Legalize / United Kingdom / Public General Act

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

(d) the making of payments, not exceeding limits to be determined from time to time by the Secretary of State, from the funds of the Trust to the members thereof in respect of any loss of earnings they would otherwise have made or any additional expenses (including travelling and subsistence expenses) to which they would not otherwise have been subject, being loss or expenses necessarily suffered or incurred by them for the purpose of enabling them to perform duties as members of the Trust;

(e) any matters consequential on, or incidental to, any of the aforesaid matters.

10

(1) The accounts of the Trust shall be audited annually by an auditor appointed by the Trust.

(2) No person shall be qualified to be appointed auditor under this paragraph unless he is a member of one or more of the following bodies:

(a) the Institute of Chartered Accountants of Scotland;

(b) the Institute of Chartered Accountants in England and Wales;

(d) the Institute of Chartered Accountants in Ireland;

(e) any other body of accountants established in the United Kingdom and for the time being recognised for the purposes of section 161(1)(a) of the Companies Act 1948 by the Secretary of State;

but a Scottish firm may be so appointed if each of the partners therein is qualified to be so appointed.

SCHEDULE 7

1

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2

The Research Trust shall be a body corporate.

3

Subject to paragraph 3A, the Research Trust shall consist of such number of members appointed by the Trust as the Trust may determine.

4

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5

The Research Trust shall have, in relation to their funds, the like powers as trustees have in relation to their trust estate under subsection (1) of section 4 of the Trusts (Scotland) Act 1921.

6

Where the Research Trust borrow money or draw upon capital to meet expenditure of a capital nature, they shall set aside annually a sum sufficient to repay such loan or draft within a period which . . . shall not exceed 30 years; but this paragraph shall not apply in the case of a draft on capital to the extent only of surplus income added to capital.

7

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SCHEDULE 8

1

The Tribunal shall consist of—

(a) a chairman appointed by the Lord President of the Court of Session,

(b) such number of deputy chairmen as may be so appointed,

(d) such number of medical practitioners as the Secretary of State may appoint for the purposes of this sub-paragraph,

(e) such number of medical practitioners having the qualifications prescribed under section 26 as the Secretary of State may appoint for the purposes of this sub-paragraph,

(f) such number of dental practitioners as the Secretary of State may appoint for the purposes of this sub-paragraph,

(g) such number of ophthalmic opticians as the Secretary of State may appoint for the purposes of this sub-paragraph, and

(h) such number of registered pharmacists as the Secretary of State may appoint for the purposes of this sub-paragraph.

2

A person appointed as the chairman or a deputy chairman shall be a practising—

(a) advocate; or

(b) solicitor,

of not less than ten years’ standing.

3

Any appointment for the purposes of paragraph 1(c) above shall be made after consultation with such body as the Secretary of State may recognise as representative of Health Boards.

4

Any appointment for the purposes of any of sub-paragraphs (d) to (h) of paragraph 1 above shall be made after consultation with such organisations as the Secretary of State may recognise as representative of the profession or calling concerned.

5

For the purposes of paragraph 4, the Secretary of State shall, after consultation with such organisations as he may recognise as representative of the several professions or callings concerned, appoint the following panels, none of which shall exceed 6 persons, that is to say:—

(a) a panel of medical practitioners;

(b) a panel of medical practitioners having the qualifications prescribed under section 26;

(d) a panel of ophthalmic opticians;

(f) a panel of registered pharmacists.

6

If any member of the Tribunal is unable to act in any case a deputy may be appointed by the Lord President of the Court of Session or the Secretary of State, as in the case of the appointment of the member in question; and, if the member is the chairman, the deputy shall possess the professional qualifications required for the office of chairman, and, if the member is the practitioner member, the deputy shall be appointed from the same panel.

7

Regulations may make provision—

(a) with respect to the appointment, tenure of office and vacation of office of members of the Tribunal;

(b) with respect to the appointment of officers of the Tribunal.

SCHEDULE 9

Prohibition, and certificate of Practices Committee

1

(1) Any person who sells or buys the goodwill . . .of a medical practice which it is unlawful to sell by virtue of section 35(1) is guilty of an offence and liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 3 months, or to both such fine and such imprisonment.

(2) Any person proposing to be a party to a transaction or series of transactions which he thinks might amount to a sale of the goodwill of a medical practice in contravention of section 35(1) may ask the Health Board which has arrangements with the person, under which, or in accordance with which, services as specified in section 35(1) are provided or performed, for a certificate under this paragraph.

(3) That Health Board shall consider any such application, and, if they are satisfied that the transaction or series of transactions does not involve the giving of valuable consideration in respect of the goodwill, or any part of the goodwill . . . of such a medical practice, they shall issue to the applicant a certificate to that effect, which shall be in the prescribed form and shall set out all material circumstances disclosed to the Board.

(4) Where any person is charged with an offence under this paragraph in respect of any transaction or series of transactions, it shall be a defence to the charge to prove that the transaction or series of transactions was certified by the Health Board under sub-paragraph (3).

(5) Any document purporting to be such a certificate shall be admissible in evidence and shall be deemed to be such a certificate unless the contrary is proved.

