Public Services Reform (Scotland) Act 2010

(10A) (1) There is established a body to be known as Healthcare Improvement Scotland (in this Act referred to as “HIS”) which— (a) is to exercise the functions conferred on it by virtue of this Act and any other enactment; and (b) has the general duty of furthering improvement in the quality of health care. (2) In subsection (1)(b), “health care” means services for or in connection with the prevention, diagnosis or treatment of illness provided— (a) under the health service; or (b) by persons providing independent health care services. (3) In carrying out its functions, HIS is to act subject to and in accordance with such directions as may be given by the Scottish Ministers. (4) The Scottish Ministers may vary or revoke any direction given under subsection (3). (5) Schedule 5A (which makes further provision about the status, constitution, proceedings etc. of HIS) has effect. (10B) (1) HIS must exercise its functions in accordance with the principles set out in the following subsections. (2) The safety and wellbeing of all persons who use services provided under the health service and independent health care services are to be protected and enhanced. (3) Good practice in the provision of those services is to be identified, promulgated and promoted. (4) The provision of those services in a manner which takes appropriate account of guidance and other information (including evidence) published or endorsed by HIS is to be promoted and encouraged. (10C) (1) HIS is to exercise the following functions of the Scottish Ministers— (a) functions in relation to supporting, ensuring and monitoring the quality of health care provided or secured by the health service including, without prejudice to the foregoing generality, providing quality assurance and accreditation; (b) functions in relation to supporting, ensuring and monitoring the discharge of the duty under section 2B by each body to whom that section applies; (c) functions in relation to supporting, ensuring and monitoring the discharge of the duty under section 2D by each body to whom that section applies, other than HIS, insofar as the discharge of that duty is relevant to— (i) the quality of health care provided or secured by the health service; or (ii) the discharge of the duty under section 2B; (d) functions in relation to the evaluation and provision of advice to the health service on the clinical and cost effectiveness of new and existing health technologies including drugs, conferred on them by this Act including, without prejudice to the foregoing generality, those functions specified in section 1(1). (2) HIS is to exercise the following functions of the Scottish Ministers subject to any limitations specified— (a) the power of the Scottish Ministers under section 16(1) to assist voluntary organisations whose activities include the provision of a service similar to or related to the functions of HIS; (b) the power of the Scottish Ministers under section 16B to give financial assistance to voluntary organisations whose activities consist of or include the provision of services similar to or related to the functions of HIS; and such assistance may be given only on such terms and conditions as the Scottish Ministers determine; (c) the power of the Scottish Ministers under section 42 to disseminate, in respect of the functions of HIS, information relating to the promotion and maintenance of health and the prevention of illness; (d) the duties of the Scottish Ministers under section 47— (i) to make available such facilities as appear to HIS to be reasonably required for undergraduate and post-graduate clinical teaching and research and for the education and training of persons providing or intending to provide services under this Act; and (ii) to conduct, or assist by grants or otherwise under that section any person to conduct, research into matters relating to the functions of HIS; (e) the powers of the Scottish Ministers under section 79(1) to take on lease or to purchase moveable property and land so far as required for the purposes of HIS and to use for those purposes and manage any heritable or moveable property so acquired; (f) the powers of the Scottish Ministers under section 79(1A) to dispose of land no longer required for the purposes of HIS. (3) HIS is to exercise the following functions— (a) a duty to provide information to the public about the availability and quality of services provided under the health service; (b) a duty to provide such information to a person in such form as that person may reasonably request; (c) when requested by the Scottish Ministers, a duty to provide to the Scottish Ministers advice about any matter relevant to the health service functions of HIS; (d) a power to provide such advice to Scottish Ministers at any time; (e) when asked to do so, a duty to provide such advice to— (i) persons who provide, seek to provide or may provide services under the health service; (ii) persons, or groups of persons, representing those who use, or are eligible to use, such services; (iii) persons, or groups of persons, representing those who care for those who use, or are eligible to use, such services; (iv) local authorities; (v) a Health Board, Special Health Board or the Agency (each a “body” for the purposes of subsection (4)); (vi) such other persons, or groups of persons as may be prescribed; (f) a power to disseminate such information as HIS considers relevant of general or specific application arising out of or in connection with the exercise of its health service functions. (4) HIS may charge a reasonable fee determined by it for any advice, forms or documents provided for the assistance of any such person, authority or body as is mentioned in subsection (3)(e). (5) References in this Act to the health service functions of HIS are, subject to subsections (6) and (7), to the functions conferred by virtue of this section and section 10D (including any functions delegated by order under that section). (6) Where a provision of this section which confers a function on HIS refers to the health service functions of HIS, that reference is to be construed as a reference to the functions conferred by virtue of this section and section 10D other than the function conferred by the provision. (7) Where a provision of this section which confers a function on HIS refers to the functions of HIS, that reference is to be construed as including a reference to the functions conferred by virtue of this section and section 10D other than the function conferred by the provision. (10D) (1) The Scottish Ministers may by order delegate to HIS such of their functions relating to the health service as they consider appropriate. (2) HIS is to provide such services, and carry out such tasks, for bodies associated with the health service as the Scottish Ministers and those bodies may agree; and is to do so on such terms and conditions as may be so agreed. (3) Notwithstanding that it is exercising functions relating to the health service on behalf of the Scottish Ministers or other bodies associated with the health service, HIS— (a) is entitled to enforce any rights acquired in the exercise of those functions; (b) is to be liable in respect of any liabilities incurred (including liability in damages for wrongful or negligent acts or omissions) in the exercise of those functions, in all respects as if HIS were acting as a principal. (4) All proceedings for the enforcement of such rights or liabilities are to be brought by or against HIS in its own name. (10E) (1) HIS is to exercise the following functions— (a) a duty to provide information to the public about the availability and quality of independent health care services; (b) a duty to provide such information to a person in such form as that person may reasonably request; (c) when requested by the Scottish Ministers, a duty to provide to the Scottish Ministers advice about any matter relevant to the independent health care functions of HIS; (d) a power to provide such advice to the Scottish Ministers at any time; (e) when asked to do so, a duty to provide such advice to— (i) persons who provide, seek to provide or may seek to provide independent health care services; (ii) persons, or groups of persons, representing those who use, or are eligible to use, such services; (iii) persons, or groups of persons, representing those who care for those who use, or are eligible to use, such services; (iv) local authorities; (v) a