National Health Service (Scotland) Act 1978

Valid from 01/01/2005

[F11ADuty of the Scottish Ministers to promote health improvementS

(1)It is the duty of the Scottish Ministers to promote the improvement of the physical and mental health of the people of Scotland.

(2)The Scottish Ministers may do anything which they consider is likely to assist in discharging that duty including, in particular—

(a)giving financial assistance to any person,

(b)entering into arrangements or agreements with any person,

(c)co-operating with, or facilitating or co-ordinating the activities of, any person.

(3)Subsections (1) and (2) are without prejudice to section 1 and any other provision of this Act conferring or imposing functions on the Scottish Ministers.]

Valid from 01/01/2005

[F92ADuty of Health Board, Special Health Board and the Agency to promote health improvementS

(1)It is the duty of every Health Board and Special Health Board and of the Agency to promote the improvement of the physical and mental health of the people of Scotland.

(2)A Health Board, a Special Health Board or the Agency may do anything which they consider is likely to assist in discharging that duty including, in particular—

(a)giving financial assistance to any person,

(b)entering into arrangements or agreements with any person,

(c)co-operating with, or facilitating or co-ordinating the activities of, any person.

(3)Subsections (1) and (2) are without prejudice to any other provision of this Act conferring or imposing functions on a Health Board, a Special Health Board or the Agency.

(4)Anything done by a Health Board or Special Health Board in pursuance of subsection (1) or (2) is to be regarded as done in exercise of functions of the Scottish Ministers conferred on—

(a)the Health Board by the order under section 2(1)(a) which constituted the Board, or

(b)the Special Health Board by the order under section 2(1)(b) which constituted the Board,

as the case may be.]

Valid from 30/09/2004

[F102BDuty to encourage public involvementS

(1)It is the duty of every body to which this section applies to take action with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are involved in, and consulted on—

(a)the planning and development, and

(b)decisions to be made by the body significantly affecting the operation,

of those services.

(2)This section applies to—

(a)Health Boards,

(b)Special Health Boards, and

(c)the Agency.

(3)For the purposes of subsection (1) a body is responsible for health services if they are health services—

(a)which it is the function of the body to provide, or secure the provision of, and

(b)which are provided, or to be provided, to individuals by—

(i)the body, or

(ii)another person on the body's behalf, at the body's direction or in accordance with an agreement made by the body with that other person.]

Valid from 13/02/2004

[F112CFunctions of Health Boards: primary medical servicesS

(1)Every Health Board—

(a)must, to the extent that they consider necessary to meet all reasonable requirements, provide or secure the provision of primary medical services as respects their area; and

(b)may, to such extent, provide or secure the provision of primary medical services as respects the area of another Health Board,

and primary medical services provided, or the provision of which is secured, by a Health Board under or by virtue of this subsection may be performed outside their area.

(2)For the purpose of securing the provision of primary medical services under subsection (1), a Health Board may make such arrangements for the provision of the services as they think fit (and may in particular make contractual arrangements with any person).

(3)A Health Board must publish information about such matters as may be prescribed in relation to the primary medical services provided under this Part.

(4)Without prejudice to section 13, Health Boards must co-operate with one another in discharging their respective functions relating to the provision of primary medical services under this Part.

(5)Regulations may provide that services of a prescribed description are, or are not, to be regarded as primary medical services for the purposes of this Act.

(6)Such regulations may in particular describe services by reference to the manner or the circumstances in which they are provided.

(7)Arrangements made under this Part by a Health Board for the provision of primary medical services may provide for such services to be performed outside Scotland.

(8)Anything done by a Health Board in pursuance of subsection (1) or (2) is to be regarded as done in exercise of functions of the Scottish Ministers conferred on the Health Board by an order under section 2(1)(a).]

Valid from 07/07/2010

[F122CA

Functions of Health Boards outside Scotland

(1)Where it is the function of a Health Board to provide or to secure the provision of a service, the Health Board may secure the provision of that service outside Scotland.

(2)For the purposes of securing the provision of any service referred to in subsection (1), a Health Board may make such arrangements for the provision of the service as they think fit (and may in particular make contractual arrangements with any person).

(3)Anything done by a Health Board in pursuance of subsection (1) or (2) is to be regarded as done in exercise of functions of the Scottish Ministers conferred on the Health Board by an order under section 2(1)(a).]

Prospective

[F132CBFunctions of Health Boards: planning of pharmaceutical care servicesS

(1)Regulations may make provision requiring every Health Board, in accordance with the regulations, to—

(a)prepare a plan for the discharge of their duty under section 2CA(1);

(b)keep a plan prepared under paragraph (a) under review;

(c)prepare a revised plan; and

(d)without prejudice to section 2CA(3), publish a plan so prepared or revised.

(2)Regulations under subsection (1) may in particular make provision as to—

(a)identification by a Health Board in any such plan prepared by them of—

(i)what pharmaceutical care services they consider are necessary in order to discharge their duty under section 2CA(1);

(ii)whether as respects their area there is convenient access (as regards location and opening hours) to pharmaceutical care services; and

(iii)any under-provision of pharmaceutical care services as respects their area;

(b)the period within which a plan is to be prepared and published;

(c)consultation which a Health Board must undertake in relation to the preparation of a plan;

(d)the duration of a plan;

(e)the frequency with which a plan must be reviewed and revised by a Health Board;

(f)the availability and accessibility of a plan to persons who are resident in a Health Board's area; and

(g)such other matters as the Scottish Ministers consider appropriate.

(3)Regulations making provision as to a matter referred to in subsection (2)(a) may provide that the matter is to be identified in accordance with such criteria as may be specified in directions given by the Scottish Ministers.]

Valid from 30/09/2004

[F142DEqual opportunitiesS

(1)Health Boards, Special Health Boards and the Agency must discharge their functions in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements.

(2)In this section “equal opportunities” and “equal opportunity requirements” have the same meaning as in Section L2 (equal opportunities) of Part II of Schedule 5 to the Scotland Act 1998 (c. 46).]

Valid from 01/09/2004

[F18Community health partnershipsU.K.

4ACommunity health partnershipsU.K.

(1)Every Health Board shall establish, in accordance with a scheme under section 4B approved by the Scottish Ministers (an “approved scheme”)—

(a)a community health partnership for the area of the Board, or

(b)two or more community health partnerships for districts which, taken together, include the whole area of the Board.

(2)Community health partnerships shall be established as committees or sub-committees of a Health Board.

(3)Where the area or district of a community health partnership includes all or part of the areas of two or more Health Boards, the community health partnership (a “joint community health partnership”) shall be established jointly by those Boards in accordance with their approved schemes.

(4)Joint community health partnerships shall be established as joint committees of the Health Boards by which they are established.

(5)The functions of a community health partnership are—

(a)to co-ordinate, for its area or district, the planning, development and provision of—

(i)such of the services which it is the function of its Health Board to provide, or secure the provision of, as may be prescribed by regulations under section 4B(6) or specified in the approved scheme, and

(ii)such other of those services as its Health Board may specify,

with a view to improving those services,

(b)to provide, or secure the provision of—

(i)such of the services which it is the function of its Health Board to provide, or secure the provision of, as may be prescribed by regulations under section 4B(6) or specified in the approved scheme, and

(ii)such other of those services as its Health Board may specify, and

(c)to exercise such other functions of its Health Board—

(i)as may be prescribed by regulations under section 4B(6),

(ii)as may be specified in the approved scheme,

(iii)as the Health Board may delegate to it.

(6)In this section, references to the Health Board of a joint community health partnership are to each of the Health Boards by which it was established.

4BCommunity health partnerships: further provisionU.K.

(1)Every Health Board shall, within such period as the Scottish Ministers may specify, prepare and submit to them a scheme for the establishment of one or more community health partnerships in pursuance of section 4A(1).

