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National Health Service (Scotland) Act 1978

Type Public General Act

Publication 1978-07-20

Last updated 2025-06-19

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(2) The Health Services Board may submit to the Secretary of State proposals for securing that in any case where one or more beds authorised under section 57(1) cease to be available to resident private patients, or any accommodation or services authorised under section 58(1) cease to be available to non-resident private patients, in consequence of the permanent closure of any health service hospital accommodation in Scotland independently of any proposals submitted by the Board under section 60, the total number of effective beds, or the total amount of effective accommodation or services, as the case may be, so authorised in Scotland is not thereby reduced below what it would be if—

(a) the closed accommodation had remained in use, but

(b) effect had been given by the Secretary of State to all proposals under section 60 which were received by him before the submission of the proposals in question under this subsection.

(3) It shall be the Secretary of State's duty to grant such authorisations under section 57(1) or section 58(1), as the case may be, as are needed to give effect to any proposals submitted to him under subsection (2).

(4) Where any health service hospital accommodation in Scotland is temporarily closed (whether at the instance of the Secretary of State or not) for physical or other reasons outside his control, the Secretary of State shall, without the need for any proposals by the Board, grant on a temporary basis such authorisations under section 57(1) or section 58(1) as he would have been able to grant by virtue of subsections (2) and (3) if—

(a) the closure had been permanent; and

(b) the Board had submitted to him any proposals which it could in that case have submitted to him under subsection (2).

(5) Subject to the restrictions imposed by this section, section 57 or, as the case may be, section 58 shall continue to have effect in relation to any accommodation or services to which an authorisation under section 57(1) or section 58(1) relates.

Use by practitioners of health service accommodation and facilities for private practice

Permission for use of facilities in private practice

64

(1) A person to whom this section applies who wishes to use any relevant health service accommodation or facilities for the purpose of providing medical, dental, pharmaceutical, ophthalmic or chiropody services to non-resident private patients may apply in writing to the Secretary of State for permission under this section.

(2) Any application for permission under this section must specify—

(a) which of the relevant health service accommodation or facilities the applicant wishes to use for the purpose of providing services to such patients; and

(b) which of the kinds of services mentioned in subsection (1) he wishes the permission to cover.

(3) On receiving an application under this section the Secretary of State—

(a) shall consider whether anything for which permission is sought would interfere with the giving of full and proper attention to persons seeking or afforded access otherwise than as private patients to any services provided under this Act; and

(b) shall grant the permission applied for unless in his opinion anything for which permission is sought would so interfere.

(4) Any grant of permission under this section shall be on such terms (including terms as to the payment of charges for the use of the relevant health service accommodation or facilities pursuant to the permission) as the Secretary of State may from time to time determine.

(5) The persons to whom this section applies are—

(za) persons providing primary medical services; and

(a) persons of any of the following descriptions who provide services under Part II, namely, medical practitioners, dental practitioners, registered pharmacists, and ophthalmic opticians; and

(b) other persons who provide dental, pharmaceutical or ophthalmic services under Part II; and

(6) In this section—

(a) “relevant health service accommodation or facilities”, in relation to a person to whom this section applies, means any accommodation or facilities available at premises provided by the Secretary of State by virtue of this Act, being accommodation or facilities which that person is for the time being authorised to use for the purposes of this Act; or

(b) in the case of a person to whom this section applies by virtue of paragraph (c) of subsection (5), accommodation or facilities which that person is for the time being authorised to use for purposes of this Act at premises where services are provided under Part II.

Information and reports

Information for Health Services Board

65

Publication of matters under sections 60 and 63

66

The Secretary of State shall cause every set of proposals submitted to him under sections 60 and 63, and every report submitted to him under section 60(2), to be published as soon as practicable after its submission, and shall lay a copy of every such set of proposals or report before each House of Parliament.

Reports on extent of facilities for private patients

67

(1) There shall be prepared by the Secretary of State on the matters mentioned in subsection (2), an annual report relating to Scotland, and he shall lay a copy of every report under this section before each House of Parliament.

(2) The matters referred to under subsection (1) are—

(a) the accommodation and services at health service hospitals which in the period covered by the report were available for use in connection with the treatment of private patients by virtue of authorisations under sections 57(1) and 58(1);

(b) the extent to which " the section 50 power " (as defined in section 51(1)) was exercised in that period;

(c) the extent to which the powers to which section 54 applies were exercised in that period otherwise than by way of affording persons admission or access to accommodation or services at health service hospitals as resident or non-resident private patients; and

(d) the extent to which progress has been made in implementing the common waiting-lists referred to in section 6 of the Health Services Act 1976, and in section 68.

" Common waiting lists "

68

(1) The reference in paragraph (d) of section 67(2) to common waiting-lists is to the recommendations made to the Secretary of State by the Health Services Board under section 6(1) of the Health Services Act 1976.

(2) Those recommendations—

(a) related to arrangements for affording persons admission or access as resident patients (authorised under section 57) or non-resident patients (authorised under section 58) to accommodation and services; and

(b) were in the Board's opinion the ones best suited for securing that all persons admitted or afforded access to accommodation or services at health service hospitals as resident or non-resident patients are, so far as is practicable, admitted or afforded access thereto on the basis of medical priority alone, whether coming as private patients or not.

Regulations as to certain charges

Charges for drugs, medicines or appliances or pharmaceutical services

69

(1) Regulations may provide for the making and recovery in such manner as may be prescribed of such charges as may be prescribed in respect of—

(a) the supply under this Act (otherwise than under Part II) of drugs, medicines or appliances (including the replacement and repair of those appliances),

(b) such of the pharmaceutical services referred to in Part II as may be prescribed.

(2) Regulations under subsection (1) may provide for the grant, on payment of such sums as may be prescribed by those regulations, of certificates conferring on the persons to whom the certificates are granted exemption from charges otherwise exigible under the regulations in respect of drugs, medicines and appliances supplied during such period as may be prescribed, and different sums may be so prescribed in relation to different periods.

(3) The additional provisions of paragraphs 1 and 4 of Schedule 11 have effect in relation to this section.

Charges for dental or optical appliances

70

(1) Regulations may provide for the making and recovery in such manner as may be prescribed of charges of such amounts as are mentioned in sub-paragraph (1) of paragraph 2 of Schedule 11, in respect of the supply under this Act of such optical appliances as are mentioned in that sub-paragraph.

(1A) Regulations may provide for the making and recovery in such manner as may be prescribed of charges of amounts calculated in accordance with section 71A in respect of the supply under this Act of dentures and other dental appliances of prescribed descriptions.

(2) If the Secretary of State, after consultation with the university associated with any hospital providing facilities for clinical dental teaching, is satisfied that it is expedient in the interests of dental training or education that the charges imposed by subsection (1A) should be remitted in the case of dental services provided at that hospital, either generally or subject to limitations or conditions, he may by order provide for that purpose.

Any order made under this subsection may be revoked or varied by a subsequent order made by the Secretary of State after such consultation as is mentioned above.

(3) The additional provisions of paragraphs 2 and 5 of Schedule 11 have effect in relation to this section.

Charges for dental treatment

71

(1) A charge of an amount calculated in accordance with section 71A may be made and recovered, in such manner as may be prescribed, in respect of any services provided as part of the general dental services under Part II, not being—

(a) oral health assessments and dental examinations carried out on or after 1st April 2006;

(b) the repair of appliances other than prescribed appliances;

The additional provisions of paragraphs 3 and 5 of Schedule 11 have effect in relation to this subsection.

(2) Regulations may provide that, in the case of such special dental treatment as may be prescribed, being treatment provided as part of the general dental services (but not being oral health assessments or dental examinations carried out on or after 1st April 2006), such charges as may be prescribed may be made and recovered by the person providing the services.

