No. 32/1996:

HEALTH (AMENDMENT) (NO. 3) ACT, 1996

ARRANGEMENT OF SECTIONS

1 Interpretation.

2 Health board to have regard to certain matters in performing functions.

3 Reserved functions.

4 Executive functions.

5 Determination by Minister of net expenditure limits for a health board.

6 Adoption of a service plan by a health board.

7 Supervision and amendment of a service plan.

8 Amount of indebtedness of a health board.

9 Functions of chief executive officer.

10 Expenditure by a health board.

11 Accounts of a health board.

12 Transfer of functions of a health board.

13 Directions to a health board.

14 Appointment and removal from office of chief executive officer.

15 Annual report of a health board.

16 Dissolution of certain bodies.

17 Amendments of Principal Act.

18 Amendments of Health Act, 1947.

19 Amendment of Health Act, 1953.

20 Amendment of Health (Nursing Homes) Act, 1990.

21 Amendment of Nurses Act, 1985.

22 Amendment of Health (Corporation Bodies) Act, 196.

23 Repeals and revocations.

24 Laying of orders before Houses of Oireachtas.

25 Short title, construction, collective citation and commencement.

FIRST SCHEDULE

SECOND SCHEDULE

AN ACT TO MAKE FURTHER PROVISION IN RELATION TO THE INCOME, EXPENDITURE AND INDEBTEDNESS OF HEALTH BOARDS, TO APPORTION RESPONSIBILITIES BETWEEN HEALTH BOARDS AND THEIR CHIEF EXECUTIVE OFFICERS, TO AMEND THE HEALTH ACTS, 1947 TO 1996, THE HEALTH (CORPORATE BODIES) ACT, 1961 , AND THE NURSES ACT, 1985 , AND TO PROVIDE FOR RELATED MATTERS.

[6th November, 1996]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1.—(1) In this Act, except where the context otherwise requires—

"chief executive officer", in relation to a health board, means the chief executive officer of the board and references to a chief executive officer shall be construed as including references to a person acting as deputy chief executive officer of the board;

"determination" shall be construed in accordance with section 5 and cognate words shall be construed accordingly.

"enactment" includes an instrument made under an enactment;

"executive function" shall be construed in accordance with section 4;

"expenditure", in relation to a health board, means—

( a ) the gross non-capital expenditure of the board for a financial year, and

( b ) the gross capital expenditure of the board for that year;

"financial year" means a period of 12 months ending on the 31st day of December in any year and, in a case where the Minister makes a determination in respect of a period other than a financial year, shall be construed as a reference to such period;

"functional area", in relation to a health board, means the functional area of the board as defined in the Health Boards Regulations, 1970 ( S.I. No. 170 of 1970 );

"functions" includes powers and duties;

"health board" means a health board established under section 4 (1) of the Principal Act;

"income", in relation to a health board, means all of the income of the board for a financial year other than any grant made to the board for that year under section 32 of the Principal Act;

"indebtedness", in relation to a health board, means the amount owed by the board to creditors, calculated in accordance with accounting standards specified by the Minister, less an amount equal to the value, so calculated, of the current assets of the board determined in such manner as may be so specified;

"local authority" means a local authority for the purposes of the Local Government Act, 1941 ;

"the Minister" means the Minister for Health;

"net expenditure", in relation to a health board for a financial year, means the expenditure of the board for the year less the income of the board for that year;

"The Principal Act" means the Health Act, 1970 ;

"public authority" has the meaning assigned to it by section 2 (1) of the Local Government Act, 1991 ;

"reserved function" shall be construed in accordance with section 3;

"service plan" shall be construed in accordance with section 6.

(2) A reference to the performance of functions includes, with respect to powers and duties, a reference to the exercise of powers and the carrying out of duties.

(3) In this Act—

( a ) a reference to a section or a Schedule is a reference to a section of or a Schedule to this Act unless it is indicated that reference to some other provision is intended,

( b ) a reference to a subsection or a paragraph is a reference to a subsection or a paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended,

( c ) a reference to any enactment, unless the context otherwise requires, is a reference to that enactment as amended, adapted or extended by or under any subsequent enactment, including this enactment.

