Local Health Boards

Health Service bodies

Part 2 of the National Health Service (Wales) Act 2006 (the 2006 Act) makes provision about ‘Health Service Bodies’ in Wales. For the purposes of the Act those Health Service Bodies are Local Health Boards (sections 11 to 17), NHS Trusts (sections 18 to 21), and Special Health Authorities (SHAs) (sections 22 to 25).

There are significant differences between the health service bodies currently in operation in Wales and those in operation in England. Care should be taken when seeking to analyse or compare the organisational structure of the NHS in England and Wales. In particular, the National Health Service Act 2006, as it applies in England, provides for the following bodies which do not have functions in relation to Wales:

  • the National Health Service Commissioning Board;
  • Clinical Commissioning Groups;
  • Strategic Health Authorities (provisions repealed by the Health and Social Care Act 2012);
  • Primary Care Trusts (provisions repealed by the Health and Social Care Act 2012);
  • NHS Foundation Trusts;
  • Trust Special Administrators.

Initial Establishment

Local Health Boards (LHBs) were established in Wales by section 6 of the National Health Service Reform and Health Care Professions Act 2002 (the 2002 Act). Section 6 inserted new section 16BA into the National Health Service Act 1977 (the 1977 Act). Section 16BA provided that the (then) 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 to establish 22 LHBs, each corresponding to a particular Welsh local authority area. The LHBs became operational on 1 April 2003.

Section 16BB of the 1977 Act, as inserted by section 6 of the 2002 Act, provided that the (then) 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 the 1977 Act, as inserted by Schedule 4 to the 2002 Act, 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 1977 Act to make the Local Health Boards (Functions) (Wales) Regulations 2003, 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 previous health service commissioning role of Welsh Health Authorities, while responsibility for the provision of front-line hospital services remained with the NHS Trusts.

The National Assembly exercised its power under paragraphs 6(1) and (2) of Schedule 5B to the 1977 Act to make the Local Health Boards (Constitution, Membership and Procedures) (Wales) Regulations 2003. 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). 

The 1977 Act, including its provisions on the establishment and functions of LHBs, was 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 2006 Act make provision about the composition and functions of LHBs. They substantively re-enact the provisions of sections 16BA - 16BC of the 1977 Act. There follows a summary of the provisions relevant to the composition and functions of LHBs.

Composition

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.
  • 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.
  • 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 the 2006 Act 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.

Constitution, Membership and Procedures

The detailed requirements for the constitution and membership of LHBs are set out in Local Health Boards (Constitution, Membership and Procedures) (Wales) Regulations 2009 (LHB Regulations 2009). These Regulations were made using the Welsh Ministers’ power under section 11 of the 2006 Act. 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 LBH Regulations 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 LHB Regulations 2009 makes provision about the proceedings of the LHB meetings.

LHB officers’ pay and conditions

Paragraph 7 of Schedule 2 to the 2006 Act provides that an LHB may pay its officers such remuneration and allowances and on such terms and conditions of service as it considers appropriate. In this respect, an 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 (NHS Regulations 1991) were made by the Secretary of State in exercise of his power under paragraph 10(1) of Schedule 5 to the 1977 Act. 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:

  • 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.
  • 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;
  • 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 the NHS Regulations 1991 which confer power on the Welsh Ministers to approve negotiated pay agreements, or to determine a level of pay themselves.

Functions

Section 12 of the 2006 Act makes provision about the functions of LHBs. It provides that the Welsh Ministers may direct a LHB to exercise functions which were transferred to the (then) 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 principal functions of LHBs are set out in the Local Health Boards (Directed Functions)(Wales) Regulations 2009 (Directed Functions Regulations), which are effectively directions issued by the Welsh Ministers in exercise of their power under section 12 of the 2006 Act. Any directions made by the Welsh Ministers must not preclude the Welsh Ministers from being able to exercise the directed functions themselves.

The Directed Functions Regulations 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. As such the role of LHBs 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.