(2)In preparing a scheme under subsection (1) or (5) a Health Board shall—

(a)have regard to—

(i)any guidance issued under subsection (7),

(ii)community planning under section 15(1) of the Local Government in Scotland Act 2003 (asp 1) so far as relating to the area of the Board,

(b)consult—

(i)each local authority whose area includes all or part of the area or district of a community health partnership proposed by the scheme, and

(ii)any other person whom the Health Board think fit, and

(c)encourage the involvement of local authorities and other persons consulted under paragraph (b) in the preparation of the scheme.

(3)The Scottish Ministers may—

(a)approve (with or without modifications), or

(b)refuse to approve,

a scheme submitted to them under subsection (1) or (5) or in pursuance of subsection (4).

(4)Where the Scottish Ministers refuse to approve a scheme, they must return it to the Health Board and may direct the Board to resubmit the scheme with—

(a)such modifications (if any) as the direction may specify, and

(b)any further modifications which the Board consider appropriate,

by such time as the direction may specify.

(5)A Health Board—

(a)may, at any time,

(b)if so directed by the Scottish Ministers, must, within such period as they may specify,

submit to the Scottish Ministers a new scheme under this section.

(6)Regulations may make provision in relation to—

(a)the membership of a community health partnership,

(b)the form and content of, and the procedure in relation to, schemes under this section,

(c)the functions of a community health partnership and the exercise of those functions,

(d)the application in relation to joint community health partnerships, with such modifications as may be specified, of the provisions of this Act, and any provision made under this Act, so far as applying in relation to community health partnerships,

(e)such other matters with respect to community health partnerships as the Scottish Ministers think fit.

(7)The Scottish Ministers may, after consulting such persons as they think fit, issue guidance about community health partnerships and shall publish such guidance.

(8)For the purposes of establishing a joint community health partnership in pursuance of section 4A(3), any power to appoint committees conferred on Health Boards by virtue of this Act shall include power for two or more Health Boards jointly to appoint joint committees.

(9)Nothing in section 4A or this section affects the extent of any power under this Act so far as relating to committees or sub-committees of Health Boards.]

Valid from 01/08/2010

[F35Healthcare Improvement ScotlandU.K.

10AHealthcare Improvement ScotlandU.K.

(1)There is established a body to be known as Healthcare Improvement Scotland (in this Act referred to as “HIS”) which—

(a)is to exercise the functions conferred on it by virtue of this Act and any other enactment; and

(b)has the general duty of furthering improvement in the quality of health care.

(2)In subsection (1)(b), “health care” means services for or in connection with the prevention, diagnosis or treatment of illness provided—

(a)under the health service; or

(b)by persons providing independent health care services.

(3)In carrying out its functions, HIS is to act subject to and in accordance with such directions as may be given by the Scottish Ministers.

(4)The Scottish Ministers may vary or revoke any direction given under subsection (3).

(5)Schedule 5A (which makes further provision about the status, constitution, proceedings etc. of HIS) has effect.

Valid from 01/10/2010

PrinciplesU.K.

10BPrinciplesU.K.

(1)HIS must exercise its functions in accordance with the principles set out in the following subsections.

(2)The safety and wellbeing of all persons who use services provided under the health service and independent health care services are to be protected and enhanced.

(3)Good practice in the provision of those services is to be identified, promulgated and promoted.

(4)The provision of those services in a manner which takes appropriate account of guidance and other information (including evidence) published or endorsed by HIS is to be promoted and encouraged.

Valid from 01/10/2010

Functions related to the health serviceU.K.

10CHealth service functionsU.K.

(1)HIS is to exercise the following functions of the Scottish Ministers—

(a)functions in relation to supporting, ensuring and monitoring the quality of health care provided or secured by the health service including, without prejudice to the foregoing generality, providing quality assurance and accreditation;

(b)functions in relation to supporting, ensuring and monitoring the discharge of the duty under section 2B by each body to whom that section applies;

(c)functions in relation to supporting, ensuring and monitoring the discharge of the duty under section 2D by each body to whom that section applies, other than HIS, insofar as the discharge of that duty is relevant to—

(i)the quality of health care provided or secured by the health service; or

(ii)the discharge of the duty under section 2B;

(d)functions in relation to the evaluation and provision of advice to the health service on the clinical and cost effectiveness of new and existing health technologies including drugs,

conferred on them by this Act including, without prejudice to the foregoing generality, those functions specified in section 1(1).

(2)HIS is to exercise the following functions of the Scottish Ministers subject to any limitations specified—

(a)the power of the Scottish Ministers under section 16(1) to assist voluntary organisations whose activities include the provision of a service similar to or related to the functions of HIS;

(b)the power of the Scottish Ministers under section 16B to give financial assistance to voluntary organisations whose activities consist of or include the provision of services similar to or related to the functions of HIS; and such assistance may be given only on such terms and conditions as the Scottish Ministers determine;

(c)the power of the Scottish Ministers under section 42 to disseminate, in respect of the functions of HIS, information relating to the promotion and maintenance of health and the prevention of illness;

(d)the duties of the Scottish Ministers under section 47—

(i)to make available such facilities as appear to HIS to be reasonably required for undergraduate and post-graduate clinical teaching and research and for the education and training of persons providing or intending to provide services under this Act; and

(ii)to conduct, or assist by grants or otherwise under that section any person to conduct, research into matters relating to the functions of HIS;

(e)the powers of the Scottish Ministers under section 79(1) to take on lease or to purchase moveable property and land so far as required for the purposes of HIS and to use for those purposes and manage any heritable or moveable property so acquired;

(f)the powers of the Scottish Ministers under section 79(1A) to dispose of land no longer required for the purposes of HIS.

(3)HIS is to exercise the following functions—

(a)a duty to provide information to the public about the availability and quality of services provided under the health service;

(b)a duty to provide such information to a person in such form as that person may reasonably request;

(c)when requested by the Scottish Ministers, a duty to provide to the Scottish Ministers advice about any matter relevant to the health service functions of HIS;

(d)a power to provide such advice to Scottish Ministers at any time;

(e)when asked to do so, a duty to provide such advice to—

(i)persons who provide, seek to provide or may provide services under the health service;

(ii)persons, or groups of persons, representing those who use, or are eligible to use, such services;

(iii)persons, or groups of persons, representing those who care for those who use, or are eligible to use, such services;

(iv)local authorities;

(v)a Health Board, Special Health Board or the Agency (each a “body” for the purposes of subsection (4));

(vi)such other persons, or groups of persons as may be prescribed;

(f)a power to disseminate such information as HIS considers relevant of general or specific application arising out of or in connection with the exercise of its health service functions.

(4)HIS may charge a reasonable fee determined by it for any advice, forms or documents provided for the assistance of any such person, authority or body as is mentioned in subsection (3)(e).

(5)References in this Act to the health service functions of HIS are, subject to subsections (6) and (7), to the functions conferred by virtue of this section and section 10D (including any functions delegated by order under that section).

(6)Where a provision of this section which confers a function on HIS refers to the health service functions of HIS, that reference is to be construed as a reference to the functions conferred by virtue of this section and section 10D other than the function conferred by the provision.

(7)Where a provision of this section which confers a function on HIS refers to the functions of HIS, that reference is to be construed as including a reference to the functions conferred by virtue of this section and section 10D other than the function conferred by the provision.

10DHealth service functions: further provisionU.K.

(1)The Scottish Ministers may by order delegate to HIS such of their functions relating to the health service as they consider appropriate.

(2)HIS is to provide such services, and carry out such tasks, for bodies associated with the health service as the Scottish Ministers and those bodies may agree; and is to do so on such terms and conditions as may be so agreed.

(3)Notwithstanding that it is exercising functions relating to the health service on behalf of the Scottish Ministers or other bodies associated with the health service, HIS—

(a)is entitled to enforce any rights acquired in the exercise of those functions;

(b)is to be liable in respect of any liabilities incurred (including liability in damages for wrongful or negligent acts or omissions) in the exercise of those functions,

in all respects as if HIS were acting as a principal.

(4)All proceedings for the enforcement of such rights or liabilities are to be brought by or against HIS in its own name.

Valid from 01/10/2010

Functions related to independent health careU.K.

10EIndependent health care functionsU.K.

