Statutory instrument 1996 No. 640 National Health Service, England and Wales

PART 1 GENERAL

Citation, commencement and interpretation

1. (1) These regulations may be cited as the Community Health Councils Regulations 1996 and shall come into operation on 1st April 1996.

(2) In these regulations, unless the context otherwise requires –

“the Act” means the National Health Service Act 1977;

“appointing body” means, in relation to the appointment of a member, the Secretary of State, a relevant local authority or a voluntary organisation;

“Chief Officer ” means the person appointed under regulation 13 to act as Chief Officer of a Council;

“Council” means a Community Health Council;

“financial year” means the period of 12 months ending on 31st March in any year;

“member” means a member of a Council;

“1985 Regulations” means the Community Health Council regulations 1985;

“relevant date” means, in relation to the term of office of any member-

(a) in the case of a Council whose district is situated in England, 31st August; and

(b) in the case of a Council whose district is situated in Wales, 31st March;

“relevant Health Authority” means, in relation to a Council, any Health Authority whose area, or any part of whose area, is included in the district of the Council;

“relevant local authority ” means, in relation to a Council, any local authority whose area or part of whose area, is included in the district of the Council;

“relevant NHS trust” means, in relation to a Council, any NHS trust established in relation to a hospital, or other establishment or facility situated or to be situated wholly or partly within the district of the Council;

“relevant Primary Care Trust” means, in relation to a Council, any Primary Care Trust whose area, or any part of whose area, in included in the district of the Council.

(3) In these regulations, unless the context otherwise requires, any a reference to a numbered regulation is a reference to the regulation bearing that number in these Regulations and any reference in a regulation to a numbered paragraph is a reference to the paragraph bearing that number in that regulation.

These regulations replace the earlier regulations – Statutory Instrument 1985 No 304, amended by SI 1990 No 1375The earlier regulations defined a number of terms which still occur in the regulations, such as “voluntary organisation”, but which are no longer defined.

PART 11  ESTABLISHMENT AND MEMBERSHIP OF COUNCILS

Composition of Councils

2. (1) The members of a Council shall be appointed –

(a) in the case of certain members, by the relevant local authorities in accordance with regulation 4,

(b) in the case of certain other members, by the voluntary organisations determined in accordance with regulation 5, and

(c) in the case of the remaining members, by the Secretary of State.

(2) the Secretary of State shall exercise his power of determination under paragraph (1)so as to secure that-

(a) at least on member is appointed by each of the relevant local authorities;

(b) at least one half of the members are appointed by the relevant local authorities; and

(c) at least one third of the members are appointed by voluntary organisations.

(3) Subject to paragraph (2), the Secretary of State may, after consultation with the Council and with such other bodies as he may consider appropriate, vary the total membership or the composition of that Council, whether or not the variation is accompanied by a variation in the district or part of the district for which the Council is established.

This regulation is new and provides that all powers formerly granted to Regional Health Authorities are now to be exercised directly by the Secretary of State, or by the Management Executive on his behalf.

 Term of office of members

3. (1) Subject to the following provisions of this regulation and to regulations 7 and 8 (disqualification for, and termination of, membership), the term of office of any member shall be four years commencing-

(a) in the case of a Council whose district is situated in England, on 1st September; and

(b) in the case of a Council whose district is situated in Wales, on 1st April

(2) Subject to paragraph (4), as respects the members first appointed on the establishment of a Council –

(a) the term of office of certain of those members, to be identified in accordance with paragraph (3), shall end on the relevant date in the first even year; and

(b) the term of office of the other members shall end on the relevant date in the next even year which falls after the first even year.

(3) The members whose term of office is to expire in accordance with paragraph (2) (a) shall be chosen at the time of their appointment by agreement between the appointing bodies or, in default of such agreement, by the Secretary of State; and those members shall comprise one half (as near as may be) of the members appointed by each of the following categories of appointing authority:-

(a) the relevant local authorities

(b) the voluntary organisations; and

(c) the Secretary of State.

(4) Where a new Council is to be established for the district or part of the district of an existing Council, the Secretary of State may determine that the term of office of any member of the existing Council shall cease immediately before the establishment of the new Council.