(6) If it appears to the court that the applicant for any such certificate failed to disclose to the Board all the material circumstances, or made any misrepresentation with respect thereto, the court may disregard the certificate, and sub-paragraph (4) shall not apply thereto.

(7) A Health Board shall, at the request of the Lord Advocate, furnish him with a copy of any certificate issued by them under sub-paragraph (3), and with copies of any documents produced to them in connection with the application for that certificate.

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Certain transactions deemed sale of goodwill

2

(1) For the purposes of section 35(1) and paragraph 1, a disposal of premises previously used for the purposes of a medical practice shall be deemed to be a sale of the goodwill of a medical practice if—

(a) the person disposing of the premises did so knowing that another person (“A") intended to use them for the purposes of A’s medical practice; and

(b) the consideration for the disposal substantially exceeded the consideration that might reasonably have been expected if the premises had not previously been used for the purposes of a medical practice.

(1A) If a person disposes of any premises together with any other property, the court shall, for the purposes of sub-paragraph (1), make such apportionment of the consideration as it thinks just.

(1B) For the purposes of sub-paragraphs (1) and (1A)—

(a) “disposal” means any sale, letting or other form of disposal (whether by a single transaction or a series of transactions) and “disposes” and “disposing” are to be read accordingly; and

(b) a person who procures the disposal of any premises is to be treated as having disposed of them.

(2) Where in pursuance of any partnership agreement . . .—

(a) any valuable consideration, other than the performance of services in the partnership business, is given by a partner or proposed partner as consideration for his being taken into partnership.

(b) any valuable consideration is given to a partner, on or in contemplation of his retirement or of his acceptance of a reduced share of the partnership profits, or to the personal representative of a partner on his death, not being a payment in respect of that partner’s share in past earnings of the partnership or in any partnership assets or any other payment required to be made to him as the result of the final settlement of accounts, as between him and the other partners, in respect of past transactions of the partnership, or

(c) services are performed by any partner for a consideration substantially less than those services might reasonably have been expected to be worth having regard to the circumstances at the time when the agreement was made,

there shall be deemed for the purposes of section 35(1) and paragraph 1 to have been a sale of the goodwill . . . of the practice of any partner to whom, or to whose personal representative, the consideration or any part thereof is given or, as the case may be, for whose benefit the services are performed, to the partner or each of the partners by or on whose behalf the consideration or any part thereof was given or, as the case may be, the partner who performed the services, and the said sale shall be deemed for the purposes of section 35(1) and paragraph 1 to have been effected—

(i) in a case to which paragraph (a) or paragraph (b) applies, at the time when the consideration was given, or, if the consideration was not all given at the same time, at the time when the first part thereof was given, or

(ii) in a case to which paragraph (c) applies, at the time when the agreement was made.

(3) Sub-paragraph (3A) applies if a person (“the assistant”)—

(a) performs services on behalf of a person who carries on a medical practice (or as an employee of a person employing a practitioner who carries on a medical practice);

(b) receives substantially less remuneration for performing those services than might reasonably have been expected, having regard to the circumstances at the time when the remuneration was fixed; and

(3A) For the purposes of section 35 and paragraph 1, a sale of the goodwill of the practice is to be deemed to have taken place (at the time when the remuneration was fixed), unless it is proved that the remuneration was not fixed in contemplation of the assistant’s succeeding to the practice.

(4) For the purposes of section 35(1) and paragraph 1, the goodwill of a medical practice shall be deemed to have been sold if—

(a) a person carrying on the practice (or employing a practitioner who carries on a medical practice) agrees, for valuable consideration—

(i) to do or refrain from doing any act, for the purpose of facilitating the succession of another person to the practice; or

(ii) to allow any act to be done, for that purpose; or

(b) a person—

(i) gives valuable consideration to a person carrying on the practice (or employing a practitioner who carries on a medical practice); and

(ii) succeeds, or has previously succeeded, to the practice.

(5) Sub-paragraph (4) does not apply—

(a) if it is proved that no part of the consideration was given in respect of the goodwill; or

(b) to anything done—

(i) in relation to the acquisition of premises for the purposes of a medical practice;

(ii) in pursuance of a partnership agreement; or

(iii) in the performance of medical services by one person as an assistant to another.

(6) In determining for the purposes of section 35(1) and this Schedule the consideration given in respect of any transaction, the court shall have regard to any other transaction appearing to the court to be associated with the first transaction, and shall estimate the total consideration given in respect of both or all the transactions, and shall apportion it between those transactions in such manner as it thinks just.

(7) For the purposes of section 35 and this Schedule—

(a) consideration is deemed to be given to a person (“B") if—

(i) it is given to another person but with B’s knowledge and consent; and

(ii) it appears to the court that B has derived, or will derive, a substantial benefit from the giving of the consideration; and

(b) unless the context otherwise requires, references to a person include, in the case of an individual who has died, references to his personal representative.