Charges in respect of services etc. provided under sections 37, 38 and 41

72

Regulations may provide for the recovery of such charges as may be prescribed—

(a) in respect of such services provided under section 37 (prevention of illness, care and after-care) as may be prescribed, not being services provided in a hospital;

(b) in respect of such articles or services provided under section 38 (care of mothers and young children) as may be prescribed, not being articles or services provided in a hospital, and not being a drug, a medicine or an appliance of a type normally supplied;

and may provide for the remission of any such charge, in whole or in part, in such circumstances as may be prescribed.

Charges for more expensive supplies

73

Regulations may provide for the making and recovery of such charges as may be prescribed—

(a) by the Secretary of State in respect of the supply by him of any appliance or vehicle which is, at the request of the person supplied, of a more expensive type than the prescribed type, or in respect of the replacement or repair of any such appliance, or the replacement of any such vehicle, or the taking of any such action in relation to the vehicle as is mentioned in section 46(2).

(b) by persons providing personal dental services in accordance with section 17C arrangements or general dental services in respect of the supply, as part of those services, of any dental appliance which is, at the request of the person supplied, of a more expensive type than the prescribed type or in respect of replacement or repair of any such appliance.

(c) by a National Health Service trust in respect of the supply by them of any appliance or vehicle which is, at the request of the person supplied, of a more expensive type than the prescribed type, or in respect of the replacement or repair of any such appliance, or the replacement of any such vehicle.

Charges for repairs and replacements in certain cases

74

Regulations may provide for the making and recovery of such charges as may be prescribed—

(a) by the Secretary of State in respect of the replacement or repair of any appliance or vehicle supplied by him, or

(b) by persons providing personal dental services in accordance with section 17C arrangements orgeneral dental services in respect of the replacement or repair of any dental appliance supplied as part of those services, or

if it is determined in the prescribed manner that the replacement or repair is necessitated by an act or omission of the person supplied or (if the act or omission occurred when the person supplied was under 16 years of age) of the person supplied or of the person having charge of him when the act or omission occurred.

Sums otherwise payable to those providing services

75

Regulations made—

(a) under sections 69 to 71 and under sections 73 and 74 providing for the making and recovery of charges in respect of any services, may provide for the reduction of the sums which would otherwise be payable by a Health Board to the persons by whom those services are provided by the amount of the charges authorised by the regulations in respect of those services;

(b) for the purposes of section 70(1A) in relation to appliances provided as part of—

(i) general dental services, or

(ii) personal dental services provided in accordance with section 17C arrangements,

may provide for the reduction of the sums which would otherwise be payable by a Health Board to the persons by whom those services are provided by the amount of the charges authorised by section 70(1A) in respect of those appliances.

Inquiries, and default and emergency powers

Inquiries

76

(1) The Secretary of State may cause an inquiry to be held in any case where he deems it advisable to do so in connection with any matter arising under this Act or under the 2021 Act.

(2) The provisions of Schedule 12 shall have effect with regard to any inquiry which the Secretary of State is, under this Act, required or authorised to hold.

Default powers

77

(1) Where the Secretary of State is of the opinion, on representations made to him or otherwise, that—

(a) any Health Board; ...

(aa) an NHS trust

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) HIS,

have failed to carry out any functions conferred or imposed on them by or under this Act or by or under the 2021 Act, or have in carrying out those functions failed to comply with any regulations, schemes, proposals or directions relating to those functions, he may after holding an inquiry make an order declaring them to be in default

(2) When such an order is made, the members of the body shall forthwith vacate their office, and the order—

(a) shall provide for the appointment or, as the case may be, election, in accordance with the provisions of this Act, of new members of the body; and

(b) may contain such provisions as seem to the Secretary of State expedient for authorising any person to act in the place of the body in question pending the appointment or, as the case may be, election of new members.

(3) An order made under this section may contain such supplementary and incidental provisions as appear to the Secretary of State to be necessary or expedient.

Emergency powers

78

If the Secretary of State is of the opinion that an emergency exists, and thinks it necessary in order to secure the effective continuance of any service under this Act or under the 2021 Act, he shall have power to direct that any function conferred by or under this Act, or by or under the 2021 Act, on any body or person shall, during the period of the emergency, be performed by such other body or person as he may specify in the direction.

Part V — Property and Finance

Land and other property

Purchase of land and moveable property

79

(1) The Secretary of State may purchase by agreement any moveable property and, by agreement or compulsorily, any land which he considers is required for the purposes of any service under this Act or under the 2021 Act and may take any such property or land on lease,, and may use for those purposes any property, heritable or moveable, acquired by him or on his behalf under this Act.

(1A) Without prejudice to any other power of disposal, the Secretary of State may dispose of any land which he considers is no longer required for the purposes of any service under this Act or under the 2021 Act ...

(2) Where the Secretary of State acquires premises under subsection (1) other than on lease he may acquire compulsorily, in accordance with Schedule 13, any equipment, furniture or other moveable property used in or in connection with the premises.

(2A) For the avoidance of doubt, the power to use heritable property conferred by subsection (1), and the power to dispose of land conferred by subsection (1A), include power to let the property or, as the case may be, land.

(3) Any Health Board , the Agency or (in connection with the exercise of its health service functions only) HIS may acquire on behalf of the Secretary of State any moveable property which may be required for the purposes aforesaid.

(4) For the purpose of the purchase of land by agreement by the Secretary of State—

(a) the Lands Clauses Acts (except so much thereof as relates to the acquisition of land otherwise than by agreement, and the provisions relating to access to the special Act, and except sections 120 to 125 of the Lands Clauses Consolidation (Scotland) Act 1845), and

(b) section 6 and sections 70 to 78 of the Railways Clauses Consolidation (Scotland) Act 1845 (as originally enacted and not as amended by section 15 of the Mines (Working Facilities and Support) Act 1923),

are hereby incorporated with this section; and in construing those Acts for the purposes of this section, this section shall be deemed to be the special Act and the Secretary of State shall be deemed to be the promoter of the undertaking.

Transferred property free of trusts

80

(1) All property vested in the Secretary of State by virtue of section 6 of the National Health Service (Scotland) Act 1947 is so vested free of any trust existing immediately before 5th July 1948; and the Secretary of State may use any such property for the purpose of any of the functions exercisable by him under this Act, but shall so far as practicable secure that the objects for which any such property was used immediately before the said 5th July are not prejudiced by the exercise of the power hereby conferred.

(2) Where the character and associations of any voluntary hospital transferred to the Secretary of State by virtue of the said Act of 1947 are such as to link it with a particular religious denomination, regard shall be had in the general administration of the hospital to the preservation of the character and associations of the hospital.

Power of voluntary organisations to transfer property to Secretary of State

81

Notwithstanding anything contained in the constitution or rules of any voluntary organisation formed for the purpose of providing a service of nurses for attendance on the sick in their own home or of midwives, or in any trust deed or other instrument relating to any such organisation or service, any property vested in the organisation or held by any persons on trust for the organisation or service or for any specific purposes connected with the organisation or service may be transferred to the Secretary of State on such terms as may be agreed between the Secretary of State and the organisation or trustees, with a view to the property being used or held by the Secretary of State for purposes similar to the purposes for which it was previously used or held.

Trust property

Use and administration of certain endowments and other property held by Health Boards

82

(1) All endowments vested in a Health Board by virtue of section 37 of the National Health Service (Scotland) Act 1972 are so vested free of any trust existing immediately before 1st April 1974 (hereafter in this section referred to in relation to any such endowment as “the original trust”); but all such endowments shall be held by the Health Board on trust for such purposes relating to services provided under this Act in or in relation to hospitals, or to the functions of the Board with respect to research, as the Board may think fit.