Health Board, Special Health Board or the Agency (each a “body” for the purposes of subsection (2)); (vi) such other persons, or groups of persons as may be prescribed; (f) a power to disseminate such information as HIS considers relevant of general or specific application arising out of or in connection with the exercise of its independent health care functions. (2) HIS may charge a reasonable fee determined by it for any advice, forms or documents provided for the assistance of any person, authority or body as is mentioned in subsection (1)(e). (3) References in this Act to the independent health care functions of HIS are, subject to subsection (4)— (a) to the functions conferred on HIS, or on a person acting on behalf of HIS, by this section and by sections 10J, 10K, 10P to 10Z3, 10Z5, 10Z8 and 10Z19; (b) to any functions delegated to HIS under section 10H(6) to the extent that such functions relate to standards and outcomes applicable to independent health care services; (c) to the functions conferred on HIS by section 10M to the extent that such functions relate to inspections of independent health care services; and (d) to the functions conferred on HIS by section 10N to the extent that such functions relate to reports on inspections of independent health care services. (4) Where a provision of this section, or those sections, which confers a function on HIS refers to the independent health care functions of HIS, the reference is to be construed as a reference to the functions conferred by this section and those sections other than the function conferred by the provision. (10F) (1) In this Act, an “independent health care service” is any of the following— (a) an independent hospital; (b) a private psychiatric hospital; (c) an independent clinic; (d) an independent medical agency; (e) an independent ambulance service. (2) In subsection (1)— - “independent hospital” means a hospital which is neither a health service hospital nor a private psychiatric hospital; and for the purposes of this definition includes part of a health service hospital if (not being a private psychiatric hospital)— 1. it is carried on as a separate unit; 2. it does not provide treatment or nursing in pursuance of this Act; 3. no part of it is contained within the same building as any such part which does provide treatment or nursing in pursuance of this Act; - “private psychiatric hospital” means any premises used or intended to be used for the provision of medical treatment to one or more patients subject to an order or direction under the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or the Criminal Procedure (Scotland) Act 1995 (c. 46) (whether or not other persons are treated there), not being— 1. a health service hospital; 2. a state hospital; or 3. otherwise an independent health care service; - “independent clinic” means a clinic which is not comprised in a hospital and in or from which services are provided, other than in pursuance of this Act, by a medical practitioner or dental practitioner; - “independent medical agency” means an undertaking which is neither an independent clinic nor an undertaking comprised in a hospital and which consists of or includes the provision of services, other than in pursuance of this Act, by a medical practitioner; - “independent ambulance service” means, subject to subsection (5), a service which consists of or includes— 1. provision (other than provision falling within paragraph (b) below) of medical treatment, medical care or other care to relevant patients while such patients are being transported to or from a place of medical treatment; 2. provision, at or in connection with a public event, of medical treatment outwith relevant premises under arrangements made between the provider of the service and another (whether or not the service includes a means of transport for transporting patients from the event to relevant premises). (3) In paragraph (a) of the definition of “independent ambulance service” in subsection (2)— - “relevant patient” is a patient— 1. whose condition or recovery would or might be impaired were the treatment or care mentioned in that paragraph not to be provided; 2. whose condition affects the patient's mobility to such an extent that, were such treatment or care not to be provided while the patient is being transported as mentioned in that paragraph, the patient's condition or recovery would or might be impaired; 3. whose mobility is such that, without such treatment or care, it would be difficult or impossible for the patient to be transported as mentioned in that paragraph; - “place of medical treatment” means a hospital or other premises used or intended to be used for the provision of medical or dental treatment, and includes an independent health care service mentioned in paragraphs (a) to (d) of subsection (1). (4) In paragraph (b) of the definition of “independent ambulance service” in subsection (2)— - “public event” means an event, function or other organised activity of any kind to which members of the public have access; - “medical treatment” includes medical care and medical advice; - “relevant premises” means premises used or intended to be used for the provision of medical treatment, medical care or medical advice, but does not include— 1. any means of transport as mentioned in that paragraph; or 2. any temporary premises at or near, and provided in connection with, the public event. (5) A service does not fall within the definition of “independent ambulance service” in subsection (2) if it is provided under the health service, unless it is so provided for remuneration. (6) In subsection (5), “remuneration” does not include remuneration payable by a health service body under arrangements made for the provision of the service. (7) Where, by virtue of payment of remuneration, the provider of a service under the health service acts as an independent ambulance service, HIS's independent health care functions are exercisable in relation to that provider only where, and to the extent that, the provider is so acting. (10G) The Scottish Ministers, after consulting such persons (or groups of persons) as they consider appropriate, may by order— (a) modify the independent health care functions of HIS by amending, removing or adding to those functions; (b) modify the definition of independent health care service in section 10F(1). (10H) (1) The Scottish Ministers may prepare and publish standards and outcomes applicable to— (a) services provided under the health service; (b) independent health care services. (2) The Scottish Ministers must keep any standards and outcomes so published under review and may under subsection (1) publish amended standards and outcomes whenever they consider it appropriate to do so. (3) Before publishing under subsection (1) any— (a) standards and outcomes; (b) amended standards and outcomes which in the opinion of the Scottish Ministers are substantially different from the standards and outcomes (or amended standards and outcomes) last so published, the Scottish Ministers must consult such persons, or groups of persons, as they consider appropriate. (4) In relation to a service provided under the health service, or an independent health care service, any applicable standards and outcomes published under subsection (1) must be taken into account— (a) by HIS in making any decision under this Part; (b) in any proceedings on an appeal under section 10Z4; and (c) in any proceedings for an offence in relation to registration under section 10P. (5) The Scottish Ministers may make different provision for different services under subsection (1). (6) The Scottish Ministers may delegate their functions under subsections (1) to (3) to HIS or such other persons as they consider appropriate. (10I) (1) HIS may, in pursuance of its general duty of furthering improvement in the quality of health care in Scotland, inspect any service provided under the health service. (2) An inspection under this section must be conducted in accordance with a plan— (a) prepared in accordance with section 10L; and (b) approved by the Scottish Ministers. (10J) (1) HIS may inspect— (a) any independent health care service; (b) the organisation or co-ordination of any independent health care service. (2) The purposes of an inspection under this section may include— (a) reviewing and evaluating the effectiveness of the provision of the services which are the subject of the inspection; (b) encouraging