2.—(1) A health board, in performing the functions conferred on it by or under this Act or any other enactment, shall have regard to—

( a ) the resources, wherever originating, that are available to the board for the purpose of such performance and the need to secure the most beneficial, effective and efficient use of such resources,

( b ) the need for co-operation with voluntary bodies providing services, similar or ancillary to services which the health board may provide, to people residing in the functional area of the health board,

( c ) the need for co-operation with, and the co-ordination of its activities with those of, other health boards, local authorities and public authorities, the performance of whose functions affect or may affect the health of the population of the functional area of the health board, and

( d ) policies and objectives of the Government or any Minister of the Government in so far as they may affect or relate to the functions of the health board.

(2) The provisions of this section shall apply to both reserved functions and executive functions.

(3) Every enactment relating to a function of a health board shall be construed and have effect subject to the provisions of this section.

3.—(1) A health board shall perform the following functions:

( a ) a function of a health board specified in a section mentioned in column (3) of the First Schedule, of the Act mentioned in column (2) of that Schedule opposite the mention aforesaid,

( b ) a function (if any) as maybe declared to be a reserved function by order made by the Minister, and

( c ) a function which is specified as a reserved function in this Act.

(2) Every function of a health board that is required to be performed pursuant to subsection (1) shall be a reserved function and "reserved function" shall be construed and have effect accordingly.

(3) The chief executive officer shall assist a health board in the performance of its reserved functions, in such manner as the health board may require.

(4) The Minister shall not make an order under subsection (1) (b) in relation to any function or class of functions that is or are specifically conferred on a chief executive officer under this Act or any other enactment.

(5) The Minister may by order amend or revoke an order under this section.

(6) A health board shall not take any decision or give any direction in relation to any function of a health board that is not a reserved function.

4.—(1) A function of a health board that is not a reserved function shall be a function of the chief executive officer unless otherwise provided for, whether in this Act or in any other enactment, and a function that is required to be so carried out shall be an executive function and "executive function" shall be construed and have effect accordingly.

(2) A chief executive officer shall furnish the health board with such information (including financial information) in relation to the performance of his or her executive functions as the board may from time to time require.

(3) A chief executive officer shall furnish the Minister with such information (including financial information) in relation to the performance of his or her executive functions as the Minister may from time to time require.

5.—(1) Subject to subsection (2), the Minister shall, in respect of a financial year of a health board, determine the maximum amount of net expenditure that may be incurred by the board for that financial year and shall notify the board in writing of the amount so determined not more than 21 days after the publication by the Government of the Estimates for Supply Services for that financial year.

( 2 ) ( a ) A determination to which this section relates may, if the Minister considers it appropriate that it should do so in any particular case, relate to such period (other than the financial year of the health board concerned) as may be specified in the relevant notification under this section.

( b ) The Minister shall not specify under paragraph (a) a period beginning before the 1st day of January, 1997.

(3) The Minister may amend a determination under subsection (1) by varying the maximum amount of net expenditure that a health board may incur for a particular financial year and, if the Minister so varies that amount, he or she shall notify the health board concerned in writing of the extent of the amendment as soon as may be and the determination shall apply and have effect as so amended.

6.—(1) Subject to section 7 (1) (a), a health board shall, within—

( a ) 42 days, or

( b ) such shorter period not being less than 21 days as the Minister may direct in any particular case,

of the receipt by the board of a determination, adopt and submit to the Minister a service plan.

(2) A service plan shall be prepared in such form and shall contain such information as may be specified by the Minister from time to time and, without prejudice to the generality of the foregoing, shall—

( a ) include a statement of the services to be provided by the health board and estimates of the income and expenditure of the board for the period to which the plan relates, and

( b ) be consistent with the financial limits determined by the Minister under section 5.

(3) If a service plan is not submitted by a health board in accordance with subsection (1), the Minister may direct the board to submit a service plan to him or her within such period not exceeding 10 days from the receipt of the direction as may be specified therein.

