Health Act 2004

PART 1 Preliminary Matters

1. Short title, collective citation and construction.

1.—(1) This Act may be cited as the Health Act 2004.

(2) The Health Acts 1947 to 2001 and this Act may be cited together as the Health Acts 1947 to 2004 and shall be construed together as one.

2. Interpretation.

2.—(1) In this Act, unless the context otherwise requires—

“Act of 1996” means the Health (Amendment) (No. 3) Act 1996;

“Act of 1999” means the Health (Eastern Regional Health Authority) Act 1999;

“annual report” means a report prepared under section 37;

F2[…]

F2[…]

“Area Health Board” has the same meaning as in the Act of 1999;

F3[“Board”has the meaning assigned to it bysection 16N;]

“carer” means a person who provides care for another person, but who is not employed to do so by any body in the performance of its functions under an enactment;

“chairperson” means the chairperson of the Board;

F3[“chief executive officer”has the meaning assigned to it bysection 21A;]

“clinical judgment” means a decision made or opinion formed in connection with the diagnosis, care or treatment of a patient;

F4[“Committee of Public Accounts”means the Committee of Dáil Éireann established under the rules and standing orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General;]

F1[“Directorate”means the Directorate established undersection 16A;]

F1[“Director General”means the person holding the office of Director General appointed pursuant tosection 16E;]

F5[“disability”means disability as defined in section 2 ofthe Disability Act 2005and the term "substantial restriction" in that definition shall be construed as meaning a restriction as described in section 7(2) of that Act;]

“Eastern Regional Health Authority” means the body of that name established by section 7 of the Act of 1999;

“enactment” means a statute or an instrument made under a power conferred by a statute;

“establishment day” means the day appointed by the Minister under section 4 to be the establishment day for the purposes of this Act;

“Executive” means the Health Service Executive established under section 6;

“functions” includes powers and duties and references to the performance of functions include, with respect to powers and duties, references to the exercise of the powers and the carrying out of duties;

“health board” means a health board established under section 4(1) of the Health Act 1970;

“health and personal social services” means services that immediately before the establishment day were provided under the Acts referred to in Schedule 1 by a specified body as defined in section 56 of this Act, and references in this Act to a health or personal social service are to be read as references to any of those services;

“Interim Health Service Executive” means the body of that name established under the Health (Corporate Bodies) Act 1961;

“local authority” has the same meaning as in the Local Government Act 2001;

F3[“member”, in relation to the Board, includes the chairperson and the deputy chairperson;]

“Minister” means Minister for Health and Children;

F3[“ordinary member”means a member of the Board other than the chairperson or the deputy chairperson;]

“prescribed” means prescribed by regulation made by the Minister;

“public authority” means any of the following:

(a) a Minister of the Government;

(b) the Commissioners of Public Works in Ireland;

(c) a local authority;

(d) a harbour authority within the meaning of the Harbours Act 1946;

(e) a board or other body (but not a company) established by or under statute;

(f) a company in which all the shares are held by or on behalf of, or by directors appointed by, a Minister of the Government;

(g) a company in which all the shares are held by a board, company or other body referred to in paragraph (e) or (f);

(h) such other body, if any, as is prescribed for the purpose of any provision of this Act;

“service provider” means a person who enters into an arrangement under section 38 to provide a health or personal social service on behalf of the Executive;

F5[“specialist community-based disability services”means any health or personal social services, provided by or on behalf of the Executive under this Act or any other enactment, in the community to a person who has a disability, and so provided in relation to that disability, other than any such services provided—

(a) underthe Mental Health Acts 1945 to 2001, or

(b) in a hospital;

“specialist community-based disability services functions”means the management and delivery, or arrangement of delivery on its behalf, by the Executive, of specialist community-based disability services;]

“superannuation benefit” means a pension, gratuity or other allowance payable on resignation, retirement or death.

(2) In this Act—

(a) a reference to a section, Part or Schedule is a reference to a section or Part of, or a Schedule to, this Act, unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other enactment is intended, and

(c) a reference to an enactment includes a reference to that enactment as amended, adapted or extended at any time by any enactment.

3. Commencement.

3.—(1) This Act comes into operation on such day or days as the Minister may, by order, appoint.

(2) Different days may be appointed under this section for different purposes or different provisions of this Act and for the repeal or revocation of different enactments by section 73 and Schedule 4.

4. Establishment day.

4.—The Minister shall, by order, appoint a day to be the establishment day for the purposes of this Act.

5A. Expenses.

