National Health Service (Scotland) Act 1978

Part IS Organisation

Secretary of StateS

1 General duty of Secretary of State.S

(1)It shall continue to be the duty of the Secretary of State to promote in Scotland a comprehensive and integrated health service designed to secure—

(a)improvement in the physical and mental health of the people of Scotland, and,

(b)the prevention, diagnosis and treatment of illness,

and for that purpose to provide or secure the effective provision of services in accordance with the provisions of this Act.

(2)The services so provided shall be free of charge, except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.

[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.]

Administrative bodiesS

2 Health Boards.S

(1)The Secretary of State

[F2(a)]shall by order constitute in accordance with Part I of Schedule 1 boards for such areas as he may by order determine, for the purpose of exercising [F3such of his functions [F4relating to the health service] as he may so determine], and for the purpose of making arrangements on his behalf for the provision of the services mentioned in Part II; and those boards shall [F5, without prejudice to subsection (1B),] be called Health Boards [F6and]

F6(b)subject to subsections (1A) and (1C), may by order constitute boards, either for the whole of Scotland or for such parts of Scotland as he may so determine, for the purpose of exercising such of his functions [F4relating to the health service] as he may so determine; and those boards shall, without prejudice to subsection (1B), be called Special Health Boards.

[F7(1A)An order made under subsection (1)(b) may determine an area for a Special Health Board constituted under that subsection which is the same as the areas determined—

(a)for any other Special Health Board; or

(b)for any Health Board or Health Boards constituted by an order or orders made under subsection (1)(a).

(1B)An order under subsection [F8(1)] may specify the name by which a board constituted by the order shall be known.

(1C)The Secretary of State may by order provide that such of the provisions of this Act or of any other enactment, or of any orders, regulations, schemes or directions made under or by virtue of this Act or of any other enactment, as apply in relation to Health Boards shall, subject to such modifications and limitations as may be specified in the order, so apply in relation to any Special Health Board so specified.]

(2)The order or orders made under subsection [F9(1)(a)] determining the areas for which the Health Boards are to be constituted shall be separate from the order or orders constituting those Boards; and, before making any order determining such an area, the Secretary of State shall consult with such bodies and organisations as appear to him to be concerned.

(3)The Secretary of State may by order vary the area of any Health Board, whether or not the variation involves the constitution of a new Board, or the termination of the functions of an existing Board; and, before making such an order, the Secretary of State shall consult with such bodies and organisations as appear to him to be concerned.

(4)Any order under subsection (3) may make provision for any supplementary and incidental matters for which it appears to the Secretary of State to be necessary or expedient to provide, in particular for the transfer of officers and of property and liabilities.

(5)In carrying out the purposes mentioned in subsection (1) [F10and in exercising any function otherwise conferred on them by or under this Act] [F11or by or under the 2021 Act] each Health Board shall act subject to, and in accordance with, such regulations as may be made, and such directions as may be given, by the Secretary of State; and such regulations and directions may be made or given generally or to meet the circumstances of a particular area or matter.

(6)Regulations under subsection (5) shall make provision requiring each Health Board to submit to the Secretary of State a scheme for the exercise of their functions [F12(other than functions conferred on them by or under the 2021 Act)], and enabling the Secretary of State to approve any such scheme with or without modifications, and to make such a scheme in the event of the failure of any Health Board to do so.

(7)A Health Board may at any time, and if directed by the Secretary of State shall, within such period as he may specify, submit a new scheme for the exercise of their functions, and regulations making the provision mentioned in subsection (6) shall, with any necessary modifications, apply to any such scheme.

(8)A Health Board shall, notwithstanding that it is exercising functions on behalf of the Secretary of State, be entitled to enforce any rights acquired, and shall 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 the Health Boared were acting as a principal; and all proceedings for the enforcement of such rights or liabilities shall be brought by or against the Health Board in its own name.

[F13(9)A Health Board shall not be entitled to claim in any proceedings any privilege of the Crown in respect of the recovery or production of documents; but this subsection shall be without prejudice to any right of the Crown to withhold, or procure the withholding from production of, any document on the ground that its disclosure would be contrary to the public interest.]

(10)Schedule 1 shall have effect in relation to the Boards constituted under this section.

[F14(10A)Schedule 1A makes provision for the election of individuals to be members of Health Boards.]

(11)Where it appears to the Secretary of State to be expedient in the interests of efficiency that a joint committee should be established for the areas of two or more Health Boards for the purpose of exercising some but not all of their functions, the Secretary of State may by order constitute such a joint committee and provide for the exercise by that committee or such of those functions as may be specified in the order, and for the application, with such modifications as may be so specified, to that committee of any provisions of this Act relating to those functions, and for any of the matters for which, in relation to a Health Board, provision is or may be made by or under Part II of Schedule 1.

