Section 11 of the National Health Service Act 1977 conferred power on the Secretary of State to establish Special Health Authorities (SHAs) for the purpose of performing any functions which they were directed to perform on the Secretary of State’s behalf, or on behalf of the relevant health authority. Section 11 further provided that a SHA’s establishment order could contain provision as to membership, the transfer to the SHA of officers, property, rights and liabilities, and specify the name by which the SHA was to be known. Part 3 of Schedule 5 to the National Health Service Act 1977 made further provision about the membership and functions of SHAs.
Section 11 of the National Health Service Act 1977 was repealed by the National Health Service (Consequential Provisions) Act 2006 and its provisions were substantively re-enacted in section 12 of the National Health Service (Wales) Act 2006. Before its repeal, the section 11 power was exercised to establish numerous SHAs to operate on an England and Wales basis, and several Wales only SHAs. All of the Wales-only SHAs have since been abolished.
Of the England and Wales SHAs that were established under section 11, two remain in operation:
- NHS Business Services Authority (established by SI 2005/2414); and
- NHS Blood and Transplant (established by SI 2005/2529).
The establishing order for the NHS Business Services Authority has been subsequently amended by a further order made by the Secretary of State and the National Assembly. Care should be taken when reading the establishment order to ensure that it is the amended version.
Section 4 of, and paragraph 1(2) of Schedule 2 to, the National Health Service (Consequential Provisions) Act 2006 provide that both establishment orders, although originally made under section 11 of the National Health Service Act 1977, have effect as if they had been made under the equivalent provision in the National Health Service (Wales) Act 2006.
National Health Service (Wales) Act 2006
Sections 22 to 25 of the National Health Service Wales Act 2006 (NHSWA 2006) make provision about SHAs. Amongst other things, the sections substantively re-enact the provisions of section 11 of National Health Service Act 1977. There follows a brief summary of the provisions relevant to the composition and functions of SHAs in Wales. In contrast to the position with Local Health Boards, SHAs are also provided for in England under the National Health Service Act 2006.
Section 22 of NHSWA 2006 provides that the Welsh Ministers may, by order, establish SHAs for the purpose of exercising any functions which may be conferred on them by or under the Act. The Welsh Ministers may make such further provision relating to a SHA as they consider appropriate, and any order they make may, in particular, make provision about the membership of the SHA, the transfer to the SHA of officers, property and liabilities, and the SHA’s name. Section 22 also introduces Schedule 5 to the Act, which makes further provision about SHAs. In particular, Schedule 5 provides:
- paragraph 1 – a SHA is a body corporate;
- paragraph 2 – the Welsh Ministers may pay to the Chairman and any member of a SHA such remuneration etc. as the Welsh Ministers may determine;
- paragraph 3 – a SHA may employ such staff as it considers appropriate and may pay its staff such remuneration and allowances and employ them on such other terms and conditions as it considers appropriate. In exercising these powers, a SHA must act in accordance with any regulations and directions given by the Welsh Ministers. Before making such regulations or directions, the Welsh Ministers must consult bodies representing persons who, in their opinion, are likely to be affected by the regulations;
- paragraph 8 – a SHA may accept gifts of property;
- paragraph 9 – the Welsh Ministers may, by order, provide for the appointment of trustees for an SHA to hold property on trust;
- paragraph 11 – an SHAs has power, in limited circumstances, to require patients to pay for their hospital accommodation.
Sections 23 to 25 of NHSWA 2006 make provision about a SHA's functions. Section 23 provides that the Welsh Ministers may give directions to a SHA about the exercise of its functions. Section 24 provides that the Welsh Ministers may direct a SHA to exercise any of the Welsh Ministers’ functions relating to the health service, including functions related to mental health and care homes. Section 31(2) of NHSWA 2006 provides that any directions made by the Welsh Ministers under section 24 must not preclude the Welsh Ministers from exercising the directed function themselves.
Section 25 provides that the Welsh Ministers may make regulations to provide for any of a SHA’s directed functions under section 24 to be exercised by another SHA or jointly with one or more other SHAs, or for the directed functions to be exercised by a committee, sub-committee or officer of the SHA.
SHAs currently in operation in Wales
The Welsh Ministers have not exercised their power under section 24 of NHSWA 2006 to establish any Wales-only SHAs.
The only SHAs currently operating in Wales operate on an England and Wales basis and were established by orders made under section 11 of the National Health Service Act 1977. Those SHAs are:
NHS Business Services Authority (established by SI 2005/2414); and
NHS Blood and Transplant (established by SI 2005/2529).
NHS Business Services Authority
The NHS Business Services Authority consists of a chairman, not less than two and not more than five additional members who are not NHS Business Services Authority officers, and not more than six members who are NHS Business Services Authority officers. Subject to directions given by the Secretary of State and/or Welsh Ministers, the NHS Business Service Authority must perform functions in connection with matters including the administration of schemes relating to NHS charges, the assessment of the performance of dentists providing services under general or personal dental services agreements, the collation of information about primary dental services and pharmaceutical services, and the prevention and detection of fraud in relation to general or personal dental services agreements and pharmaceutical services.
NHS Blood and Transplant
NHS Blood and Transplant consists of a chairman, not more than eight additional members who are not officers of NHS Blood and Transplant, and not more than eight members who are officers of NHS Blood and Transplant. Subject to directions given to NHS Blood and Transplant by the Secretary of State and/or Welsh Ministers, NHS Blood and Transplant must, so as to promote or secure the effective provision of health services, perform functions in connection with collecting, screening, analysing, processing and supplying blood, blood products, plasma, stem cells and other tissues to the health service, the preparation of blood components and reagents and facilitating, providing and securing the provision of services to assist tissue and organ transplantation