The Directed Functions Regulations, including the Schedule to the Regulations, should be consulted for full details of the functions delegated to LHBs but in summary:

  • Regulation 4 provides that, subject to any prohibitions or restrictions in an order which establishes a particular LHB, the LHB functions are:
    • 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 Directed Functions Regulations, and
    • the additional functions of the Welsh Ministers specified in the Schedule to the Regulations.
  • The Schedule delegates to LHBs functions under the 2006 Act and six other statutes. These functions include the Welsh Ministers’ general duty under section 1 of the 2006 Act 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 2006 Act 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).

The Welsh Ministers have made Welsh Health Specialised Services Committee (Wales) Regulations 2009 so that the 7 LHBs in Wales work via a joint committee to exercise functions relating to the planning and securing of specialised and tertiary services. Every year, the Welsh Health Specialised Services Committee (WHSSC) receives money from the LHBs to pay for specialised healthcare for everyone who lives in Wales and is entitled to NHS care.  An individual patient funding request can be made for a treatment that is not routinely offered by the NHS in Wales, which are:

  • treatments that are new, novel, developing or unproven and are not normally available for any patients in Wales (for example, a medicine that has not been approved for use by the NHS in Wales)
  • treatments that are provided in very specific clinical circumstances and not all patients with the condition meet these criteria (for example, a request for varicose vein treatment).

The LHBs also work together to deliver Welsh Risk Pool Services (WRPS). The WRPS is a mutual organisation which provides indemnity to all LHBs and NHS Trusts in Wales for clinical and non-clinical claims for negligence. The NHS Wales Risk Pool was established in 1996 when responsibility for meeting the cost of clinical negligence claims was transferred directly to NHS Wales. The WRPS arrangements are contained in various Welsh Health Circulars and Policy documents. The indemnity only applies to NHS directly provided activities arising from the actions of NHS employees and others who, are providing under the LHB/Trust’s management supervision and control.

In addition, section 30 of the 2006 Act provides the Welsh Ministers a power to make regulations to establish a scheme for meeting losses and liabilities of certain health service bodies. This power was used to make the National Health Service (Clinical Negligence Scheme) (Wales) Regulations which make provision in connection with the Clinical Negligence Scheme for NHS Trusts and Local Health Boards in Wales. The Scheme provides discretionary cover in respect of liabilities in tort (under the law of England and Wales) that arise in consequence of a breach of duty of care by a member or contractor (or other person employed, engaged or employed by a person engaged by a member or contractor) which results in physical injury or loss to a person. Claims made under the Scheme are expected to consist of mainly clinical negligence claims.

Other relevant provisions of the National Health Service (Wales) Act 2006

Parts 4 to 7 of the 2006 Act impose specific duties on LHBs in relation to the provision of medical and dental services.

Section 14 of the 2006 Act 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 setting out the administrative and management functions of LHBs in relation to pharmaceutical services.

Section 17(1) of the 2006 Act 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 the 2006 Act 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.

Local Health Boards currently operating in Wales

The Local Health Boards (Establishment) (Wales) Order 2003 originally established 22 LHBs in Wales. 

The Local Health Boards (Establishment and Dissolution) (Wales) Order 2009, made in exercise of the Welsh Ministers’ power under section 11 of the 2006 Act, 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 21 of the original 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 names of three of the LHBs have been amended since the Order was made and the table below shows the updated names (but see also below):

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

Anglesey, Conwy Denbighshire, Flintshire, Gwynedd and Wrexham

Schedule 2 to the Order provides that the 21 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 made further provision of relevance here. 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.

The Local Health Boards (Area Change) (Wales) (Miscellaneous Amendments) Order 2019 changed the areas of Cwm Taf University Local Health Board and Abertawe Bro Morgannwg University Local Health Board and also changed their names from 1 April 2019 onwards. The principal local government area of Bridgend was transferred from Abertawe Bro Morgannwg University Local Health Board to form part of the area of Cwm Taf University Local Health Board. Abertawe Bro Morgannwg University Local Health Board was renamed ‘Swansea Bay University Local Health Board’ and Cwm Taf University Local Health Board renamed ‘Cwm Taf Morgannwg University Local Health Board’.