SCHEDULE 10

Orders and directions

1

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Notices, authorisations and proof of documents

2

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Territorial extent

3

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False documents and false statements

4

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Restrictions on disclosing information

5

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Offences by corporations

6

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Penalties

7

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Production of documents

8

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9

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SCHEDULE 11

Regulations under section 69—charges for drugs, medicines or appliances, or pharmaceutical services

1

(1) No charge shall be made under section 69(1) in relation to the supply of drugs, medicines and appliances referred to in paragraph (a) of that subsection in respect of—

(a) the supply of any drug, medicine or appliance for a patient who is for the time being resident in hospital, or

(b) the supply of any drug or medicine (otherwise than in accordance with section 17C arrangements) for the treatment of venereal disease, or

(c) the supply of any appliance for a person who is under 16 years of age or is under 19 years of age and is receiving qualifying full-time education, or

(d) the replacement or repair of any appliance in consequence of a defect in the appliance as supplied,

Regulations under section 70—charges for dental or optical appliances

2

(1) The optical appliances referred to in section 70(1) are glasses and contact lenses, and the charge for glasses and contact lenses which that subsection authorises is a charge of such sum as may be determined by or in accordance with directions given by the Secretary of State.

(2) Regulations may—

(a) vary the amount or maximum amount of any charge authorised by section 70(1) for any optical appliance, and this power includes power to direct that the charge shall not be payable; or

(b) vary the descriptions of appliances for which any such charge is authorised;

and regulations made for the purposes of section 70(1) may be made so as to take effect—

(i) in the case of appliances supplied under this Act otherwise than under Part II, where the examination or testing of sight (otherwise than under that Part) leading to the supply of those appliances, or the first such examination or testing takes place on or after the date on which the regulations come into force;

(ii)

(iii)

(3) No charge shall be made under section 70(1) or (1A) in respect of any appliance supplied otherwise than under Part II to a patient for the time being resident in a hospital.

(4) No charge shall be made under section 70 (1A) in respect of the supply of a dental appliance if at the relevant time the person for whom that appliance was supplied—

(a) was under 18 years of age or was under 19 years of age and receiving qualifying full-time education; or

(b) was an expectant mother or had borne a child within the previous 12 months.

(6) Regulations made with respect to any exemption under sub-paragraph (4) may provide that it shall be a condition of the exemption that such declaration is made in such form and manner, or such certificate or other evidence is supplied in such form and manner, as may be prescribed.

(7) In sub-paragraph (4), “the relevant time” means—

(a) in relation to a dental appliance supplied otherwise than under Part II, the time of the examination leading to the supply of the appliance, or the first such examination;

(b) in relation to a dental appliance supplied under Part II, the time of the making of the contract or arrangement in pursuance of which the appliance is supplied.

(8) References in section 70 and in this paragraph to the supply of appliances shall be construed as including references to their replacement and, in the case of dentures, to their being relined or adjusted or having additions made to them but no charge shall be made under those provisions in respect of the replacement of dentures if the replacement is required in consequence of loss or damage.

Regulations under section 71—charges for dental treatment

3

(2) Regulations may vary the amount or the maximum amount of any charge authorised by section 71(1), and this power includes power to direct that the charge shall not be payable.

(3) Where any services in respect of which a charge is payable under section 70 are provided in pursuance of the contract or arrangement, the charges payable under that section and section 71(1) in respect of all services provided in pursuance of the contract or arrangement shall not exceed a prescribed sum in the aggregate.

(4) No charge shall be made under section 71(1) in respect of services provided for any person who, on the date of the contract or arrangement for the services—

(a) was under 18 years of age or was under 19 years of age and receiving qualifying full-time education, or

(5) Regulations made with respect to any exemptions under sub-paragraph (4)

may provide that it shall be a condition of the exemption that such declaration is made in such form and manner, or such certificate or other evidence is supplied in such form and manner, as may be prescribed.

Miscellaneous Provisions

4

For the purposes of section 39(2) (which provides for the Secretary of State to arrange for the free medical treatment of certain pupils) any charge made in pursuance of regulations under this Act in respect of the supply of drugs, medicines or appliances shall be disregarded.

5

Regulations may provide for the remission or repayment of any charges which, in pursuance of section 70(1) or section 71(1), are payable apart from this paragraph by a person whose income as calculated in accordance with regulations is at less than the prescribed rate, in respect of the supply or replacement of dental appliances or in respect of services provided as part of the general dental services.

6

For the purposes of sections 69 and 70 and of this Schedule, a bridge, whether fixed or removable, which takes the place of any teeth shall be deemed to be a denture having that number of teeth;

SCHEDULE 12

1

The Secretary of State shall appoint a person to hold the inquiry and to report thereon to him.

2

The Secretary of State or the person appointed to hold the inquiry shall send to any person who appears to them to be interested, notification of the time when and the place where the inquiry is to be held.