(1)HIS is to exercise the following functions—

(a)a duty to provide information to the public about the availability and quality of independent health care services;

(b)a duty to provide such information to a person in such form as that person may reasonably request;

(c)when requested by the Scottish Ministers, a duty to provide to the Scottish Ministers advice about any matter relevant to the independent health care functions of HIS;

(d)a power to provide such advice to the Scottish Ministers at any time;

(e)when asked to do so, a duty to provide such advice to—

(i)persons who provide, seek to provide or may seek to provide independent health care services;

(ii)persons, or groups of persons, representing those who use, or are eligible to use, such services;

(iii)persons, or groups of persons, representing those who care for those who use, or are eligible to use, such services;

(iv)local authorities;

(v)a Health Board, Special Health Board or the Agency (each a “body” for the purposes of subsection (2));

(vi)such other persons, or groups of persons as may be prescribed;

(f)a power to disseminate such information as HIS considers relevant of general or specific application arising out of or in connection with the exercise of its independent health care functions.

(2)HIS may charge a reasonable fee determined by it for any advice, forms or documents provided for the assistance of any person, authority or body as is mentioned in subsection (1)(e).

(3)References in this Act to the independent health care functions of HIS are, subject to subsection (4)—

(a)to the functions conferred on HIS, or on a person acting on behalf of HIS, by this section and by sections 10J, 10K, 10P to 10Z3, 10Z5, 10Z8 and 10Z19;

(b)to any functions delegated to HIS under section 10H(6) to the extent that such functions relate to standards and outcomes applicable to independent health care services;

(c)to the functions conferred on HIS by section 10M to the extent that such functions relate to inspections of independent health care services; and

(d)to the functions conferred on HIS by section 10N to the extent that such functions relate to reports on inspections of independent health care services.

(4)Where a provision of this section, or those sections, which confers a function on HIS refers to the independent health care functions of HIS, the reference is to be construed as a reference to the functions conferred by this section and those sections other than the function conferred by the provision.

Valid from 01/10/2010

Meaning of “independent health care services”U.K.

10FMeaning of “independent health care services”U.K.

(1)In this Act, an “independent health care service” is any of the following—

(a)an independent hospital;

(b)a private psychiatric hospital;

(c)an independent clinic;

(d)an independent medical agency;

(e)an independent ambulance service.

(2)In subsection (1)—

• “independent hospital” means a hospital which is neither a health service hospital nor a private psychiatric hospital; and for the purposes of this definition includes part of a health service hospital if (not being a private psychiatric hospital)—

  (a)

  it is carried on as a separate unit;

  (b)

  it does not provide treatment or nursing in pursuance of this Act;

  (c)

  no part of it is contained within the same building as any such part which does provide treatment or nursing in pursuance of this Act;

• “private psychiatric hospital” means any premises used or intended to be used for the provision of medical treatment to one or more patients subject to an order or direction under the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or the Criminal Procedure (Scotland) Act 1995 (c. 46) (whether or not other persons are treated there), not being—

  (a)

  a health service hospital;

  (b)

  a state hospital; or

  (c)

  otherwise an independent health care service;

• “independent clinic” means a clinic which is not comprised in a hospital and in or from which services are provided, other than in pursuance of this Act, by a medical practitioner or dental practitioner;

• “independent medical agency” means an undertaking which is neither an independent clinic nor an undertaking comprised in a hospital and which consists of or includes the provision of services, other than in pursuance of this Act, by a medical practitioner;

• “independent ambulance service” means, subject to subsection (5), a service which consists of or includes—

  (a)

  provision (other than provision falling within paragraph (b) below) of medical treatment, medical care or other care to relevant patients while such patients are being transported to or from a place of medical treatment;

  (b)

  provision, at or in connection with a public event, of medical treatment outwith relevant premises under arrangements made between the provider of the service and another (whether or not the service includes a means of transport for transporting patients from the event to relevant premises).

(3)In paragraph (a) of the definition of “independent ambulance service” in subsection (2)—

• “relevant patient” is a patient—

  (a)

  whose condition or recovery would or might be impaired were the treatment or care mentioned in that paragraph not to be provided;

  (b)

  whose condition affects the patient's mobility to such an extent that, were such treatment or care not to be provided while the patient is being transported as mentioned in that paragraph, the patient's condition or recovery would or might be impaired;

  (c)

  whose mobility is such that, without such treatment or care, it would be difficult or impossible for the patient to be transported as mentioned in that paragraph;

• “place of medical treatment” means a hospital or other premises used or intended to be used for the provision of medical or dental treatment, and includes an independent health care service mentioned in paragraphs (a) to (d) of subsection (1).

(4)In paragraph (b) of the definition of “independent ambulance service” in subsection (2)—

• “public event” means an event, function or other organised activity of any kind to which members of the public have access;

• “medical treatment” includes medical care and medical advice;

• “relevant premises” means premises used or intended to be used for the provision of medical treatment, medical care or medical advice, but does not include—

  (a)

  any means of transport as mentioned in that paragraph; or

  (b)

  any temporary premises at or near, and provided in connection with, the public event.

(5)A service does not fall within the definition of “independent ambulance service” in subsection (2) if it is provided under the health service, unless it is so provided for remuneration.

(6)In subsection (5), “remuneration” does not include remuneration payable by a health service body under arrangements made for the provision of the service.

(7)Where, by virtue of payment of remuneration, the provider of a service under the health service acts as an independent ambulance service, HIS's independent health care functions are exercisable in relation to that provider only where, and to the extent that, the provider is so acting.

10GPower to modify definitionsU.K.

The Scottish Ministers, after consulting such persons (or groups of persons) as they consider appropriate, may by order—

(a)modify the independent health care functions of HIS by amending, removing or adding to those functions;

(b)modify the definition of independent health care service in section 10F(1).

Valid from 01/10/2010

Standards and outcomesU.K.

10HStandards and outcomesU.K.

(1)The Scottish Ministers may prepare and publish standards and outcomes applicable to—

(a)services provided under the health service;

(b)independent health care services.

(2)The Scottish Ministers must keep any standards and outcomes so published under review and may under subsection (1) publish amended standards and outcomes whenever they consider it appropriate to do so.

(3)Before publishing under subsection (1) any—

(a)standards and outcomes;

(b)amended standards and outcomes which in the opinion of the Scottish Ministers are substantially different from the standards and outcomes (or amended standards and outcomes) last so published,

the Scottish Ministers must consult such persons, or groups of persons, as they consider appropriate.

(4)In relation to a service provided under the health service, or an independent health care service, any applicable standards and outcomes published under subsection (1) must be taken into account—

(a)by HIS in making any decision under this Part;

(b)in any proceedings on an appeal under section 10Z4; and

(c)in any proceedings for an offence in relation to registration under section 10P.

(5)The Scottish Ministers may make different provision for different services under subsection (1).

(6)The Scottish Ministers may delegate their functions under subsections (1) to (3) to HIS or such other persons as they consider appropriate.

Valid from 01/10/2010

InspectionsU.K.

10IInspections of services provided under the health serviceU.K.

(1)HIS may, in pursuance of its general duty of furthering improvement in the quality of health care in Scotland, inspect any service provided under the health service.

(2)An inspection under this section must be conducted in accordance with a plan—

(a)prepared in accordance with section 10L; and

(b)approved by the Scottish Ministers.

10JInspections of independent health care servicesU.K.

(1)HIS may inspect—

(a)any independent health care service;

(b)the organisation or co-ordination of any independent health care service.

(2)The purposes of an inspection under this section may include—

(a)reviewing and evaluating the effectiveness of the provision of the services which are the subject of the inspection;

(b)encouraging improvement in the provision of those services;

(c)enabling consideration as to the need for any recommendations to be prepared as to any such improvement to be included in the report prepared under section 10N;

(d)investigating any incident, event or cause for concern; and

(e)enabling consideration as to the need for—

(i)an improvement notice under section 10R;

(ii)a condition notice under section 10U.

(3)An inspection under this section may be in relation to—

(a)any independent health care service or combination of independent health care services;

(b)such of the services concerned provided to particular groups of persons;

(c)any part of Scotland.