(2) All property vested in a Health Board by virtue of section 39 of the said Act of 1972 is so vested free of any trust existing immediately before the said 1st April (hereafter in this section referred to in relation to any such property as “the original trust”); but all such property shall be held by the Health Board on trust for such purposes relating to services provided by them under this Act, or to the functions of the Board with respect to research, as the Board may think fit.

(2A) All endowments and other property (including value in lieu of the property) vested in a Health Board by virtue of section 5 or 6(2) of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4) is so vested free of any trust existing immediately before it is so vested (hereafter in this section referred to in relation to any such endowment or property as “the original trust”); but all such endowments and other property shall be held by the Health Board on trust for such purposes relating to services provided under this Act or in relation to hospitals, or to the functions of the Board with respect to research, as the Board may think fit.

(2B) All endowments and property held in trust transferred to a Health Board by an order under paragraph 26 of Schedule 7A (whenever made) are held by the Health Board free of any trust existing immediately before the transfer (hereafter in this section referred to in relation to any such endowment or property as “the original trust”); but all such endowments and property shall be held by the Health Board on trust for such purposes relating to services provided under this Act, or to the functions of the Board with respect to research, as the Board may think fit.

(3) In exercising the power conferred on them by this section in relation to any endowment or property a Health Board shall secure, so far as is reasonably practicable, that the objects of the original trust (including, in the case of an endowment, the objects of the endowment) and the observance of any conditions attaching thereto, including, in particular, conditions intended to preserve the memory of any person or class of persons, are not prejudiced by the exercise of the power.

(4) Any reference in this section to an endowment or to any property includes a reference to the accumulated income thereof.

Power of Health Boards and local health councils to hold property on trust

83

(1) A Health Board , and HIS, 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, or to their functions with respect to research.

(1ZA) Any reference in subsection (1) to a function of HIS is to be construed as a reference to that body's health service functions only.

(1A) A Health Board shall have power to accept, hold and administer any property on trust for purposes relating to any service which it is the function of any NHS trust in the area of the Health Board to make arrangements for, administer or provide.

(2) A local health council shall have power to accept, hold and administer any property on trust for purposes relating to any function conferred upon them by or under any enactment.

Power of trustees to make payments to Health Boards

84

(1) Where property (other than property transferred to the Secretary of State under Part V of the National Health Service (Scotland) Act 1972 or to a Health Board under Part VI of that Act) was immediately before 1st April 1974, and is at any time after the commencement of this Act, held on trust under a trust instrument the terms of which authorise or require the trustees (whether immediately or in the future) to apply any part of the capital or income of the property for the purposes of any hospital or service which is administered by a Health Board or (in connection with the exercise of its health service functions only) by HIS or an NHS trust, the trust instrument shall be construed as authorising, or, as the case may be, requiring, the trustees to pay that capital or income to the Health Board or NHS trust concerned or, as the case may be, to HIS.

(2) Where property so held on trust is, under the trust instrument, to be applied for the purposes of hospitals which are administered by more than one Health Board or NHS trust, the trustees shall distribute the property between the Boards or NHS trusts concerned, in such manner, having regard to the purposes of the trust, as the trustees may determine.

(3) Any sums paid to a Health Board or to HISor an NHS trust under this section shall, so far as practicable, be applied by them for the purposes specified in the trust instrument.

Finance and accounts

Expenses of certain bodies and travelling expenses and receipts

85

(1) There shall, in respect of each financial year, be paid by the Secretary of State sums not exceeding the amount allotted by him for that year to each of the following bodies towards meeting the expenditure attributable to the performance by that body of their functions in that year—

(a) the Agency;

(b) every Special Health Board;

(d) the Dental Estimates Board;

(e) the tribunal;

(ea) HIS;

(f) every local health council.

(1A) The reference in subsection (1) to the functions of HIS is to be construed as a reference to that body's health service functions only.

(2) The date on which an allotment under subsection (1) (including an allotment increasing or reducing an allotment previously made) takes effect is the date on which the body receiving the allotment are notified of its amount by the Secretary of State.

(3) The Secretary of State may give directions to a body referred to in subsection (1) with respect to the application of the sums paid to them under that subsection and it shall be the duty of any body to whom directions have been given under this subsection to comply with the directions.

(4) Payments under subsection (1) shall be made at such times and in such manner, and subject to such conditions as to records, certificates or otherwise, as the Secretary of State may determine.

Accounts of Health Boards and the Agency

86

(1) The following bodies that is to say—

(a) every Health Board;

(b) the Agency; and

(ba) HIS;

shall keep, in such form as the Secretary of State may, with the approval of the Treasury, direct, accounts of all moneys received or paid out by them (in the case of HIS, in connection with the exercise of that body's health service functions only), and shall send those accounts to the Scottish Ministers by such time as they may direct.

(1AA) The Scottish Ministers shall send the accounts to the Auditor General for Scotland for auditing.

(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1B) In preparing its annual accounts in pursuance of subsection (1), an NHS trust shall comply with any directions given by the Secretary of State with the approval of the Treasury as to—

(a) the methods and principles according to which the accounts are to be prepared; and

(b) the information to be given in the accounts.

(1C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(3) Every body mentioned in paragraphs (a) to (c) of subsection (1) shall prepare and transmit to the Secretary of State in respect of each financial year accounts in such form as the Secretary of State may, with the approval of the Treasury, direct.

(4) The Scottish Ministers may if they think fit prepare, in respect of any financial year, summarised or consolidated accounts, in such form as they may determine, of such of the bodies mentioned in paragraphs (a) to (c) of subsection (1), or such groups of those bodies, as they may determine; and they shall transmit any such accounts to the Auditor General for Scotland for auditing

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

Regulation of financial arrangements of Health Boards, the Agency and the Dental Estimates Board

87

(1) Regulations may provide, in the case of all or any of the following bodies, that is to say, Health Boards, the Agency HIS, and the Dental Estimates Board, for restricting the making of payments by or on behalf of the body otherwise than on such authorisation and subject to such conditions as may be specified in the regulations; but such provision may be made subject to such exceptions as may be so specified.

(2) Regulations made under this section may contain such other provisions as to the making and carrying out by all or any of those bodies of such arrangements with respect to financial matters as the Secretary of State thinks necessary for the purpose of securing that the affairs of such bodies are conducted, so far as reasonably practicable, in such manner as to prevent financial loss and to ensure and maintain efficiency.

(3) Without prejudice to the operation of the provisions of any such regulations, the Secretary of State may give to any of the said bodies such directions (which may be specific in character) as to any matter with respect to which regulations may be made under this section as it appears to him is requisite for the purpose of securing that the affairs of the body are conducted, so far as reasonably practicable, in such manner as is mentioned in subsection (2); and a body to whom any such directions are given shall comply therewith.

(4) In relation to HIS, the references—

(a) in subsection (1) to payments;

(b) in subsection (2) to arrangements and affairs; and

are to be construed as references to payments, arrangements and affairs for or in connection with the exercise by HIS of its health service functions only.

Remuneration, allowances and superannuation

Payment of allowances and remuneration to members of certain bodies connected with the health services

88

(1) The Secretary of State may pay to members of—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the Dental Estimates Board,

(d) any body on which functions are conferred by regulations under section 22 or by regulations which make provision in relation to section 17C arrangements of a kind that may be made by regulations under section 22, and

(e) any body specified in an order made by the Secretary of State as being a body recognised by him to have been formed for the purpose of performing a function connected with the provision of services under this Act,

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.

(2) The Secretary of State may pay to members of—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the Dental Estimates Board,

(d) any other body constituted under or by virtue of Part II, being a body specified in an order made for the purposes of this section by the Secretary of State with the approval of the Minister for the Civil Service, and

(e) any body on which functions are conferred by regulations under section 22 or by regulations which make provision in relation to section 17C arrangements of a kind that may be made by regulations under section 22,

such remuneration as the Secretary of State may, with such approval, from time to time determine.