3

The person appointed to hold the inquiry may by notice require any person—

(a) to attend at the time and place set forth in the notice, to give evidence or to produce any books or documents in his custody or under his control which relate to any matter in question at the inquiry; or

(b) to furnish within such reasonable period as is specified in the notice such information relating to any matter in question at the inquiry as the person appointed to hold the inquiry may think fit, and as the person so required is able to furnish; but—

(i) no person shall be required in obedience to such a notice to attend at any place which is more than 10 miles from the place where he resides unless the necessary expenses are paid or tendered to him; and

(ii) nothing in this paragraph shall empower the person appointed to hold the inquiry to require any person to produce any book or document or to answer any question which he would be entitled, on the ground of privilege or confidentiality, to refuse to produce or to answer if the inquiry were a proceeding in a court of law.

4

The person appointed to hold the inquiry may administer oaths and examine witnesses on oath, and may accept in lieu of evidence on oath by any person a statement in writing by that person.

5

Any person who refuses or wilfully neglects to attend in obedience to a notice under paragraph 3, or to give evidence, or who wilfully alters, suppresses, conceals, destroys or refuses to produce any book or document which he may be required by any such notice to produce, or who refuses or wilfully neglects to furnish any information which he is required to furnish under sub-paragraph (b) of paragraph 3, shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale or to imprisonment for a period not exceeding 3 months.

6

The expenses incurred by the Secretary of State in relation to any inquiry held under this Act (including a reasonable sum for the services of any officer engaged in the inquiry) shall be paid by such of the parties to the inquiry in such proportions as the Secretary of State may order.

7

The Secretary of State may make orders as to the expenses incurred by the parties appearing at any such inquiry and as to the parties by whom such expenses shall be paid.

8

Any order by the Secretary of State under paragraph 6 or paragraph 7 may be enforced in like manner as a recorded decree arbitral.

SCHEDULE 13

1

Where under this Act, in connection with the acquisition of any premises, the Secretary of State proposes to acquire any equipment, furniture or other moveable property used in or in connection with the premises, he may, at any time after the acquisition of the premises (in the case of acquisition by agreement) or at any time after the service of a notice to treat (in the case of a compulsory acquisition of premises), serve a notice on the owner of the premises specifying the property proposed to be acquired and specifying the time within which and the manner in which any objection to such acquisition may be made.

2

If any objection is duly made the Secretary of State shall afford to the said owner an opportunity of appearing before, and being heard by, a person appointed by him for the purpose; and after considering any such objection and the report of the person so appointed by him, the Secretary of State shall either withdraw the notice aforesaid or serve upon the owner a notice confirming that notice.

3

The property with respect to which a notice is served under paragraph 1 and is not withdrawn shall—

(a) if no objection is duly made to the notice, vest in the Secretary of State at the expiration of the time for making such an objection;

(b) if such an objection is duly made and the notice is confirmed by a notice served under paragraph 2, vest in the Secretary of State on the service of the last mentioned notice;

and shall in each case vest free of any pledge, lien or right in security.

4

Where any property is acquired in accordance with this Schedule there shall be paid by way of compensation to the owner of the property concerned a sum equal to the price which he might reasonably have been expected to have obtained upon a sale of the property effected by him immediately before the acquisition of the property by the Secretary of State; and any dispute as to the amount of such compensation shall be determined by arbitration; and the compensation shall accrue due at the time when the property vested in the Secretary of State.

5

Where property in respect of which compensation is payable as aforesaid was, immediately before the acquisition thereof by the Secretary of State, in the possession of some person by virtue of a hire purchase agreement, that person may, by a notice served on the Secretary of State, make a claim to have apportioned to him such part of the compensation as may be specified in his claim; and in default of agreement between the parties the claim shall be determined by arbitration, and the arbiter may apportion the compensation between the owner and the other person in such manner as appears to him to be just.

6

Any such compensation shall carry interest, as from the time when it accrues due until payment, at such rate as the Treasury may from time to time by order prescribe.

7

Where any sum by way of compensation is paid in accordance with this Schedule in respect of any property and, at the time when the compensation accrues due, the property is subject to any pledge, lien or right in security, the sum so paid shall be deemed to be subject to that pledge, lien or right.

SCHEDULE 14

1

Action taken by medical practitioners, dental practitioners, ophthalmic or dispensing opticians or pharmacists in pursuance of their contracts with Health Boards under Part II or with Executive Councils under Part IV of the National Health Service (Scotland) Act 1947.

2

Action taken in connection with the diagnosis of illness or disease or the care or treatment of a patient, being action which, in the opinion of the Commissioner, was taken solely in the exercise of clinical judgment, whether formed by the person taking the action or by any other person.

3

Action taken by a Health Board or a Joint Ophthalmic Committee in the exercise of functions under—

(a) the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1974, or

(d) any regulations revoked by any of the regulations mentioned in paragraphs (a) and (c).

4

Action taken in respect of appointments or removals, pay, discipline, superannuation or other personnel matters in relation to service under this Act or any Act relating to the National Health Service repealed by this Act.

5

Action taken in matters relating to contractual or other commercial transactions other than in matters arising from arrangements between a body subject to investigation and an authority or body outwith the health service for the provision of services to patients by that authority or body.

6

Action which has been or is the subject of an inquiry under section 69 of the National Health Service (Scotland) Act 1947 or section 76 of this Act.