improvement in the provision of those services; (c) enabling consideration as to the need for any recommendations to be prepared as to any such improvement to be included in the report prepared under section 10N; (d) investigating any incident, event or cause for concern; and (e) enabling consideration as to the need for— (i) an improvement notice under section 10R; (ii) a condition notice under section 10U. (3) An inspection under this section may be in relation to— (a) any independent health care service or combination of independent health care services; (b) such of the services concerned provided to particular groups of persons; (c) any part of Scotland. (4) An inspection under this section must be conducted in accordance with a plan— (a) prepared in accordance with section 10L; and (b) approved by the Scottish Ministers. (5) HIS may at any time require a person providing any independent health care service to supply it with any information relating to the service which it considers necessary or expedient to have for the purposes of its independent health care functions. (6) References in this section to a person providing an independent health care service include, in the case of a service which is provided by a body corporate, a reference to a director, manager, secretary or other similar officer of the body. (7) An inspection under this section may, subject to any regulations made under section 10O, take such form as HIS considers appropriate. (10K) (1) Any inspection under section 10J must be carried out by a person authorised by HIS (an “authorised person”). (2) A person may be authorised by HIS to carry out inspections in relation to any independent health care service or all of them. (3) An authorised person may at any time enter and inspect premises which are used, or which the person has reasonable cause to believe are used, for the purpose of providing the independent health care service which is the subject of the inspection. (4) Where an authorised person is in possession of confidential information which has been obtained for the purposes of an inspection under section 10J the authorised person must not use or disclose that information other than— (a) for the purposes of that inspection; (b) so as to comply with an enactment or court order requiring disclosure; (c) to the extent considered necessary by the authorised person for the purpose of protecting the welfare of— (i) any child under the age of 16 years; (ii) any adult at risk (within the meaning of section 3 of the Adult Support and Protection (Scotland) Act 2007 (asp 10)); or (d) to the extent considered necessary by the authorised person for the purpose of the prevention or detection of crime or the apprehension or prosecution of offenders. (5) For the purposes of subsection (4), information is “confidential information” where— (a) the identity of an individual is ascertainable— (i) from that information; or (ii) from that information and other information which is in the possession of, or is likely to come into the possession of, the person holding that information; and (b) the information was obtained or generated by a person who, in the circumstances, owed an obligation of confidence to that individual. (10L) (1) HIS must prepare a plan for carrying out inspections in accordance with best regulatory practice. (2) The plan— (a) must set out arrangements for inspections to be so carried out (including inspections of those services subject to self evaluation); (b) may make different provision for different purposes. (3) For the purposes of subsection (1), “best regulatory practice” means practice under which (in particular) inspections should be carried out in a way that is transparent, accountable, proportionate and consistent. (4) In preparing a plan under subsection (1), HIS must have regard to any guidance issued by the Scottish Ministers about those matters. (5) HIS— (a) must keep the plan under review; and (b) may from time to time revise, with the approval of the Scottish Ministers, the plan. (6) HIS must, in preparing a plan (or any revisal), consult such persons as it considers appropriate. (10M) (1) HIS must, at the request of the Scottish Ministers, inspect— (a) any service provided under the health service as they may specify; (b) any independent health care service so specified; (c) the organisation or co-ordination of any service mentioned in paragraph (a) or (b) so specified; (d) any independent health care service so specified together with any service provided under the health service so specified. (2) The Scottish Ministers may specify purposes for any inspection under this section. (3) An inspection under this section is to be conducted in accordance with a timetable approved by the Scottish Ministers. (10N) (1) Where an inspection under section 10I, 10J or section 10M has been completed, HIS— (a) must prepare a report on the matters inspected; and (b) must without delay send a copy of that report to the person providing the service which has been inspected. (2) Before finalising a report prepared under subsection (1), HIS must give the person providing the service an opportunity of commenting on a draft of the report. (3) HIS must make copies of any report prepared under subsection (1) available for inspection at its offices by any person at any reasonable time; and it must take such other steps as it considers appropriate for publicising any such report. (4) Regulations may make further provision concerning the preparation, content and effect of reports under subsection (1), and in particular may make— (a) different provision in relation to different independent health care services and different services provided under the health service; (b) provision requiring copies of reports to be sent to the Scottish Ministers (or such other persons as may be specified in regulations) in such circumstances as may be so specified; (c) provision (including provision modifying any duties under this section) specifying circumstances in which— (i) any right to receive; (ii) access to; (iii) availability of, copies of reports (or of parts of such reports) may be restricted, refused or withheld. (10O) (1) Regulations may make further provision concerning inspections under— (a) section 10I; (b) section 10J; (c) section 10M. (2) Regulations under subsection (1) may make different provision for different inspections provided for under the provisions mentioned in that subsection. (3) Regulations under subsection (1) may, in particular, make provision— (a) as to types of inspection which may be conducted; (b) as to timing and frequency of inspections; (c) as to seizure and removal of anything found during the course of an inspection; (d) as to persons who may be authorised to carry out inspections; (e) requiring or facilitating the sharing or production of information (including health records) for the purposes of an inspection; (f) as to interviews and examinations (including physical and mental examinations) which may be carried out in connection with the inspections; (g) requiring any person to provide to an authorised person an explanation of information produced to an authorised person; (h) requiring information produced to an authorised person to be held in compliance with prescribed conditions and further disclosures to be made in compliance with such conditions; (i) empowering an authorised person to disclose to a person prescribed for the purposes of this paragraph any information of a prescribed nature which the authorised person holds in consequence of an inspection; (j) creating offences punishable on summary conviction by a fine not exceeding level 4 on the standard scale for the purpose of enforcing any provision of the regulations. (4) In subsection (3)(e), “health records” means records relating to the physical or mental health of an individual (including dental records and medical records); and for the purposes of this subsection “medical records” means records which have been prepared by a medical practitioner who is, or has been, responsible for the clinical care of the individual. (10P) (1) A person who seeks to provide a independent health care service must apply to HIS for registration of the service. (2) An application must— (a) give such information as may be prescribed about prescribed matters; (b) identify an individual (who may be the applicant) who is to manage the service; (c) give any other information which HIS may reasonably require the applicant to