(3) Allowances shall not be paid under subsection (1) except in connection with the performance of such powers or duties, in such circumstances, as may, with the approval of the Minister for the Civil Service, be determined by the Secretary of State.

(4) Any payments made under this section shall be made at such times and in such manner, and subject to such conditions as to records, certificates or otherwise, as the Secretary of State may, with the approval of the Minister for the Civil Service, determine.

Superannuation of officers of certain hospitals

89

(1) The Secretary of State may enter into an agreement with the governing body of any hospital to which this section applies for admitting, on such terms and conditions as may be provided in the agreement, officers of the hospital of such classes as may be so provided to participate in the superannuation benefits provided under regulations made under section 10 of the Superannuation Act 1972, in like manner as officers of Health Boards; and the said regulations shall apply accordingly in relation to the officers so admitted, subject to such modifications as may be provided in the agreement.

(2) The governing body of any hospital to which this section applies shall have all such powers as may be necessary for the purpose of giving effect to any terms and conditions on which their officers are admitted to participate in those superannuation benefits.

(3) This section applies to any hospital (not vested in the Secretary of State) which is used, in pursuance of arrangements made by the governing body of the hospital with a Health Board, for the provision of services under this Act.

Part VI — The Health Service Commissioner for Scotland

Appointment of Commissioner and tenure of office

90

(1) For the purpose of conducting investigations in accordance with the following provisions of this Part, there shall be appointed a Commissioner, to be known as the Health Service Commissioner for Scotland.

(2) Her Majesty may, by Letters Patent, from time to time appoint a person to be the Commissioner, and any person so appointed shall, subject to subsections (3) and (3A), hold office during good behaviour.

(3) A person appointed to be the Commissioner may be relieved of office by Her Majesty at his own request, or may be removed from office by Her Majesty in consequence of Addresses from both Houses of Parliament, and shall in any case vacate office on completing the year of service in which he attains the age of 65 years.

(3A) Her Majesty may declare the office of Commissioner to have been vacated if satisfied that the person appointed to be the Commissioner is incapable for medical reasons:

(a) of performing the duties of his office; and

(b) of requesting to be relieved of it.

(4) The Commissioner shall not be a member of the House of Commons, or of the Senate or House of Commons of Northern Ireland, and accordingly the House of Commons Disqualification Act 1975 shall continue to have effect with the following amendments—

(a) in Part III of Schedule 1 there shall be inserted, at the appropriate point in alphabetical order, the entry “The Health Service Commissioner for Scotland"; and

(b) the like amendment shall be made in the Part substituted for the said Part III by Schedule 3 to the said Act in its application to the Senate and House of Commons of Northern Ireland.

(5) The Commissioner shall not be a member of a body subject to investigation or any management committee thereof.

Salary and pension of Commissioner

91

(1) Subject to the provisions of this section, there shall be paid to the holder of the office of Commissioner the same salary as if he were employed in the civil service of the State in such appointment as the House of Commons may, by resolution, from time to time determine, and any such resolution may take effect from the date on which it is passed or such other date as may be specified therein.

(2) Subject to the provisions of this section and subsections (5) to (7) of section 107 of the National Health Service Act 1977, Schedule 1 to the Parliamentary Commissioner Act 1967 (pensions and other benefits) shall have effect with respect to persons who have held office as Commissioner as it has effect with respect to persons who have held office as Commissioner under that Act of 1967.

(3) The salary payable to a holder of the office of a Commissioner shall be abated by the amount of any pension payable to him in respect of any public office in the United Kingdom or elsewhere to which he has previously been appointed or elected.

(4) In computing the salary of a former holder of the office of Commissioner for the purposes of Schedule 1 to that Act of 1967 there shall be disregarded—

(a) any abatement of that salary under subsection (3);

(b) any temporary abatement of that salary in the national interest; and

(5) Where—

(a) a person holds the office of Parliamentary Commissioner for Administration and one or more of the offices of Health Service Commissioner for England, Health Service Commissioner for Scotland and Health Service Commissioner for Wales he shall, so long as he does so, be entitled only to the salary pertaining to the first-mentioned office; and

(b) a person holds two or more of those offices other than that of Parliamentary Commissioner for Administration he shall, so long as he does so, be entitled only to the salary pertaining to such one of those offices as he selects.

(6) A person—

(a) shall not be entitled to make simultaneously different elections in pursuance of paragraph 1 of Schedule 1 to that Act of 1967 in respect of different offices mentioned in subsection (5), and

(b) shall, if he has made or is treated as having made an election in pursuance of that paragraph in respect of such an office, be deemed to have made the same election in respect of all other offices to which he is, or is subsequently, appointed,

and no account shall be taken for the purposes of that Schedule of a period of service in such an office if salary in respect of the office was not paid for that period.

(7) The Minister for the Civil Service may—

(a) by regulations provide that Schedule 1 to that Act of 1967 shall have effect in relation to persons who have held more than one of the offices mentioned in subsection (5), and

(b) by those regulations modify that Schedule as he considers necessary in consequence of those persons having held more than one of those offices,

and different regulations may be made in pursuance of paragraph 4 of that Schedule in relation to different offices so mentioned.

This subsection is subject to subsection (6).

(8) Any salary, pension or other benefit payable by virtue of this section shall be charged on and issued out of the Consolidated Fund.

Administrative provisions

92

(1) The Commissioner may appoint such officers as he may determine with the approval of the Minister for the Civil Service as to numbers and conditions of service.

(2) Any function of the Commissioner under this Part may be performed by any officer of the Commissioner authorised for that purpose by him or by any officer so authorised of another Commissioner mentioned in subsection (5) of section 107 of the National Health Service Act 1977.

(3) To assist him in any investigation, the Commissioner may obtain advice from any person who in his opinion is qualified to give it, and such fees or allowances may be paid to such person by the Commissioner as he may, with the approval of the Minister for the Civil Service, determine.

(4) The expenses of the Commissioner under this Part, to such amount as may be sanctioned by the Minister for the Civil Service, shall be defrayed out of moneys provided by Parliament.

Bodies and action subject to investigation

93

(1) In this Part a “body subject to investigation” means any of the following bodies—

(a) Health Boards;

(b) the Agency;

(bb) NHS trusts

(bb) the Dental Practice Board;

(2) Subject to the provisions of this section, the Commissioner may investigate—

(a) an alleged failure in a service provided by a body subject to investigation, or

(b) an alleged failure of a body subject to investigation to provide a service which it was the function of the body to provide, or

in a case where a complaint is duly made by or on behalf of any person that he has sustained injustice or hardship in consequence of the failure or in consequence of maladministration connected with the other action.

(3) Except as hereafter provided, the Commissioner shall not conduct an investigation under this Part in respect of any of the following matters—

(a) any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative;

(b) any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law;

but the Commissioner may conduct an investigation notwithstanding that the person aggrieved has or had such a right or remedy, if he is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it.

(4) Without prejudice to subsection (3), the Commissioner shall not conduct an investigation under this Part in respect of any such action as is described in Schedule 14.

(5) Her Majesty may, by Order in Council, amend the said Schedule 14 so as to exclude from the provisions of that Schedule action described in paragraph 4 or 5 of that Schedule.

(6) In determining whether to initiate, continue or discontinue an investigation under this Part, the Commissioner shall, subject to the foregoing provisions of this section, act in accordance with his own discretion; and any question whether a complaint is duly made under this Part shall be determined by the Commissioner.

