Commentary on Sections Part 2: Pharmaceutical Services NHS contracts and financial provision Section 33: NHS Contracts
172.Under section 33, persons providing pilot services may apply to become a health service body. The effect of such an application being granted is that the contracts entered into between the Health Authority and the health service body will be NHS contracts within the meaning of the National Health Service and Community Care Act 1990, rather than legal contracts.
173.Where a pilot scheme involves a single individual or body corporate, subsection (1) provides for that individual or body to apply to become a health service body. Where a pilot scheme involves more than one person, subsection (2) permits all the people involved to apply collectively. In both cases, applications must be made in accordance with regulations under subsection (3). Regulations under subsection (4) may provide for applications to be granted except in specified cases. If an application is granted, subsection (5) requires the Secretary of State or National Assembly for Wales to specify when it is to come into effect.
174.From a specified day following grant of an application, the applicant or applicants are to be treated as a health service body for the purposes of section 4 of the 1990 Act. Subsection (7) provides that where an application has been granted to pilot scheme providers collectively, it is the providers in that scheme at any given time who are to be considered the health service body, even if they have changed since the original application. Regulations under subsection (9) may provide for people to cease to be health services bodies in specified circumstances.
175.Subsections (10) and (11) require the Secretary of State and National Assembly for Wales to maintain and keep up to date a list of pilot scheme providers who have been awarded health service body status, and to publish it in such manner as they consider appropriate.
176.Subsection (6) has the effect that contracts between pilot scheme providers which have been granted the status of health service bodies and other health service bodies (including other pilot scheme providers) are to be treated as NHS contracts if they are for the provision of goods or services in connection with the scheme .
177.NHS contracts are not normally enforceable in the courts. Instead, any disputes can be put to the Secretary of State or National Assembly for Wales for resolution. However, because most pilot scheme providers will be rather different from other health service bodies, subsection (8) provides that the County Court may enforce directions issued as a result of that dispute resolution procedure in favour of or against a pilot scheme provider.