(4)An inspection under this section must be conducted in accordance with a plan—

(a)prepared in accordance with section 10L; and

(b)approved by the Scottish Ministers.

(5)HIS may at any time require a person providing any independent health care service to supply it with any information relating to the service which it considers necessary or expedient to have for the purposes of its independent health care functions.

(6)References in this section to a person providing an independent health care service include, in the case of a service which is provided by a body corporate, a reference to a director, manager, secretary or other similar officer of the body.

(7)An inspection under this section may, subject to any regulations made under section 10O, take such form as HIS considers appropriate.

10KAuthorised personsU.K.

(1)Any inspection under section 10J must be carried out by a person authorised by HIS (an “authorised person”).

(2)A person may be authorised by HIS to carry out inspections in relation to any independent health care service or all of them.

(3)An authorised person may at any time enter and inspect premises which are used, or which the person has reasonable cause to believe are used, for the purpose of providing the independent health care service which is the subject of the inspection.

(4)Where an authorised person is in possession of confidential information which has been obtained for the purposes of an inspection under section 10J the authorised person must not use or disclose that information other than—

(a)for the purposes of that inspection;

(b)so as to comply with an enactment or court order requiring disclosure;

(c)to the extent considered necessary by the authorised person for the purpose of protecting the welfare of—

(i)any child under the age of 16 years;

(ii)any adult at risk (within the meaning of section 3 of the Adult Support and Protection (Scotland) Act 2007 (asp 10)); or

(d)to the extent considered necessary by the authorised person for the purpose of the prevention or detection of crime or the apprehension or prosecution of offenders.

(5)For the purposes of subsection (4), information is “confidential information” where—

(a)the identity of an individual is ascertainable—

(i)from that information; or

(ii)from that information and other information which is in the possession of, or is likely to come into the possession of, the person holding that information; and

(b)the information was obtained or generated by a person who, in the circumstances, owed an obligation of confidence to that individual.

10LInspections: best regulatory practiceU.K.

(1)HIS must prepare a plan for carrying out inspections in accordance with best regulatory practice.

(2)The plan—

(a)must set out arrangements for inspections to be so carried out (including inspections of those services subject to self evaluation);

(b)may make different provision for different purposes.

(3)For the purposes of subsection (1), “best regulatory practice” means practice under which (in particular) inspections should be carried out in a way that is transparent, accountable, proportionate and consistent.

(4)In preparing a plan under subsection (1), HIS must have regard to any guidance issued by the Scottish Ministers about those matters.

(5)HIS—

(a)must keep the plan under review; and

(b)may from time to time revise, with the approval of the Scottish Ministers, the plan.

(6)HIS must, in preparing a plan (or any revisal), consult such persons as it considers appropriate.

10MInspections at request of Scottish MinistersU.K.

(1)HIS must, at the request of the Scottish Ministers, inspect—

(a)any service provided under the health service as they may specify;

(b)any independent health care service so specified;

(c)the organisation or co-ordination of any service mentioned in paragraph (a) or (b) so specified;

(d)any independent health care service so specified together with any service provided under the health service so specified.

(2)The Scottish Ministers may specify purposes for any inspection under this section.

(3)An inspection under this section is to be conducted in accordance with a timetable approved by the Scottish Ministers.

10NInspections: reportsU.K.

(1)Where an inspection under section 10I, 10J or section 10M has been completed, HIS—

(a)must prepare a report on the matters inspected; and

(b)must without delay send a copy of that report to the person providing the service which has been inspected.

(2)Before finalising a report prepared under subsection (1), HIS must give the person providing the service an opportunity of commenting on a draft of the report.

(3)HIS must make copies of any report prepared under subsection (1) available for inspection at its offices by any person at any reasonable time; and it must take such other steps as it considers appropriate for publicising any such report.

(4)Regulations may make further provision concerning the preparation, content and effect of reports under subsection (1), and in particular may make—

(a)different provision in relation to different independent health care services and different services provided under the health service;

(b)provision requiring copies of reports to be sent to the Scottish Ministers (or such other persons as may be specified in regulations) in such circumstances as may be so specified;

(c)provision (including provision modifying any duties under this section) specifying circumstances in which—

(i)any right to receive;

(ii)access to;

(iii)availability of,

copies of reports (or of parts of such reports) may be restricted, refused or withheld.

10ORegulations relating to inspectionsU.K.

(1)Regulations may make further provision concerning inspections under—

(a)section 10I;

(b)section 10J;

(c)section 10M.

(2)Regulations under subsection (1) may make different provision for different inspections provided for under the provisions mentioned in that subsection.

(3)Regulations under subsection (1) may, in particular, make provision—

(a)as to types of inspection which may be conducted;

(b)as to timing and frequency of inspections;

(c)as to seizure and removal of anything found during the course of an inspection;

(d)as to persons who may be authorised to carry out inspections;

(e)requiring or facilitating the sharing or production of information (including health records) for the purposes of an inspection;

(f)as to interviews and examinations (including physical and mental examinations) which may be carried out in connection with the inspections;

(g)requiring any person to provide to an authorised person an explanation of information produced to an authorised person;

(h)requiring information produced to an authorised person to be held in compliance with prescribed conditions and further disclosures to be made in compliance with such conditions;

(i)empowering an authorised person to disclose to a person prescribed for the purposes of this paragraph any information of a prescribed nature which the authorised person holds in consequence of an inspection;

(j)creating offences punishable on summary conviction by a fine not exceeding level 4 on the standard scale for the purpose of enforcing any provision of the regulations.

(4)In subsection (3)(e), “health records” means records relating to the physical or mental health of an individual (including dental records and medical records); and for the purposes of this subsection “medical records” means records which have been prepared by a medical practitioner who is, or has been, responsible for the clinical care of the individual.

Valid from 01/10/2010

RegistrationU.K.

10PRegistration of independent health care servicesU.K.

(1)A person who seeks to provide a independent health care service must apply to HIS for registration of the service.

(2)An application must—

(a)give such information as may be prescribed about prescribed matters;

(b)identify an individual (who may be the applicant) who is to manage the service;

(c)give any other information which HIS may reasonably require the applicant to give;

(d)without prejudice to subsection (1)(b) of section 10Z5, be accompanied by the fee imposed under subsection (2)(a) of that section.

10QGrant or refusal of registrationU.K.

(1)HIS may grant or refuse registration of an independent health care service under section 10P.

(2)A grant of registration may be subject to such conditions as HIS considers appropriate.

(3)If HIS is satisfied, in relation to the application, that the requirements of—

(a)such regulations as are applicable under section 10Z7; and

(b)any other enactment which appears to HIS to be relevant,

will be complied with in relation to that service, it must give notice under section 10Z(1)(a), or as the case may be section 10Z2; otherwise it must give notice under section 10Z(1)(b).

(4)On granting a registration HIS must issue a certificate of registration to the applicant.

(5)The person for the time being providing the service must ensure that the certificate (or a copy of it) is, while the certificate is current, kept affixed in a conspicuous place in each of the premises in or from which that service is provided; and, if those premises do not include the principal (or only) office of the service, then in that office also.

Valid from 01/10/2010

Improvement noticesU.K.

10RImprovement notices: independent health care servicesU.K.

HIS may at any time give a notice (an “improvement notice”) to the person for the time being providing a registered independent health care service that, unless within such reasonable period as may be specified in the notice, there is a significant improvement, of such a nature as may be so specified, in the provision of that service, it intends to make a proposal under section 10S.

Valid from 01/10/2010

Proposals and applications in relation to registered independent health care servicesU.K.

10SCancellation of registrationU.K.

(1)HIS may, at any time after the expiry of the period specified in an improvement notice under section 10R given in respect of an independent health care service, propose to cancel the registration of the service—

(a)on the ground that any person has been convicted of a relevant offence in relation to the service;

(b)on the ground that the service is being, or has at any time been, carried on other than in accordance with the relevant requirements; or

(c)on any other ground which may be prescribed.