7

Action in relation to which the protective functions of the Mental Welfare Commission have been, are being or may be exercised under the Mental Health (Scotland) Act 1984.

SCHEDULE 15

General

1

(1) In so far as—

(a) any agreement, appointment, apportionment, authorisation, determination, scheme, instrument, order or regulation made by virtue of an enactment repealed by this Act, or

(b) any approval, consent, direction, or notice given by virtue of such an enactment, or

(d) any other proceedings begun by virtue of such an enactment, or

(e) anything done or having effect as if done,

could, if a corresponding enactment in this Act were in force at the relevant time, have been made, given, begun or done by virtue of the corresponding enactment, it shall, if effective immediately before the corresponding enactment comes into force, continue to have effect thereafter as if made, given, begun or done by virtue of that corresponding enactment.

(2) Where—

(a) there is any reference in this Act (whether express or implied) to a thing done or required or authorised to be done, or to a thing omitted, or to an event which has occurred, under or for the purposes of or by reference to or in contravention of any provisions of this Act, then,

(b) that reference shall be construed (subject to its context) as including a reference to the corresponding thing done or required or authorised to be done, or omitted, or to the corresponding event which occurred, as the case may be, under or for the purposes of or by reference to or in contravention of any of the corresponding provisions of the repealed enactments.

2

Where any enactment passed before the commencement of this Act, or any instrument or document, refers either expressly or by implication to an enactment repealed by this Act, the reference shall (subject to its context) be construed as or as including a reference to the corresponding provision of this Act.

3

Where any period of time specified in an enactment repealed by this Act is currrent at the commencement of this Act, this Act has effect as if its corresponding provision had been in force when that period began to run.

Section 37 of the National Health Service (Scotland) Act 1947

4

Notwithstanding the repeal by this Act of section 37 of the National Health Service (Scotland) Act 1947 (compensation for loss of right to sell a medical practice) that section shall continue to have such effect as may be necessary for the purposes of sections 1 to 7 of the National Health Service (Amendment) Act 1949.

Persons authorised to provide pharmaceutical services

5

A person who for three years immediately before 16th December 1911 acted as a dispenser to a medical practitioner or a public institution is in the same position in relation to the undertaking referred to in section 28(2) regarding the dispensing of medicines as a registered pharmacist.

Disqualification of practitioners

6

Where by virtue of section 43(8) of the National Health Service (Scotland) Act 1947 a person’s name was disqualified for inclusion in any list referred to in section 43(1) of that Act, that person’s name is disqualified for inclusion in any list referred to in section 29(1), until such time as the Tribunal direct to the contrary.

Section 4 of the Health Services and Public Health Act 1968

7

An undertaking given before the coming into force of section 4(1) of the Health Services and Public Health Act 1968 in respect of payment under section 4 of the National Health Service (Scotland) Act 1947 (accommodation available on part payment) continues to have the same effect as it had immediately before the coming into force of this Act.

Compensation of officers

8

Notwithstanding the repeal by the National Health Service (Scotland) Act 1972 of section 67 of the said Act of 1947, regulations made under paragraphs (c) to (e) of subsection (1) of that section shall continue to have effect until revoked by regulations under this Act.

Vehicles under section 33 of the Health Services and Public Health Act 1968

9

The provision of vehicles as mentioned in section 33 of the Health Services and Public Health Act 1968, and the taking of any such action as is mentioned in subsection (2) of that section, shall for the purposes of the National Health Service (Scotland) Act 1947 be treated as having been included among hospital and specialist services provided under Part II of that Act of 1947 as from its commencement.

Saving of amendments

10

Notwithstanding the repeal by this Act of sections 53 and 74 and Part I of Schedule 11 to the National Health Service (Scotland) Act 1947, and section 64(1) and Schedule 6 to the National Health Service (Scotland) Act 1972 and section 57(1) and Schedule 4 to the National Health Service Reorganisation Act 1973—

(a) the amendments made by Part I of Schedule 11 to that Act of 1947 to the Public Health (Scotland) Act 1897, and

(b) the amendments made by section 53 and paragraphs 37 to 77, 82, 83(a), 84 to 92, . . . 95 to 97, 101, 102, 104 to 107(a), 108 to 115, 117, 119 to 122, 129, 135(b) to (c), 136(b), 138 to 140, 150, 152(b), 155 to 156A of Schedule 6 to that Act of 1972, and

(c) the amendments made by paragraphs 69(2), 82, 96, 102, 106, 109, 123, 128, 130, 133, 134, 140 and 141 of Schedule 4 to that Act of 1973,

shall continue to have the same effect as they had immediately before the coming into force of this Act, subject to any amendments made under this Act.

Transfer of property of voluntary organisations

11

Notwithstanding the repeal by this Act of section 23(2) of the National Health Service (Amendment) Act 1949, section 23(1) of that Act shall be deemed to have had effect as from 5th July 1948.

