Local Health Boards (LHBs) were established in Wales by section 6 of the National Health Service Reform and Health Care Professions Act 2002 (NHSR 2002). Section 6 inserted new section 16BA into the National Health Service Act 1977. Section 16BA provided that the National Assembly for Wales could make subordinate legislation to establish LHBs. The National Assembly exercised its power under section 16BA to make the Local Health Boards (Establishment) (Wales) Order 2003 (SI 2003/148) to establish twenty two LHBs, each corresponding to a particular Welsh local authority area. The LHBs became operational on 1 April 2003.
Section 16BB of the National Health Service 1977 Act, as inserted by section 6 of NHSR 2002, provided that the National Assembly could direct the LHBs as to their functions and could transfer to them any functions which had been previously exercised by the Welsh Health Authorities. Paragraphs 6(1) and (2) of Schedule 5B to NHSA 1977, as inserted by Schedule 4 to NHSR 2002, further provided that the National Assembly could make regulations in relation to the membership of LHBs – appointment, members, tenure, number of members etc.
The National Assembly exercised its power under section 16BB of the National Health Service Act 1977 to make the Local Health Boards (Functions) (Wales) Regulations 2003 (SI 2003/150), to direct LHBs as to their functions. Regulation 3(2) provided that the LHBs' functions, as of 1 April 2003, were the functions which had been transferred to the National Assembly from relevant Health Authorities with effect from midnight 31 March 2003, except for the functions referred to in the Schedule to the Regulations. The Schedule listed particular adult and children specialist services which LHBs could not commission, and certain services which LHBs could not provide. The initial function of LHBs was therefore to continue broadly the pervious health service commissioning role of Welsh Health Authorities, while responsibility for the provision of front-line hospital services remained with the NHS Trusts (see further below).
The National Assembly exercised its power under paragraphs 6(1) and (2) of Schedule 5B to the National Health Service Act 1977 Act to make the Local Health Boards (Constitution, Membership and Procedures) (Wales) Regulations 2003 (SI 2003/149). They have since been revoked.
The Local Health Boards (Establishment) (Wales) Order 2003 remains in force, albeit only in relation to one of the twenty two LHBs initially established (Powys Teaching Local Health Board). See below for the post-2006 amendments to LHBs.
The National Health Service Act 1977, including its provisions on the establishment and functions of LHBs, were repealed by the National Health Service (Consequential Provisions) Act 2006. The provisions on LHBs were re-enacted by sections 11 to 17 of the National Health Service (Wales) Act 2006.
Finally, section 4 of, and paragraph 1(2) of Schedule 2 to, the National Health Service (Consequential Provisions) Act 2006 provides that the subordinate legislation made under any legislation which has been repealed and re-enacted by the 2006 Health Acts – including the National Health Service (Wales) Act 2006 and the National Health Service (Consequential Provisions) Act 2006 – continues in effect as if it had been made under the provision that re-enacts the original provision. So, for example, the Local Health Boards (Establishment) (Wales) Order 2003 is to be treated as if it was made under the National Health Service (Wales) Act 2006.
National Health Service (Wales) Act 2006
Sections 11 to 17 of the National Health Service Wales Act 2006 (NHSWA 2006) make provision about the composition and functions of Local Health Boards (LHBs). They substantively re-enact the provisions of sections 16BA - 16BC of the National Health Service Act 1977. There follows a summary of the provisions relevant to the composition and functions of LHBs.