give; (d) without prejudice to subsection (1)(b) of section 10Z5, be accompanied by the fee imposed under subsection (2)(a) of that section. (10Q) (1) HIS may grant or refuse registration of an independent health care service under section 10P. (2) A grant of registration may be subject to such conditions as HIS considers appropriate. (3) If HIS is satisfied, in relation to the application, that the requirements of— (a) such regulations as are applicable under section 10Z7; and (b) any other enactment which appears to HIS to be relevant, will be complied with in relation to that service, it must give notice under section 10Z(1)(a), or as the case may be section 10Z2; otherwise it must give notice under section 10Z(1)(b). (4) On granting a registration HIS must issue a certificate of registration to the applicant. (5) The person for the time being providing the service must ensure that the certificate (or a copy of it) is, while the certificate is current, kept affixed in a conspicuous place in each of the premises in or from which that service is provided; and, if those premises do not include the principal (or only) office of the service, then in that office also. (10R) HIS may at any time give a notice (an “improvement notice”) to the person for the time being providing a registered independent health care service that, unless within such reasonable period as may be specified in the notice, there is a significant improvement, of such a nature as may be so specified, in the provision of that service, it intends to make a proposal under section 10S. (10S) (1) HIS may, at any time after the expiry of the period specified in an improvement notice under section 10R given in respect of an independent health care service, propose to cancel the registration of the service— (a) on the ground that any person has been convicted of a relevant offence in relation to the service; (b) on the ground that the service is being, or has at any time been, carried on other than in accordance with the relevant requirements; or (c) on any other ground which may be prescribed. (2) For the purposes of— (a) paragraph (a) of subsection (1) the following are relevant offences— (i) an offence under any of sections 10G to 10Z18 (in this section, “this group of sections”); (ii) an offence under regulations made under this group of sections; or (iii) an offence which, in the opinion of HIS, makes it appropriate that the registration should be cancelled; and (b) paragraph (b) of that subsection, the following are relevant requirements— (i) any requirements or conditions imposed by or under this group of sections; or (ii) the requirements of regulations made under this group of sections. (3) Where a person providing a registered independent health care service ceases to provide the service, HIS may cancel the registration of the service. (10T) (1) HIS may apply to the sheriff for an order cancelling the registration of an independent health care service. (2) The application may be granted if it appears to the sheriff that, unless the order is made, there will be a serious risk to the life, health or wellbeing of persons. (3) The sheriff may make such interim order as the sheriff thinks fit. (4) As soon as practicable after HIS has applied for an order under subsection (1), it must notify the appropriate authorities. (5) Where the order applied for is made (or an interim order is made), HIS must as soon as reasonably practicable give a copy of it to the person who provides the independent health care service. (6) The sheriff may determine an application under this section in the absence of the person providing the independent health care service to which the application relates. (7) An order under this section has effect— (a) from the time at which it is made; or (b) from such other time as the sheriff considers appropriate. (8) Within 14 days of the day on which an order under this section is made, an appeal may be made to the sheriff principal against the making of the order. (9) On an appeal under subsection (8), the sheriff principal may— (a) confirm the order; (b) revoke the order; (c) modify the order; (d) make such other order as the sheriff principal thinks fit. (10) The decision of the sheriff principal on an appeal under subsection (8) is final. (11) An order under this section has effect notwithstanding the making of an appeal in relation to the order. (12) For the purposes of this section, the appropriate authorities are— (a) each— (i) local authority; and (ii) Health Board, within whose area the independent health care service is provided; and (b) any other body established by or under an enactment whom HIS thinks it appropriate to notify. (10U) HIS may at any time give notice (in sections 10V, 10W, 10Z1 and 10Z2 referred to as a “condition notice”) to the person for the time being providing a registered independent health care service that it proposes to— (a) vary or remove a condition for the time being in force; or (b) impose an additional condition, in relation to the registration. (10V) (1) Subsection (2) applies where— (a) a person is providing a registered independent health care service; and (b) HIS believes that the absence of a condition in relation to the registration of that service poses a serious risk to the life, health or wellbeing of persons. (2) HIS may at any time give notice (an “emergency condition notice”) to the person providing the registered independent health care service specifying a condition, in relation to registration, in respect of that risk. (3) The condition so specified takes effect immediately on receipt of the emergency condition notice. (4) An emergency condition notice must— (a) state that, within 14 days after service of the notice, the person to whom it is given may make written representations to HIS concerning any matter which that person wishes to dispute; and (b) explain the right of appeal conferred by section 10X(1). (5) HIS must consider any representations made under subsection (4)(a) and, following such consideration, must— (a) give the person providing the registered independent health care service a condition notice stating that HIS proposes to vary or remove the condition specified in the emergency condition notice; or (b) notify the person that it does not intend to give such a condition notice. (6) When notifying a person under subsection (5)(b), HIS must explain the right of appeal conferred by section 10X(1). (7) Where a condition notice has been given by virtue of subsection (5)(a) containing a proposal to remove the condition, HIS must implement the proposal unless it appears to it that it would be inappropriate to do so. (10W) (1) Section 10Z1 does not apply to a condition notice given by virtue of section 10V(5)(a). (2) The reference in section 10Z2(5) to a proposal in relation to which a condition notice has been given does not include a reference to a proposal contained in a condition notice given by virtue of section 10V(5)(a) to remove the condition mentioned in that provision. (3) The reference to a proposal in section 10Z4(1) does not include a reference to a proposal contained in a condition notice given by virtue of section 10V(5)(a) to remove the condition mentioned in that provision. (10X) (1) A person— (a) who is given an emergency condition notice; and (b) who— (i) makes no written representations in accordance with section 10V(4)(a); or (ii) makes such representations but is notified as mentioned in section 10V(5)(b), may, within 14 days after the relevant date, appeal to the sheriff against the imposition of the condition. (2) In subsection (1), “relevant date” means— (a) where sub-paragraph (i) of subsection (1)(b) applies, the date of service of the emergency condition notice; (b) where sub-paragraph (ii) of that subsection applies, the date notification mentioned in that sub-paragraph is given. (3) The sheriff may, on an appeal under subsection (1)— (a) direct that the condition specified in the emergency condition notice is to continue to have effect; (b) direct that the condition is to cease to have effect; (c) direct that the condition be varied as specified in the direction; (d) impose an additional condition in relation to the registration. (10Y) (1) A person providing a registered independent health care service may apply to HIS— (a) for the variation or removal of any condition for the time being in force, or for the addition of a condition, in relation to the registration; or (b) for cancellation