Commentary on Sections Part 2 – Powers in Relation to Health Bodies Chapter 1 – Powers in Relation to Failing NHS Bodies in England Appointment
218.New section 65P gives the Secretary of State the power to give directions requiring a PCT to appoint a TSA to exercise certain “provider” functions of the PCT on its behalf (subsection (1)). A “provider” function is any function which (i) involves the provision of goods and services, but only where that function is exercised by the PCT by means of direct provision (for example not by the making of commissioning arrangements with other persons) and (ii) is not a function of providing goods and services but which may be exercised for that purpose (e.g. employing staff) (subsection (10)). Precisely which functions are to be exercised by the TSA will be specified in the directions; that may differ in each case. The Secretary of State may only exercise the direction-making power if the Secretary of State considers it appropriate in the interests of the health service to do so (subsection (2)) and only after consulting the PCT, any Strategic Health Authority whose area includes any part of the PCT’s area, and any other person which commissions services from the PCT, where the Secretary of State considers it appropriate (subsection (4)). The TSA holds and vacates office in accordance with the terms of his or her appointment (subsection (7)) and the Secretary of State can require in the directions that the terms of appointment contain specified terms, for example provision could be included to ensure that the Board of the PCT cannot interfere in the exercise of the TSA’s functions (subsection (8)). New section 65Q provides that when the TSA’s appointment takes effect, the relevant functions (meaning those exercisable by the TSA) will no longer be exercisable by any committee, subcommittee or officer of the PCT, but that provision will not affect the employment of any PCT employee (subsection (2)).