(5) Subject to regulation 8(1), where a person (“the original member”) ceases for any reason to be a member before the expiration of the term for which he was appointed, the term of office of any member appointed or member re-appointed in his place shall be the unexpired period of the original member’s term.

(6) In this regulation –

“even year” means any calendar year which is a multiple of two;

“first even year” means the next even year falling after the calendar year in which a Council was established

This regulation derives, with few changes, from regulation 3 of the 1985 regulations.

The effect of the rotation system is to ensure that half the members retire every other year, thus preserving continuity.

Appointment of members by local authorities

4. (1) Where the number of members to be appointed to a Council by relevant local authorities allows for more than one member to be appointed by each relevant local authority, any further members shall be appointed by such of the relevant local authorities –

(a) as those authorities may by agreement determine; or

(b) in default of agreement by such date as the Secretary of State may specify for the purpose, as the Secretary of State shall determine.

(2) A member appointed in accordance with this regulation may, but need not, be a member of the local authority which appoints him.

(3)Subject to paragraph (4) where a member appointed by a local authority is a member of that authority, he shall, if he ceases to be a member of that authority, cease also to be a member of the Council at the end of the period of two months beginning with the date on which he ceased to be a member of the authority

(4) In a case to which paragraph (3) applies the local authority may, during the period referred to in that paragraph, give notice in writing to the Chief Officer and to the Secretary of State that the person appointed is to continue as a member of the Council.

This regulation derives, with few changes, from regulation 4 of the 1985 regulations. HC(81)15 suggests that members should normally live or work in the district. Local authorities are asked to bear in mind the value of appointing a representative of parish, community or town councils, particularly in rural areas. EL(90)185 specifies CHC membership should normally be drawn from the communities which they serve.

“relevant local authority” see reg. 1(2).

Appointment of members by voluntary organisations

5. (1) The Secretary of State shall invite such voluntary organisations as he shall determine, being organisations which in his opinion have an interest in the health service in the district of the Council, to take part in the appointment of members of the Council.

(2) Subject to paragraph (3), the voluntary organisations invited to take part in making appointments to a Council shall, by agreement between them, determine which of them, acting either alone or jointly with one or more other voluntary organisations, shall make the appointment of those members to be appointed by the voluntary organisations.

(3) In default of unanimous agreement for the purposes of paragraph (2), by such date as the Secretary of State may specify for the purpose, the Secretary of State shall determine which of the voluntary organisations shall make any appointment and whether the appointment should be made by one or more such organisations acting alone or jointly with one or more other such organisations.

(4) A member appointed in accordance with this regulation may, but need not, be a member of the voluntary organisation which appoints him.

This regulation derives, with few changes, from regulation 6 of the 1985 regulations. Voluntary Organisations are no longer defined. The definition in the previous regulations was ” any body (other than a public or local authority) of which the activities are carried on otherwise than for profit.” Any voluntary organisation with an interest in health matters and active in a CHCs district, or with a particular interest in a health service institution within that district, can apply to take part in appointing members. According to the circular political parties should not be included, but the appropriate Trades Council must always be included. It is not clear that either stipulation is justified by the words of the regulation. No voluntary organisation should have more than one seat. The appointment procedure is set out in detail. RHAs are instructed to maintain for each CHC a register of suitable organisations and to bring it up to date before each round of appointments. (HC(81)15). In practice a ballot is often conducted by the Council for Voluntary Service for the area, but this does not appear to be what is intended by the regulation.

Eligibility of members for re-appointment

6. (1) Subject to paragraph (2) and to regulation 7, a member shall, on the expiration of his term of office, be eligible for re-appointment.

(2) A person who has been a member for eight or more consecutive years shall not be eligible for re-appointment unless a period of not less than four years has elapsed since he was last a member.

This regulation derives from regulation 7 of the 1985 regulations.There seems nothing to stop a person being appointed to a different CHC after eight years service.