[F15 2ADuty of Health Board, Special Health Board [F16, the Agency and HIS] to promote health improvementS

(1)It is the duty of every Health Board and Special Health Board and of [F17HIS and] 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 [F18the Agency or HIS] 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 [F19, the Agency or HIS].

(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.]

[F202BDuty 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 [F21and services which it has the function of providing to individuals under the 2021 Act], 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.]

[F222CFunctions 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 F23. . . .

[F24(2A)But any contractual arrangement which a Health Board makes in pursuance of subsection (2) (other than an NHS contract) must be an agreement under section 17C, a general medical services contract or a contract which meets the requirement in subsection (2B).

(2B)The requirement is that, were the contract an agreement under section 17C, the parties to the contract (other than the Board) would be persons with whom the Board could enter into such an agreement by virtue of section 17CA.]

(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 [F25sections 12J and] 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)F26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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).]

[F27[F282CB]S

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).]

[F302DEqual opportunitiesS

(1)Health Boards, Special Health Boards [F31, the Agency and (as respects its health service functions only) HIS] 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). ]

3 Scottish Medical Practices Committee.S

F32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 Scottish Dental Estimates Board.S

(1)For the purpose of carrying out such duties as may be prescribed with respect to . . . F33 dental treatment and appliances, regulations shall make provision for constituting a board, to be called the Scottish Dental Estimates Board, (hereafter in this Act referred to as “the Dental Estimates Board”), of whom the chairman and a majority of members shall be dental practitioners.

[F34(1A)Regulations may empower the Dental Practice Board—

(a)to direct a dental practitioner [F35or body corporate entitled, by virtue of section 43 of the Dentists Act 1984 (c. 24), to carry on the business of dentistry to submit to the Board, in relation to treatment which he, or as the case may be, it] has carried out or contemplates carrying out or to a description of such treatment specified in the direction, such estimates and information and such radiographs, models or other items as may be prescribed; and

(b)to direct a dental practitioner [F36or such a body corporate] not to carry out treatment, or a description of treatment specified in the direction, without first obtaining approval of an estimate from the Board.

(1B)If regulations include any such provision as is mentioned in subsection (1A)(b) above, regulations shall confer on a dental practitioner [F37or body corporate] in whose case a direction such as is mentioned in that paragraph has been given a right of appeal against the direction to a prescribed person or body, but before making regulations conferring such a right the Secretary of State shall consult such organisations as appear to him to be representative of persons providing general dental services.

(1C)Regulations may be made authorising or requiring the Dental Practice Board to carry on any such additional activity relating to the provision of general dental services as may be prescribed and, without prejudice to the generality of this subsection, to conduct or commission surveys or other research relating to the provision of such services.]

(2)Regulations made in pursuance of this section shall include provision, in relation to the Dental Estimates Board, for any of the matters for which, in relation to a Health Board, provision is or may be made by or under Part II of Schedule 1.

[F38Community health partnershipsS

F39 4A Community health partnershipsS

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

F39 4B Community health partnerships: further provisionS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

National advisory bodiesS

5—6.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F40S

Local advisory bodiesS

7 Local health councils.S

(1)Every Health Board shall, within such period as the Secretary of State may specify, submit to him a scheme for the establishment of a local health council or councils for their area or for such districts covering their whole area as the Board thinks fit; and it shall be the general function of any such council to represent the interests of the public in the health service in the area or district for which they have been established.

(2)A scheme under subsection (1) shall provide for the appointment . . . F41 by the Health Board, after consultation with such other organisations as may be specified in the scheme, of such number of members as may be so specified.

(3)The Secretary of State may approve, with or without modifications, any scheme submitted to him under subsection (1), or may refuse to approve it.

(4)A Health Board may at any time, and if directed by the Secretary of State shall, within such period as he may specify, submit a new scheme under this section, and subsection (3) shall apply to any such new scheme.

(5)The members of a local health council may appoint one of their own number as the chairman of the council.

(6)The Secretary of State shall pay to the members of a local health council, and of the committees and sub-committees thereof [F42and of any body established under subsection (9)(g),] such travelling and other allowances, including compensation for loss of remunerative time, as he may with the approval of the Minister for the Civil Service, from time to time determine.

(7)Allowances shall not be paid under subsection (6) except in connection with the performance of such powers or duties, in such circumstances, as the Secretary of State may determine.

(8)Health Boards shall consult with local health councils on such occasions and to such extent as may be prescribed.