(2)For the purposes of—

(a)paragraph (a) of subsection (1) the following are relevant offences—

(i)an offence under any of sections 10G to 10Z18 (in this section, “this group of sections”);

(ii)an offence under regulations made under this group of sections; or

(iii)an offence which, in the opinion of HIS, makes it appropriate that the registration should be cancelled; and

(b)paragraph (b) of that subsection, the following are relevant requirements—

(i)any requirements or conditions imposed by or under this group of sections; or

(ii)the requirements of regulations made under this group of sections.

(3)Where a person providing a registered independent health care service ceases to provide the service, HIS may cancel the registration of the service.

10TEmergency cancellation of registrationU.K.

(1)HIS may apply to the sheriff for an order cancelling the registration of an independent health care service.

(2)The application may be granted if it appears to the sheriff that, unless the order is made, there will be a serious risk to the life, health or wellbeing of persons.

(3)The sheriff may make such interim order as the sheriff thinks fit.

(4)As soon as practicable after HIS has applied for an order under subsection (1), it must notify the appropriate authorities.

(5)Where the order applied for is made (or an interim order is made), HIS must as soon as reasonably practicable give a copy of it to the person who provides the independent health care service.

(6)The sheriff may determine an application under this section in the absence of the person providing the independent health care service to which the application relates.

(7)An order under this section has effect—

(a)from the time at which it is made; or

(b)from such other time as the sheriff considers appropriate.

(8)Within 14 days of the day on which an order under this section is made, an appeal may be made to the sheriff principal against the making of the order.

(9)On an appeal under subsection (8), the sheriff principal may—

(a)confirm the order;

(b)revoke the order;

(c)modify the order;

(d)make such other order as the sheriff principal thinks fit.

(10)The decision of the sheriff principal on an appeal under subsection (8) is final.

(11)An order under this section has effect notwithstanding the making of an appeal in relation to the order.

(12)For the purposes of this section, the appropriate authorities are—

(a)each—

(i)local authority; and

(ii)Health Board,

within whose area the independent health care service is provided; and

(b)any other body established by or under an enactment whom HIS thinks it appropriate to notify.

10UCondition noticesU.K.

HIS may at any time give notice (in sections 10V, 10W, 10Z1 and 10Z2 referred to as a “condition notice”) to the person for the time being providing a registered independent health care service that it proposes to—

(a)vary or remove a condition for the time being in force; or

(b)impose an additional condition,

in relation to the registration.

10VEmergency condition noticesU.K.

(1)Subsection (2) applies where—

(a)a person is providing a registered independent health care service; and

(b)HIS believes that the absence of a condition in relation to the registration of that service poses a serious risk to the life, health or wellbeing of persons.

(2)HIS may at any time give notice (an “emergency condition notice”) to the person providing the registered independent health care service specifying a condition, in relation to registration, in respect of that risk.

(3)The condition so specified takes effect immediately on receipt of the emergency condition notice.

(4)An emergency condition notice must—

(a)state that, within 14 days after service of the notice, the person to whom it is given may make written representations to HIS concerning any matter which that person wishes to dispute; and

(b)explain the right of appeal conferred by section 10X(1).

(5)HIS must consider any representations made under subsection (4)(a) and, following such consideration, must—

(a)give the person providing the registered independent health care service a condition notice stating that HIS proposes to vary or remove the condition specified in the emergency condition notice; or

(b)notify the person that it does not intend to give such a condition notice.

(6)When notifying a person under subsection (5)(b), HIS must explain the right of appeal conferred by section 10X(1).

(7)Where a condition notice has been given by virtue of subsection (5)(a) containing a proposal to remove the condition, HIS must implement the proposal unless it appears to it that it would be inappropriate to do so.

10WApplication of Act to condition notices following emergency condition noticesU.K.

(1)Section 10Z1 does not apply to a condition notice given by virtue of section 10V(5)(a).

(2)The reference in section 10Z2(5) to a proposal in relation to which a condition notice has been given does not include a reference to a proposal contained in a condition notice given by virtue of section 10V(5)(a) to remove the condition mentioned in that provision.

(3)The reference to a proposal in section 10Z4(1) does not include a reference to a proposal contained in a condition notice given by virtue of section 10V(5)(a) to remove the condition mentioned in that provision.

10XEmergency condition notices: appealsU.K.

(1)A person—

(a)who is given an emergency condition notice; and

(b)who—

(i)makes no written representations in accordance with section 10V(4)(a); or

(ii)makes such representations but is notified as mentioned in section 10V(5)(b),

may, within 14 days after the relevant date, appeal to the sheriff against the imposition of the condition.

(2)In subsection (1), “relevant date” means—

(a)where sub-paragraph (i) of subsection (1)(b) applies, the date of service of the emergency condition notice;

(b)where sub-paragraph (ii) of that subsection applies, the date notification mentioned in that sub-paragraph is given.

(3)The sheriff may, on an appeal under subsection (1)—

(a)direct that the condition specified in the emergency condition notice is to continue to have effect;

(b)direct that the condition is to cease to have effect;

(c)direct that the condition be varied as specified in the direction;

(d)impose an additional condition in relation to the registration.

10YApplications in respect of conditionsU.K.

(1)A person providing a registered independent health care service may apply to HIS—

(a)for the variation or removal of any condition for the time being in force, or for the addition of a condition, in relation to the registration; or

(b)for cancellation of the registration,

but no such application is competent in circumstances mentioned in subsection (2).

(2)The circumstances are that HIS has given the person notice—

(a)under section 10Z(2) of its proposal to cancel the registration (unless HIS has decided not to take that step); or

(b)under section 10Z2(3) of its decision to cancel the registration and the time within which an appeal may be brought has not expired or, if an appeal has been brought, that appeal has not been determined.

(3)An application under subsection (1) must be made in such manner and state such particulars as may be prescribed; and, without prejudice to subsection (1)(b) of section 10Z5, must be accompanied by the fee imposed under subsection (2)(a) or, as the case may be, (c) of that section.

(4)If HIS decides to grant an application under subsection (1)(a) it must give the applicant notice of its decision (stating, where applicable, the condition varied, removed or added) and issue a new certificate of registration.

10ZFurther provision as respects notice of proposalsU.K.

(1)If an application has been made under section 10P and HIS proposes—

(a)to grant that application but to do so subject to a condition which has not been agreed in writing between it and the applicant, it must give the applicant notice of the proposed condition;

(b)to refuse that application, it must give such notice of the proposed refusal.

(2)HIS must give any person who provides a registered independent health care service notice of a proposal to cancel the registration (other than in accordance with an application under subsection (1)(b) of section 10Y).

(3)HIS must give an applicant under subsection (1)(a) of section 10Y notice of a proposal to refuse that application.

(4)A notice under this section must give HIS's reasons for its proposal.

10Z1Right to make representations to HIS as respects proposalsU.K.

(1)A condition notice or a notice under section 10Z must state that, within 14 days after service of the notice, the person to whom it is given may make written representations to HIS concerning any matter which that person wishes to dispute.

(2)Where such a notice has been given—

(a)HIS may not decide to implement the proposal until (whichever first occurs)—

(i)where the person to whom the notice was given makes such representations as are mentioned in subsection (1), it has considered those representations;

(ii)that person notifies HIS in writing that such representations will not be made;

(iii)the period of 14 days mentioned in that subsection elapses without such representations being made and without HIS receiving such notification; and

(b)where the circumstances are as mentioned in paragraph (a)(ii) or (iii) above, HIS must implement the proposal unless it appears to it that it would be inappropriate to do so.

Valid from 01/10/2010

Notice of decision on application for registrationU.K.

10Z2Notice of HIS's decisionsU.K.

(1)If HIS decides to grant unconditionally an application made under section 10P, or to grant such application subject only to a condition which has been agreed in writing between HIS and the applicant, it must give the applicant notice of its decision.

(2)A notice under subsection (1) must state the agreed condition.

(3)If HIS decides to implement a proposal in relation to which it has given a person a condition notice or a notice under section 10Z, it must give that person notice of the decision.