Disqualification for membership

7. (1) Subject to paragraph (3), a person shall be disqualified for appointment as a member and from being a member, if of a Council if –

  1. he is a chairman or is a member of
  1. a Health Authority;
  2. a Primary Care Trust ;or
  3. a Special Health Authority which provides services within the district of the Council;

(aa) he is employed by –

  1. a relevant Health Authority
  2. a relevant Primary Care Trust;
  3. a relevant NHS trust; or
  4. a Special Health Authority which provides services within the district of the Council;

(b) He provides or is employed by a person or body, not being a voluntary organisation, providing services under the Act in accordance with a contract made between that person or body and the relevant Health Authority, a relevant Primary Care Trust, or a relevant NHS trust;

    1. he is a chairman or director of a relevant NHS Trust; or

(cc) he is a member of another Council, or

(c) he is a-

(i) medical practitioner;

(ii) dental practitioner;

(iii) registered pharmacist;

(iv) registered ophthalmic optician or registered dispensing optician within the meaning of the Opticians Act 1989;

(v) registered nurse, registered midwife or registered health visitor;

providing services as such within the district of the Council.

(2) Subject to paragraph (3) a person shall be disqualified for appointment, and from being a member if he has been dismissed, otherwise than by reason of redundancy, from any paid employment with any of the following bodies –

(a) a Regional Health Authority, a District Health Authority or a Family Health Services Authority

(b) a Health Authority;

  1. a Special Health Authority;

(cc) a Primary Care Trust;

(c) the National Radiological Protection Board established by section 1 of the Radiological Protection Act 1970(b);

(d) the Public Health Laboratory Service Board;

(e) an NHS trust;

(f) the Dental Practice Board;

(3) Subject to paragraph (4), where a person is disqualified under paragraph (2) he may, after the expiry of a period of not less than two years commencing with the dismissal, apply in writing to the Secretary of State for the removal of the disqualification, and the Secretary of State may direct that the disqualification shall cease.

(4) Where the Secretary of State refuses a person’s application for the removal a disqualification no further application may be made by that person within two years from the date of that application.

This regulation derives from regulation 8 of the 1985 regulations.No one should be a member of more than one CHC, according to HC(81)15. According to EL(90)185 the RHA should “have regard to whether there are any other conflicts of interest (for example an NHS employee being considered for appointment in the same area).” Presumably the bar on those dismissed for reasons other than redundancy is to prevent troublemakers from using the CHC as a platform, but it is hard to see why employees who have been dismissed for other reasons, such as incapacity for work, should also be barred.

Termination of membership

8. (1) A member may resign at any time during the period for which he was appointed on giving notice in writing to the Secretary of State who shall if he did not appoint the member, forthwith notify the relevant appointing body.

(2) The date on which a resignation by notice given pursuant to paragraph(1) is to take effect, shall be-

(a) where a date is specified in the notice as being that on which the resignation is to take effect, that date; and

(b) in any other case, the date on which the notice is received by the Secretary of State.

(3) If a member has failed to attend a meeting of the Council, or a Committee of the Council, for a period of four months the Council shall report his absence to the relevant appointing body and (where the absence is not reported to him as a relevant appointing body) to the Secretary of State and the Secretary of State, shall, unless he is satisfied that –

(a) the absence was due to reasonable cause, and

(b) the member will be able to attend meetings of the Council within such period as the Secretary of State considers reasonable,

declare that his place on the Council has become vacant and on the making of such a declaration that person shall cease to be a member.

(4) If the Secretary of State is of the opinion that it is not in the interests of the health service for a person to continue as a member, he may, subject to paragraph (5), terminate the member’s term of office.

(5) The Secretary of State shall not terminate a member’s term of office under paragraph (4) without having consulted the Council and where he did not appoint the member, the relevant appointing body.

(6) A person who ceases to be a member by virtue of the operation of paragraph (3) and (4) shall be disqualified from reappointment as a member for a period of four years.

(7) In this regulation “relevant appointing body” means, in relation to a member, the appointing body which appointed him.

This regulation derivesfrom regulation 9 of the 1985 regulationsThe procedure in para. (2) is mandatory, not discretionary. The NHS Executive have published a Code of Conduct for Community Health Council members. Presumably members who breach the code are at risk of having their membership terminated under para. (4)

Variation of Councils and of their membership

9. Where the district for which any Council is established is varied or where the membership of a Council is varied the term of office of any member appointed shall be for such period, not exceeding four years, expiring on the relevant date in any even year, as the Secretary of State shall in each case determine.

This regulation derives from regulation 10 of the 1985 regulations.