(9)Regulations may make provision—

(a)enabling local health councils to consider questions relating to the health service in their area or district, whether at the request of their Health Board or otherwise, and to advise the Health Board thereon;

(b)enabling or requiring local health councils to submit reports to their Health Board on the operation of the health service in their area or district;

(c)requiring local health councils to submit annual reports on their activities to their Health Board and requiring Health Boards to transmit a copy of any such report to the Secretary of State;

(d)enabling local health councils to obtain information from their Health Board [F43and from any NHS trust in their area or district] on such subjects and subject to such conditions as may be prescribed;

(e)enabling or requiring members of a local health council to visit establishments administered by their Health Board [F44and establishments in their area or district administered by NHS trusts], subject to such conditions as may be prescribed;

(f)relating to the submission of schemes under subsection (1) and to the functions, procedures, staffing and expenses of local health councils;

[F45(g)for the establishment of a body—

(i)to advise local health councils with respect to the performance of their functions, and to assist those councils in the performance of their functions; and

(ii)to perform such other functions as may be prescribed;

(h)relating to the membership, proceedings, staff, premises and expenses of any body established under paragraph (g).]

8 University Liaison Committees.S

(1)The Secretary of State may by order constitute, in accordance with Schedule 4, for the area of a Health Board or for the combined areas of two or more Health Boards, a University Liaison Committee for the purpose of advising that Board or those Boards [F46and any NHS trusts in the area or combined areas] on the administration of the health service in [F47that area or those] areas so far as relating to the provision of facilities for undergraduate or post-graduate clinical teaching or for research, and for the purpose of advising that Board or those Boards [F48, any such NHS trust] and the university or universities concerned on any matter of common interest to them.

(2)Paragraphs 11 to 15 of Schedule 1 (other than sub-paragraph (d) of paragraph 11) shall have effect in relation to the Committees constituted under this section.

9 Local consultative committees.S

(1)Where, [F49a Health Board is satisfied that a committee formed for its area is representative]—

(a)of the medical practitioners of that area, or

(b)of the dental practitioners of that area, or

(c)of the nurses and midwives of that area, or

(d)of the pharmacists of that area, or

(e)of the ophthalmic and dispensing opticians of that area,

the [F50Health Board] shall recognise that committee.

(2)Any committee so recognised shall be called—

(a)the area medical committee,

(b)the area dental committee,

(c)the area nursing and midwifery committee,

(d)the area pharmaceutical committee, or

(e)the area optical committee,

as the case may be, for the area concerned.

(3)Where, [F49a Health Board is satisfied that a committee formed for its area is representative] of any other profession engaged in the provision of care or treatment under this Act, and that it is in the interests of the health service to recognise that committee for the purposes of this Act, [F51the Board] may so recognise it.

(4)Where, [F49a Health Board is satisfied that a committee formed for its area is representative] of two or more of the professions mentioned in subsection (1) or (3), and that it is in the interests of the health service to recognise that committee for the purposes of this Act, [F51the Board] may so recognise it.

(5)It shall be the general function of a committee recognised under this section to advise the Health Board for its area [F52and, where the Secretary of State so directs, an NHS trust on the provision of services under this Act or under a pilot scheme under section 1 of the M1National Health Service (Primary Care) Act 1997], being services with which that committee is concerned in that area, but, except in so far as regulations otherwise provide, in exercising functions conferred by or under this section, such a committee shall not concern itself with the remuneration and conditions of service of practitioners or other persons of whom it is representative.

(6)In addition to any other functions which committees recognised under this section may exercise, they shall exercise such functions as may be prescribed.

(7)In exercising their functions under this Act, Health Boards [F53or, where the Secretary of State so directs, NHS trusts]shall consult with committees recognised under this section on such occasions and to such extent as [F54the Secretary of State may direct].

(8)Any committee recognised under this section may, with the approval of the Health Board for its area, delegate any of its functions, with or without restrictions or conditions, to sub-committees and may appoint to any sub-committee persons who are not members of the committee.

(9)Health Boards shall defray the reasonable expenses of committees recognised under this section and shall pay to members of such committees and sub-committees thereof such travelling and other allowances, including compensation for loss of remunerative time, as the Secretary of State may, with the approval of the Minister for the Civil Service, from time to time determine; but payments under this subsection may only be made as respects the exercise of functions conferred by or under this section.

Agency for Secretary of State and other bodiesS

10 Common Services Agency.S

(1)There shall be constituted a body, to be called the Common Services Agency for the [F55Scottish Health Service] (hereafter in this Act referred to as “the Agency”), F56...

[F57(1A)The Agency has the functions conferred on it by—

(a)this Act, and

(b)section 62 of the Public Bodies (Joint Working) (Scotland) Act 2014.]

(2)Schedule 5 shall have effect in relation to the Agency.

(3)The Secretary of State may by order delegate to the Agency such of his functions [F58relating to the health service] as he considers appropriate.