of the registration, but no such application is competent in circumstances mentioned in subsection (2). (2) The circumstances are that HIS has given the person notice— (a) under section 10Z(2) of its proposal to cancel the registration (unless HIS has decided not to take that step); or (b) under section 10Z2(3) of its decision to cancel the registration and the time within which an appeal may be brought has not expired or, if an appeal has been brought, that appeal has not been determined. (3) An application under subsection (1) must be made in such manner and state such particulars as may be prescribed; and, without prejudice to subsection (1)(b) of section 10Z5, must be accompanied by the fee imposed under subsection (2)(a) or, as the case may be, (c) of that section. (4) If HIS decides to grant an application under subsection (1)(a) it must give the applicant notice of its decision (stating, where applicable, the condition varied, removed or added) and issue a new certificate of registration. (10Z) (1) If an application has been made under section 10P and HIS proposes— (a) to grant that application but to do so subject to a condition which has not been agreed in writing between it and the applicant, it must give the applicant notice of the proposed condition; (b) to refuse that application, it must give such notice of the proposed refusal. (2) HIS must give any person who provides a registered independent health care service notice of a proposal to cancel the registration (other than in accordance with an application under subsection (1)(b) of section 10Y). (3) HIS must give an applicant under subsection (1)(a) of section 10Y notice of a proposal to refuse that application. (4) A notice under this section must give HIS's reasons for its proposal. (10Z1) (1) A condition notice or a notice under section 10Z must state that, within 14 days after service of the notice, the person to whom it is given may make written representations to HIS concerning any matter which that person wishes to dispute. (2) Where such a notice has been given— (a) HIS may not decide to implement the proposal until (whichever first occurs)— (i) where the person to whom the notice was given makes such representations as are mentioned in subsection (1), it has considered those representations; (ii) that person notifies HIS in writing that such representations will not be made; (iii) the period of 14 days mentioned in that subsection elapses without such representations being made and without HIS receiving such notification; and (b) where the circumstances are as mentioned in paragraph (a)(ii) or (iii) above, HIS must implement the proposal unless it appears to it that it would be inappropriate to do so. (10Z2) (1) If HIS decides to grant unconditionally an application made under section 10P, or to grant such application subject only to a condition which has been agreed in writing between HIS and the applicant, it must give the applicant notice of its decision. (2) A notice under subsection (1) must state the agreed condition. (3) If HIS decides to implement a proposal in relation to which it has given a person a condition notice or a notice under section 10Z, it must give that person notice of the decision. (4) A notice under subsection (3) must— (a) explain the right of appeal conferred by section 10Z4; and (b) in the case of a decision to implement a proposal— (i) in relation to which a condition notice has been given, state the condition as varied, the condition which is removed or (as the case may be) the additional condition imposed; or (ii) of which notice has been given under subsection (1)(a) of section 10Z, state the condition subject to which the application is granted. (5) Subject to subsection (6), a decision to implement a proposal in relation to which a condition notice has been given or of which notice has been given under subsection (1)(a) or (2) of section 10Z does not take effect— (a) if no appeal is brought, until the period of 14 days referred to in section 10Z4(1) has elapsed; and (b) if an appeal is brought, until that appeal is finally determined or is abandoned. (6) Where the decision is to implement a proposal of which notice has been given under subsection (1)(a) of section 10Z and the applicant notifies HIS in writing, before the period of 14 days referred to in section 10Z4(1) has elapsed, that there will be no appeal, the decision takes effect on receipt of that notification. (10Z3) Without prejudice to the generality of section 10Q(2) or 10U, a condition imposed under either of those provisions in relation to an independent health care service may limit the number of persons to whom the service may be provided. (10Z4) (1) A person given notice under section 10Z2(3) of a decision to implement a proposal may, within 14 days after that notice is given, appeal to the sheriff against the decision. (2) The sheriff may, on appeal under subsection (1), confirm the decision or direct that is not to have effect; and where the registration is not to be cancelled may (either or both)— (a) vary or remove any condition for the time being in force in relation to the registration; (b) impose an additional condition in relation to the registration. (10Z5) (1) The Scottish Ministers, after consulting such persons, or groups of persons, as they consider appropriate on the potential effect of so prescribing on the services which the persons, or persons they represent, provide, may prescribe— (a) maximum fees which may be imposed by HIS under this section; (b) circumstances in which fees so imposed are or are not to be payable. (2) Subject to the provisions of this section, HIS must impose fees in respect of— (a) any application made for registration of an independent health care service or for cancellation of any such registration; (b) the annual continuation of any such registration; (c) any application made for the variation or removal of a condition for the time being in force in relation to any such registration; (d) issuing to a person a new certificate of registration— (i) at the instance of that person; (ii) by virtue of any application by that person; or (iii) by virtue of any new information provided by that person in pursuance of regulations under this group of sections (within the meaning of section 10S(2)(a)). (3) Without prejudice to subsection (1)— (a) HIS must, in fixing fees under this section, have regard to its reasonable expenses in carrying out its functions; but (b) where it appears to HIS to be appropriate it may charge a nominal fee, or remit the fee altogether. (10Z6) (1) Regulations may— (a) make provision about the keeping of registers by HIS; (b) make provision about registration under section 10P and in particular about— (i) the making of applications for such registration; (ii) the content of certificates of registration; (iii) categories of applicant who cannot competently make certain applications; (c) require HIS to secure that, on such conditions, in such circumstances and, subject to subsection (2) on payment of such fees as may be specified in regulations, any person is to be afforded access to, and provided with a copy of an entry in or with an extract from, a register kept by HIS; (d) except such part of a register as may be specified in the regulations from any requirement made by virtue of paragraph (c); (e) confer additional functions on HIS in relation to registration under section 10P. (2) Regulations under paragraph (c) of subsection (1) may specify circumstances in which the fees mentioned in that paragraph are not to be payable; and the fees must in any event not be payable in any case where HIS consider it appropriate to provide the copy or extract in question free of charge. (10Z7) (1) Regulations may impose, in relation to independent health care services, any requirements which the Scottish Ministers consider appropriate for the purposes of this Part. (2) Without prejudice to the generality of subsection (1) regulations may make it an offence to contravene or fail to comply with— (a) any specified provision of the regulations; or (b) a condition of registration for the time being in force. (3) A person who commits an offence under the regulations is liable on summary conviction to a fine not exceeding level 5 on the standard scale. (4) Before the Scottish Ministers make regulations containing provision as mentioned in subsection (2), they must consult such persons, or groups of persons, as they consider appropriate. (10Z8) (1) HIS