 PART III  CONSTITUTION AND PROCEEDINGS OF COUNCILS

Election of chairman and vice-chairman

10. (1) The members shall elect

(a) one of their number to be chairman; and

(b) one or two of their number, other than the chairman, to be vice-chairman;

for such periods as they may determine on making the election, not being in any case a longer period than the remainder of the period of the elected member’s term of office as a member; and the Chief Officer shall forthwith notify the Secretary of State of the names of the persons so elected.

(2) A chairman or vice-chairman may at any time resign that office by giving notice in writing to the Chief officer, who shall forthwith notify the Secretary of State in writing; and

(a) where the chairman has resigned, the members shall elect another chairman in accordance with paragraph (1);

(b) where a vice-chairman has resigned-

(i) if there is no other vice-chairman, the members shall,

(ii) if there is another vice-chairman, the members may,

elect another vice-chairman in accordance with paragraph (1).

This regulation derives from regulation 11 of the 1985 regulations. It appears that different terms of office for chairs and vice chairs are permitted. Chairmen are given a lot of status by Health Authorities, but they are given no powers or duties by the regulations other than those in relation to meetings of the Council provided in the Schedule.

Appointment of committees and joint committees

11. (1) Subject to paragraph (2), a Council may appoint one or more committees of the Council to exercise, subject to such restrictions and conditions as the Council thinks fit, some, but not all, of the Council’s functions.

(2) Except where the Secretary of State may, in a particular case otherwise allow, not less than two thirds of the members of any committee appointed by a Council shall be members of that Council.

(3) A Council may, together with one or more other Councils, appoint a joint committee, of which the members shall consist wholly of members of those Councils, to exercise, subject to such restrictions and conditions as may be agreed between those Councils, some, but not all, of the functions of each of those Councils.

This regulation derives from regulation 12 of the 1985 regulations. A Regional Association of CHCs would fall within paragraph (3), and would therefore fall within the provisions for public access reproduced below.

Meetings and proceedings

12. The provisions of the Schedule to these regulations shall apply with respect to meetings and proceedings of a Council.

Officers

13. (1) The Secretary of State shall appoint a person acceptable to a Council to act as its Chief Officer and shall also, after consultation with the Council and subject to acceptance by the Council of any individual officer appointed, appoint persons to act as such other officers for the Council as he considers necessary.

(2) The appointment of a person to act as an officer of a Council shall be made by the Secretary of State in a manner and for a period acceptable to the Council.

(3) Persons appointed in accordance with paragraphs (1) and (2) shall be employed by such Health Authority or Special Health Authority as the Secretary of State may determine for the purpose, in accordance with any regulations made and any directions given by the Secretary of State under the Act and their services shall be made available to the Council by the employing authority for the period of the appointment.

This regulation derives from regulation 14 of the 1985 regulations. No regulations appear to have been made. HC(81)15 provides that RHAs will remain responsible for …employing their staff on the appropriate NHS terms and conditions of service, including superannuation.

Premises and other facilities

14. (1) The Secretary of State shall, after consultation with the Council-

(a) provide the Council with such office and other accommodation as he considers necessary to enable the Council to perform its functions; and

(b) secure that arrangements are made for such administration, maintenance, cleaning and other services as may, in his opinion, be necessary for such accommodation;

but arrangements for the provision of services and accommodation may, be made with the approval of the Secretary of State, be made by the members.

(2) To enable the Council to perform its functions-

(a) the Secretary of State may make available to a Council any facilities (including use of any premises and the use of any vehicle, plant or apparatus) provided by him for any service under the Act as he considers necessary and

(b) the Health Authority or Special Health Authority referred to in regulation 13(3) shall make available to the Council the services of such of its employees as the Secretary of State may direct

Expenses

15. (1) The Secretary of State shall, in respect of each financial year, pay to a Council sums equal to the amounts which he has approved as the amounts of expenditure which he considers may reasonably be incurred by the Council in that year for the purpose of performing its functions.

(2) Each Council shall submit to the Secretary of State, in such form and by such date as he may specify, such estimates as he may require of the expenditure which it expects to incur during such financial years as he may specify.

(3) The Secretary of State may approve the amounts of the estimates submitted under paragraph(2) with or without modification, or subject to such conditions as he thinks fit and may at any time vary such approval or conditions.