Provisions relating to complaints

94

(1) A complaint under this Part may be made by any individual or by any body of persons, whether incorporated or not, not being—

(a) a local authority or other authority or body constituted for purposes of the public service or of local government or for the purposes of carrying on under national ownership any industry or undertaking or part of an industry or undertaking;

(b) any other authority or body whose members are appointed by Her Majesty or any Minister of the Crown or government department, or whose revenues consist wholly or mainly of moneys provided by Parliament.

(2) Where the person by whom a complaint might have been made under the foregoing provisions of this Part has died or is for any reason unable to act for himself, the complaint may be made by his personal representative or by a member of his family or by some body or individual suitable to represent him; but except as aforesaid a complaint shall not be entertained under this Part unless made by the person aggrieved himself.

(3) A complaint shall not be entertained under this Part unless it is made in writing to the Commissioner by or on behalf of the person aggrieved not later than 12 months from the day on which the matters alleged in the complaint first came to the notice of the person aggrieved; but the Commissioner may conduct an investigation pursuant to a complaint not made within that period if he considers it proper to do so.

(4) Before proceeding to investigate a complaint the Commissioner shall satisfy himself that the complaint has been brought by or on behalf of the person aggrieved to the notice of the body subject to investigation and that that body has been afforded a reasonable opportunity to investigate and reply to the complaint; but the Commissioner may disregard the preceding provisions of this subsection in relation to a complaint made by an officer of the body subject to investigation on behalf of the person aggrieved if the officer is authorised by virtue of subsection (2) to make the complaint and the Commissioner is satisfied that in the particular circumstances those provisions ought to be disregarded.

(5) Notwithstanding the foregoing provisions of this section, a body subject to investigation—

(a) may itself (excluding its officers) refer to the Commissioner a complaint that a person has, in consequence of a failure or maladministration for which the body is responsible, sustained such injustice or hardship as is mentioned in section 93(2) above if the complaint—

(i) is made in writing to that body by that person, or by a person authorised by virtue of subsection (2) above to make the complaint to the Commissioner on his behalf, and

(ii) is so made not later than one year from the day mentioned in subsection (3) above, or within such other period as the Commissioner considers appropriate in any particular case, but

(b) shall not be entitled to refer a complaint in pursuance of paragraph (a) above after the expiry of twelve months beginning with the day on which the body received the complaint;

and a complaint referred to the Commissioner in pursuance of this subsection shall, subject to section 93(6) above, be deemed to be duly made to him under this Part.

Application of certain provisions of the Parliamentary Commissioner Act 1967

95

The following provisions of the Parliamentary Commissioner Act 1967 shall, with any necessary modifications, apply to the Commissioner, to his officers and to a body subject to investigation as they apply to the Commissioner under that Act, to his officers and to a department or authority concerned:—

section 7 (procedure in respect of investigations);

section 8 (evidence);

section 9 (obstruction and contempt);

section 11 (secrecy of information), except subsection (4);

and in sections 7(1) and 8(1) of the said Act of 1967 as applied by this section the words “the principal officer of” and “Minister” shall be omitted.

Reports by Commissioner

96

(1) In any case where the Commissioner conducts an investigation under this Part, he shall send a report of the results of his investigation to—

(a) the person who made the complaint;

(aa) to any member of the House of Commons who, to the Commissioner’s knowledge, assisted in the making of the complaint (or if he is no longer a member to such other member as the Commissioner thinks appropriate),

(b) the body subject to investigation;

(d) , the Secretary of State.

(3) In any case where the Commissioner decides not to conduct an investigation under this Part, he shall send a statement of his reasons for doing so to the persons and bodies described in paragraphs (a) to (b) of subsection (1).

(4) If, after an investigation under this Part has been conducted by the Commissioner or an officer authorised by him, it appears to the Commissioner that injustice or hardship has been caused to the person aggrieved in the circumstances described in section 93(2), and that the injustice or hardship has not been or will not be remedied, he may, if he thinks fit—

(b) , make a special report to the Secretary of State who shall, as soon as is reasonably practicable, lay a copy of the report before each House of Parliament.

(5) The Commissioner shall annually make to the Secretary of State a general report on the performance of his functions under this Part , and may from time to time make to the Secretary of State such other reports with respect to those functions as the Commissioner thinks fit; and the Secretary of State shall lay a copy of any such report before each House of Parliament.

(6) The Commissioner may from time to time lay before each House of Parliament such reports with respect to his functions under this Part as he thinks fit.

(7) For the purpose of the law of defamation, any report or statement made, sent or laid in pursuance of this section, shall be absolutely privileged.

Interpretation of Part VI

97

(1) In this Part and in Schedule 14

“action” includes failure to act, and other expressions connoting action shall be construed accordingly;

“body subject to investigation” has the meaning assigned to it by section 93(1);

“the Commissioner” means the Health Service Commissioner for Scotland;

“person aggrieved” means a person who claims or is alleged to have sustained such injustice or hardship as is mentioned in section 93(2).

(2) It is hereby declared that nothing in this Part authorises or requires the Commissioner to question the merits of a decision taken without maladministration by a body subject to investigation in the exercise of a discretion vested in that body.

Part VII — Miscellaneous and Supplementary

Miscellaneous

Charges in respect of non-residents

98

Regulations may provide for the making and recovery in such manner as may be prescribed of such charges as the Secretary of State may determine in respect of the provision of such services under this Act as may be prescribed for such persons not ordinarily resident in Great Britain as may be prescribed; and the regulations may provide that the charges are only to be made in such cases as may be determined in accordance with the regulations. The Secretary of State may calculate charges under this section on any basis that he considers to be the appropriate commercial basis.

Evasion of charges

99

If any person, for the purpose of evading the payment of any charge under this Act, or of reducing the amount of any such charge—

(a) knowingly makes any false statement or false representation, or

(b) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,

the charge, or as the case may be the balance of the charge, may be recovered from him as a simple contract debt by the person by whom the cost of the service in question was defrayed.

Accommodation for persons displaced in course of development

100

(1) Where the carrying out of a scheme for the provision by the Secretary of State in pursuance of this Act or the Mental Health (Care and Treatment) (Scotland) Act 2003 of accommodation or other facilities will involve the displacement from any premises of persons residing in them, the Secretary of State may make arrangements with one or more of the following bodies—

(a) an authority who are a local authority for the purposes of the Housing (Scotland) Act 1987,

(b) the Scottish Special Housing Association;

(d) a development corporation established under the New Towns (Scotland) Act 1968,

for securing, in so far as it appears to him that there is no other residential accommodation suitable for the reasonable requirements of those persons available on reasonable terms, the provision of residential accommodation in advance of the displacements from time to time becoming necessary as the carrying out of the scheme proceeds.

(2) Arrangements made under subsection (1) may include provision for the making by the Secretary of State to the body with whom the arrangements are made of payments of such amounts, and for such purposes, as may be approved by the Treasury.

Protection of Health Boards and Common Services Agency

101

Section 166 of the Public Health (Scotland) Act 1897 (which relates to the protection of local authorities and their officers) shall apply in relation to a Health Board , an NHS trust and the Agency in like manner as the said section applies in relation to a local authority, but with the substitution for any reference to that Act of a reference to this Act.

State hospitals

102

(1) The Secretary of State shall provide such hospitals as appear to him to be necessary for persons subject to detention under the Criminal Procedure (Scotland) Act 1995 (c. 46) or the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) who require treatment under conditions of special security on account of their dangerous, violent or criminal propensities.

(2) Hospitals provided by the Secretary of State under subsection (1) are referred to in this Act as “state hospitals”.

(3) Subject to subsection (4) and section 2, state hospitals shall be under the control and management of the Secretary of State.

(4) The Secretary of State may provide for the management of a state hospital to be undertaken on his behalf by—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) A Health Board, a Special Health Board, the Agency or an NHS trust to the extent that power to do so is delegated to the Board, Agency or trust by the Secretary of State.