(4) Where a health board fails to submit a service plan to the Minister in accordance with the provisions of subsection (1), or pursuant to a direction under subsection (3), the Minister may direct the chief executive officer to prepare and submit a service plan to him or her within 10 days of the receipt of the direction and the chief executive officer shall comply with any such direction.

(5) A service plan submitted by the chief executive officer under subsection (4) shall be deemed to have been adopted and submitted by the relevant health board.

(6) Where in the opinion of the Minister the service plan of a health board—

( a ) does not contain such information as was specified under subsection (2),

( b ) proposes net expenditure which exceeds the net expenditure as determined by the Minister, or

( c ) is not in accordance with the policies and objectives of the Minister or of the Government in so far as they relate to the functions of the board,

the Minister may, not later than 21 days after the receipt by him or her of the service plan, direct the health board or, in the case of a service plan submitted in accordance with subsection (4), the chief executive officer, to make modifications to the service plan and the board or the chief executive officer, as the case may be, shall comply with any such direction.

(7) Subject to subsection (5), the adoption of a service plan under this section shall be a reserved function.

7.—(1) The Minister may, after the amendment by him or her of a determination under section 5 (3), either—

( a ) direct that the service plan of the health board concerned shall stand amended in such manner as the Minister may specify in the direction, or

( b ) direct the health board concerned to submit an amended service plan in accordance with the amended determination and the health board shall comply with such a direction.

(2) Where the Minister directs a health board to submit an amended service plan in accordance with subsection (1)(b), the provisions of section 6 shall apply to such plan with the necessary modifications.

(3) A health board shall supervise the implementation of its service plan in order to ensure that the net expenditure for the financial year concerned does not exceed the net expenditure determined by the Minister for that year.

(4) A health board may amend a service plan and, in so doing, it shall ensure that the net expenditure for the financial year concerned does not exceed the net expenditure determined by the Minister for that year.

(5) A copy of an amended service plan shall be furnished to the Minister by the health board as soon as may be and the provisions of section 6 shall apply to such plan with the necessary modifications.

(6) Subject to the provisions of this section and section 6, the supervision of the implementation of and the amendment of a service plan shall be reserved functions.

8.—(1) Whenever the Minister makes a determination, he or she shall specify the amount of the indebtedness that the health board concerned may incur and shall notify the board in writing of that amount.

(2) A health board shall so conduct its affairs that its indebtedness does not exceed the amount for the time being specified by the Minister.

(3) The function of the health board set out in subsection (2) shall be a reserved function.

9.—(1) The chief executive officer shall implement the service plan, or amended service plan, on behalf of the health board so that—

( a ) the amount of net expenditure of the board for the financial year does not exceed the amount of net expenditure determined by the Minister, and

( b ) the indebtedness of the board does not exceed the amount specified by the Minister under section 8 (1).

(2) If the chief executive officer is of opinion that a decision of the health board will, or a proposed decision of the board would, if made—

( a ) result in net expenditure by the board for a financial year in excess of the amount determined by the Minister, or

( b ) result in the indebtedness of the board exceeding the amount specified by the Minister under section 8 (1),

he or she shall, as soon as may be, inform the Minister and the board of that opinion.

10.—If the amount of net expenditure incurred by a health board in a financial year is either greater or less than the amount determined by the Minister for that year, the health board shall charge the amount of such excess or credit the amount of such surplus in its income and expenditure account for the next financial year.

11.—(1) A health board shall keep all proper and usual accounts of all moneys received or expended by the board including an income and expenditure account and balance sheet and, in particular, shall keep all such special accounts as the Minister may from time to time direct.

(2) A health board shall prepare annual financial statements in accordance with accounting standards specified by the Minister.

(3) The annual financial statements shall be adopted by the health board on or before the 1st day of April in the year following the financial year to which they relate.

(4) The Minister may by order (made after consultation with the Minister for Finance) vary the date specified in subsection (3).

(5) The adoption of annual financial statements shall be a reserved function.