(4)After consultation with . . . F59, the Health Boards [F60the NHS trusts]and any other interests which appear to the Secretary of State to be concerned, the Secretary of State, where he considers it expedient for the efficient discharge of the functions of the Health Boards [F61or of the NHS trusts], may by order provide that the performance of such functions as he may determine shall stand referred to the Agency and be discharged by it on behalf of any or all of the Health Boards [F62or NHS trusts].

(5)The Secretary of State may by order withdraw from the Agency any function delegated or referred to it under this section.

(6)The Agency shall provide such services and carry out such tasks for bodies associated with the health service as the Secretary of State and those bodies may agree, and on such terms and conditions as may be agreed.

(7)In carrying out its functions the Agency shall act subject to, and in accordance with, such directions as may be given by the Secretary of State.

(8)The Agency shall, notwithstanding that it is exercising functions on behalf of the Secretary of State or any other body associated with the health service, be entitled to enforce any rights acquired, and shall 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 the Agency were acting as a principal; and all proceedings for the enforcement of such rights or liabilities shall be brought by or against the Agency in its own name.

[F63(9)The Agency shall not be entitled to claim in any proceedings any privilege of the Crown in respect of the recovery or production of documents; but this subsection shall be without prejudice to any right of the Crown to withhold, or procure the withholding from production of, any document on the ground that its disclosure would be contrary to the public interest.]

[F6410ZAProvision of patient advice and support serviceS

(1)The Agency must secure the adequate provision of the patient advice and support service described in section 18 of the Patient Rights (Scotland) Act 2011 (asp 5) in relation to each relevant body.

(2)In exercising its function under subsection (1), the Agency must have regard to the desirability of the service being provided—

(a)in the most efficient and effective manner possible, and

(b)in a manner which co-ordinates with the services of other providers of advice and support.

(3)There may be more than one provider of the patient advice and support service.

(4)The patient advice and support service is not to be provided by—

(a)a Health Board,

(b)a Special Health Board,

(c)Healthcare Improvement Scotland,

(d)the Agency.

[F65(e)an integration joint board.]

(5)Each relevant body must make to its provider of the patient advice and support service, in respect of the provider's expenses (as respects its activities relating to the service), payments of such amounts, and at such times, as the Scottish Ministers may direct.

(6)For the purposes of this section, a “relevant body” is—

(a) a Health Board, F66 ...

[F67(ab)an integration joint board, and]

(b)any other body that the Scottish Ministers may by order specify.]

[F68Healthcare Improvement ScotlandS

10AHealthcare Improvement ScotlandS

(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 [F69(including the 2021 Act)]; and

(b)has the general duty of furthering improvement in the quality of health care [F70and of services provided under the 2021 Act].

(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.

PrinciplesS

10BPrinciplesS

(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 [F71or under the 2021 Act] 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.

Functions related to the health serviceS

10CHealth service functionsS

(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.

[F72(2A)HIS is to exercise the following functions—

(a)a duty of supporting, ensuring and monitoring the quality of services provided by Health Boards under the 2021 Act including, without prejudice to the foregoing generality, providing quality assurance and accreditation,

(b)a duty of supporting, ensuring and monitoring the discharge of the duty under section 2B by Health Boards, insofar as the discharge of that duty relates to services provided under the 2021 Act,

(c)a duty of supporting, ensuring and monitoring the discharge of the duty under section 2D by Health Boards, insofar as the discharge of that duty is relevant to—

(i)the quality of services provided under the 2021 Act, or

(ii)the discharge of the duty under section 2B (insofar as the discharge of that duty relates to services provided under the 2021 Act).]

(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 [F73or under the 2021 Act];

(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 [F74or under the 2021 Act];

(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 provisionS

(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.

Functions related to independent health careS

10EIndependent health care functionsS

(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.

Meaning of “ independent health care services ” S

10FMeaning of “independent health care services”S

(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;

• [F75“independent clinic” means, subject to subsection (2A), a clinic which is not comprised in a hospital and in or from which services are provided by a medical practitioner, dental practitioner, registered nurse, registered midwife or dental care professional;]

• “ 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).

[F76(2A)A clinic does not fall within the definition of “independent clinic” in subsection (2) if it—

(a)is comprised in a post-16 education body;

(b)is comprised in a school;

[F77(ba)is provided by the Agency, a Health Board or a Special Health Board;]

(c)is provided by an employer and services are provided only to the employees of that employer;

(d)provides general dental services in accordance with an agreement pursuant to section 25 of this Act;

(e)provides primary medical services in accordance with an agreement pursuant to section 17C of this Act;

(f)provides services under a general medical services contract pursuant to section 17J of this Act; or

(g)only provides one or both of the following services—

(i)first aid in situations requiring medical treatment or medical care;

(ii)therapy effected only through the provider of the therapy and the recipient communicating through speech.