(4)A notice under subsection (3) must—

(a)explain the right of appeal conferred by section 10Z4; and

(b)in the case of a decision to implement a proposal—

(i)in relation to which a condition notice has been given, state the condition as varied, the condition which is removed or (as the case may be) the additional condition imposed; or

(ii)of which notice has been given under subsection (1)(a) of section 10Z, state the condition subject to which the application is granted.

(5)Subject to subsection (6), a decision to implement a proposal in relation to which a condition notice has been given or of which notice has been given under subsection (1)(a) or (2) of section 10Z does not take effect—

(a)if no appeal is brought, until the period of 14 days referred to in section 10Z4(1) has elapsed; and

(b)if an appeal is brought, until that appeal is finally determined or is abandoned.

(6)Where the decision is to implement a proposal of which notice has been given under subsection (1)(a) of section 10Z and the applicant notifies HIS in writing, before the period of 14 days referred to in section 10Z4(1) has elapsed, that there will be no appeal, the decision takes effect on receipt of that notification.

Valid from 01/10/2010

Conditions as to numbersU.K.

10Z3Conditions as to numbersU.K.

Without prejudice to the generality of section 10Q(2) or 10U, a condition imposed under either of those provisions in relation to an independent health care service may limit the number of persons to whom the service may be provided.

Valid from 01/10/2010

Appeal against decision to implement proposalU.K.

10Z4Appeal against decision to implement proposalU.K.

(1)A person given notice under section 10Z2(3) of a decision to implement a proposal may, within 14 days after that notice is given, appeal to the sheriff against the decision.

(2)The sheriff may, on appeal under subsection (1), confirm the decision or direct that is not to have effect; and where the registration is not to be cancelled may (either or both)—

(a)vary or remove any condition for the time being in force in relation to the registration;

(b)impose an additional condition in relation to the registration.

Valid from 01/10/2010

FeesU.K.

10Z5Registration feesU.K.

(1)The Scottish Ministers, after consulting such persons, or groups of persons, as they consider appropriate on the potential effect of so prescribing on the services which the persons, or persons they represent, provide, may prescribe—

(a)maximum fees which may be imposed by HIS under this section;

(b)circumstances in which fees so imposed are or are not to be payable.

(2)Subject to the provisions of this section, HIS must impose fees in respect of—

(a)any application made for registration of an independent health care service or for cancellation of any such registration;

(b)the annual continuation of any such registration;

(c)any application made for the variation or removal of a condition for the time being in force in relation to any such registration;

(d)issuing to a person a new certificate of registration—

(i)at the instance of that person;

(ii)by virtue of any application by that person; or

(iii)by virtue of any new information provided by that person in pursuance of regulations under this group of sections (within the meaning of section 10S(2)(a)).

(3)Without prejudice to subsection (1)—

(a)HIS must, in fixing fees under this section, have regard to its reasonable expenses in carrying out its functions; but

(b)where it appears to HIS to be appropriate it may charge a nominal fee, or remit the fee altogether.

Valid from 01/10/2010

RegulationsU.K.

10Z6Regulations: registers and registrationU.K.

(1)Regulations may—

(a)make provision about the keeping of registers by HIS;

(b)make provision about registration under section 10P and in particular about—

(i)the making of applications for such registration;

(ii)the content of certificates of registration;

(iii)categories of applicant who cannot competently make certain applications;

(c)require HIS to secure that, on such conditions, in such circumstances and, subject to subsection (2) on payment of such fees as may be specified in regulations, any person is to be afforded access to, and provided with a copy of an entry in or with an extract from, a register kept by HIS;

(d)except such part of a register as may be specified in the regulations from any requirement made by virtue of paragraph (c);

(e)confer additional functions on HIS in relation to registration under section 10P.

(2)Regulations under paragraph (c) of subsection (1) may specify circumstances in which the fees mentioned in that paragraph are not to be payable; and the fees must in any event not be payable in any case where HIS consider it appropriate to provide the copy or extract in question free of charge.

10Z7Regulations: independent health care servicesU.K.

(1)Regulations may impose, in relation to independent health care services, any requirements which the Scottish Ministers consider appropriate for the purposes of this Part.

(2)Without prejudice to the generality of subsection (1) regulations may make it an offence to contravene or fail to comply with—

(a)any specified provision of the regulations; or

(b)a condition of registration for the time being in force.

(3)A person who commits an offence under the regulations is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4)Before the Scottish Ministers make regulations containing provision as mentioned in subsection (2), they must consult such persons, or groups of persons, as they consider appropriate.

Valid from 01/10/2010

Complaints about independent health care servicesU.K.

10Z8Complaints about independent health care servicesU.K.

(1)HIS must establish a procedure by which a person, or someone acting on a person's behalf, may make complaints (or other representations) in relation to the provision to the person of an independent health care service or about the provision of an independent health care service generally.

(2)The procedure must provide for it to be available whether or not procedures established by the provider of the service for making complaints (or other representations) about that service have been or are being pursued.

(3)Before establishing a procedure under subsection (1), HIS must consult the Scottish Public Services Ombudsman and such persons, or groups of persons, as it considers appropriate on its proposals for such a procedure.

(4)HIS must keep the procedure under review and must vary it whenever, after such consultation, it considers it appropriate to do so.

(5)HIS must give such publicity to the procedure (including the procedure as varied under subsection (4)) as it considers appropriate and must give a copy of the procedure to any person who requests it.

Valid from 01/10/2010

OffencesU.K.

10Z9Offences in relation to registrationU.K.

(1)Any person who—

(a)provides an independent health care service while it is not registered under section 10P; or

(b)with intent to deceive, pretends that an independent health care service is so registered,

commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months or to both.

(2)Any person who fails to comply with section 10Q(5) commits an offence and is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

10Z10False statements in applicationsU.K.

Any person who, in an application—

(a)for registration of an independent health care service; or

(b)for variation or removal of a condition in force in relation to such a registration,

knowingly makes a statement which is false or misleading in a material respect commits an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

10Z11Offences by bodies corporate etc.U.K.

Where an offence under this group of sections (within the meaning of section 10S(2)(a)), or under regulations made under those sections, committed by—

(a)a body corporate other than a local authority, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—

(i)is a director, manager or secretary of the body corporate; or

(ii)purports to act in any such capacity;

(b)a firm, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—

(i)is a partner in the firm; or

(ii)purports to act in that capacity;

(c)an unincorporated association other than a firm, is committed with the consent or connivance of, or is attributed to any neglect on the part of, a person who—

(i)is concerned in the management or control of the association; or

(ii)purports to act in the capacity of a person so concerned,

the person (as well as the body corporate or, as the case may be, firm or association) commits the offence and is liable to be proceeded against and punished accordingly.

Valid from 01/10/2010

InquiriesU.K.

10Z12InquiriesU.K.

(1)HIS may cause an inquiry to be held into any matter connected with—

(a)the exercise of its functions; or

(b)the provision of an independent health care service or a service provided under the health service.

(2)Before there is commenced an inquiry under subsection (1), HIS may direct that it be held in private; but where no such direction has been given the person holding the inquiry may if that person thinks fit hold it, or any part of it, in private.

(3)Subject to subsection (4), subsections (2) to (6) of section 210 of the Local Government (Scotland) Act 1973 (c. 65) (provisions relating to local inquires) apply in relation to an inquiry under subsection (1) as they apply in relation to a local inquiry under that section.

(4)For the purposes of an inquiry under subsection (1), any reference in those subsections which, by virtue of the Scotland Act 1998 (c. 46), falls to be construed as a reference to—

(a)the Scottish Ministers, is to be construed as a reference to HIS; and

(b)a member of the staff of the Scottish Ministers, is to be construed as a reference to a member of staff of HIS.

(5)The expenses incurred by HIS in relation to an inquiry under subsection (1) (including such reasonable sum as HIS may determine for the services of any of its staff engaged in the inquiry) must, unless HIS is of the opinion that those expenses should be defrayed in whole or in part by it, be paid by such party to the inquiry as it may direct; and HIS may certify the amount of the expenses so incurred.

(6)Any sum certified under subsection (5) and to be defrayed in accordance with a direction under that subsection is a debt due by the party directed and is to be recoverable accordingly.