must establish a procedure by which a person, or someone acting on a person's behalf, may make complaints (or other representations) in relation to the provision to the person of an independent health care service or about the provision of an independent health care service generally. (2) The procedure must provide for it to be available whether or not procedures established by the provider of the service for making complaints (or other representations) about that service have been or are being pursued. (3) Before establishing a procedure under subsection (1), HIS must consult the Scottish Public Services Ombudsman and such persons, or groups of persons, as it considers appropriate on its proposals for such a procedure. (4) HIS must keep the procedure under review and must vary it whenever, after such consultation, it considers it appropriate to do so. (5) HIS must give such publicity to the procedure (including the procedure as varied under subsection (4)) as it considers appropriate and must give a copy of the procedure to any person who requests it. (10Z9) (1) Any person who— (a) provides an independent health care service while it is not registered under section 10P; or (b) with intent to deceive, pretends that an independent health care service is so registered, commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months or to both. (2) Any person who fails to comply with section 10Q(5) commits an offence and is liable on summary conviction to a fine not exceeding level 2 on the standard scale. (10Z10) Any person who, in an application— (a) for registration of an independent health care service; or (b) for variation or removal of a condition in force in relation to such a registration, knowingly makes a statement which is false or misleading in a material respect commits an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale. (10Z11) Where an offence under this group of sections (within the meaning of section 10S(2)(a)), or under regulations made under those sections, committed by— (a) a body corporate other than a local authority, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who— (i) is a director, manager or secretary of the body corporate; or (ii) purports to act in any such capacity; (b) a firm, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who— (i) is a partner in the firm; or (ii) purports to act in that capacity; (c) an unincorporated association other than a firm, is committed with the consent or connivance of, or is attributed to any neglect on the part of, a person who— (i) is concerned in the management or control of the association; or (ii) purports to act in the capacity of a person so concerned, the person (as well as the body corporate or, as the case may be, firm or association) commits the offence and is liable to be proceeded against and punished accordingly. (10Z12) (1) HIS may cause an inquiry to be held into any matter connected with— (a) the exercise of its functions; or (b) the provision of an independent health care service or a service provided under the health service. (2) Before there is commenced an inquiry under subsection (1), HIS may direct that it be held in private; but where no such direction has been given the person holding the inquiry may if that person thinks fit hold it, or any part of it, in private. (3) Subject to subsection (4), subsections (2) to (6) of section 210 of the Local Government (Scotland) Act 1973 (c. 65) (provisions relating to local inquires) apply in relation to an inquiry under subsection (1) as they apply in relation to a local inquiry under that section. (4) For the purposes of an inquiry under subsection (1), any reference in those subsections which, by virtue of the Scotland Act 1998 (c. 46), falls to be construed as a reference to— (a) the Scottish Ministers, is to be construed as a reference to HIS; and (b) a member of the staff of the Scottish Ministers, is to be construed as a reference to a member of staff of HIS. (5) The expenses incurred by HIS in relation to an inquiry under subsection (1) (including such reasonable sum as HIS may determine for the services of any of its staff engaged in the inquiry) must, unless HIS is of the opinion that those expenses should be defrayed in whole or in part by it, be paid by such party to the inquiry as it may direct; and HIS may certify the amount of the expenses so incurred. (6) Any sum certified under subsection (5) and to be defrayed in accordance with a direction under that subsection is a debt due by the party directed and is to be recoverable accordingly. (7) In relation to an inquiry under subsection (1), HIS may make an award as to the expenses of the parties and as to the parties by whom such expenses are to be paid. (10Z13) Where, in the performance of its functions— (a) a local authority; (b) a Health Board; or (c) a Special Health Board, makes arrangements with any person to provide an independent health care service, it must ensure that the service, when provided, is registered under section 10P. (10Z14) (1) For the purposes of its functions as they relate to the provision of independent health care services (including the making of arrangements with other persons to provide such services)— (a) a local authority; (b) a Health Board; (c) a Special Health Board, must take into account the matters mentioned in subsection (3). (2) In carrying out its duty under subsection (1), a local authority, Health Board or Special Health Board must have regard to any guidance issued by the Scottish Ministers in respect of that duty. (3) The matters are such— (a) reports; (b) information; (c) notices, prepared, disseminated, given or otherwise produced by HIS as are relevant to the provision of the services mentioned in subsection (1) or, as the case may be, to the organisation or co-ordination of those services. (10Z15) (1) In this Part, any reference to a notice being given to a person providing, or seeking to provide, an independent health care service is to be construed as a reference to its being— (a) delivered, where the person is— (i) an individual, to that individual; (ii) a body corporate, to the secretary or clerk of that body; or (iii) a firm, to a partner of that firm; or (b) sent by post, properly addressed to the person, in a registered letter or by the recorded delivery service, but a notice sent by post is deemed not given until the third day after the day of posting. (2) For the purposes of subsection (1), a letter is properly addressed to— (a) a body corporate, if addressed to the body at its registered or principal office; (b) a firm, if addressed to the firm at its principal office; or (c) any other person, if addressed to the person at the address last known. (10Z16) (1) HIS must establish under paragraph 8(1) of Schedule 5A a committee to be known as the Scottish Health Council. (2) When the Scottish Health Council is established— (a) HIS must delegate to the Council the functions mentioned in section 10C(1)(b) and (c); and (b) the Scottish Ministers are to appoint a member of HIS to chair the Council. (3) The Scottish Ministers may, by order— (a) modify subsection (2)(a) in relation to the functions of HIS which must be delegated to the Scottish Health Council; or (b) dissolve the Council. (4) Where the Scottish Ministers make an order under subsection (3)(b) dissolving the Scottish Health Council, subsection (1) has no effect for so long as the order is in force in that respect. (5) This section is without prejudice to Schedule 5A. (10Z17) For the purposes of section 12CA, the functions conferred on, delegated to or otherwise exercisable by HIS are to be treated as functions transferred from a health service body; and for the purposes of that transfer— (a) NHS Quality Improvement Scotland is to be treated as the transferor authority; (b) HIS is to be treated as the transferee authority; and (c) the date on which section 10A is commenced is to be treated as the transfer date. (10Z18) In this Part, “provide” in relation to an independent health care service, means to carry on or manage such a service; and related expressions are to be construed accordingly. (10Z19) HIS must, in the exercise of its functions relating to the provision of guidance, advice or information, consult the Mental Welfare Commission for Scotland in every case in which it appears to HIS appropriate having regard to the Commission's functions under sections 5(b) and 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