(2B)In the definition of “independent clinic” in subsection (2), “dental care professional” means a person registered in the dental care professionals register under the Dentists Act 1984.

(2C)In subsection (2A)—

• “post-16 education body” has the same meaning as in section 35(1) of the Further and Higher Education (Scotland) Act 2005; and

• “school” has the same meaning as in section 135(1) of the Education (Scotland) Act 1980.]

(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 definitionsS

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).

Standards and outcomesS

10HStandards and outcomesS

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

(a)services provided under the health service [F78or under the 2021 Act];

(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 [F79or under the 2021 Act], 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.

InspectionsS

10IInspections of services provided under the health service [F80or under the 2021 Act] S

[F81(1)HIS may inspect any service provided under the health service—

(a)in pursuance of its general duty of furthering improvement in the quality of health care in Scotland, or

(b)for any of the purposes mentioned in subsection (1B).]

[F82(1A) Where a service provided under the health service and social services are provided by virtue of an integration scheme approved under section 7 of the Public Bodies (Joint Working) (Scotland) Act 2014 (“ the 2014 Act ”), HIS may inspect the planning, organisation or co-ordination of those services for any of the purposes mentioned in subsection (1B).

(1B)The purposes are—

(a)reviewing and evaluating the extent to which the service is complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(b)reviewing and evaluating the extent to which the planning, organisation or co-ordination of services provided under the health service and social services is complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(c)reviewing and evaluating the effectiveness of a strategic plan prepared under section 29 of the 2014 Act in complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(d)encouraging improvement in the extent to which implementation of a strategic plan prepared under section 29 of the 2014 Act complies with the integration delivery principles and contributes to achieving the national health and wellbeing outcomes, and

(e)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.]

[F83(1C)HIS may inspect any service provided under the 2021 Act in pursuance of its general duty of furthering improvement in the quality of those services.]

(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.

[F84(3)In this section—

• “ integration delivery principles ” has the meaning given by section 31 of the 2014 Act;

• “ national health and wellbeing outcomes ” has the same meaning as in section 5(1) of the 2014 Act;

• “ social services ” has the meaning given by section 46 of the Public Services Reform (Scotland) Act 2010. ]

10JInspections of independent health care servicesS

(1)HIS may inspect—

(a)any independent health care service;

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

[F85(c) where services provided by an independent health care service and social services are provided in pursuance of an integration scheme approved under section 7 of the Public Bodies (Joint Working) (Scotland) Act 2014 (“ the 2014 Act ”), the planning, organisation or co-ordination of those services. ]

(2)The purposes of an inspection under [F86subsection (1)(a) or (b)] 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.

[F87(f)reviewing and evaluating the extent to which the independent health care service is complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(g)reviewing and evaluating the extent to which the planning, organisation or co-ordination of services provided by an independent health care service and social services is complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(h)reviewing and evaluating the effectiveness of a strategic plan prepared under section 29 of the 2014 Act in complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(i)encouraging improvement in the extent to which implementation of a strategic plan prepared under section 29 of the 2014 Act complies with the integration delivery principles and contributes to achieving the national health and wellbeing outcomes, and

(j)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.]

[F88(2A)The purposes of an inspection under subsection (1)(c) may include any of those mentioned in subsection (2)(f) to (j).]

(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.

[F89(8)In this section—

• “ integration delivery principles ” has the meaning given by section 31 of the 2014 Act;

• “ national health and wellbeing outcomes ” has the same meaning as in section 5(1) of the 2014 Act;

• “ social services ” has the meaning given by section 46 of the Public Services Reform (Scotland) Act 2010. ]

10KAuthorised personsS

(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 practiceS

(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 MinistersS

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

(a)any service provided under the health service [F90or under the 2021 Act] 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: reportsS

(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 inspectionsS

(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.

RegistrationS

10PRegistration of independent health care servicesS

(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 registrationS

(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.

Improvement noticesS

10RImprovement notices: independent health care servicesS

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.

Proposals and applications in relation to registered independent health care servicesS

10SCancellation of registrationS

(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 registrationS

(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 noticesS

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 noticesS

(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 noticesS

(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: appealsS

(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 conditionsS

(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 proposalsS

(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 proposalsS

(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.

Notice of decision on application for registrationS

10Z2Notice of HIS's decisionsS

(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.

Conditions as to numbersS

10Z3Conditions as to numbersS

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.

Appeal against decision to implement proposalS

10Z4Appeal against decision to implement proposalS

(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.

FeesS

10Z5Registration feesS

(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.