12.—(1) Where the Minister is satisfied, after considering a report prepared under subsection (5), that a health board is not performing any one or more of its functions in an effective manner or has failed to comply with any direction given by the Minister, the Minister may by order transfer such reserved functions of the board as the Minister may specify to—

( a ) the chief executive officer, or

( b ) such other person as the Minister may specify in the order,

for such period, not exceeding two years, as may be specified in the order.

(2) Where the Minister proposes to make an order under subsection (1), he or she shall give notice in writing of that proposal to the health board concerned and such notice shall indicate the terms of the order proposed to be made.

(3) A health board to which notice has been given under subsection (2) may, within a period of 14 days beginning on the date on which the notice is given to it, make representations in writing to the Minister as to why, in its opinion, the order should not be made and the Minister shall have regard to any such representations.

( 4 ) ( a ) The Minister may by order amend or revoke an order made under subsection (1).

( b ) An order made under this subsection shall not so amend an order under subsection (1) that the period for which a function stands transferred under that order exceeds two years.

(5) Before deciding whether or not to make an order under subsection (1), the Minister shall appoint a person to investigate the performance by the health board of its functions generally or of any specified function of the board during such period as the Minister may specify, and a person so appointed shall prepare and furnish to the Minister a report of the results and findings of the investigation.

(6) Where a function of a health board stands transferred under this section, the board shall not perform that function and the performance of that function shall not be subject to its direction, control or supervision.

(7) The chief executive officer or other person to whom a function stands transferred under subsection (1) shall keep the relevant health board informed in relation to the performance of that function.

(8) Notwithstanding section 16 (1) of the Principal Act, a chief executive officer shall not delegate a function standing transferred for the time being under this section save with the prior consent of the Minister.

13.—(1) The Minister may give directions in writing to a health board for any purpose in relation to which directions are provided for by any of the provisions of this Act or any other enactment and for any matter or thing referred to in this Act as specified, to be specified, determined or to be determined.

(2) The Minister may, by a direction in writing, amend or revoke a direction under this section.

(3) A health board shall comply with a direction given to it under this section and shall furnish the Minister with such information as he or she may reasonably require for the purpose of satisfying himself or herself that any such direction has been complied with by the board.

14.—(1) Notwithstanding any other enactment, a person who is appointed to an office of chief executive officer after the commencement of this section shall, unless he or she earlier dies, resigns or is removed from office, hold the office during whichever of the following periods is the shorter and, on the expiration of that period, shall cease to hold the office, that is to say—

( a ) a period of such length, not exceeding seven years, as the Minister prescribes by order, or

( b ) the period from the date of the appointment to the date on which he or she attains such age as the Minister prescribes by order,

and, without prejudice to the generality of the aforesaid, the Minister may by order make such provision as he or she considers appropriate in relation to the periods specified in paragraphs (a) and (b) in relation to officers of health boards holding office on the commencement of this section by reference to the age of such officers.

(2) A person appointed as chief executive officer after the commencement of this section shall hold office under a contract of service in writing with the health board upon such terms and conditions (including terms and conditions relating to remuneration and expenses) as may be determined by the Minister with the consent of the Minister for Finance and specified in the contract.

(3) A chief executive officer to whom this section applies may be removed from office by the health board with the consent of the Minister in accordance with the terms and conditions of his or her contract of service.

(4) section 21 of the Principal Act shall not apply to a chief executive officer appointed in accordance with this section.

(5) The appointment pursuant to a recommendation by the Local Appointments Commissioners and the removal from office of a chief executive officer in accordance with this section shall be reserved functions.

(6) A person appointed as chief executive officer in accordance with this section shall not be deemed to be a temporary officer of a health board for the purposes of section 2 (1) (j) (as amended by section 3 (a) of the Unfair Dismissals (Amendment) Act, 1993 ) of the Unfair Dismissals Act, 1977 .

15.—(1) A health board shall, not later than the 30th day of June in each year, prepare and adopt a report (which shall be known as and in this section is referred to as an "annual report") in relation to the performance of its functions during the preceding year.

(2) An annual report shall include—

( a ) a statement of the services provided by the board in the preceding year, and

( b ) such other particulars (including financial statements) as the board considers appropriate or as the Minister may specify.