(7)In relation to an inquiry under subsection (1), HIS may make an award as to the expenses of the parties and as to the parties by whom such expenses are to be paid.

Valid from 01/10/2010

Arrangements to provide independent health care services: registrationU.K.

10Z13Arrangements entered into by certain bodies: services to be registeredU.K.

Where, in the performance of its functions—

(a)a local authority;

(b)a Health Board; or

(c)a Special Health Board,

makes arrangements with any person to provide an independent health care service, it must ensure that the service, when provided, is registered under section 10P.

Valid from 01/10/2010

Duty of certain bodies to be aware of reports, etc.U.K.

10Z14Local authorities and other bodies: awareness of HIS reports etc.U.K.

(1)For the purposes of its functions as they relate to the provision of independent health care services (including the making of arrangements with other persons to provide such services)—

(a)a local authority;

(b)a Health Board;

(c)a Special Health Board,

must take into account the matters mentioned in subsection (3).

(2)In carrying out its duty under subsection (1), a local authority, Health Board or Special Health Board must have regard to any guidance issued by the Scottish Ministers in respect of that duty.

(3)The matters are such—

(a)reports;

(b)information;

(c)notices,

prepared, disseminated, given or otherwise produced by HIS as are relevant to the provision of the services mentioned in subsection (1) or, as the case may be, to the organisation or co-ordination of those services.

Valid from 01/10/2010

Giving of noticeU.K.

10Z15Giving of noticeU.K.

(1)In this Part, any reference to a notice being given to a person providing, or seeking to provide, an independent health care service is to be construed as a reference to its being—

(a)delivered, where the person is—

(i)an individual, to that individual;

(ii)a body corporate, to the secretary or clerk of that body; or

(iii)a firm, to a partner of that firm; or

(b)sent by post, properly addressed to the person, in a registered letter or by the recorded delivery service,

but a notice sent by post is deemed not given until the third day after the day of posting.

(2)For the purposes of subsection (1), a letter is properly addressed to—

(a)a body corporate, if addressed to the body at its registered or principal office;

(b)a firm, if addressed to the firm at its principal office; or

(c)any other person, if addressed to the person at the address last known.

Valid from 01/10/2010

Scottish Health CouncilU.K.

10Z16Establishment of Scottish Health CouncilU.K.

(1)HIS must establish under paragraph 8(1) of Schedule 5A a committee to be known as the Scottish Health Council.

(2)When the Scottish Health Council is established—

(a)HIS must delegate to the Council the functions mentioned in section 10C(1)(b) and (c); and

(b)the Scottish Ministers are to appoint a member of HIS to chair the Council.

(3)The Scottish Ministers may, by order—

(a)modify subsection (2)(a) in relation to the functions of HIS which must be delegated to the Scottish Health Council; or

(b)dissolve the Council.

(4)Where the Scottish Ministers make an order under subsection (3)(b) dissolving the Scottish Health Council, subsection (1) has no effect for so long as the order is in force in that respect.

(5)This section is without prejudice to Schedule 5A.

Valid from 01/10/2010

MiscellaneousU.K.

10Z17Transfer of staffU.K.

For the purposes of section 12CA, the functions conferred on, delegated to or otherwise exercisable by HIS are to be treated as functions transferred from a health service body; and for the purposes of that transfer—

(a)NHS Quality Improvement Scotland is to be treated as the transferor authority;

(b)HIS is to be treated as the transferee authority; and

(c)the date on which section 10A is commenced is to be treated as the transfer date.

10Z18“Provide” in relation to independent health care servicesU.K.

In this Part, “provide” in relation to an independent health care service, means to carry on or manage such a service; and related expressions are to be construed accordingly.

Valid from 01/10/2010

Consultation with Mental Welfare Commission for ScotlandU.K.

10Z19Duty of HIS to consult the Mental Welfare Commission for ScotlandU.K.

HIS must, in the exercise of its functions relating to the provision of guidance, advice or information, consult the Mental Welfare Commission for Scotland in every case in which it appears to HIS appropriate having regard to the Commission's functions under sections 5(b) and 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).]

Valid from 01/10/1999

[F4112AA Additional functions of NHS trusts.S

The Secretary of State may direct a Health Board to delegate to an NHS trust or NHS trusts some or all of their functions—

(a)under section 2(1) of making arrangements on his behalf for the provision of services mentioned in Part II; or

(b)relating to pilot schemes under Part I of the National Health Service (Primary Care) Act 1997; or

(c)relating to arrangements under section 17C for the provision of personal medical services and personal dental services.]

Valid from 01/10/1999

[F4412CA Transfer of staff among health service bodies.S

(1)This section applies to any person who is—

(a)employed by a health service body (the transferor authority) and is transferred to another health service body (the transferee authority) because a function of the transferor authority is transferred to the transferee authority; and

(b)designated for the purposes of this section by a scheme made by the transferor authority.

(2)A scheme under this section shall not have effect unless approved by the Secretary of State.

(3)The contract of employment between a person to whom this section applies and the transferor authority shall have effect from the transfer date as if originally made between him and the transferee authority.

(4)Without prejudice to subsection (3)—

(a)all the transferor authority’s rights, powers, duties and liabilities under or in connection with a contract to which that subsection applies shall by virtue of this section be transferred to the transferee authority on the transfer date; and

(b)anything done before the transfer date by or in relation to the transferor authority in respect of that contract shall be deemed from that date to have been done by or in relation to the transferee authority.

(5)Subsections (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 section.

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

(7)In this section—

• a “health service body" is a body mentioned in section 17A(2); and

• the “transfer date" is the date on which the function is transferred from the transferor authority to the transferee authority.]

Valid from 01/12/2003

[F4612DAStamp duty land taxS

(1)A land transaction effected by virtue of an order under section 12D(1) is exempt from charge for the purposes of stamp duty land tax.

(2)Relief under this section must be claimed in a land transaction return or an amendment of such a return.

(3)In this section—

• “land transaction” has the meaning given by section 43(1) of the Finance Act 2003;

• “land transaction return” has the meaning given by section 76(1) of that Act.]

Valid from 01/10/1999

[F50 Quality]S

[F5012HF51Duty of quality.S

(1)It shall be the duty of each Health Board, Special Health Board and NHS trust and of the Agency to put and keep in place arrangements for the purpose of monitoring and improving the quality of health care which it provides to individuals.

(2)The reference in subsection (1) to health care which a body there mentioned provides to individuals includes health care which the body provides jointly with another person to individuals.

(3)In this section “health care” means services for or in connection with the prevention, diagnosis or treatment of illness.]

Valid from 30/09/2004

[F5312JHealth Boards: co-operation with other Health Boards, Special Health Boards and the AgencyS

(1)In exercising their functions in relation to the planning and provision of services which it is their function to provide, or secure the provision of, under or by virtue of this Act, Health Boards shall co-operate with one another, and with Special Health Boards and the Agency, with a view to securing and advancing the health of the people of Scotland.

(2)In pursuance of subsection (1) a Health Board may—

(a)undertake to provide, or secure the provision of, services as respects the area of another Health Board, and the other Health Board may enter into arrangements with the first Health Board for that purpose,

(b)undertake with one or more other Health Boards to provide, or secure the provision of, services jointly as respects their areas.

(3)A Health Board undertaking to provide, or secure the provision of, services under subsection (2) may—

(a)enter into arrangements with another Health Board, a Special Health Board or the Agency in relation to the provision of such services,

(b)do anything in relation to the provision of such services which they could do for the purpose of providing, or securing the provision of, such services as respects their area.

(4)This section is without prejudice to any other power which a Health Board may have.]

Valid from 01/09/1997

[F6717AA Provision of certain services under NHS contracts.S

(1)This section applies to any arrangement under which a Health Board or such other health service body as may be prescribed arrange for the provision to them—

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

(b)by a person on a pharmaceutical list,

of goods or services that they reasonably require for the purposes of functions which they are exercising under Part I of this Act.

(2)Any such arrangement is to be treated as an NHS contract for the purposes of section 17A (other than subsections (5) and (7)).

