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

Provision of goods and servicesN.I.

Health and [F1social care] 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-paragraphs (f) to (j) of that paragraph.

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

F2[F3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(aa)the Regional Agency;

(b)RBSO;]

(c)special agencies;

(d)[F4Health and Social Care trusts];

(e)the Department;

(g)any of the following within the meaning of the National Health Service Act 1977F5

F6(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii)NHS trusts;

(v)the Dental Practice Board;

F8(vi). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F9(ga)[F10NHS England];

[F11(gb)integrated care boards established under Chapter A3 of Part 2 of the National Health Service Act 2006;]

(gc)Special Health Authorities established under section 28 of that Act;

(gd)Special Health Authorities established under section 22 of the National Health Service (Wales) Act 2006;

(ge)Local Health Boards established under section 11 of that Act;

(gf)NHS trusts established under section 18 of that Act;]

(h)any of the following within the meaning of the National Health Service (Scotland) Act 1978F12

(i)Health Boards;

[F13(ia)Special Health Boards;]

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

(iii)the Scottish Dental Practice Board;

(iv)NHS trusts;

[F14(ha)Healthcare Improvement Scotland,]

F15(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F16(ia)the National Institute for Health and Care Excellence;

F17(ib)]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

[F18(2A) The bodies mentioned in paragraph (2) may be referred to as “ [F19health care] bodies”.]

(3) An arrangement falling within paragraph (1) shall be known as a health and [F1social care] contract and is referred to in this Order as an “ [F20HSC contract]”.

(4) Whether or not an arrangement which constitutes an [F20HSC 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 [F20HSC 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 [F20HSC 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 [F20HSC 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.

[F21(9A) The references in paragraphs (6) to (9) to a “person” include a body prescribed for the purposes of those paragraphs.

(9B) The Department may by regulations establish a body for those purposes; and such regulations may make provision—

(a)as to the members of the body, including the terms and conditions of their appointment;

(b)for the payment of fees and allowances to members of the body.]

(10) Where a body or person mentioned in [F22any of sub-paragraphs (g) to (gf), (h), (ha), (ia), (ib) and (j) of paragraph (2)] 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 1990F23 or section 17A of the National Health Service (Scotland) Act 1978F24 ,

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.

[F25Provision of certain services under [F26HSC contracts]N.I.

8A.—(1) This Article applies to any arrangement under which [F27the Department] or such other [F28health care] 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 [F29HSC 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.  F30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .