The National Health Service was established in England and Wales on 5 July 1948 upon the coming into force of the National Health Service Act 1946 (the 1946 Act). Elements of the initial NHS organisational arrangements provided for by the 1946 Act may still be seen in today’s NHS governance structures. The most relevant provisions of that Act are set out immediately below and are included to provide background information only.
History and the National Health Service Act 1946
The 1946 Act was enacted in order to remedy perceived deficiencies in the healthcare services available at that time. The existing provision was provided by a combination of local authority hospitals, so-called voluntary hospitals (ordinarily supported by philanthropy or charity), and hospitals developed and maintained in conjunction with university medical education. The provision was criticised for being inconsistent, varying from one local authority area to the next, and for being partly dependent on a worker’s national health insurance contributions.
The 1946 Act sought to address the perceived problems by, amongst other things, placing a duty, at section 1(1) the Act, on the Minister for Health
"to promote the establishment of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services"
in accordance with the provisions of the 1946 Act. Section 3(1) further provided that it was
"the duty of the Minister to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements, accommodation and services of the following descriptions, that is to say:-
(a) hospital accommodation;
(b) medical, nursing and other services required at or for the purposes of hospitals;
(c) the services of specialists, whether at a hospital, a health centre provided under Part III of this Act or a clinic or, if necessary on medical grounds, at the home of the patient".
Section 6 of the 1946 Act further provided that on 5 July 1948 all voluntary and local authority maintained hospitals, and all associated equipment and furniture, were transferred to, and vested in, the Minister. Section 8 provided for an exception whereby property held by medical or dental schools associated with a hospital that was being transferred to the Minister would be transferred to the Board of Governors of that school rather than to the Minister.
Section 11 of the 1946 Act provided that the administration of the hospitals now vested in the Minister and the specialist services were to be carried out by newly established Regional Hospital Boards. In turn, those Boards were to appoint Hospital Management Committees to manage individual hospitals or groups of hospitals. Teaching hospitals were to be managed by their Boards of Governors.
The devolution of health functions to Wales
The Secretary of State for Wales, whose post was established in October 1964, initially had an informal oversight role over health in Wales. The application of national policies in Wales remained a matter for the UK Health Minister or the Secretary of State for Social Services, with the Secretary of State for Wales having oversight within Wales of the execution of national policy created and applied by the Ministry of Health.
This informal oversight role was developed further in 1969 when the Transfer of Functions (Wales) Order 1969 came into force. Article 2(1) of the Order provided that:
"it shall be for the Secretary of State for Wales, instead of the Secretary of State for Social Services, to discharge in matters only affecting Wales the general duties of the Secretary of State under section 2 of the Ministry of Health Act 1919 and section 1 of the National Health Service Act 1946, and the functions of the Secretary of State under the National Health Service Acts 1946 to 1968 in relation to the provision of hospital and specialist services and other services".
Article 2(3) of the Order further provided that all property, rights and liabilities to which the Secretary of State for Social Services was entitled at the coming into force of the Order in connection only with the provision of hospital and specialist services for Wales were to be transferred to the Secretary of State for Wales.
This remained the position from 1 April 1969 until the coming into force of the National Assembly for Wales (Transfer of Functions) Order 1999 on 1 July 1999, when the majority of the Secretary of State’s health-related functions in relation to Wales were transferred to the (then) National Assembly for Wales. These were later transferred to the Welsh Ministers by the Government of Wales Act 2006.
The National Health Service Act 1977
Prior to the coming into force of the NHS Acts of 2006 (see further below), the principal statute on the NHS in England and Wales was the National Health Service Act 1977 (the 1977 Act). It came into force on 29 August 1977 and consolidated and repealed a number of Health Acts enacted between 1946 and 1976, including the National Health Service Act 1946.
The 1977 Act set out the powers and duties of the Secretary of State in relation to the National Health Service in England and Wales and introduced a revised governance structure for the NHS. In particular, section 8 of the 1977 Act provided for the establishment of Area Health Authorities in Wales and Regional Health Authorities and Area Health Authorities in England. Power was conferred on the Secretary of State to direct Area and Regional Health Authorities to exercise the Secretary of State’s powers and duties under the 1977 Act.
Section 11 of the 1977 Act conferred powers on the Secretary of State to establish ‘special’ health authorities for the purpose of performing any functions which they were directed to perform, and section 20 imposed a duty on the Secretary of State to establish Community Health Councils.
The 1977 Act imposed duties on Area Health Authorities (as opposed to local health authorities under the National Health Service Act 1946) to arrange for the provision in their areas of:
- personal medical services, known as ‘general medical services’;
- general dental services;
- the testing of sight and the supply of optical appliances, known as ‘general ophthalmic services’;
- the supply of proper and sufficient drugs and medicines, known as ‘pharmaceutical services’.
In relation to all of the above services – medical, dental, ophthalmic and pharmaceutical – the 1977 Act conferred power on the Secretary of State to make subordinate legislation to require a person to be registered on a ‘performers list’ before that person could provide the service in question. Other than the performers lists, the regulation of the health professions providing these services remained outside the scope of the 1977 Act.
Sections 77 to 79, as originally enacted conferred power on the Secretary of State to make subordinate legislation to require charges to be made for the provision of pharmaceutical services, dental services and ophthalmic services in prescribed circumstances.
Paragraph 10 of Schedule 5 to the 1977 Act as originally enacted, provided that an authority, including an Area Health Authority, could employ officers on such terms as it determined, in accordance with regulations made by the Secretary of State.
The provisions of the 1977 Act were subject to numerous amendments before the Act’s eventual repeal by the National Health Service (Consequential Provisions) Act 2006. Of particular relevance to the organisational structure of the NHS (see Health Service Bodies), numerous amendments were made to the Area/Regional Health Authorities regime established by the 1977 Act.
The reference to Regional and Area Health Authorities in section 8 of the 1977 Act was initially amended by the enactment of section 1 of the Health Services Act 1980. As amended, section 8 of the 1977 Act, provided for Regional, Area and District Health Authorities in England, and for Area and District Health Authorities in Wales. The National Health Service (Determination of Districts) Order 1981 initially established seven District Health Authorities in Wales, corresponding to the local authority areas of Wales at that time, and this was increased to nine districts by the National Health Service (District Health Authorities) Order 1990.
The reference to ‘Area Health Authorities’ in section 8 of the 1977 Act was subsequently removed by the enactment of the National Health Service and Community Care Act 1990.
Section 8 of the 1977 Act was further amended by the Health Authorities Act 1995 to impose a duty on the Secretary of State to establish ‘Health Authorities’ for areas of England and Wales. In relation to Wales, the Secretary of State exercised this power to make the Health Authorities (Wales) Establishment Order 1996 which established five Welsh Health Authorities – Bro Taf, Dyfed Powys, Gwent, Morgannwg and North Wales. The new Health Authorities replaced the District Health Authorities which had been in operation in Wales since 1982. The Health Authorities remained in operation in Wales until their abolition by the (then) National Assembly for Wales in 2003. Following their abolition, the functions and staff of the Health Authorities were transferred to the National Assembly for Wales and the majority of their property, rights and liabilities etc. were transferred to the 22 newly-established Local Health Boards (as to which, see below).
The National Health Service Reform and Health Care Professions Act 2002 made further amendments to the provisions of the 1977 Act. Of particular relevance for the current organisational structure of the NHS in Wales, section 6 of that Act inserted new section 16BA into the 1977 Act to provide that the National Assembly for Wales could make secondary legislation to establish bodies, known as Local Health Boards (LHBs), and that the LHBs could have conferred on their functions previously exercised by the five Welsh Health Authorities, along with any other health related functions of the National Assembly. As noted above, the National Assembly exercised its power under new section 16BA (by means of the Local Health Boards (Establishment) (Wales) Order 2003) to create 22 LHBs, each corresponding to a Welsh local authority area. Subsequently, using powers under section 11 of the NHS (Wales) Act 2006, the Welsh Ministers made the Local Health Boards (Establishment and Dissolution) (Wales) Order 2009. This order dissolved 21 of the LHBs and established six new Local Health Boards in Wales.
National Health Service Acts 2006
The legislative framework of the NHS in Wales is now principally set out in the National Health Service (Wales) Act 2006 (the 2006 Act) and the National Health Service Act 2006 (the 2006 Act). Both are statutes of the UK Parliament, with the functions of the Welsh Ministers under the 2006 Act only applying in relation to Wales (by virtue of section 202(1) of the 2006 Act), and the vast majority of the Secretary of State’s functions under the 2006 Act only applying in relation to England (by virtue of section 271(1) of the 2006 Act).
Section 271(3) of the 2006 Act provides that the only health related functions that the Secretary of State may exercise in relation to Wales under that Act are under the following parts and sections:
- Section 8(1) – powers to direct health service bodies in respect of matters concerning xenotransplantation, surrogacy, embryology or human genetics;
- Chapter 5 of Part 1 on NHS foundation trusts. There are no NHS foundation trusts in Wales;
- Section 235 – in relation to superannuation of officers of certain hospitals;
- Section 247B – in relation to co-operation in relation to public health functions;
- Schedule 21 – prohibition as to the sale of medical practices;
- Section 260 – control of maximum price of medical supplies other than health service medicines;
- Sections 261 to 266 – control of prices of medicines and profits.
A third Act of the UK Parliament, the National Health Service (Consequential Provisions) Act 2006 repealed the National Health Service Act 1977 with effect from 1 March 2007.
The National Health Service (Wales) Act 2006
The organisational and governmental structure of the Welsh NHS is primarily set out in the National Health Service Wales Act 2006. The Act consolidated in relation to Wales the provisions of the National Health Service Act 1977 and associated legislation, and set out in one statute the distinct structure of the Welsh NHS. There are many differences between the structures and governance of the NHS in England and Wales, especially with regards to the health service bodies in operation in Wales.
General functions of the Welsh Ministers – Part 1 of the National Health Service (Wales) Act 2006
In many respects, Part 1 of the 2006 Act re-enacts the principal functions that were conferred or imposed on the Welsh Ministers (and the Secretary of State) under the equivalent parts of the National Health Service Act 1977, and may be traced back to the establishment of the National Health Service in 1948. The general functions of the Welsh Ministers may be summarised as follows:
- Under section 1 the Welsh Ministers must continue the promotion in Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of Wales, and in the prevention, diagnosis and treatment of illness. The Welsh Ministers must for that purpose provide or secure the provision of services in accordance with the 2006 Act.
- Section 1(3) provides that the services provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment. Specific provision is made in the 2006 Act, for example, for charging for dental, pharmaceutical and ophthalmic services.
The section 1 duty includes a duty to provide hospital accommodation and services for persons who are liable to be detained under the Mental Health Act 1983 and in the opinion of the Welsh Ministers require treatment of high security due to dangerous, violent or criminal propensities. The treatment may be provided only at hospital premises at which services are provided only for such persons (see section 4 of the 2006 Act).
In relation to the duty to continue the promotion of a ‘comprehensive’ health service, pre-2006 case law indicates that provided the relevant authority has due regard to that duty, a judicial review challenge on the grounds that a particular service may not be regarded as ‘comprehensive’ will not automatically be successful.
Under section 2 the Welsh Ministers may provide such services as they consider appropriate for the purpose of discharging any duty imposed on them by the 2006 Act and may do anything else in order to facilitate the discharge of such duties.
Under section 3 the Welsh Ministers must provide throughout Wales, to such extent as they consider necessary to meet reasonable requirements:
- hospital accommodation;
- other accommodation for the purpose of any service provided under the 2006 Act;
- medical, dental, ophthalmic, nursing and ambulance services;
- such other services or facilities as they consider appropriate for the prevention of illness, the care of persons suffering from illness, and the after-care of such persons;
- such other services or facilities as are required for the diagnosis and treatment of illness.
Section 5 introduces provisions contained in Schedule 1 to the Act on the duty to provide for the medical inspection of pupils, the power to provide for the weighing and measuring of children, the duty to arrange for the provision of contraceptive services to meet all reasonable requirements, the power to provide vehicles for disabled persons, the power to provide a microbiological service, and the power to undertake, or assist in, medical research.
Section 10 confers power on the Welsh Ministers to make arrangements with any person or body, including a voluntary organisation, to provide or assist in providing any service under the 2006 Act. Where they enter into such arrangements, the Welsh Ministers may make available any facilities provided by them for any service under the 2006 Act, including the services of any person employed by the Welsh Ministers, a Special Health Authority or Local Health Board.
Sections 11 to 25 make provision about Health Service Bodies. Amongst other things, the sections provide that the Welsh Ministers have the power to give directions to Local Health Boards (section 12), NHS Trusts (section 19) and Special Health Authorities (section 23) as to the exercise of those bodies’ functions. In relation to LHBs, section 12 further provides that the Welsh Ministers may give directions requiring LHBs to exercise the Welsh Ministers’ functions. Section 31(2) provides that any such directions made by the Welsh Ministers must not preclude the Welsh Ministers from being able to exercise the directed function themselves.
The Nurse Staffing Levels (Wales) Act 2016 inserted new sections 25A to 25E into the 2006 Act. These sections place an overarching duty on LHBs and trusts to have regard to the importance of providing sufficient nurses to allow nurses time to care for patients sensitively, take all reasonable steps to maintain nurse staffing levels, and inform patients of the staff levels. Section 25E requires a report to be submitted every three years to the Welsh Ministers setting out the extent to which nurse staffing levels have been maintained, the impact on patients of any failure to maintain nurse staffing levels and any action taken by the LHB or Trust in response to not maintaining nurse staffing levels.
Section 26 provides that if the Welsh Ministers consider that a particular health service body, including any LHB, NHS Trusts or Special Health Board, is not performing its functions adequately, or that there are significant failings in the way the body is being run, and the Welsh Ministers are satisfied that it is appropriate for them to intervene, they may make an intervention order in respect of the body. The intervention order may do any of the things listed in section 27.
Section 28 provides that if the Welsh Ministers consider that a particular health service body, including any LHB, NHS Trust or Special Health Boards, has failed to carry out any functions conferred or imposed on it by virtue of the 2006 Act, or has in carrying out those functions failed to comply with any relevant regulations or directions, the Welsh Ministers may, after conducting such an inquiry as they consider appropriate, make an order declaring the body to be in default. If such an order is made, the members of the body must immediately vacate their office, and the order must provide for the appointment of new members, and may make such provision as seems expedient to the Welsh Ministers for authorising any person to act in the place of the body pending the appointment of new members.
Section 191 makes provision about the Welsh Ministers’ emergency powers. The Welsh Ministers may give directions, in writing (see section 204(3) of the 2006 Act), if they consider that as a result of an emergency, it is necessary to do so in order to ensure that a service to be provided under the Act is in fact provided.