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

Arbitration

103

Any question which is required by this Act or by any regulation thereunder to be determined by arbitration shall be determined by a single arbiter agreed upon by the parties, or, failing such agreement, appointed by the Court of Session on the application of any of the parties to the question; and at any stage in the proceedings in any such arbitration the arbiter may, and shall if so directed by the Court of Session, state a case for the opinion of that Court on any question of law arising in the arbitration.

Exemption from stamp duty

104

(1) Stamp duty shall not be payable on any conveyance, agreement or assignation made, or instrument executed, solely for the purpose of giving effect to any transfer of property, rights or liabilities by, or by an order made under, sections 2 or 82 or paragraph 7 of Schedule 6.

(2) Section 12 of the Finance Act 1895 (which requires Acts to be stamped as conveyances on sale in certain cases) shall not apply to the transfer of property, rights or liabilities by, or by an order made under, section 2, and stamp duty shall not be payable on any such order.

Supplementary

Orders, regulations and directions

105

(1) Any power to make orders and regulations conferred by this Act shall be exercisable by statutory instrument.

(1A) Subsection (1) does not apply to orders made under section 12D(1) or paragraph 26(1) of Schedule 7A.

(2) A statutory instrument made by virtue of this Act shall, subject to subsections (2A) to (4), be subject to annulment in pursuance of a resolution by either House of Parliament.

(2A) No regulations shall be made under paragraph 12(1) of Schedule 1A (Health Board elections) unless a draft has been laid before, and approved by resolution of, the Scottish Parliament.

(3) No regulations shall be made under section 17L(1)(b)section 10O, section 10Z7 , section 12IJ(5), section 12IK(4) or sub-paragraphs (1) or (2) of paragraph 6 of Schedule 6 (capital value of and borrowings from relevant endowments or orders under section 10G, 10Z16(3) or section 99ZB(3)) unless a draft has been laid before Parliament and approved by a resolution of each House of Parliament.

(4) Subsection (2) does not apply to—

(a) an order made under section 2(1) constituting a Health Board;

(b) orders made under sections 2(11), 8, 10(3) to (5) 12A(1), 12A(8), 12E(1), 12G(2),, 70(2) . . . paragraph 25(1) of Schedule 7A and paragraph 3 of Schedule 7B;

(5) Any power to make regulations conferred on the Secretary of State by this Act is, if the Treasury so direct, exercisable by the Treasury and the Secretary of State jointly except in the case of—

(a) regulations made under section 22;

(b) regulations made under section 69(1) in respect of charges for the drugs, medicines or appliances referred to in paragraph (a) of that subsection, or under paragraph 1(1) of Schedule 11 in respect of the remission or repayment of any charge payable under that section in the cases provided for in paragraph 1(1) of that Schedule;

(d) regulations made under paragraph 2(6) of that Schedule;

(6) Where under any provision of this Act—

(a) power to make an order may be exercisable, or

(b) directions may be given, or

that provision includes power to vary or revoke the order or direction or scheme, as the case may be, by subsequent order or subsequent directions or subsequent scheme made in the like manner and subject to the same provisions.

(7) Any power conferred by this Act to make regulations , orders or directions may be exercised—

(a) either in relation to all cases to which the power extends, or in those cases subject to exceptions, or in relation to any specified cases or classes of case, and

(b) subject to such other exceptions or conditions as the Secretary of State thinks fit,

and shall include power to make such supplementary, incidental, consequential, transitory, transitional or saving provision as appears to the Secretary of State to be expedient.

This subsection does not apply to regulations made under section 22 (but without prejudice to subsection (3) of that section) or to an order made under section 49 (but without prejudice to paragraph 1(1) of Schedule 10).

Supplementary regulatory powers

106

Regulations may make provision for all or any of the following matters,—

(a) for prescribing the forms of notices and other documents, and the manner of service of notices and other documents;

(b) for prescribing the manner in which documents may be executed or proved;

Local enactments

107

(1) Subject to subsection (2), where any local enactment provides for any matter which is also provided for by any provision of this Act or of any order or regulations made under this Act, the provisions of this Act, or as the case may be, of that order or those regulations, shall have effect in substitution for the local enactment, which shall cease to have effect.

(2) The Secretary of State may by order except from the operation of subsection (1) such local enactments as may be specified in the order and direct that corresponding provisions of this Act or of any order or regulations made under this Act, shall not have effect in the areas in which the specified local enactments have effect.

(3) If it appears to the Secretary of State that any local enactment not being an enactment which has ceased to have effect by virtue of subsection (1), is inconsistent with any provision of this Act or that any order or regulations made under this Act, or is no longer required, or regulations to be amended, having regard to any such provision, order or regulation, he may by order repeal or amend the local enactment as he may consider appropriate.

Interpretation and construction

108

(1) In this Act, unless the contrary intention appears—

“the 2021 Act” means the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021;

“the Agency” has the meaning indicated in section 10;

“area medical committee”, “area dental committee”, “area nursing and midwifery committee”, “area pharmaceutical committee” and “area optical committee” have the meanings indicated in section 9(2);

“community care services” has the meaning given by section 12A(8) of the Social Work (Scotland) Act 1968;

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

“the Dental Estimates Board” has the meaning indicated in section 4;

“dental practitioner” means a person registered in the dentists register under the Dentists Act 1984;

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

“dispensing optician” means a person who is registered in the register kept under section 2 of the Opticians Act 1958 of dispensing opticians or a body corporate enrolled in the list kept under section 4 of that Act or such bodies carrying on business as dispensing opticians;

“education authority” has the same meaning as in the Education (Scotland) Act 1980;

“ EEA State” means a member State, Norway, Iceland or Lichtenstein;

“equipment” includes any machinery, apparatus or appliance, whether fixed or not, and any vehicle;

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

“functions” includes powers and duties;

“ general medical services contract ” has the meaning given in section 17J(2);

“ general ophthalmic services ” is to be construed in accordance with section 26(1F);

“ goods ” includes accommodation

“governing body”, in relation to any hospital to which section 89 applies, includes any body, whether corporate or unincorporate, having the control and management of the hospital or any part of it or otherwise carrying on the business of the hospital or any part of it;

“Health Board” means a Health Board constituted under section 2;

“the health service” means the health service established in pursuance of section 1 of the National Health Service (Scotland) Act 1947;

“health service hospital” means a hospital vested in the Secretary of State for the purposes of his functions under this Act or vested in an NHS trust;

“ HIS ” has the meaning indicated in section 10A;

“hospital” means—any institution for the reception and treatment of persons suffering from illness,any maternity home, andany institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation, and any institution for providing dental treatment maintained in connection with a dental school,and includes clinics, dispensaries, and out-patient departments maintained in connection with any such home or institution, and “hospital accommodation” shall be construed accordingly;

“the Hospital Trust”has the meaning indicated in section 11;

“illness” includes mental disorder within the meaning of section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and any injury or disability requiring medical or dental treatment or nursing;

“integration joint board” means an integration joint board established under section 9(2) of the Public Bodies (Joint Working) (Scotland) Act 2014;

“local authority”means a council constituted under section 2 of the Local Government etc. (Scotland ) Act 1994;

“local consultative committee” means a committee recognised by the Secretary of State under section 9(1);

“local health council” has the meaning indicated in section 7;

“medical” includes surgical;

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

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

“ medical practitioner ”means a registered medical practitioner within the meaning of Schedule 1 to the Interpretation Act 1978

“medicine” includes such chemical re-agents as are included in a list for the time being approved by the Secretary of State for the purposes of section 27;

“modifications” includes additions, omissions and amendments;

“ National Health Service trust ” has the meaning indicated by section 12A and “ NHS trust ” shall be construed accordingly

“ NHS contract ” has the meaning indicated by section 17A(3)

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

“officer” includes servant;

“ operational date ”, in relation to an NHS trust, shall be construed in accordance with paragraph 3(1)(e) of Schedule 7A;

“ ophthalmic optician ” means a person registered in the register of optometrists maintained under section 7 of the Opticians Act 1989 ... or a body corporate registered in the register of bodies corporate maintained under section 9 of that Act carrying on business as an optometrist.