(4) A Council shall not incur expenses in excess of the amounts approved for that Council by the Secretary of State under this regulation.

This regulation derives from regulation 16 of the 1985 regulations.

Paragraph 6 of schedule 7 of the Act provides for the payment of travelling allowances.

NHS authorities may separately commission and pay for additional work not covered by budgets (EL(90) 185. It is not clear whether it is intended that CHCs have power to engage in contracts outside the NHS or to engage in trading activities.

Reports

16. (1) A Council shall as soon as reasonably practicable after 31st March in 1997 and in each successive year:

(a) make a report in writing to the Secretary of State regarding the performance of its functions during the period of twelve months ending on 31st March in that year and such other matters as the Secretary of State may require;

(b) furnish copies of the report to each relevant Health Authority and each relevant NHS Trust and each relevant local authority; and

(c) take such measures as the Council considers to be appropriate to secure that the contents of the report are made known to the public in its district.

(2) Upon receipt of the report each relevant Health Authority shall-

(a) furnish to the Council its comments on the report and a record of any steps taken by the Health Authority in consequence of advice given, or proposals made, by the Council; and

(b) secure that those comments and that record are made known to the public in the district of the Council.

PART IV PERFORMANCE OF FUNCTIONS

Advising on operation of the health service

17. It shall be the duty of each Council to keep under review the operation of the health service in its district, to make recommendations for the improvement of that service and to advise any relevant Health Authority or relevant Primary Care Trust upon such matters relating to the operation of the health service within its district as the Council thinks fit.

This regulation derives from regulation 18 of the 1985 regulations. Giving advice to members of the public on how to go about making a complaint about the health service has become a widely-established feature of CHC work. Some CHC members and officers are prepared to act as “patient’s friend” at service committee hearings. The Secretary of State does not see this as a formal role for CHCs, but he sees no objection (HC(81)15). CHCs should have the opportunity to contribute to the process of local target setting, as well as to the monitoring of performance against agreed targets.

Consultation of Councils by relevant Health Authorities

18. (1) Subject to paragraphs (2) and (3), it shall be the duty of each relevant Health Authority to consult a Council on any proposals which the Health Authority or any Primary Care Trust whose area falls within the Authority’s area may have under consideration for any substantial development of the health service in the Council’s district and on any proposals to make any substantial variation in the provision of such service.

(1A) If a Primary Care Trust has under consideration a proposal to which paragraph (1) applies, it shall notify the Health Authority in whose area the trust is established of that proposal.

(2) Paragraph (1) shall not apply with respect to any proposal to establish or dissolve an NHS trust or a Primary Care Trust.

(3) Paragraph (1) shall not apply to any proposal on which the Health Authority is satisfied that, in the interest of the health service, a decision has to be taken without allowing time for consultation; but, in any such case, the Health Authority shall notify the Council immediately of the decision taken and the reason why no consultation has taken place.

(4) A Health Authority may specify a date by which comments on any proposals referred to in paragraph (1) are to be made by the Council.

(5) In any case where a Council is not satisfied that sufficient time has been allowed under paragraph (4) or that consultation on any proposal referred to in paragraph (1) has been adequate it shall notify the Secretary of State in writing who may require the Health Authority to carry out such further consultation with the Council as he considers appropriate.

(6) Where further consultation has been required under paragraph (5) the Health Authority shall, having regard to the outcome of such further consultation, reconsider any decision it has taken in relation to the proposal in question.

This regulation derives from regulation 19 of the 1985 regulations.

“Consultation is the communication of a genuine invitation to give advice and a genuine receipt of the advice…. to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tend a helpful advice… by helpful advice in this context I mean sufficiently informed and considered information or advice about aspects of the formal substance of the proposals, or their implications for the consulted party, being aspects material to the implementation of the proposal as to which the Secretary of State might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer.” (R. v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities (1986) 1 All ER 164). “The essence of consultation is the communication of a genuine invitation, extended with a receptive mind, to give advice.” (Agricultural, Horticultural and Forestry ITB v. Aylesbury Mushrooms Ltd. 1972 1 All ER 280).