RegulationsS

10Z6Regulations: registers and registrationS

(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 servicesS

(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.

Complaints about independent health care servicesS

10Z8Complaints about independent health care servicesS

(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.

OffencesS

10Z9Offences in relation to registrationS

(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 applicationsS

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.S

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.

InquiriesS

10Z12InquiriesS

(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 [F91or under the 2021 Act].

(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.

Arrangements to provide independent health care services: registrationS

10Z13Arrangements entered into by certain bodies: services to be registeredS

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.

Duty of certain bodies to be aware of reports, etc.S

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

(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.

Giving of noticeS

10Z15Giving of noticeS

(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.

Scottish Health CouncilS

10Z16Establishment of Scottish Health CouncilS

(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.

MiscellaneousS

10Z17Transfer of staffS

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 services S

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.

Consultation with Mental Welfare Commission for ScotlandS

10Z19Duty of HIS to consult the Mental Welfare Commission for ScotlandS

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).]

TrustsS

11 Scottish Hospital Trust.S

F92. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12 Scottish Hospital Endowments Research Trust.S

(1)F93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)F94. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)It shall be the duty of [F95 the Scottish Hospital Endowments Research Trust (referred to in this Act as “the Research Trust”)] to hold and administer funds on trust for the purpose of assisting the conduct of research into any matters relating to the causation, prevention, diagnosis or treatment of illness or to the development of medical or surgical appliances, including hearing aids.

(4)The Research Trust shall have power to accept, hold and administer, in accordance with Schedule 7, any property on trust for the purpose aforesaid.

[F96(4A)The Research Trust shall have power to engage in activities intended to stimulate the giving of money or other property to assist them in carrying out the purpose aforesaid.

(4B)F97. . . the activities authorised by subsection (4A) include public appeals or collections, and the soliciting of sponsorship, donations, legacies, bequests and gifts.

(5)F98. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)The Research Trust shall cause proper accounts to be kept of the capital, income and expenditure vested in, received by, and expended by them F99. . . .

(6A)F100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F101(7)The Research Trust shall prepare an annual report of their proceedings which shall include an abstract of their accounts.]

[F102(8)Schedule 7 shall have effect in relation to the Research Trust.]]

F104[F10312A] National Health Service trusts.S

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

[F10512AA 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.]

[F10612B Transfer of staff to NHS trusts.S

(1)Subject to subsection (5), this section applies to any person who, immediately before an NHS trust’s operational date—

(a)is employed by a Health Board or the Agency (in this section and section 12C referred to as a “transferor authority") 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 transferor authority to work at, or for the purposes of, any such hospital, establishment or facility and is designated for the purposes of this section by a scheme made by the body specified as mentioned in paragraph 3(1)(f ) of Schedule 7A.

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

(3)Subject to section 12C, the contract of employment between a person to whom this section applies and the transferor authority shall have effect from the operational date as if originally made between him and the NHS trust.

(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 NHS trust on its operational date; and

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

(5)In any case where—

(a)an order under section 12A(1) provides for the establish-ment of an NHS 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 NHS trust makes an offer of employment by the trust to a person who at that time is employed by a Health Board or the Agency 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 NHS trust,

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

(6)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.

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

[F10712C Supplementary provisions as to transfer of staff.S

(1) In the case of a person who falls within subsection (1)(b) of section 12B, a scheme under that section may provide that, with effect from the NHS trust’s operational date, his contract of employment (in this section 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 NHS trust; and

(b)a contract of employment with the transferor authority by whom he was employed before that date.

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

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

(b)section 12B shall apply in relation to the contract referred to in subsection (1)(a) as if it were a contract transferred under that section from the transferor authority to the NHS trust;

(c)so far as necessary to preserve any rights and obligations, the contract referred to in subsection (1)(b) shall be regarded as a continuation of the employee’s original contract; F108. . .

(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Where, as a result of the provisions of section 12B, by virtue of his employment during any period after the NHS trust’s operational date—

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

(b)he also has statutory rights against the NHS trust under [F109Part XI of the Employment Rights Act 1976] (redundancy payments),

any benefits provided to him by virtue of the contractual rights referred to in paragraph (a) shall be taken as satisfying his entitlement to benefits under [F110that Part of that Act.]]

[F11112CA 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.]

[F11212D Transfer of property rights and liabilities to NHS trusts.S

(1)The Secretary of State may by order provide for the transfer to an NHS trust, with effect from such date as may be specified in the order, of such of the property, liabilities and obligations of a Health Board, the Agency or the Secretary of State as, in his opinion, need to be transferred to the NHS trust for the purpose of enabling it to carry out its functions.

