Commentary on Sections NHS bodies and their functions: England Section 4: Personal medical services, personal dental services and local pharmaceutical services
39.Section 4 contains amendments relating to PMS, PDS and LPS to take account of the replacement of HAs by Strategic Health Authorities and also the transfer of certain PMS, PDS and LPS functions from HAs to PCTs.
40.Subsection (1) amends section 9 of the National Health Service (Primary Care) Act 1997 (the Primary Care Act) to remove the restriction on the Secretary of State in England from directing a Strategic Health Authority or Special Health Authority to exercise functions relating to PMS and PDS pilot schemes on his behalf.  Subsection (2) amends section 36 of the HSC Act to remove the same restrictions as regards functions relating to LPS pilot schemes.
41.Subsection (3) introduces Schedule 3 which makes amendments to the Primary Care Act and other primary legislation related to the provision of PMS and PDS.  These amendments are to take account of the creation of Strategic Health Authorities and the transfer of certain PMS and PDS functions to PCTs.
42.The Government’s intention is to devolve PMS and PDS functions from the Secretary of State and HAs to PCTs wherever this is practicable.  Where the PCT is providing PMS or PDS, rather than commissioning it, it is not considered possible to devolve certain functions to the PCT.  This is because the Primary Care Act requires a distinction to be maintained between commissioner and provider.
43.For this reason, PMS and PDS functions currently undertaken by the HA under the 1997 Act will be transferred to Strategic Health Authorities.  Where the PCT is the commissioner, the HA’s functions will be devolved to the PCT through secondary legislation.  Where the PCT is the provider, Strategic Health Authorities will retain the legal exercise of these functions and their accountability, but in practice much of the work will be carried out by PCTs acting as agents on behalf of Strategic Health Authorities.  This will be made clear in guidance.
44.Paragraph 2 ofSchedule 3 therefore provides for all functions in relation to both PMS and PDS pilot schemes in England to be carried out by Strategic Health Authorities.  This would include, for example, developing and consulting on proposals and implementing schemes approved by the Secretary of State, but exclude those functions associated with the preparation and maintenance of PMS and PDS ‘services lists’ (see below).
45.Paragraph 3 amends section 8ZA of the Primary Care Act (inserted by section 26(2) of the HSC Act) so that responsibility for ‘services lists’, comprising practitioners who may perform PMS or PDS under pilot schemes, will be transferred from HAs to PCTs.  In future, PCTs will be responsible for the preparation and maintenance of these lists, including making decisions, for example, on a doctor’s or dentist’s application for inclusion in the list and whether there are grounds for removal from it.  (PCTs will also be responsible for the preparation and maintenance of the main medical and supplementary lists.)
46.Paragraph 4 amends section 8A of the Primary Care Act  (inserted by section 6(1) of the Health Act) which prevents a HA from delegating certain functions to the PCT where the PCT itself is providing, rather than commissioning, PMS or PDS by applying the same restriction on Strategic Health Authorities.  This is because the Primary Care Act requires a distinction to be maintained between the commissioner and provider.
47.Paragraphs 5, 6, 9 and 10  make amendments to the Primary Care Act to take account of responsibility for the preparation and maintenance of General Medical Services medical lists (the medical and supplementary lists) being transferred to PCTs.  Sections 12 and 13 of and Schedule 1 to the Primary Care Act make provision for the removal from and subsequent readmission to the GMS medical list of a GMS doctor moving to or returning from working under PMS pilot arrangements.
48.Paragraphs 7, 8 and 16 make similar provision in relation to such schemes under any permanent arrangements for PMS and PDS which are made following the pilot schemes.
49.Paragraphs 11, 12, 13 and 17 make amendments to a range of primary legislation to take account of and provide consistency with the provisions of this Schedule that transfer PMS and PDS functions from HAs to Strategic Health Authorities.
50.Paragraph 14 removes the restriction on the delegation by a HA to a PCT of certain functions relating to the permanent arrangements for PMS/PDS contained in section 28EE(1) of the 1977 Act (as inserted by section 6(2) of the Health Act).