HSC(IS)207 of October 1975 set out a detailed procedure to be adopted by Health Authorities in relation to the closure or change of use of health buildings. A consultation document was to be prepared and comments required within three months from CHCs and other bodies. The CHC was to be shown the comments from other bodies. If the CHC wished to object to a closure or change of use it was to submit a detailed and constructive counter proposal paying full regard to the factors, including restraints on resources, which led to the proposal.  HSC(IS)207 was cancelled on 19.9.90 and replaced by EL(90)185, which forms the basis for the following notes.

“Substantial”

The regulation in its present form does not distinguish between permanent and temporary closure, only substantial and insubstantial variations in service. A temporary closure can be a substantial variation (R. v. Hillingdon HA ex parte Goodwin 1984 ICR 800). The meaning of this distinction has been subject to litigation where the reasonableness of such decisions has been called into question. “It is for the Health Authority to decide whether the change it proposes constitutes a “substantial” development or variation…there will be few instances in which the closure of facilities on a scale sufficient to save material amounts of money will not be a substantial variation.” In R. v NW Thames RHA ex parte Daniels the Divisional Court decided (17.6.93) that where the RHA refused to make capital available to move a bone marrow unit unless certain conditions were fulfilled, and the DHA could not fulfil them, and it therefore closed, this amounted to a substantial variation in service, although the number of patients affected was small. The subsequent failure to consult the CHC was unlawful. The notion that a numerical definition of substantiality could be constructed was demolished in R. v Tunbridge Wells HA ex parte Goodridge and others, 27.4.1988. The court can substitute its own judgement for that of a health authority (LB of Lewisham v. Commissioners for Lambeth, Southwark and Lewisham Health Area, 12.10.79

“Consultation with potential users of services should be an integral part of the management process. …If NHS Authorities are to identify and obtain services that will most effectively improve the health of their local population, they should have positive consumer relations policies including effective two-way communications with the community and its representatives, mechanisms for finding out what patients and their relatives or friends think of their local health services and how they might be improved, and clear procedures for consultation in the planning of new, or the review of existing, services…..True consumer involvement is more than just a consultation exercise to “rubber stamp” a decision a HA has, in effect, already taken. It involves HAs in taking the initiative in forging links with their local communities in advance, before there are controversial plans in the offing. This will best be achieved by developing a shared understanding of:

the HA’s objectives for health and quality improvements – which increasingly will be expressed in terms of outcome;

the service strategies for achieving these objectives.

Consultation on substantial changes in the pattern of services provided by NHS Trusts as a result of major changes in the contracts placed by HAs will be the responsibility of the purchasing authority. HAs are also to handle any consultation “if the changes being considered are as a result of changes made elsewhere, such as a decision by an NHS Trust to change the services it offers.”

” Only urgency permits closure without consultation. Changes may be made without consultation if the Authority has expressly decided that, in the interest of the health service a decision has to be taken without allowing time for consultation. In this circumstance the HA shall immediately notify the CHC of the decision and why consultation was not possible, and should implement the decision with a speed consistent with their decision.” Authorities have been urged by the Secretary of State to anticipate whenever possible the need for urgent action in sufficient time for consultation to be carried out, but a CHC cannot deny the need for urgent action merely because, had their advice been taken earlier, the situation could have been avoided (Opinion, R. Allen for Lewisham and North Southwark CHC, 2.6.86). Although the courts have overturned health authorities views on urgency Woolf J made it clear in the Lewisham case that the court could not substitute its judgement as regards the interests of the health service. In R. v North and East Devon HA ex. Parte Pow it was ruled that the HA could not avoid consultation because it would be pointless, provoke anxiety or opposition. Nor did the fact that the proposals were public and the Community Health Council had made their opposition known remove the duty to consult. Consultation should have taken place while proposals were still at a formative stage, not after the decision had been made because consultation requires the consulter to have an open mind. Nor was it legitimate to permit time to pass until urgency left no time for consultation.