.

Transfer of staff etc. to Healthcare Improvement Scotland

109

• (1) This subsection applies to such persons employed by the Scottish Commission for the Regulation of Care as the Scottish Ministers may by order specify.

• (2) An order under subsection (1) may specify any description of such employees or any individual such employee.

• (3) Section 102(1)(a), (3), (4) and (5) applies to those persons to whom subsection (1) of this section applies with the effect that they are transferred into the employment of Healthcare Improvement Scotland; and any reference to “SCSWIS” in section 102 is to be read as a reference to “Healthcare Improvement Scotland” in relation to those persons.

• (4) This subsection applies to such property (including rights) and liabilities of the Scottish Commission for the Regulation of Care as the Scottish Ministers may by order specify.

• (5) An order under subsection (4) may specify any description of such property or liabilities or any particular property or liability; but such an order may not include liabilities under or in connection with any person's contract of employment.

• (6) Section 102(1)(b) applies to such property and liabilities to which subsection (4) of this section applies with the effect that they are transferred to, and vest in, Healthcare Improvement Scotland.

• (7) The power to make an order under subsection (1)—

• (a) must be exercised by statutory instrument,

• (b) may be exercised so as to make different provision for different purposes.

• (8) A statutory instrument containing an order under subsection (1) is subject to annulment in pursuance of a resolution of the Parliament.

Healthcare Improvement Scotland: constitution, etc.

110

• (1) Schedule 16 (which inserts Schedule 5A into the National Health Service (Scotland) Act 1978 (c. 29)) has effect.

• (2) Schedule 17 (which contains modifications of enactments consequential on section 108) has effect.

Part 7 — The Mental Welfare Commission for Scotland

The Mental Welfare Commission for Scotland

111

• (1) The Mental Health (Care and Treatment) Scotland Act 2003 (asp 13) is amended as follows.

