Commentary on Sections Patient and public involvement Section 23: Joint working with the prison service
119.This section make provision for the NHS and the prison service to work together to fulfil their functions more effectively.  It will enable regulations to be made to enable them to pool their resources and to delegate functions and resources from one party to another.  It also introduces an explicit duty of co-operation between the NHS and the prison service to secure and maintain the health of prisoners.  Responsibility for the health of prisoners is shared between the prison service and the NHS.  Following publication in 1999 of the report The Future Organisation of Prison Health Care(11), a formal partnership has already been established between the prison service and the NHS with the aim of ensuring that prisoners have access to health services which are as far as possible equivalent to those available to the general population from the NHS.
120.Section 23 removes existing legal barriers to joint working between the NHS and the prison service.  The measures set out in this section are intended to allow NHS bodies and the prison service to agree jointly who is best placed to carry out certain of their functions, and to agree how resources might be used in joint working arrangements.  They parallel the provisions that exist to allow closer working between the NHS and Local Authorities under section 31 of the Health Act.  This section removes some of these barriers by allowing NHS bodies and the prison service to:
	pool resources, which will mean that the agreed resources contributed to the pool can be used on any of the functions agreed by the partner agencies when the pool is established. This is intended to allow staff from either agency to develop packages of care suited to the needs of prisoners irrespective of whether health or prison service money is used; and
	delegate functions to one another. This will allow, for example, one of the partner bodies to commission or provide all mental health services for a group of prisoners. It is expected that this will improve the integration of the services commissioned or provided.
121.These joint working arrangements need to be able to respond to local needs and will not necessarily be appropriate in all areas, or for all prisoners.  The powers are therefore discretionary, not mandatory.
122.Subsection (1) introduces an explicit duty of co-operation between the NHS and the prison service to secure and maintain the health of prisoners, making clear the intention that NHS bodies and the prison service are expected to work together.
123.Subsection (2) provides for the Secretary of State in relation to England and the Assembly in relation to Wales to make regulations setting out the details of the joint working arrangements.  These arrangements can only be used if doing so leads to an improvement in the way in which the bodies’ functions are exercised, which might, for example, include better outcomes for service users.  Subsection (3) sets out examples of the new operational working arrangements.
124.Subsection (3)(a) enables the creation of pooled budgets made up of contributions from the NHS and the prison service.  The resources contributed by each body will lose their identity as health or prison service money, and will be used to carry out the functions agreed by the partner agencies when the pool is established.  The pool will be able to fund both health and prison service activity as set out in regulations.
125.Subsections (3)(b) and (3)(c) allow both NHS bodies and the prison service to delegate some of their functions to the other partner.  These functions will be prescribed in regulations.  In relation to health services for prisoners, the effect of these subsections will be to allow in particular:
	the prison service to delegate specified commissioning functions to NHS commissioning bodies, and vice versa; and
	the prison service to delegate specified provider functions to NHS bodies and vice versa.
126.Subsections (3)(d) to (3)(f) provide for practical arrangements to support the exercise of these provisions for budget pooling and delegation.
127.Subsection (4) makes it clear that, where an NHS body or the prison service delegates its functions under the arrangements in this section, that body will remain liable for the exercise of those functions.