(2)An order under this section may create or impose, or provide for the creation or imposition of, such new rights, liabilities or obligations in respect of what is transferred or what is retained by a Health Board or the Agency as appear to the Secretary of State to be necessary or expedient.

(3)Nothing in this section affects the power of the Secretary of State or any power of a Health Board or the Agency to transfer property, liabilities or obligations to an NHS trust otherwise than under subsection (1).

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

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

(a)of land held on lease from a third party, that is to say, a person other than the Secretary of State; 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 subsection, it would have required his consent or concurrence, or would have required to be intimated to him.

(6)Any property, liabilities and obligations which are to be transferred to an NHS trust shall be identified by agreement between, on the one hand, the NHS trust and, on the other hand, a Health Board or the Agency; or, in default of agreement, by direction of the Secretary of State.

(7)Where, for the purpose of a transfer pursuant to an order under this section, it becomes necessary to apportion any property, liabilities and obligations, the order may contain such provisions as apear to the Secretary of State to be appropriate for the purpose; and where any such property falls within subsection (5), the order shall contain such provisions as appear to the Secretary of State 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)Without prejudice to section 105(7), an order under this section may include provision for matters to be settled by arbitration by a person determined in accordance with the order.]

[F11312DAStamp 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. ]

[F11412E Originating capital debt of, and other financial provisions relating to NHS trusts.S

(1)Each NHS trust shall have an [F115originating capital] of an amount specified in an order made by the Secretary of State with the consent of the Treasury, being an amount representing, subject to subsection (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 [F115originating capital] of an NHS trust, there shall be left out of account such assets or, as the case may be, such liabilities as are, or are of a class, determined for the purposes of this section by the Secretary of State, with the consent of the Treasury.

(3)An NHS trust’s [F115originating capital] shall be deemed to have been issued out of moneys provided by Parliament and shall constitute an asset of the Consolidated Fund.

[F116(4)An NHS trust’s originating capital shall be public dividend capital.]

F117(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F117(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)With the consent of the Treasury, the Secretary of State may determine

[F118(a)the dividend which is to be payable at any time on any public dividend capital issued, or treated as issued, under this Act;

(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)Schedule 7B shall have effect with respect to—

(a)borrowing by NHS 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 NHS trusts.]

[F11912F Financial obligations of NHS trusts.S

(1)Every NHS 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 NHS trust to achieve such financial objectives as may from time to time be set by the Secretary of State with the consent of the Treasury and as are applicable to it; and any such objectives may be made applicable to NHS trusts generally, or to a particular NHS trust or to NHS trusts of a particular description.]

[F12012G Trust property of NHS trusts.S

(1)Subject to subsection (2), an NHS trust shall have power to accept, hold and administer any property on trust for purposes relating to any service which it is their function to make arrangements for, administer or provide.

(2)The Secretary of State may by order make such provision as he thinks appropriate in relation to the appointment of trustees in respect of an NHS trust for the purpose of holding in trust any property which is to be so held on behalf of the trust; and any such order may include provision as to the persons by whom, the manner in which, the conditions on which and the time within which, such trustees are to be appointed.

(3)Where—

(a)section 82 applies in relation to any endowment or property which is held on trust by a Health Board; and

(b)that endowment or property is, by virtue of an order under section 12D [F121or a request under section 6(1) of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4)], transferred to an NHS trust,

section 82 shall apply to the use of that endowment or property by the trust as it applied to the use thereof by the Health Board.

(4)Trustees appointed by virtue of subsection (2) shall cause proper accounts to be kept of the capital, income and expenditure vested in, received by and expended by them; and shall cause such accounts to be audited and an abstract thereof to be published in such manner as the Secretary of State may approve.]

[F122 QualityS

12HF123Duty 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.

[F124(2A)Each Health Board must put and keep in place arrangements for the purposes of monitoring and improving the quality of services provided under the 2021 Act which it provides to individuals.

(2B)The reference in subsection (1A) to services under the 2021 Act which a body provides to individuals includes services 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. ]

[F12512IDuty in relation to governance of staffS

It shall be the duty of every Health Board and Special Health Board and of [F126HIS and ] the Agency to put and keep in place arrangements for the purposes of—

(a)improving the management of the officers employed by it;

(b)monitoring such management; and

(c)workforce planning.]

[F127StaffingS

12IADuty to ensure appropriate staffingS

(1)It is the duty of every Health Board and the Agency to ensure that at all times suitably qualified and competent individuals, from such a range of professional disciplines as necessary, are working in such numbers as are appropriate for—

(a)the health, wellbeing and safety of patients,

(b)the provision of safe and high-quality health care, and

(c)in so far as it affects either of those matters, the wellbeing of staff.