Investigations by the Health Service Commissioner for Scotland

12

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Permission deemed to have been granted under section 9(5) of the Health Services Act 1976

13

Where under any arrangements terminated by virtue of section 9(5) of the Health Services Act 1976—

(a) a person was deemed to have been granted under that section permission to use accommodation and facilities to the same extent and for the same purposes as were covered by those arrangements, then

(b) that person shall be deemed to have been granted under section 64 of this Act the like permission (and the provisions of that section shall apply accordingly).

Borrowing from the Hospital Trust by Boards of Management and Regional Hospital Boards

14

Notwithstanding the repeal by this Act of the provisions of section 6(2) and (3) of the Hospital Endowments (Scotland) Act 1971 relating to borrowings from relevant endowments by Boards of Management and Regional Hospital Boards, regulations made under that section shall continue to have effect until revoked by regulations under this Act.

Health functions of local authorities

15

Notwithstanding the repeal by this Act of section 27 of the National Health Service (Scotland) Act 1947 (functions of local authorities relating to the prevention of illness, care and after-care), that section shall continue to have the same effect for the purposes of section 1(4) of the Social Work (Scotland) Act 1968 as it had immediately before the coming into force of this Act.

SCHEDULE 16

The Polish Resettlement Act 1947

1

In section 11(3)(b) (application to Scotland), for the words “the National Health Service (Scotland) Acts 1947 to 1972" substitute the words “the National Health Service (Scotland) Act 1978".

The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947

2

In section 1(1)(d) (compulsory purchase of land by the Secretary of State), for the words “:58 of the National Health Service (Scotland) Act 1972" substitute the words “79 of the National Health Service (Scotland) Act 1978".

The National Assistance Act 1948

3

(1) In section 47 (removal of persons in need of care)—

(a) in subsection (8), for the words “Acts 1947 to 1972" substitute the words “Act 1978";

(b) in subsection (10), for the words “section sixteen of the National Health Service (Scotland) Act 1947" substitute the words “ section 45 of the National Health Service (Scotland) Act 1978" and for the word “sixteen" substitute the word “45".

(2) In section 64 (interpretation), in the definition of “hospital", for the words “eighty" and “1947" substitute the words “108" and “1978" respectively;

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Law Reform (Personal Injuries) Act 1948

4

In seciton 2(4) (measure of damages), for the words “National Health Service (Scotland) Act 1947" substitute the words “National Health Service (Scotland) Act 1978".

The Children Act 1948

5

In section 59(1) (interpretation), in the definition of “hospital", for the words “section eighty of the National Health Service (Scotland) Act 1948" substitute the words “section 108(1) of the National Health Service (Scotland) Act 1978".

The Nurseries and Child Minders Regulation Act 1948

6

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

The Nurses (Scotland) Act 1951

7

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

The Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951

8

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

The Medical Act 1956

9

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

The Dentists Act 1957

10

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

The Opticians Act 1958

11

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

The Mental Health (Scotland) Act 1960

12

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

13

(1) In section 101(2) (pocket money for patients), for the words "Acts 1947 to 1972" substitute the words " Act 1978 " and for the words " those Acts " substitute the words " that Act ".

(2) In section 111 (interpretation), in the definition of "hospital", for the words " 1947 " substitute the words " 1978 ".

The Public Bodies (Admission to Meetings) Act 1960

14

In paragraph (2) of the Schedule (bodies to which Act applies), in sub-paragraph (d), for the words “1972" substitute the words “ 1978".

The Education (Scotland) Act 1962

15

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

16

In section 58(2) (medical inspection of pupils and young persons), for the words " section 6 of the National Health Service (Scotland) Act 1972 " substitute the words " section 39 of the National Health Service (Scotland) Act 1978 ".

17

In section 58A(2) (dental inspection of pupils and young persons), for the words " section 6 of the National Health Service (Scotland) Act 1972" substitute the words " section 39 of the National Health Service (Scotland) Act 1978 ".

18

In section 145(22A) (interpretation), for the words "section 13" and "1972" substitute the words " section 2 " and " 1978" respectively.

The Emergency Laws (Re-enactments and Repeals) Act 1964

19

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

The Redundancy Payments Act 1965

20

In Schedule 3 (National Health Service Employers), in paragraph 7, for the words “section 13(8) of the National Health Service (Scotland) Act 1972" substitute the words “section 2(11) of the National Health Service (Scotland) Act 1978".

The National Health Service Act 1966

21

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

22

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

23

In section 11, for words “1947" substitute the words “1978".

The Superannuation (Miscellaneous Provisions) Act 1967

24

In section 7(5) (superannuation provisions of the National Health Service Acts), for the words “Acts 1947 to 1972" substitute the words “Act 1978".

The Abortion Act 1967

25

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

The Health Services and Public Health Act 1968

26

(1) In section 59(2) (extension of power), for the words “IV" and “1947" substitute the words “II" and “1978" respectively.

(2) In section 63 (provision of instruction for employees)—

(a) in subsection 2(d), for the words “IV" and “1947" substitute the words “II" and “1978" respectively;

(b) in subsection (8), in paragraph (b) of the definition of “the relevant enactmetns", for the words “section 6 of the Natioanl Haelth Service (Scotland) Act 1972" substitute the words “section 39 of the National Health Service (Scotland) Act 1978".