Section 11 of NHSWA 2006 provides that the Welsh Ministers may make subordinate legislation to establish LHBs (LHB Orders). It also introduces Schedule 2 to the Act, which makes further provision about LHBs, in particular that:
- paragraphs 1 and 2 – LHBs are bodies corporate and are not Crown servants or agents. LHB property is not to be regarded as Crown property;
- paragraph 3 – the members of a LHB are a chairman appointed by the Welsh Ministers (and a vice chairman appointed by the Welsh Ministers if they consider one to be appropriate), officers of the LHB and a number of persons who are not officers. Paragraph 4 provides that the Welsh Ministers may make regulations about, amongst other things, the appointment, tenure and number of members and of any LHB committees, and about the procedure to be followed by LHBs in the exercise of their functions. The Welsh Ministers have exercised this power to make the Local Health Boards (Constitution, Membership and Procedures) (Wales) Regulations 2009 (SI 2009/779). See here for further detail on these;
- paragraph 7 – LHBs may employ such officers as they consider appropriate. A LHB may pay its officers such remuneration and allowances and employ them on such other terms and conditions as it considers appropriate. In exercising these powers to determine pay, allowances, terms and conditions, a LHB must act in accordance with regulations and any directions given by the Welsh Ministers. See below for further information on pay and conditions of LHB officers;
- paragraph 8 – the Welsh Ministers may direct a LHB to make the services of any of its officers available to another LHB, or to employ any specified person who is or was employed by another LHB;
- paragraph 10 – LHB may pay its members such remuneration etc. as may be determined by the Welsh Ministers;
- paragraph 11 – any LHB Orders made under section 11 of NHSWA 2006 must specify the name of the LHB and the date on which the LHB may undertake its functions;
- paragraph 21 – the Welsh Ministers may, if a LHB is dissolved, by order, transfer or provide for the transfer, to themselves or any other LHB any property or liabilities of the dissolved LHB.
Local Health Boards (Constitution, Membership and Procedures) (Wales) Regulations 2009 (SI 2009/779) (LHBR 2009)
The detailed requirements for the constitution and membership of LHBs are set out in LHBR 2009. These Regulations were made using the Welsh Ministers’ power under section 11 of NHSWA 2006. There follows a broad summary of the Regulations.
Regulations 3 and 4 provide for LHB membership and appointment. The members of a LHB consist of a chair, vice-chair, officer members (representative of different healthcare professions and responsibilities), nine non-officer members (which must include a local authority member, a voluntary organisation member, a trade union member, and a person who holds a health related post in a University), and any associate members.
The chair, vice chair and non-officer members are appointed by the Welsh Ministers. The LHB appoints the officer members. The Welsh Ministers may appoint up to three associate members, while the LHB may appoint one associate member. All members must satisfy the eligibility requirements set out in Schedule 2 to LBHR 2009 and may be appointed for a period of no longer than four years (other than associate members appointed by LHBs, who may be appointed for a period of no longer than one year). Members may be reappointed at the expiry of a period of appointment, but cannot hold office for more than eight years (four years in the case of associate members appointed by the LHB).
Regulations 8-12 make provision about suspension of members and termination of membership. Part 3 of LBHR 2009 makes provision about the proceedings of the LHB meetings.
LHB officers’ pay and conditions
Paragraph 7 of Schedule 2 to the National Health Service (Wales) Act 2006 provides that a LHB may pay its officers such remuneration and allowances and on such terms and conditions of service as it considers appropriate. In this respect, a LHB must act in accordance with regulations made, and any directions given by, the Welsh Ministers.
The National Health Service (Remuneration and Conditions of Service) Regulations 1991 (NHSR 1991) were made by the Secretary of State in exercise of his power under paragraph 10(1) of Schedule 5 to the National Health Service Act 1977. The Regulations set out provisions subject to which LHBs may employ officers, and at such remuneration, as they choose.
In particular, as it applies in Wales, regulation 2 provides that subject to any further directions made by the Welsh Ministers, the remuneration:
(a) of a LHB officer who belongs to a class of officer in respect of which remuneration has been agreed in negotiations and approved by the Welsh Ministers, shall be the remuneration so agreed and approved. The negotiations must take place within a body recognised by the Welsh Ministers as being proper for the purposes of negotiating remuneration for that class of officer.
(b) of a LHB officer for whom, or for whose class, the Welsh Ministers have determined remuneration not so agreed and approved, shall be the remuneration as determined by the Welsh Ministers;
(c) of a LHB officer to whom neither (a) nor (b) applies shall be the remuneration determined by the LHB.
LHBs may therefore employ, amongst other persons, such hospital staff, including doctors/consultants etc. as they consider appropriate, subject to NHSR 1991 which confer power on the Welsh Ministers to approve negotiated pay agreements, or to determine a level of pay themselves.