There is no detailed procedure laid down as there was in the earlier circular. It is for each Authority to decide on the form, content, extent and timing of a consultation. The Courts will decide, in the last resort, whether the exercise was conducted with sufficient clarity and to a timescale and extent that satisfied the requirements of the regulations. The principle should be to ensure a full degree of involvement by interested parties, including consumers, at all stages of strategic and operational change. Information should be provided…and a date prescribed by which comments should be made. The HA will then reconsider the proposal in the light of the comments and, if there is no objection from the CHC, may proceed with implementation. However Ministers wish to continue to reserve to themselves decisions on contested closures. It is unclear what should happen if the CHC wishes to object to a DHA strategy or change which does not involve change of use of a building managed by the DHA. Change of use of a Trust building does not fall within the scope of this guidance.

;Reasonable time must be allowed for a consultation but the length of time which is reasonable will depend on many factors (Lee v. DES 1986 66 LGR 211). According to R. Allen (op cit.) the obligation to consult arises “at the latest when proposals are fit to be brought before the Authority and it is contemplated by the Chairman and Chief Officers that they will be.” The departmental CAPRICODE (1987) requires that consultation be undertaken before a formal Approval in Principle submission is made to the RHA. (para. 1.14)

The issues which arise when proposals are modified after consultation has taken place were explored in R v Shropshire HA ex parte Duffus (The Times 16/8/89) and R V Islington LBC ex parte East [1996] ELR 74, both relying on Legg v. ILEA [1972] 1WLR 1245 and its wonderful discussion of how far a motor car can be modified before it becomes a different vehicle . There was no duty to consult further on an amended proposal which has itself emerged from the consultation process, although there would be if the proposals had been amended so substantially as to amount to fresh proposals.

Information to be furnished by relevant Health Authorities

19. (1) Subject to paragraph (2), it shall be the duty of a relevant Health Authority and each relevant Primary Care Trust to provide a Council with such information about the planning and operation of health services in its area as the Council may reasonably require in order to discharge its functions.

(2) Nothing in paragraph (1) shall require the provision by a Health Authority or a Primary Care Trust of confidential information relating to

(a) the diagnosis or treatment of any patient; or

(b) personnel matters affecting any officer employed by the Health Authority or Primary Care Trust;

or of any other information the disclosure of which is prohibited by law.

(3) In the event of a Health Authority or Primary Care Trust refusing to disclose to a Council information to which paragraph (2) does not apply, the Council may appeal to the Secretary of State and a decision of the Secretary of State as to whether the information is reasonably required by the Council in order to discharge its functions shall be final for the purposes of this regulation.

This regulation derives from regulation 20 of the 1985 regulations.

“if the CHC anticipates that an urgent need to make financial savings will arise they should quickly make use of their powers under para 20 to get information and then to give advice or make recommendations themselves. They do not need to wait for the DHA to initiate consultation. If they do that I would advise that the DHA must take into account their advice and or recommendation before deciding to make an urgent substantial variation, i.e. one where consultation is avoided. The DHA would otherwise be acting in an unlawful way.” (R. Allen, as above). In litigation about consultation the courts have consistently taken the view that health authorities must provide sufficient information to enable meaningful advice to be given.

Health authorities are instructed to involve CHCs in purchasing decisions and give them reasonable access to the information on which the health authority bases its judgements. “If CHCs are to make their full contribution to the purchasing process, they must be in a position to assess competing claims and to express an opinion about the relative, as well as the absolute, value of a particular proposal. They will need reasonable access to the information on which the health authority bases its judgements”(ML(92)1). DGMs and FHSA General Managers are similarly advised by NHSME to ensure CHCs have access to information such as DHA contracts with providers, purchasing plans, data about local health needs and services. DHAs should normally hold GP Fund Holder’s contracts and should make these available to CHCs (anonymised to protect patient confidentiality). (EL(92)11)

There is no appeal about a failure to provide information, only for a refusal. However the Code of Practice on Openness in the NHS provides for complaints to be made to Chief Executives and to the health service Ombudsman.

Inspection of premises by Councils

20(1). Subject to paragraph (2) a Council or any member authorised by the Council for the purpose may enter and inspect any premises controlled by a relevant Health Authority, relevant Primary Care Trust or relevant NHS trust at such times and subject to such conditions as may be agreed between the Council and the Health Authority, Primary Care Trust, or NHS trust or, in default of such agreement, as may be determined by the Secretary of State.