27

In section 64 (financial assistance to voluntary organisations)—

(a) in subsection (4)(a), for the words “1972" substitute the words “1978";

(b) in subsection (4)(b), for the words “IV" and “1947" substitute the words “II" and “1978".

28

In section 65(6) (assistance by local authorities to voluntary organisations), in paragraph (c) of the substituted subseciton (2B), for the words “1947 to 1972" substitute the words “1978".

29

(1) In section 60(1)(f) (control of certain establishments), for the words “1947 or the National Health Service (Scotland) Act 1972" substitute the words “1978".

(2) In section 86(3) for the words “Part II of the |National Health Service (Scotland) Act 1947" substitute the wprds “Part II of the National Health Service (Scotland) Act 1978".

(3) In section 94(1), in the definition of “hospital", for the words “1947" substitute the words “1978".

The Medicines Act 1968

30

In section 131(5) (meaning of certain expressions), for the words “Acts 1947 to 1972" substitute the words “Act 1978".

31

In section 132(1) (interpretation), in the definition of “health centre", for the words “section 2 of the National Health Service (Scotland) Act 1972" substitute the words “section 36 of the National Health Service (Scotland) Act 1978".

The Post Office Act 1969

32

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

The Chronically Sick and Disabled Persons Act 1970

33

In section 17(1) (separation of younger from older patients), for the words “1972" substitute the words “1978".

The Vehicles and Excise Act 1971

34

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

The Tribunals and Inquiries Act 1971

35

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

The Finance Act 1971

36

In Schedule 13 (health service agreement) in paragraph 1(1) for the words “1947" substitute the words “1978".

The Finance Act 1972

37

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

The Local Government (Scotland) Act 1973

38

In section 197 (inspection of documents) for the words “1972" substitute the words “1978".

The Trade Union and Labour Relations Act 1974

39

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

40

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

The Criminal Procedure (Scotland) Act 1975

41

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

The House of Commons Disqualification Act 1975

42

In Schedule 1 in Part II (bodies of which all members are disqualified), in the entry relating to the Medical Practices Committee for the words “section 35 of the National Health Service (Scotland) Act 1947" substitute the words “section 3 of the National Health Service (Scotland) Act 1978".

The Health Services Act 1976

43

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

44

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

The Patents Act 1977

45

In section 56(4), in paragraph (a), for the words “Part IV of the National Health Service (Scotland) Act 1947" substitute the words “Part II of the National Health Service (Scotland) Act 1978"

SCHEDULE 17

Duty of the Scottish Ministers to promote health improvement

1A

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

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

(a) giving financial assistance to any person,

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

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

2A

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

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

(a) giving financial assistance to any person,

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

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

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

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

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

as the case may be.

2B

(1) It is the duty of every body to which this section applies to take action with a view to securing, as respects health services for which it is responsible and services which it has the function of providing to individuals under the 2021 Act, that persons to whom those services are being or may be provided are involved in, and consulted on—

(a) the planning and development, and

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

of those services.

(2) This section applies to—

(a) Health Boards,

(b) Special Health Boards, and

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

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

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

(i) the body, or

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

2C

(1) Every Health Board—

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

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

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

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

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

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

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

(4) Without prejudice to sections 12J and 13, Health Boards must co-operate with one another in discharging their respective functions relating to the provision of primary medical services under this Part.

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

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

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

2CB

Functions of Health Boards outside Scotland

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

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

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

2CB

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

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

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

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

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

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

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

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

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

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

(d) the duration of a plan;

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

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

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

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

2D

(1) Health Boards, Special Health Boards , the Agency and (as respects its health service functions only) HIS must discharge their functions in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements.

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

Community health partnerships

4A

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

4B

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

Healthcare Improvement Scotland

10A

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

(a) is to exercise the functions conferred on it by virtue of this Act and any other enactment (including the 2021 Act); and

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

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

(a) under the health service; or

(b) by persons providing independent health care services.

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

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

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

Principles

10B

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

(2) The safety and wellbeing of all persons who use services provided under the health service or under the 2021 Act and independent health care services are to be protected and enhanced.

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

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

10C

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) HIS is to exercise the following functions—

(a) a duty to provide information to the public about the availability and quality of services provided under the health service or under the 2021 Act;

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

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

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

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

(i) persons who provide, seek to provide or may provide services under the health service or under the 2021 Act;

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

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

(iv) local authorities;

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

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

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

(3A) HIS is to exercise the functions in relation to staffing conferred by virtue of sections 12IP to 12IS and section 12IU.

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

(5) References in this Act to the health service functions of HIS are, subject to subsections (6) and (7), to the functions conferred by virtue of this section and section 10D (including any functions delegated by order under that section) , and by virtue of sections 12IP to 12IS and section 12IU.

(6) Where a provision of this section which confers a function on HIS refers to the health service functions of HIS, that reference is to be construed as a reference to the functions conferred by virtue of this section , section 10D, sections 12IP to 12IS and section 12IU, other than the function conferred by the provision.