“patient” includes an expectant or nursing mother and a lying-in woman;

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

“ pilot scheme ” has the meaning given by section 1 of the National Health Service (Primary Care) Act 1997 (c.46);

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

“prescribed” means prescribed by regulations made by the Secretary of State under this Act;

“ primary medical services ” is to be construed in accordance with section 2C(5);

“property” includes rights;

“ provide ” includes manage

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

“ registered pharmacist ” means a person registered as a pharmacist in Part 1 or 4 of the register maintained under article 19 of the Pharmacy Order 2010;

“ Regulation ( EC ) No. 883/2004 ” means Regulation ( EC ) No. 883/2004 of the European Parliament and of the Council of 29th April 2004 on the coordination of social security systems,

“ regulations ” means regulations made by the Secretary of State under this Act;

“ relevant endowment ” has the meaning indicated in section 11;

“ the Research Trust ” means the Scottish Hospital Endowments Research Trust constituted under subsection (1) of section 12 of this Act (before the repeal of that subsection by section 38(2)(a) of the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13);

“ section 17C arrangements ” has the same meaning as in section 17E(9);

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

“ Special Health Board ” means a Special Health Board constituted under section 2;

“ state hospital ” has the meaning indicated in section 102(2)

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

“ superannuation benefits ” means annual superannuation allowances, gratuities and periodical payments payable on retirement, death or incapacity, and similar benefits;

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

“ the Tribunal ” has the meaning indicated in section 29;

“ the Trust ” has the meaning indicated in section 11;

“ University Liaison Committee ” means a committee such as is referred to in section 8;

“ voluntary organisation ” means a body the activities of which are carried on otherwise than for profit, but does not include any public or local authority.

(1A) References in this Act to “carrying on the business of dentistry” are to be construed in accordance with section 40 of the Dentists Act 1984 (c. 24).

(2) References in this Act to the purposes of a hospital shall be construed as referring both to the general purposes of the hospital and to any specific purpose of the hospital.

(3) Any reference in this Act to any enactment is a reference to it as amended or applied by or under any other enactment including this Act.

(4) In this Act, except where otherwise indicated,—

(a) a reference to a numbered Part, section or Schedule is a reference to the Part or section of, or the Schedule to, this Act so numbered;

(b) a reference in a section to a numbered subsection is a reference to the subsection of that section so numbered;

(c) a reference in a section, subsection or Schedule to a numbered or lettered paragraph is a reference to the paragraph of that section, subsection or Schedule so numbered or lettered; and

(d) a reference to any provision of an Act (including this Act) includes a reference to any Schedule incorporated in the Act by that provision.

Transitional provisions and savings, consequential amendments and repeals

109

Schedule 15 to this Act is hereby given effect, and subject to the transitional provisions and savings contained in that Schedule—

(a) the enactments and the order specified in Schedule 16 have effect subject to the amendments (being amendments consequent on this Act) specified in that Schedule, and

(b) the enactments specified in Schedule 17 (which include enactments which were spent before the passing of this Act) are hereby repealed to the extent specified in the third column of that Schedule;

but nothing in this Act shall be taken as prejudicing the operation of sections 16(1) and 17(2)(a) of the Interpretation Act 1978 (which relates to the operation of repeals).

Citation, extent and commencement

110

(1) This Act may be cited as the National Health Service (Scotland) Act 1978.

(2) Subject to subsection (3)subsections (2A) and (3), this Act extends only to Scotland.

(2A) Section 87B(3) extends also to England and Wales.

(3) Paragraph 3 of Schedule 10 extends to other parts of the United Kingdom.

(4) This Act shall come into force on 1st January 1979.

SCHEDULE 1

Part I

1

A Health Board shall be a body corporate and shall have a common seal.

2

(1) A Health Board is to consist of the following types of members—

(a) a chairman, and other members, appointed by the Scottish Ministers (“appointed members”), and

(b) councillors appointed by the Scottish Ministers following nomination by local authorities in the area of the Health Board (“councillor members”), and

(2) Regulations must, in relation to each Health Board, specify—

(a) the total number of members of the Board, and

(b) the number of each type of member.

(3) At least one councillor member must be appointed for each local authority whose area is wholly or partly within the area of the Board.

3

An appointed member may be appointed only after consultation with the following bodies—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) any university appearing to the Secretary of State to have an interest in the provision of health services in that area;

(c) such organisations as the Secretary of State may recognise as representative in that area of the medical, dental, nursing, pharmaceutical and ophthalmic professions and such other professions as the Secretary of State considers appropriate, or of those professions generally; and

(d) such other organisations as appear to the Secretary of State to be concerned.

4

The Secretary of State may pay to

(a) the chairman of a Health Board,

(b) such other members of a Health Board as may be prescribed, and

such remuneration as he may, with the approval of the Minister for the Civil Service, from time to time determine.

5

A Health Board may employ such officers and servants on such terms as to remuneration and conditions of service as the Board may, determine in accordance with regulations and any directions given under this paragraph by the Secretary of State.

6

Regulations may make provision with respect to the method of appointment of officers or servants of a Health Board and as to the qualifications, remuneration and conditions of service of those persons.

7

No officer or servant of a Health Board to whom regulations or any directions given under paragraph 5 apply shall be employed otherwise than in accordance with the regulations or, as the case may be, the directions.

8

Regulations under paragraph 6 shall not contain a requirement that all consultants employed for the purpose of hospitals shall be employed whole-time.

9

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

10

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

Part II

11

Regulations may make provision—

(a) as to the appointment, tenure and vacation of office of appointed members and councillor members (including provision specifying circumstances in which the Scottish Ministers may determine that such a member is to vacate office);

(b) as to the delegation of functions to committees or sub-committees constituted in accordance with the regulations; and

12

The proceedings of a Health Board shall not be invalidated by any vacancy in membership or by any defect in the appointment or, as the case may be, election of any member thereof.

13

The Secretary of State shall pay to members of a Health Board, the committees and sub-committees thereof, 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.

14

Allowances shall not be paid under paragraph 13 except in connection with the performance of such powers or duties, in such circumstances, as the Secretary of State may determine.

15

Payment under paragraph 13 shall be made at such times and in such manner, and subject to such conditions as to records, certificates or otherwise, as the Secretary of State may determine.

16

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

17

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

18

The functions transferred to and exercisable by Health Boards under section 56 of the National Health (Scotland) Act 1972 (functions under the Nursing Homes Registration (Scotland) Act 1938) shall continue to be exercisable by them under this paragraph.

19

The Secretary of State may, with any necessary modifications, by order apply any of the provisions of paragraph 6 of Schedule 3 to the Civil Aviation Act 1982 to the case of a person who enters the employment of a Health Board after having been employed in employment to which the said paragraph 6 applies, and any such order may provide that for the purposes of any enactment specified in the order, or for any other purposes so specified, there shall be deemed to have been no break in the employment of any such person.

SCHEDULE 2

1

The Medical Practices Committee shall consist of a chairman, who shall be a medical practitioner, and 5 other members of whom 3 shall be medical practitioners actively engaged in medical practice.

2

The chairman and members shall be appointed by the Secretary of State after consultation with such organisations as the Secretary of State may recognise as representative of the medical profession.

3

The Secretary of State may make regulations with respect to the appointment, tenure of office and vacation of office of the members of the Committee.