(2)In determining what, in a particular kind of health care provision, constitutes appropriate numbers for the purposes of subsection (1), regard is to be had to—

(a)the nature of the particular kind of health care provision,

(b)the local context in which it is being provided,

(c)the number of patients being provided it,

(d)the needs of patients being provided it, and

(e)appropriate clinical advice.

12IBDuty to ensure appropriate staffing: agency workersS

(1)Where, in order to comply with the duty under section 12IA, a Health Board, a relevant Special Health Board or the Agency secures the services of an agency worker (within the meaning of the Agency Workers Regulations 2010), it must comply with subsection (2).

(2)Subject to subsection (3), the amount to be paid to secure the services of that worker during a period should not exceed 150% of the amount that would be paid to a full-time equivalent employee of the Health Board, relevant Special Health Board or the Agency to fill the equivalent post for the same period.

(3)Where, despite subsection (2), in a quarterly reporting period a Health Board, relevant Special Health Board or the Agency does pay an amount higher than the amount prescribed in subsection (2), it must report to the Scottish Ministers, as soon as practicable after the end of that period—

(a)the number of occasions in that period on which it has paid an amount higher than the amount prescribed in subsection (2),

(b)the amount paid on each such occasion (expressed as a percentage of the amount that would be paid to a full-time equivalent employee of the Health Board, relevant Special Health Board or the Agency to fill the equivalent post for the same period) and,

(c)the circumstances that have required the higher amount to be paid.

(4)In subsection (3), “quarterly reporting period” means—

(a)the period from the day that the Bill for the Health and Care (Staffing) (Scotland) Act 2019 receives Royal Assent to whichever of 31 March, 30 June, 30 September and 31 December first occurs thereafter,

(b)each subsequent three-month period.

(5)The Scottish Ministers must publish in such manner and at such intervals as they consider appropriate—

(a)information from Health Boards, relevant Special Health Boards and the Agency on the amount spent on all agency workers, and

(b)reports received by them under subsection (3).

12ICDuty to have real-time staffing assessment in placeS

(1)It is the duty of every Health Board and the Agency to put and keep in place arrangements for the real-time assessment of its compliance with the duty imposed by section 12IA.

(2)The arrangements under subsection (1) must, in particular, include—

(a)a procedure for the identification, by any member of staff, of any risks caused by staffing levels to—

(i)the health, wellbeing and safety of patients,

(ii)the provision of safe and high-quality health care, or

(iii)in so far as it affects either of those matters, the wellbeing of staff,

(b)a procedure for the notification of any such risk to an individual with lead professional responsibility (whether clinical or non-clinical) in the area where the risk was identified,

(c)a procedure for the mitigation of any such risks, so far as possible, by such an individual, and a requirement for that individual to seek and have regard to appropriate clinical advice, as necessary, in carrying out such mitigation,

(d)raising awareness among staff about the procedures described in paragraphs (a), (b) and (c),

(e)encouraging and enabling staff to use the procedures described in paragraphs (a) and (b),

(f)training individuals with lead professional responsibility (whether clinical or non-clinical) for particular types of health care in how to implement the arrangements put in place under paragraphs (a) to (e), and

(g)ensuring that such individuals receive adequate time and resources to implement those arrangements.

12IDDuty to have risk escalation process in placeS

(1)It is the duty of every Health Board and the Agency to put and keep in place arrangements for the escalation of any risk—

(a)identified during the real-time assessment of its staffing levels in accordance with arrangements put in place under section 12IC, and

(b)which it has not been possible to mitigate in accordance with the arrangements put in place under that section.

(2)The arrangements under subsection (1) must, in particular, include—

(a)a procedure for the initial reporting of a risk as described in subsection (1), by an individual with lead professional responsibility (whether clinical or non-clinical) in the area where the risk was identified, to a more senior decision-maker,

(b)a requirement for any such decision-maker to seek and have regard to appropriate clinical advice, as necessary, in reaching a decision on the risk, including on how to mitigate it,

(c)a procedure for the onward reporting of the risk, as necessary, to a more senior decision-maker in turn, and a requirement for that decision-maker in turn to seek and have regard to appropriate clinical advice, as necessary, in reaching a decision on the risk, including on how to mitigate it,

(d)a requirement for the arrangements put in place under paragraph (c) to escalate further, as necessary, in order to reach a final decision on the risk, including in appropriate cases by the reporting of the risk to the members of the Health Board or the Agency (as the case may be),

(e)a procedure for the notification of every decision made following the initial report, and the reasons for it, to—

(i)any individual who was involved in identifying the risk in accordance with the arrangements put in place under section 12IC(2)(a),

(ii)any individual who was involved in attempting to mitigate the risk in accordance with the arrangements put in place under section 12IC(2)(c),