(7) Where a provision of this section which confers a function on HIS refers to the functions of HIS, that reference is to be construed as including a reference to the functions conferred by virtue of this section , section 10D, sections 12IP to 12IS and section 12IU, other than the function conferred by the provision.

10D

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

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

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

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

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

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

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

10E

(1) HIS is to exercise the following functions—

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

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

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

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

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

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

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

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

(iv) local authorities;

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

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

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

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

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

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

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

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

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

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

Meaning of “ independent health care services ”

10F

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

(a) an independent hospital;

(b) a private psychiatric hospital;

(d) an independent medical agency;

(e) an independent ambulance service.

(2) In subsection (1)—

“ independent hospital ” means a hospital which is neither a health service hospital nor a private psychiatric hospital; and for the purposes of this definition includes part of a health service hospital if (not being a private psychiatric hospital)— it is carried on as a separate unit;it does not provide treatment or nursing in pursuance of this Act;no part of it is contained within the same building as any such part which does provide treatment or nursing in pursuance of this Act;

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

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

“independent medical agency” means, subject to subsection (2D), an undertaking which consists of or includes the provision of services, other than in pursuance of this Act, by—a medical practitioner;a dental practitioner;a dental care professional;a registered nurse;a registered midwife;a registered pharmacist; ora registered pharmacy technician;

“ independent ambulance service ” means, subject to subsection (5), a service which consists of or includes— provision (other than provision falling within paragraph (b) below) of medical treatment, medical care or other care to relevant patients while such patients are being transported to or from a place of medical treatment;provision, at or in connection with a public event, of medical treatment outwith relevant premises under arrangements made between the provider of the service and another (whether or not the service includes a means of transport for transporting patients from the event to relevant premises).

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

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

(b) is comprised in a school;

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

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

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

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

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

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

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

(h) provides pharmaceutical services in accordance with arrangements made pursuant to section 27 of this Act; or

(i) is a registered pharmacy within the meaning of section 74 of the Medicines Act 1968.

(2B) In the definitions of “independent clinic” and “independent medical agency” in subsection (2)—

(a) “dental care professional” means a registered dental care professional and has the same meaning as in section 53 of the Dentists Act 1984 (interpretation); and

(b) “registered pharmacy technician” has the same meaning as in article 3 of the Pharmacy Order 2010 (interpretation).

(2C) In subsection (2A)—

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

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

(2D) An undertaking does not fall within the definition of “independent medical agency” in subsection (2) if it—

(a) is an independent clinic;

(b) is a hospital;

(d) is a nurse agency registered with Social Care and Social Work Improvement Scotland by virtue of section 59 of the Public Services Reform (Scotland) Act 2010;

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

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

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

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

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

“relevant patient” is a patient—whose condition or recovery would or might be impaired were the treatment or care mentioned in that paragraph not to be provided;whose condition affects the patient's mobility to such an extent that, were such treatment or care not to be provided while the patient is being transported as mentioned in that paragraph, the patient's condition or recovery would or might be impaired;whose mobility is such that, without such treatment or care, it would be difficult or impossible for the patient to be transported as mentioned in that paragraph;

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

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

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

“ medical treatment ” includes medical care and medical advice;

“ relevant premises ” means premises used or intended to be used for the provision of medical treatment, medical care or medical advice, but does not include— any means of transport as mentioned in that paragraph; orany temporary premises at or near, and provided in connection with, the public event.

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

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

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

Equal opportunities

10G

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

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

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

Standards and outcomes

10H

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

(a) services provided under the health service or under the 2021 Act;

(b) independent health care services.

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

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

(a) standards and outcomes;

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

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

(4) In relation to a service provided under the health service or under the 2021 Act, or an independent health care service, any applicable standards and outcomes published under subsection (1) must be taken into account—

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

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

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

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

Inspections

10I

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

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

(b) for any of the purposes mentioned in subsection (1B), or

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

(1B) The purposes are—

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

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

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

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

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

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

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

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

(b) approved by the Scottish Ministers.

(3) In this section—

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

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

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

10J

(1) HIS may inspect—

(a) any independent health care service;

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

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

(2) The purposes of an inspection under subsection (1)(a) or (b) may include—

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

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

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

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

(e) enabling consideration as to the need for—

(i) an improvement notice under section 10R;

(ii) a condition notice under section 10U.

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

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

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

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

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

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

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

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

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

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

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

(b) approved by the Scottish Ministers.

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

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

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

(8) In this section—

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

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

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

10K

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

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

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

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

(a) for the purposes of that inspection;

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

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

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

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

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

(a) the identity of an individual is ascertainable—

(i) from that information; or

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

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

10L

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

(2) The plan—

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

(b) may make different provision for different purposes.

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

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

(5) HIS—

(a) must keep the plan under review; and

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

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

10M

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

(a) any service provided under the health service or under the 2021 Act as they may specify;

(b) any independent health care service so specified;

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

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

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

10N

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

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

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

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

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

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

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

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

(i) any right to receive;

(ii) access to;

(iii) availability of,

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

10O

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

(a) section 10I;

(b) section 10J;

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

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

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

(b) as to timing and frequency of inspections;

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

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

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

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

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