Part 1Promotion and provision of the health service in Wales
NHS contracts
C17NHS contracts
1
In this Act, an NHS contract is an arrangement under which one health service body (“the commissioner”) arranges for the provision to it by another health service body (“the provider”) of goods or services which it reasonably requires for the purposes of its functions.
2
Section 97(6) (NHS contracts and the provision of local pharmaceutical services under pilot schemes) makes further provision about acting as commissioner for the purposes of subsection (1).
3
Paragraph 15 of Schedule 3 (NHS trusts and NHS contracts) makes further provision about an NHS trust acting as provider for the purposes of subsection (1).
4
“Health service body” means any of the following—
F6a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10bb
an integrated care board,
c
an NHS trust,
d
a Special Health Authority,
e
a Local Health Board,
f
a Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978 (c. 29),
F3fa
a Special Health Board constituted under that section,
F11g
the Regional Agency for Public Health and Social Well-being,
h
the Common Services Agency for the Scottish Health Service,
i
the Wales Centre for Health,
F8j
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1k
the Care Quality Commission,
F5ka
the National Institute for Health and Care Excellence,
F14kb
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
l
the Scottish Dental Practice Board,
m
the Secretary of State,
n
the Welsh Ministers,
F4na
the Scottish Ministers,
nb
Healthcare Improvement Scotland,
F12o
the Regional Business Services Organisation,
p
a special health and social services agency established under the Health and Personal Social Services (Special Agencies) (Northern Ireland) Order 1990 (S.I. 1990/247 (N.I.3)),
q
a F13Health and Social Care trust established under the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I.1)),
r
the Department of Health, Social Services and Public Safety.
5
Whether or not an arrangement which constitutes an NHS contract would apart from this subsection be a contract in law, it must not to be regarded for any purpose as giving rise to contractual rights or liabilities.
6
But if any dispute arises with respect to such an arrangement, either party may refer the matter to the Welsh Ministers for determination under this section.
7
If, in the course of negotiations intending to lead to an arrangement which will be an NHS contract, it appears to a health service body—
a
that the terms proposed by another health service body are unfair by reason that the other is seeking to take advantage of its position as the only, or the only practicable, provider of the goods or services concerned or by reason of any other unequal bargaining position as between the prospective parties to the proposed arrangement, or
b
that for any other reason arising out of the relative bargaining position of the prospective parties any of the terms of the proposed arrangement cannot be agreed,
that health service body may refer the terms of the proposed arrangement to the Welsh Ministers for determination under this section.
8
Where a reference is made to the Welsh Ministers under subsection (6) or (7), they may determine the matter themselves or appoint a person to consider and determine it in accordance with regulations.
9
“The appropriate person” means the Welsh Ministers or the person appointed under subsection (8).
10
By the determination of a reference under subsection (7), the appropriate person may specify terms to be included in the proposed arrangement and may direct that it be proceeded with.
11
A determination of a reference under subsection (6) may contain such directions (including directions as to payment) as the appropriate person considers appropriate to resolve the matter in dispute.
C212
The appropriate person may by the determination in relation to an NHS contract vary the terms of the arrangement or bring it to an end (but this does not affect the generality of the power of determination under subsection (6)).
C213
Where an arrangement is so varied or brought to an end—
a
subject to paragraph (b), the variation or termination must be treated as being effected by agreement between the parties, and
b
the directions included in the determination by virtue of subsection (11) may contain such provisions as the appropriate person considers appropriate in order to give effect to the variation or to bring the arrangement to an end.