(2) No member shall enter-

(a) any premises or part of premises used as residential accommodation for officers employed by any Health Authority, Primary Care Trust or NHS Trust without having first obtained the consent of the officers residing in such accommodation; or

(b) any premises or parts of premises made available to persons providing general medical services, general dental services, general ophthalmic services or pharmaceutical services without having first obtained the consent of those persons.

This regulation derives from regulation 21 of the 1985 regulations.

HC(81)15 advises that the DHA and CHC should agree arrangements for access, and should ensure that visits will not interfere with the efficient running of services. The appropriate consultant and nursing officer should be informed beforehand of proposed visits. DHAs should secure similar visiting rights for CHCs to private sector premises through contracts (EL(90)185). Relevant DHAs and Trusts are defined in reg 1. There seems no reason why a CHC could not visit premises out of their area by arrangement, or cause provision for such visits to be inserted in their own DHA’s contracts with external providers.

Meetings between Council and relevant Health Authority

21. It shall be the duty of each relevant Health Authority and each relevant Primary Care Trust to arrange, not less than once every year, a meeting between members of the Health Authority or Primary Care Trust, being not less than one-third of its members, and the members of the Council to discuss such matters relating to the functions of the Council as may be raised by the Council or the relevant Health Authority or Primary Care Trust in question.

This regulation derives from regulation 22 of the 1985 regulations.

“CHCs also have rights as do other members of the public to attend any NHS Authority or NHS Trust meetings open to the public. It is a matter for decision by NHS Authorities and NHS Trusts whether CHCs will be invited to address meetings which are open to the public or to attend meetings which otherwise are closed to the public.” (EL(90)185.

PART V TRANSITIONAL PROVISIONS AND REVOCATIONS

Transitional arrangements for existing members

22. Where, before 1st April 1996, a person has been appointed a member of a Council whose district is situated in England, under the 1985 Regulations and his term of office has not expired before that date, he shall continue as a member for the remainder of his term of office, and regulation 7 (disqualification for membership) and regulation 8 (termination of membership) of those Regulations shall continue to apply in his case, for the remainder of his term of office as if these Regulations had not come into force.

Under the 1985 regulations a member could only be removed for misconduct, or for failing to attend meetings for six months.

Revocations

23. The Community Health Councils Regulations 1985(a), The Community Health Councils Amendment Regulations 1990(b) and the Community Health Councils (Amendment) Regulations (1991)(c) are hereby revoked.

SCHEDULE MEETINGS AND PROCEEDINGS OF COUNCILS

 1. The first meeting of a Council shall be held on such day and at such place as may be fixed by the Secretary of State who shall be responsible for convening the meeting.

2. A meeting of the Council shall take place at least once in every period of three months.

3. (1) After the first meeting the chairman may call a meeting of the Council at any time.

(2) If a requisition for a meeting, signed by at least one third of the total number of members, is presented to the chairman and the chairman either –

(a) refuses to call a meeting; or

(b)without so refusing, does not within ten days after the requisition has been presented to him call a meeting

those members may forthwith call a meeting.

(3) Before each meeting of a Council, a notice of the meeting which –

(a) specifies the business proposed to be transacted at it; and

(b) is signed by the Chief Officer or by an officer of the Council authorised by the Chief Officer to sign on his behalf,

shall be delivered to each member, or sent by post to his usual place of residence or business, at least seven clear days before the meeting.

(4) Lack of service of the notice on any member shall not affect the validity of a meeting.

(5) In the case of a meeting called by members in default of the chairman, the notice shall be signed by those members and no business shall be transacted at the meeting other than that specified in the notice.

4. (1) At any meeting of a Council the chairman, if present, shall preside.

(2) If the chairman is absent from the meeting a vice-chairman, if present, shall preside.

(3) If the chairman and vice-chairmen are absent, such member as the members present shall choose shall preside.

5. Every question at a meeting shall be determined by a majority of the votes of the members present and voting on the question and, in the case of an equality of votes, the person presiding shall have a second and casting vote.

6. No business shall be transacted at a meeting unless at least one third of the members are present.

7.(1) The minutes of the proceedings of a meeting shall be drawn up and submitted for agreement at the next meeting of the Council where they shall be signed by the person presiding at it.

(2) The names of members present at a meeting shall be recorded in the minutes of the meeting.

8. In paragraph 3 of this Schedule “chairman” includes a vice-chairman acting as chairman.

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