4

The Secretary of State may provide the services of such officers as the Committee may require.

5

The proceedings of the Committee shall not be invalidated by any vacancy in the membership of the Committee or by any defect in the appointment or qualification of any member thereof.

SCHEDULE 3

1

The Planning Council shall consist of a chairman appointed by the Secretary of State, and other members appointed as follows—

(a) one member appointed by each Health Board ;

(b) one member appointed by each university in Scotland which has a medical school;

(d) such other members, not being officers of the Secretary of State, as may be appointed by him.

2

The Secretary of State shall have power to appoint a vice-chairman from among the membership of the Council.

3

Regulations may make provision for—

(a) the appointment, tenure and vacation of office of the chairman, vice-chairman and memberes of the Council;

(b) enabling alternative members to attend in place of any member of the Council who may be absent;

(d) the appointment by the Council of committees whose membership may include persons who are not members of the Council; and

(e) the procedure of the Council or of any committee thereof.

4

The proceedings of the Council or of any committee thereof shall not be invalidated by any vacancy in the membership of the Council or committee, or by any defect in the appointment or qualification of any member thereof.

5

The Secretary of State shall pay to members of the Council, the committees and sub-committees thereof, 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.

6

Allowances shall not be paid under paragraph 5 except in connection with the performance of such powers or duties, in such circumstances, as the Secretary of State may determine.

7

The Secretary of State shall have power, after consultation with the Council, to make such arrangements for the provision of secretarial and other services and facilities for the Council as appear to him to be appropriate.

SCHEDULE 4

The University Liaison Committee for any area or combination of areas shall consist of such number of members as the Secretary of State thinks fit; and of those members—

The Committee shall appoint one of their number to be chairman.

SCHEDULE 5

1

The Agency shall be a body corporate and shall have a common seal.

2

The affairs of the Agency shall be managed by a management committee constituted in accordance with paragraph 3.

3

The management committee shall consist of a chairman appointed by the Secretary of State and such other members as the Secretary of State may, after consultation with the Health Boards, appoint.

4

The proceedings of the management committee shall not be invalidated by any vacancy in its membership or by any defect in the appointment of any member thereof.

5

The Secretary of State shall pay to members of the management committee and sub-committees thereof 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.

6

Allowances shall not be paid under paragraph 5 except in connection with the performance of such powers or duties, in such circumstances, as the Secretary of State may determine.

7

The Agency may employ such officers and servants on such terms as to remuneration and conditions of service as the management committee may, determine in accordance with regulations and any directions given under this paragraph by the Secretary of State.

8

Regulations may make provision with respect to—

(a) the appointment, tenure and vacation of office of the chairman and members of the management committee;

(b) enabling alternative members to attend in place of any member of the committee who may be absent;

(c) the appointment by the management committee of sub-committees, whose membership may include persons who are not members of the management committee;

(d) the procedure of the management committee; and

(e) the method of appointment of officers or servants of the Agency and the qualifications, remuneration and conditions of service of those persons.

9

No officer or servant of the Agency to whom regulations or any directions given under paragraph 7 apply shall be employed otherwise than in accordance with the regulations or, as the case may be, the directions.

10

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

11

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

12

The Secretary of State may exercise the powers conferred by paragraph 19 of Schedule 1 in the case of a person who enters the employment of the Agency and to whom that paragraph otherwise applies.

SCHEDULE 6

Part I

1

The Hospital Trust (hereafter in this Schedule referred to as “the Trust”) shall consist of a chairman appointed by the Secretary of State and not more than 7 and not less than 5 other members so appointed.

2

The Trust shall be a body corporate.

3

The proceedings of the Trust shall not be invalidated by any vacancy in the membership thereof or by any defect in the appointment of a member.

Part II

4

The Trust shall have the following powers—

(a) the like powers in relation to their funds as trustees have in relation to their trust estate under section 4(1) of the Trusts (Scotland) Act 1921;

(b) power to purchase and lease land and to invest in any security in which trustees are authorised to invest under or in pursuance of the Trusts (Scotland) Act 1921 and the Trustee Investments Act 1961 and—

(i) to retain any investment which they from time to time receive,

(ii) to make a narrower-range investment falling within Part II of Schedule 1 to the Trustee Investments Act 1961 without first obtaining advice as required by section 6 of that Act,

(iii) to invest in the units of a unit trust scheme or in participation certificates or in any form of participation under any trust or scheme having the effect of enabling persons to participate in the profits and income arising from the acquisition, holding, management or disposal of securities or of land;

(d) power to pay all the expenses of the constitution and administration of the Trust from their funds;

(e) power to accept from any Health Board for investment and management on behalf of the Board any endowments or accumulated income thereof transferred to the Board under Part VI of the National Health Service (Scotland) Act 1972 and any endowments, or accumulated income thereof, otherwise held by a Health Board;

(ea) power to accept from any NHS trust for investment and management on behalf of the trust any property held on behalf of the trust by trustees appointed by virtue of section 12G(2), and any endowments or accumulated income otherwise held by the trust;

(f) power to accept, hold, administer and dispose of any property (other than a relevant endowment or such an endowment as is referred to in sub-paragraph (e) or, as the case may be, paragraph (ea)) on trust for purposes similar to those for which property is held by a Health Board or, as the case may be, by an NHS Trust;

(g) power to give advice to a Health Board relating to the investment or management of any such endowment or income as is referred to in sub-paragraph (e) and which is not transferred to the Trust under paragraph 16 of Schedule 1, and to recover from the Board concerned any expenses reasonably incurred by them in giving such advice. It is hereby declared, for the avoidance of doubt, that the Trust has at all times had the power referred to in sub-paragraph (b) above to invest in any security in which trustees are authorised to invest under or in pursuance of the Trustee Investments Act 1961.

5

(1) It shall be the duty of the Trust to obtain advice on the investment of any property held by them under this Act from a person whom the Trust reasonably believe to be qualified to give such advice by his ability in, and practical experience of, financial matters.

(2) For the purposes of sub-paragraph (1), the advice referred to therein may be obtained from a person other than an officer or servant of the Trust on such terms as may be agreed between the Trust and that person.

6

(1) Regulations may prescribe the method of calculating the capital value of relevant endowments transferred from Boards of Management and Regional Hospital Boards to the Trust under section 2(1) of the Hospital Endowments (Scotland) Act 1971 and the shares of Health Boards in the total endowments so transferred.

(2) Regulations may prescribe the terms and conditions on which sums may be borrowed from the Trust by Health Boards or NHS trusts.

7

(1) The Trust shall, at such date or dates in each year as the Secretary of State may determine, distribute the income from all relevant endowments transferred to them under section 2(1) of the Hospital Endowments (Scotland) Act 1971 and from property accepted by them in pursuance of paragraph 4(f), after deduction of such expenses as have been incurred under this Act or the said Act of 1971 or regulations made thereunder, among Health Boards , NHS trusts and state hospitals in accordance with schemes made from time to time by the Secretary of State by statutory instrument.

(2) Before making a scheme under this paragraph the Secretary of State shall give to Health Boards , NHS trusts and the bodies charged with the management of state hospitals an opportunity to make representations to him about the scheme.

(3) Such schemes shall provide for the income from such relevant endowments—

(a) in so far as it is distributed among Health Boards, being used by those Boards for purposes relating to services provided under this Act in or in relation to hospitals, or to research into any such matters as are mentioned in section 47(2), or for purposes intended to preserve the memory of any person or class of persons;

(b) in so far as it is distributed to a state hospital, being used by that hospital for any purpose for which the hospital was provided, including research in connection with any such purpose.

(c) in so far as it is distributed among NHS trusts, being used by that trust for any purpose for which the trust was established.

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