Schedule: Minor and consequential modifications
63.The 1978 Act is the principal statute governing the operation of NHS Scotland (along with the various orders and regulations made under that Act). As well as conferring specific health care functions, that Act (and various orders and regulations made under it) confer various functions which, in one way or another, support the operational delivery of health care services (see, for example, section 79 of the 1978 Act, which deals with the purchase of land and other property for the purposes of that Act). Many of these “support” functions are also relevant to the exercise of the functions conferred by this Act. Some provisions in the 1978 Act will automatically apply in relation to the health boards’ exercise of these functions (for example, section 2D, which requires health boards to discharge their functions in a way that encourages equal opportunities). But other provisions of the 1978 Act, such as section 79, would not automatically apply (for example, because they refer to things being done for the purposes of the 1978 Act). Part 1 of the schedule to this Act makes various amendments to the 1978 Act (and certain orders and regulations made under that Act) to assist, broadly speaking, in ensuring that the necessary “support” functions are exercisable in the same way in relation to the functions conferred by this Act as they are in relation to health boards’ health care functions.
64.In more detail, paragraph 1(3) extends the duty to consult persons to whom health services are provided on the planning and development of such services so that consultation is also required in relation to the planning and development of services under this Act. Similarly, the amendments to the 1978 Act and the Functions of Health Boards (Scotland) Order 1991 made by paragraphs 1(6) and (11) and 2(4) and (5) of the schedule ensure that health boards are able to exercise their existing functions in relation to the provision of facilities and medical and nursing staff, and in relation to the purchase of land and other property, for the purposes of the Act (as well as the purposes of the 1978 Act). Paragraph 1(5) ensures that NHS contracts (as defined in section 17A of the 1978 Act) can be entered into for the purposes of this Act. The Ministerial powers conferred by section 2(5) of the 1978 Act (general duty on health boards to act in accordance with regulations made, and directions given by, the Scottish Ministers) and sections 76 to 78A of the 1978 Act (holding of inquiries, and various default and emergency powers) are also modified so that they are exercisable in relation to the functions conferred by the Act (see paragraph 1(2)(a) and (7) to (10) respectively).(28) Paragraph 1(4) amends section 10H of the 1978 Act so that the Scottish Ministers can publish standards and outcomes relating to services provided under this Act. Any such standards and outcomes must be taken into account by HIS in doing certain things under the 1978 Act (in line with the functions conferred on HIS under regulations made under section 13 relating to the examination and retention services).(29)
65.The amendments made to the Functions of Health Boards (Scotland) Order 1991 by paragraph 2(3) are discussed in paragraph 31 above.
66.Paragraph 3 amends the National Health Service (Clinical Negligence and Other Risks Indemnity Scheme) (Scotland) Regulations 2000. Those Regulations establish a scheme for (broadly speaking) the meeting of liabilities arising out of negligence in the carrying out of health board functions and financial losses arising during the carrying of such functions. The Act ensures that references in the regulations to functions of health boards include reference to the functions conferred by the Act (by modifying the definition of “relevant function” in regulation 1(2) – that term is then used in, for example, regulation 4(2)). So, for example, the scheme applies in relation to any liability arising from a personal injury suffered by a person due to negligence in the carrying out of a forensic medical examination.
67.Part 2 of the schedule amends two other Acts in consequence of this Act: the Patient Rights (Scotland) Act 2011 (“the 2011 Act” – see also the discussion of section 10 in paragraphs 43 and 44 above) and the Victims and Witnesses (Scotland) Act 2014 (“the 2014 Act”).
68.The amendments to the 2011 Act made by paragraph 4 ensure that relevant provisions of that Act apply to all elements of a health board’s interaction with a victim in relation to whom the functions conferred by section 1 are being exercised – that is, to health care aspects and to forensic medical services aspects (these services not being, strictly speaking, “health” functions, as indicated by the purposes described in section 2(3) and 6(2)). So, for example, the health care principles set out in the schedule of the 2011 Act apply in relation to a health board’s provision of the examination service, meaning that, amongst other things, a health board carrying out a forensic medical examination must uphold the principle of care being provided in a caring and compassionate manner.
69.Paragraph 5 amends the 2014 Act. New section 8A of that Act, inserted by paragraph 5(2), is discussed in paragraphs 48 to 53 above (with paragraph 5(4) then making a minor consequential amendment to section 29A of the 2014 Act).
70.Paragraph 5(3) amends section 9 of the 2014 Act. As amended, this section provides that persons who are to undergo a forensic medical examination (under section 2 of this Act) must be given an opportunity to request that the person who is to carry out a forensic medical examination be of a specified sex. The person due to carry out the examination must be informed of the nature of any such request. As well as changing the word “gender” to “sex”, the amendments made by paragraph 5(3) keep section 9 more generally aligned with the wider changes made by this Act, for example, by removing the references to police constables, given that examinations will require to also be available on a self-referral basis.
71.It is possible that the regulation-making power conferred on the Scottish Ministers by section 19 of this Act might be used to make further amendments of existing Acts which are needed in consequence of this Act.