Section 12 of the National Health Service (Wales) Act 2006 makes provision about the functions of Local Health Boards (LHBs). It provides that the Welsh Ministers may direct a LHB to exercise functions which were transferred to the National Assembly from the Welsh Health Authorities at the time of their abolition, and such other of the Welsh Ministers’ health functions, including those in relation to mental health and care homes, as are directed. Section 12(3) provides that the Welsh Ministers may give directions to a LHB about its exercise of any functions.
The Local Health Boards (Directed Functions) (Wales) Regulations 2009 (SI 2009/1511)
The principal functions of LHBs are set out in the Local Health Boards (Directed Functions)(Wales) Regulations 2009 (LHBDRF 2009), which are effectively directions issued by the Welsh Ministers in exercise of their power under section 12 of the National Health Service (Wales) Act 2006. Any directions made by the Welsh Ministers must not preclude the Welsh Ministers from being able to exercise the directed functions themselves.
LHBDFR 2009 were made as part of a wider reorganisation of the NHS in Wales, introduced as a result of a commitment made by the Welsh Government in its ‘One Wales’ Programme for Government in 2007. Prior to the changes, which came into force on 1 October 2009, the role of the Welsh LHBs was effectively limited to the commissioning of health services, while the Welsh NHS Trusts had the function of providing ‘front-line’ medical services in Wales. However, the 2009 changes introduced an integrated healthcare system in Wales, under which LHBs were effectively responsible for commissioning medical services and for the provision of front-line medical services in Welsh hospitals. The role of LHBs thus changed significantly, and in light of the LHBs’ broadened functions, the employees, property, rights and liabilities of seven NHS Trusts transferred to the new LHBs on 1 October 2009.
LBHDFR 2009, including the Schedule to the Regulations, should be consulted for full details of the functions delegated to LHBs. The following paragraphs provide only a broad summary.
Regulation 4 provides that, subject to any prohibitions or restrictions in an order which establishes a particular LHB, the LHB functions are:
(a) the functions of the former Welsh Health Authorities that were transferred to the National Assembly when the Health Authorities’ were abolished. These were the initial functions that the twenty two initial LHBs exercised under LHBDFE 2009, and
(b) the additional functions of the Welsh Ministers specified in the Schedule to the Regulations.
The Schedule delegates to LHBs functions under the National Health Service (Wales) Act 2006 and six other statutes. These functions include the Welsh Ministers’ general duty under section 1 of the National Health Service (Wales) Act 2006 to continue to promote a comprehensive health service.
Regulation 5 specifically provides that the functions delegated to LHBs do not include the power to make subordinate legislation.
Section 13 of the National Health Service (Wales) Act 2006 makes further provision about the exercise of functions by LHBs. Amongst other things, it provides (at section 13(2)) that the Welsh Ministers may direct that a LHB’s function is to be exercised by another LHB, by a Special Health Authority, or jointly between the LHB and another health body listed in section 13(3), including an NHS Trust or another LHB (or a committee or sub-committee thereof).
Other relevant provisions of the National Health Service (Wales) Act 2006
Parts 4 to 7 of the National Health Service (Wales) Act 2006 (NHSWA 2006) impose specific duties on Local Health Boards in relation to the provision of medical and dental services. Further details of these duties can be found in the pages of this website relevant to those services.
Section 14 of NHSWA 2006 provides that each LHB must perform its functions in relation to medical and dental services as may be prescribed in regulations made by the Welsh Ministers. Section 15 provides that each LHB must, in accordance with regulations made by the Welsh Ministers, administer arrangements for and/or manage the provision of primary medical services, primary dental services, general ophthalmic services and pharmaceutical services. The Welsh Ministers have made the National Health Service (Pharmaceutical Services) (Wales) Regulations 2013 (SI 2013/898) setting out the administrative and management functions of LHBs in relation to pharmaceutical services.
Section 17(1) of NHSWA 2006 provides that each LHB must, as directed by the Welsh Ministers, prepare strategies for improving public health and the provision of health care.