(3) The adoption by a health board of its annual report shall be a reserved function.

(4) As soon as may be after adopting an annual report, a health board shall submit a copy thereof to the Minister.

(5) Copies of the annual report of a health board shall be made available at the principal office of the board during normal office hours for inspection by members of the public or for purchase by them at such price as may be determined by the board, and a health board shall give public notice of the date on and from and the place at which the annual report will so be made available.

16.—(1) The Dublin Regional Hospital Board, the Cork Regional Hospital Board and the Galway Regional Hospital Board established under section 41 of the Principal Act and the committees appointed by those Boards are hereby dissolved.

(2) Anything done or purporting to have been done by any person before the coming into operation of this section and in relation to the doing of which a function fell (by virtue of section 41 of the Principal Act, or of a regulation made thereunder) to be performed by a regional hospital board shall be deemed to have been as validly done as if the function had been duly performed by that board.

(3) The local committees established under section 7 of the Principal Act are hereby dissolved.

(4) The National Health Council established by section 98 of the Health Act, 1947 , is hereby dissolved.

(5) Anything done or purporting to have been done by any person before the coming into operation of this section and in relation to the doing of which a function fell (by virtue of section 98 of the Health Act, 1947 , or of a regulation made thereunder) to be performed by the National Health Council shall be deemed to have been as validly done as if the function had been duly performed by that Council.

17.—The Principal Act is hereby amended by—

( a ) the substitution of the following subsection for subsection (3) of section 6:

"(3) A reference in any enactment or any statutory instrument to a health authority shall be construed as a reference to a health board.",

( b ) the substitution of the following subsection for subsection (4) of section 13:

"(4) A chief executive officer shall hold office on such terms and conditions as the Minister from time to time determines.",

( c ) the substitution of the following subsection for subsection (2) of section 26:

"(2) Two or more health boards may make and carry out an arrangement for the performance by one of them on behalf of and at the cost of the other or others, as the case may be, of a function of a health board under this Act or any other enactment or a service ancillary to the performance of any such function.",

( d ) the substitution of the following subsection for subsection (1) of section 33:

"(1) ( a ) A health board shall not borrow money without the prior consent of the Minister given with the concurrence of the Minister for Finance.

( b ) The borrowing of moneys by a health board shall be subject to such terms and conditions (if any) as may be specified by the Minister with the consent of the Minister for Finance.",

( e ) the substitution of the following subsection for subsection (1) of section 40:

"(1) A health board may, on the request of a body which provides or proposes to provide institutional services or any other service similar or ancillary to a service which the health board may provide, and subject to any general directions given by the Minister, provide for the body any land which is shown by the body, to the satisfaction of the health board, to be required for the efficient performance of the functions of the body.",

( f ) the substitution of the following subsection for subsection (2) of section 40:

"(2) Where a health board decides to provide land under this section for a body, it may acquire the land either by agreement, subject to any general directions given by the Minister, or compulsorily under Part VIII of the Health Act, 1947 , and may lease such land to or for the benefit of the body.",

( g ) the substitution of the following subsection for subsection (2) of section 71:

"(2) A health board shall, in respect of its functional area, develop and implement health promotion programmes, having regard to the needs of people residing in its functional area and the policies and objectives of the Minister in relation to health promotion generally.".

18.—The Health Act, 1947 , is hereby amended by—

( a ) the substitution of the following subsection for subsection (1) of section 78:

"(1) A health board may, for the purposes of its powers and duties under this Act, acquire land either by agreement, subject to any general directions given by the Minister with the consent of the Minister for Finance, or compulsorily under this Part of this Act and the Acts incorporated therewith.",

( b ) the substitution of the following section for section 88:

"88. A health board may, subject to any general directions given by the Minister with the consent of the Minister for Finance, appropriate and use for the purpose of any of its powers and duties any land vested for any purpose in it and not required for the purpose for which it was acquired.",

( c ) the substitution of the following subsection for subsection (1) of section 89:

"(1) A health board may, subject to any general directions given by the Minister with the consent of the Minister for Finance, sell, exchange, let or otherwise dispose of any land vested in it.",

