and after that paragraph there shall be added the following paragraph—

“(2) No arrangements for the provision of pharmaceutical services falling within Article 63(1)(c) shall be made with persons other than those who are pharmacists or are of a prescribed description.” .

Miscellaneous and generalN.I.

Director of Public HealthN.I.

32.—(1) The chief administrative medical officer of a Health and Social Services Board shall hereafter be known as the Director of Public Health of that Board and, accordingly, for any reference to the chief administrative medical officer of a Health and Social Services Board in—

(a)the statutory provisions mentioned in paragraph (2);

(b)any other statutory provision passed or made before the coming into operation of this Article,

there shall be substituted a reference to the Director of Public Health of that Board.

(2) The statutory provisions referred to in paragraph (1)(a) are—

(a)section 1 of the Notification of Births Act 1907F35;

(b)sections 125(2) and 134 of the Factories Act (Northern Ireland) 1965F36;

(c)in the Public Health Act (Northern Ireland) 1967F37, sections 2(1), 3, 5(1), 6(2), 7, 8(1), 9(1), 10, 11(1), 12(1), 14(1), 15, 16(1), 17(1), 21, 22A and 32; and

(d)Article 33 of the Food (Northern Ireland) Order 1989F38.

(3) In section 22A of the Public Health Act (Northern Ireland) 1967 and Article 33(6) of the Food (Northern Ireland) Order 1989 (exercise of functions of chief administrative medical officer) for the words “other medical officer” there shall be substituted “ other officer ”.

Regulations, orders and directionsN.I.

33.—(1) Regulations under this Order shall be subject to negative resolution.

(2) Without prejudice to any other provision of this Order, any power conferred by this Order on the Department to make any regulations having a financial implication shall, if the Department of Finance and Personnel so directs, be exercisable only in conjunction with that Department.

(3) The Statutory Rules (Northern Ireland) Order 1979F39 shall not apply to any order made by the Department under Article 13(1) or paragraph 24 of Schedule 3.

(4) Section 17(2) of the Interpretation Act (Northern Ireland) 1954 shall apply to a direction given by the Department under this Order as if the direction were a statutory instrument.

Article 34—Amendments

Article 35—Repeals