5.—The expenses incurred by the Minister F7[or the Minister for Children, Equality, Disability, Integration and Youth] in administering this Act are, to such extent as may be sanctioned by the Minister for Finance, payable out of money provided by the Oireachtas.

F8[Expenses of the Executive.

5A.—The expenses incurred by the ExecutiveF9[before 1 January 2015]are, with the approval of the Minister, to such extent as may be sanctioned by the Minister for Finance, payable out of money provided by the Oireachtas.]

PART 2 Establishment and Functions of the Health Service Executive

6. Establishment of Executive.

6.—(1) On the establishment day a body to be known as Feidhmeannacht na Seirbhíse Sláinte or in the English language as the Health Service Executive is, by this Act, established to perform the functions assigned to it by this Act.

(2) The Executive is a body corporate with perpetual succession and a seal and may—

(a) sue and be sued in its corporate name,

(b) subject to the Health Acts 1947 to 2001, acquire, hold and dispose of land or an interest in land, and

(c) acquire, hold and dispose of any other kind of property.

(3) Paragraph 1 of Schedule 2 applies in relation to the seal of the Executive.

7. Object and functions of Executive.

7.—(1) The object of the Executive is to use the resources available to it in the most beneficial, effective and efficient manner to improve, promote and protect the health and welfare of the public.

(2) Subject to this Act, the Executive shall, to the extent practicable, further its object.

(3) Without limiting the Executive's responsibilities under subsection (2) or (4), it has—

(a) the functions transferred to it by section 59 or by an order under section 70, and

(b) such other functions as are assigned to it by this Act or any other enactment.

(4) The Executive shall manage and shall deliver, or arrange to be delivered on its behalf, health and personal social services in accordance with this Act and shall—

(a) integrate the delivery of health and personal social services,

(b) to the extent practicable and necessary to enable the Executive to perform its functions, facilitate the education and training of—

(i) students training to be registered medical practitioners, nurses or other health professionals, and

(ii) its employees and the employees of service providers,

F10[…]

(c) provide advice to the Minister in relation to its functions F11[as the Minister may request, and]

F12[(d) provide advice to the Minister for Children, Equality, Disability, Integration and Youth in relation to its specialist community-based disability services functions as that Minister may request.]

(5) In performing its functions, the Executive shall have regard to—

(a) services provided by voluntary and other bodies that are similar or ancillary to the services the Executive is authorised to provide,

(b) the need to co-operate with, and co-ordinate its activities with those of, other public authorities if the performance of their functions affects or could affect the health of the public,

F13[(c) the policies (whether set out in codes, guidelines or other documents, or any combination thereof) and objectives of the Government or any Minister of the Government to the extent that those policies and objectives may affect or relate to the functions of the Executive,]

(d) the resources, wherever originating, that are available to it for the purpose of performing its functions, F14[…]

(e) the need to secure the most beneficial, effective and efficient use of those resources F15[, and]

F16[(f) any standards set by the Health Information and Quality Authority, in so far as practicable and subject to the resources available to the Executive.]

(6) The Executive may undertake, commission or collaborate in research projects on issues relating to health and personal social services, but, in considering whether to do so, it shall have regard to any decision by another body or person within the State to undertake, commission or collaborate in such projects.

(7) The power given by subsection (6) includes the power to collaborate in research projects involving parties from outside the State.

(8) Subject to this or any other enactment, the Executive has all powers necessary or expedient for it to perform its functions.

8. Agreements between Executive and public authorities concerning performance of functions.

8.—(1) If any function of a public authority should, in its opinion, be performed (whether generally or in a particular case) by the Executive and the Executive is able and willing to perform the function, the Executive and that authority may enter into an agreement for the Executive to perform the function on the authority's behalf.

(2) If an agreement is entered into for the Executive to perform a function of a public authority, the Executive may—

(a) perform the function on behalf of the public authority in accordance with the agreement, and

(b) do any act or thing relating to the performance of that function that the public authority would be authorised by law to do if it performed the function.

(3) If any function of the Executive should, in its opinion, be performed (whether generally or in a particular case) by a public authority and that authority is able and willing to perform the function, the authority and the Executive may enter into an agreement for the authority to perform the function on the Executive's behalf.

(4) If an agreement is entered into for a public authority to perform a function of the Executive, the public authority may—

(a) perform the function on the Executive's behalf in accordance with the agreement, and

(b) do any act or thing relating to the performance of that function that the Executive would be authorised by law to do if it performed the function.

(5) An agreement under this section may contain terms and conditions relating to—

(a) the extent to which and the period for which a party to the agreement is authorised to perform the function of the other party to the agreement,

(b) the making of payments or the transfer of financial responsibility, and

(c) such other matters as are considered necessary to give effect to the agreement.