(3)In this section—

• “health service body” means a person or body which is a health service body for the purposes of section 17A;

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

  (a)

  section 26(2)(a) of this Act;

  (b)

  section 39(a) of the M15National Health Service Act 1977; or

  (c)

  Article 62(2)(a) of the M16Health and Personal Social Services (Northern Ireland) Order 1972; and

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

  (a)

  section 27(2) of this Act;

  (b)

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

  (c)

  Article 63(2A)(a) of the 1972 Order.]

Valid from 05/03/2001

F6917C Personal medical or dental services.S

(1)A Health Board may make one or more agreements with respect to their area, in accordance with the provisions of regulations under section 17E, under which—

(a)personal medical services are provided (otherwise than by the Board); or

(b)personal dental services are provided (otherwise than by the Board).

(2)An agreement made under this section—

(a)may not combine arrangements for the provision of personal medical services with arrangements for the provision of personal dental services; but

(b)may include arrangements for the provision of services—

(i)which are not personal medical services or personal dental services; but

(ii)which may be provided under this Part.

(3)Except to such extent as may be prescribed—

(a)a patient for whom personal medical services are provided in accordance with an agreement made under this section is not to count as a person for whom arrangements must be made by the Health Board concerned under section 19;

(b)a patient for whom personal dental services are provided under an agreement made under this section is not to count as a person for whom arrangements must be made by the Health Board concerned under section 25.

(4)This Act (and in particular section 2) has effect, in relation to personal medical services or personal dental services provided under an agreement made under this section, as if those services were provided as a result of the delegation by the Secretary of State (by directions given under section 2) of functions of his under this Part.

(5)Regulations may provide—

(a)for functions which are exercisable by a Health Board in relation to an agreement made under this section to be exercisable on behalf of the Board by a Health Authority; and

(b)for functions which are exercisable by a Health Authority in relation to an agreement made under section 28C of the M20National Health Service Act 1977 to be exercisable on behalf of the Authority by a Health Board.

(6)For the purposes of this section—

• “Health Authority” has the same meaning as in the National Health Service Act 1977;

• “personal medical services” means medical services of a kind that may be provided by a general medical practitioner in accordance with arrangements made under Part II; and

• “personal dental services” means dental services of a kind that may be provided by a general dental practitioner in accordance with arrangements made under Part II.

Valid from 08/11/2010

[F7017CAPrimary medical services: persons with whom agreements can be madeS

(1)A Health Board may, subject to such conditions as may be prescribed, make an agreement under section 17C under which primary medical services are provided with—

(a)a medical practitioner,

(b)a health care professional (other than a medical practitioner),

(c)a qualifying partnership,

(d)a qualifying limited liability partnership,

(e)a qualifying company, or

(f)two or more of the persons mentioned in paragraphs (a) to (e).

(2)For the purposes of subsection (1)—

(a)a qualifying partnership is a partnership that satisfies both of the following conditions—

(i)at least one partner is a medical practitioner or other health care professional,

(ii)all other partners are individuals,

(b)a qualifying limited liability partnership is a limited liability partnership that satisfies both of the following conditions—

(i)at least one member is a medical practitioner or other health care professional,

(ii)all other members are individuals,

(c)a qualifying company is a company which satisfies both of the following conditions—

(i)at least one member of the company is a medical practitioner or other health care professional,

(ii)all other members are individuals.

(3)A Health Board may only make such an agreement if the Board is satisfied that all the other parties to the agreement (“the contractors”) have sufficient involvement in patient care.

(4)A contractor has sufficient involvement in patient care if—

(a)where the contractor is a medical practitioner or a health care professional, the contractor, or

(b)where the contractor is a partnership, limited liability partnership or a company, each partner or, as the case may be, member of the contractor,

regularly performs, or is engaged in the day to day provision of, primary medical services in accordance with section 17C arrangements, a general medical services contract or any other arrangement made in pursuance of section 2C(2) (or will so perform or be so engaged by virtue of the agreement in question).

(5)Regulations may—

(a)make provision as to what constitutes the regular performance of, or being engaged in the day to day provision of, primary medical services for the purposes of subsection (4),

(b)provide that references in subsection (4) to a person who is performing or is engaged in the provision of services include a person who has performed or been engaged in providing the services within such period as may be prescribed.

(6)Regulations under subsection (5)(a) may, in particular, provide that a period of time in which a person is not performing or is not engaged in the provision of primary medical services is, in prescribed circumstances, to be disregarded for the purposes of determining whether the person regularly performs or is engaged in the day to day provision of those services.

(7)In relation to an agreement under section 17C under which primary medical services are provided which is entered into with a partnership, regulations may make provision as to the effect on the agreement of a change in membership of the partnership.

(8)In this section, “health care professional” means a member of a profession which is 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).]

Valid from 05/03/2001

[F7117D Persons with whom agreements may be made.S

(1)A Health Board may make an agreement under section 17C only with one or more of the following—

(a)an NHS trust;

(b)in the case of an agreement under which personal medical services are provided—

(i)a qualifying medical practitioner;

(ii)an individual who is providing personal medical services in accordance with section 17C arrangements or section 28C arrangements;

(c)in the case of an agreement under which personal dental services are provided—

(i)a qualifying dental practitioner;

(ii)an individual who is providing personal dental services in accordance with section 17C arrangements or section 28C arrangements;

(d)an NHS employee, a section 17C employee or a section 28C employee;

(e)a qualifying body.

(2)In this section—

• “the 1977 Act” means the M21National Health Service Act 1977;

• “NHS employee” means an individual who, in connection with the provision of services in the health service in Scotland or England and Wales, is employed by—

  (a)

  an NHS trust;

  (b)

  in the case of an agreement under which personal medical services are provided—

  (i)

  a medical practitioner whose name is included in a medical list kept under this Act or in a corresponding list kept under the 1977 Act; or

  (ii)

  a medical practitioner who is providing personal medical services in accordance with section 17C arrangements or section 28C arrangements;

  (c)

  in the case of an agreement under which personal dental services are provided—

  (i)

  a dental practitioner whose name is included in a list prepared in accordance with regulations made under section 25(2)(a) of this Act or section 36(1)(a) of the 1977 Act; or

  (ii)

  a dental practitioner who is providing personal dental services in accordance with section 17C arrangements or section 28C arrangements;

• “qualifying body” means—

  (a)

  a company which is limited by shares all of which are legally and beneficially owned by persons falling within paragraphs (a) to (d) of subsection (1); and also

  (b)

  in the case of an agreement under which personal dental services are provided, a body corporate which, in accordance with the provisions of Part IV of the M22Dentists Act 1984, is entitled to carry on the business of dentistry;

• “qualifying dental practitioner” means a dental practitioner who satisfies the conditions imposed by regulations made under section 17E(2)(b) of this Act or section 28E(2)(b) of the 1977 Act;

• “qualifying medical practitioner” means a medical practitioner who satisfies the conditions imposed by regulations made under section 17E(2)(b) of this Act or section 28E(2)(b) of the 1977 Act;

• “section 17C employee” means an individual who, in connection with the provision of services in accordance with section 17C arrangements, is employed by an individual providing those services;

• “section 28C arrangements” means arrangements for the provision of services made under section 28C of the 1977 Act; and

• “section 28C employee” means an individual who, in connection with the provision of services in accordance with section 28C arrangements, is employed by an individual providing those services.]

Valid from 05/03/2001

[F7217E Personal medical or dental services: regulations.S

(1)The Secretary of State may make regulations with respect to the provision of services in accordance with section 17C arrangements.

(2)The regulations must—

(a)include provision for participants other than Health Boards to withdraw from section 17C arrangements if they wish to do so;

(b)impose conditions (including conditions as to qualifications and experience) to be satisfied by medical practitioners performing personal medical services, and dental practitioners performing personal dental services, in accordance with section 17C arrangements.

In paragraph (b) “practitioner” does not include a practitioner who is undergoing training of a prescribed description.

(3)The regulations may, in particular—

(a)provide that section 17C arrangements may be made only in prescribed circumstances;

(b)provide that section 17C 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 17C arrangements;