( d ) the substitution of the following subsection for subsection (2) of section 89:

"(2) The proceeds of the sale under this section of any land by a health board shall, so far as such proceeds are capital money, be applied, subject to any general directions given by the Minister with the consent of the Minister for Finance, to a purpose (including the repayment of borrowed money) to which capital money may properly be applied by the board.",

( e ) the substitution of the following subsection for subsection (4) of section 89:

"(4) The following provisions shall have effect in relation to any proposed disposal of land which is held by a health board and which is not required for the purposes of its functions—

( a ) notices shall be sent by post on the same day to the members of the health board giving particulars of—

(i) the land,

(ii) the name of the person from whom such land was acquired if the same can be ascertained by reasonable inquiries,

(iii) the person to whom the land is to be disposed,

(iv) the consideration proposed in respect of the disposal,

(v) any covenants, conditions or agreements to have effect in connection with the disposal,

( b ) at the first meeting of the health board held after the expiration of ten days from the day on which such notices are sent, the health board may resolve that the disposal shall not be carried out or that it shall be carried out in accordance with terms specified in the resolution,

( c ) if the health board resolves pursuant to paragraph (b) that the disposal shall be carried out in accordance with the terms specified in the resolution, the disposal may, subject to any general directions given by the Minister with the consent of the Minister for Finance, be carried out in accordance with those terms,

( d ) if the health board resolves pursuant to paragraph (b) that the disposal shall not be carried out, it shall not be carried out.".

19.— Section 65 of the Health Act, 1953 , is hereby amended by the substitution of the following subsection for subsection (1) (other than paragraphs (a), (b), (c) or (d)):

"(1) A health board may, subject to any general directions given by the Minister and on such terms and conditions as it sees fit to impose, give assistance in any one or more of the following ways to any body which provides or proposes to provide a service similar or ancillary to a service that the health board may provide:".

20.— Section 3 of the Health (Nursing Homes) Act, 1990 , is hereby amended by the insertion of the following subsection after subsection (4):

" (5) A person who, after the commencement of section 20 of the Health (Amendment) (No. 3) Act, 1996, contravenes subsection (1), (2) or (4) shall be guilty of an offence.".

21.—(1) Notwithstanding sections 9 , 10 and 11 of the Nurses Act, 1985 , and rules 1 and 2 of the Second Schedule to that Act, the Minister may by order extend the term of office of the members of the Board holding office on the 3rd day of October, 1996, for such period, not exceeding 12 months, as may be specified in the order.

(2) The Minister may by order further extend, once only, the term of office of the members referred to in subsection (1), for a further period not exceeding 12 months as may be specified in the order.

(3) An order may be made under subsection (1), notwithstanding that the term of office of the members of the Board expired before the passing of this Act.

22.— Section 2 of the Health (Corporate Bodies) Act, 1961 , is hereby amended by the substitution of the following definition for the definition of "health service":

"'health service' includes any service relating to the protection, promotion or improvement of the health or welfare of people;".

23.—(1) The Acts mentioned in column (2) of Part I of the Second Schedule to this Act are hereby repealed to the extent mentioned in column (3) of that Schedule.

(2) The Regulations specified in column (2) of Part II of the Second Schedule to this Act are hereby revoked to the extent mentioned in column (3) of that Schedule.

24.—An order under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House shall have sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

25.—(1) This Act may be cited as the Health (Amendment) (No. 3) Act, 1996 .

(2) This Act, other than sections 21 and 22, shall be construed as one with the Health Acts, 1947 to 1996, and shall be included in the collective citation "the Health Acts, 1947 to 1996".

(3) Paragraph (b) of the definition of expenditure in section 1, and sections 5, 6, 7, 8, 9, 10 and 12, shall come into operation on such day or days as, by order or orders made by the Minister under this section, may be fixed therefor either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.

Section 3.

FIRST SCHEDULE

RESERVED FUNCTIONS

Section 23.

SECOND SCHEDULE

PART I

ENACTMENTS REPEALED

PART II

REGULATIONS REVOKED

ACTS REFERRED TO