(6) An agreement under this section may provide for charges payable by the party on whose behalf the function is to be performed to the other party to the agreement.

(7) The power of a local authority to enter into an agreement under this section is a reserved function of the local authority.

9. Informal arrangements between Executive and local authorities concerning performance of functions.

9.—(1) If a local authority is of the opinion that it would be convenient if duties relating to its functions were carried out by an employee of the Executive, those duties may, without an agreement being entered into under section 8, be assigned by the Executive to any of its employees in the same way as duties relating to its functions.

(2) If the Executive is of the opinion that it would be convenient if duties relating to its functions were carried out by an employee of a local authority, those duties may, without an agreement being entered into under section 8, be assigned by the local authority to any of its employees in the same way as duties relating to the functions of the local authority.

(3) Duties assigned in accordance with this section may be carried out by the employees to whom they are so assigned.

10. Directions from Minister.

10.—F17[(1) The Minister may issue general written directionsF18[to the Executive or the Board]—

(a) for any purpose relating to this Act or any other enactment,

(b) concerning any matter or thing referred to in this Act as specified or to be specified, or as determined or to be determined, by the Minister, or

(c) concerning the implementation of any policy or objective of the Minister or the Government which relates to a function of the Executive, where the Minister is of the opinionF18[that the Executive or the Board, as applicable, is not having sufficient regard to such policy or objective in the performance of the Executive’s functions].]

(2) In addition, the Minister may issue specific written directions to the Executive concerning the submission to the Minister, in such manner and within such period as the Minister may specify, of—

(a) reports on any matter relating to Part 7 or relating in any other way to the performance of the Executive's functions, even though such reports are the subject of a direction under F18[subsection (1),]

(b) any information or statistics relating to the performance of the Executive's F18[functions, or]

F19[(c) subject tosection 10AA(1)and(3), one or more than one health needs assessment (within the meaning ofsection 10AA(8)) to be implemented by the Executive in the service plan prepared in accordance withsection 31.]

(3) Subsections (1) and (2) are not to be taken to limit a power to issue directions conferred on the Minister by any other provision of this Act.

(4) The Minister may, by written direction, amend or revoke any direction issued by the Minister under this Act.

(5) F20[The Executive or the Board, as applicable,] shall comply with a direction issued by the Minister under this Act.

(6) The Minister shall ensure that, within 21 days after issuing a direction under subsection (1) F20[or issuing a direction undersubsection (4)amending or revoking a direction issued undersubsection (1)], a copy of the direction is laid before both Houses of the Oireachtas.

F21[(7)F20[The chairperson shall inform the Minister of the measures taken by the Executive or the Board, as applicable,]to comply with a direction issued under this section and such information shall be furnished to the Minister within such period as may be specified by the Minister.]

10A. F22[Setting of priorities by Minister.

10A.— (1) Subject tosubsections (2)to(4), the Minister may specify—

(a) priorities to which the Executive shall have regard in preparing its service plan undersection 31or amending its service plan undersection 32, and

(b) performance targets for the Executive in respect of such priorities.

(2)F23[…]

(3) The Minister shall consult with the Executive before specifying priorities or performance targets under this section and, having so specified such priorities or targets, shall furnish details of these in writing to the Executive.

(4) Before specifying priorities or performance targets under this section the Minister shall have regard to—

(a) best practice as respects the service the subject of the priority or performance target,

(b) outcomes for patients and recipients of services likely to be affected by the priority or performance target which the Minister is considering specifying, and

(c) the effect that specifying the priority or performance target concerned would be likely to have on other services provided by or on behalf of the Executive.

(5) In this section ‘performance targets’ means, as respects priorities specified undersubsection (1), levels of performance by the Executive by which the effectiveness of the Executive in meeting such priorities can be measured by the Minister.]

10AA. F24[Health needs assessment

10AA.(1) A direction undersection 10(2)(c)F25[orsection 10C(2)(c)]shall include specific requirements to be taken into consideration by the Executive when conducting a health needs assessment.

(2) Without prejudice to the generality ofsubsection (1), the specific requirements referred to in that subsection may include the effects of such of the following matters on the accessibility and effectiveness of healthcare strategies implemented by the Executive as the MinisterF25[or the Minister for Children, Equality, Disability, Integration and Youth in so far as it relates to the performance of the Executive’s specialist community-based disability services functions]is satisfied are appropriate:

(a) changes to national or regional distribution of population;

(b) demographic profile of population;

(c) lifestyle factors affecting health;