Schedule 2 to NHSWA 2006 also makes provision relevant to the functions of LHBs. Notably, paragraph 13 provides that a LHB may do anything which appears to it to be necessary or expedient for the purposes of or in connection with its functions, and may, with the consent of the Welsh Ministers, acquire and dispose of property, enter into contracts, and accept gifts of property. Paragraph 15 provides that LHBs have power, in limited circumstances, to require patients to pay for their hospital accommodation, and, under paragraph 17, LHBs may conduct, commission or assist the conduct of research.
LHB's currently operating in Wales
The Local Health Boards (Establishment) (Wales) Order 2003, made in exercise of the National Assembly’s power under section 16 BA of the National Health Service Act 1977, established twenty two LHBs in Wales. Those LHBs initially had the health service commissioning functions previously conferred on Welsh Health Authorities. The number of LHBs in operation has since been reduced to seven, and their functions amended so that they are now responsible for both the commissioning of medical services and the provision of front-line medical services.
The Local Health Boards (Establishment and Dissolution) (Wales) Order 2009 (SI 2009/778), made in exercise of the Welsh Ministers’ power under section 11 of the National Health Service Wales Act 2006, established six new LHBs in Wales. In accordance with article 5 of the Order, the LHBs became operational on 1 October 2009. Regulation 7 and Schedule 2 to the Order provided for the dissolution of twenty one of the orioginal LHBs on 1 October 2009, with the Powys Teaching LHB the only one of the original LHBs not to be dissolved.
Schedule 1 of the Order provides that the new LHBs were to be established, for particular local authority areas, as indicated in the table below. The six new LHBs were in addition to the Powys Teaching LHB, for the Powys local authority area, which remained in operation. The names of three of the LHBs have been amended since the Order was made and the table below shows the updated names:
|Aneurin Bevan University Local Health Board||Newport, Torfaen, Monmouthshire, Caerphilly and Blaenau Gwent|
|Cwm Taf University Local Health Board||Merthyr Tydfil and Rhondda Cynon Taf|
|Cardiff and Vale University Local Health Board||Cardiff and Vale of Glamorgan|
|Abertawe Bro Morgannwg University Local Health Board||Bridgend, Neath Port Talbot and Swansea|
|Hywel Dda University Local Health Board||Carmarthenshire, Pembrokeshire and Ceredigion|
|Betsi Cadwaladr University Local Health Board||Flintshire, Denbighshire, Gwynedd, Wrexham, Conwy and Anglesey|
Schedule 2 to the Order provides that the twenty one LHBs to be dissolved were:
|Anglesey Local Health Board|
|Gwynedd Local Health Board|
|Cardiff Local Health Board|
|Ceredigion Local Health Board|
|Carmarthenshire Local Health Board|
|Denbighshire Local Health Board|
|Flintshire Local Health Board|
|Monmouthshire Local Health Board|
|Pembrokeshire Local Health Board|
|Swansea Local Health Board|
|Conwy Local Health Board|
|Blaenau Gwent Local Health Board|
|Bridgend Local Health Board|
|Caerphilly Teaching Local Health Board|
|Merthyr Tydfil Local Health Board|
|Neath Port Talbot Local Health Board|
|Newport Local Health Board|
|Rhondda Cynon Taff Teaching Local Health Board|
|Torfaen Local Health Board|
|Vale of Glamorgan Local Health Board|
|Wrexham Local Health Board|
The Local Health Boards (Transfer of Staff, Property, Rights and Liabilities) (Wales) Order 2009 (SI 2009/1559) made further provision about the establishment of the six new LHBs and the dissolution of twenty one of the original LHBs. Article 2 of the Order provided for the transfer of the staff of the original LHBs to the relevant new LHBs on 1 October 2009, and Article 3 provided for the transfer of all the property, rights and liabilities of the original LHBs to the new LHBs on the same date.
Further, as a result of the change in the functions of the LHBs from 1 October 2009, whereby they were now also to be responsible for the provision of medical services on behalf of the Welsh Ministers (i.e. the role previously undertaken by Welsh NHS Trusts), the staff, property, rights and liabilities of seven NHS Trusts were transferred to the new LHBs on 1 October 2009.