• (2) In section 4 (Mental Welfare Commission for Scotland), after subsection (2) insert—

(2A) In so discharging its functions, the Commission shall act in a manner which seeks to protect the welfare of persons who have a mental disorder.

.

• (3) After section 4 insert—

(4A) (1) Commission Visitors are to exercise the functions conferred on them by this Act or any other enactment on behalf of the Commission. (2) Commission Visitors may, in addition to the other functions conferred in this Part, exercise the functions of the Commission mentioned in— (a) section 8A of this Act; (b) section 9(1)(d) of the Adults with Incapacity (Scotland) Act 2000 (asp 4). (3) The Commission may give the Commission Visitors directions of a general or specific nature in relation to the exercise of the functions conferred on them. (4) A Commission Visitor must— (a) comply with any direction given under subsection (3); and (b) act in accordance with any guidance issued by the Commission in relation to the exercise of the functions of Commission Visitors. (5) A Commission Visitor acting in the exercise of any function must, if required, produce evidence of the Commission Visitor's authority. (6) In this Act, “Commission Visitors” are persons appointed under paragraph 7A(1) or (2) of schedule 1 to this Act.

.

• (4) In section 5 (duty to monitor operation of Act and promote best practice)—

• (a) in paragraph (a), for “operation” substitute “ practical application of the observance of Part 1 ”,

• (b) in paragraph (b), for the words from “operation” to the end of the paragraph substitute “ practical application of the observance of Part 1 of this Act ”.

• (5) After section 8 insert—

(8A) (1) The Commission shall, as it considers appropriate, raise any concerns (of a general or specific nature) about the provision of any service mentioned in subsection (2) as respects a person who has a mental disorder, with— (a) Social Care and Social Work Improvement Scotland; (b) Healthcare Improvement Scotland; or (c) such other relevant persons, or group of persons. (2) The services are— (a) any social service (within the meaning of Part 5 of the Public Services Reform (Scotland) Act 2010 (asp 8)); (b) health care (within the meaning of section 10A of the National Health Service (Scotland) Act 1978 (c. 29)). (3) In subsection (1), the “provision” of any service includes the organisation or co-ordination of any such service.

.

• (6) After section 9 insert—

(9A) The Commission shall when asked to do so provide advice, so far as is reasonable, to any person about any matters relevant to the functions of the Commission.

.

• (7) In section 10 (publishing information, guidance etc.), after subsection (2) add—

(3) The Commission may, with the agreement of a person to whom advice is provided under section 9A, publish that advice.

.

• (8) In section 11 (investigations)—

• (a) in subsection (1)—

• (i) for “the Commission”, where it first occurs, substitute “ a Commission Visitor ”,

• (ii) after “Commission”, where it second occurs, insert “ Visitor ”,

• (iii) in paragraph (a), for “it” substitute “ the Commission Visitor ”,

• (iv) in paragraph (b), for “it” substitute “ the Commission Visitor ”,

• (b) after that subsection insert—

(1A) Where it is brought to the attention of the Commission that any of the circumstances mentioned in subsection (2) below may apply in respect of a patient, the Commission may— (a) direct a Commission Visitor to carry out such investigation as the Commission considers appropriate into the patient's case; and (b) having consulted the Visitor after the investigation, make such recommendations as it considers appropriate as respects the case.

.

• (9) In section 12 (investigations: further provision), in subsection (1), for “under section 11(1)” substitute “ in relation to any of the circumstances mentioned in section 11(2) ”.

• (10) In section 13 (visits in relation to patients)—

• (a) in subsection (1)—

• (i) for “person authorised by it” substitute “ Commission Visitor ”,

• (ii) after “Commission”, in the second place it occurs, insert “ Visitor ”,

• (iii) for “it”, in the third place it occurs, substitute “ the Commission Visitor ”,

• (b) in subsection (3)—

• (i) for “person authorised by the Commission” substitute “ Commission Visitor ”,

• (ii) the words “either of” are repealed,

• (iii) for “subsection (5)” substitute “ subsection (5A) ”,

• (c) for subsection (5) substitute—

(5A) The purposes are— (a) to provide an opportunity for any patient who may for the time being be present in the premises to meet a Commission Visitor and discuss with the Visitor any concerns that the patient may have; and (b) to assess whether the requirements of such patients in relation to this Act, the Adults with Incapacity (Scotland) Act 2000 (asp 4) and other relevant legislation are being met. (5B) A Commission Visitor may, when visiting premises under subsection (3), conduct an assessment of the suitability of the premises (and its facilities) in relation to the requirements of the patients (or any one of them).

,

• (d) subsection (7) is repealed,

• (e) in subsection (8)—

• (a) in paragraph (a), for “section 2(3) of the Regulation of Care (Scotland) Act 2001 (asp 8)” substitute “ paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8) ”,

• (b) in paragraph (b), for “section 2(9) of” substitute “ paragraph 6 of schedule 12 to ”.

• (11) In section 14 (interviews)—

• (a) in subsection (1), for “person authorised to do so by the Commission (an “authorised person”)” substitute “ Commission Visitor ”,

• (b) in subsection (1)(a)(ii), for “authorised person” substitute “ Commission Visitor ”,

• (c) in subsection (2)(a)—

• (i) for “an authorised person” substitute “ a Commission Visitor ”,

• (ii) in sub-paragraph (ii), for “authorised person” substitute “ Commission Visitor ”,

• (iii) for “authorised person”, in the third place it occurs, substitute “ Commission Visitor ”,

• (d) in subsection (2)(b)—

• (i) for “an authorised person” substitute “ a Commission Visitor ”,

• (ii) for “authorised person” in the second place it occurs, substitute “ Commission Visitor ”,

• (e) subsection (3) is repealed.

• (12) In section 15 (medical examination)—

• (a) in subsection (1), for “person authorised by the Commission (an “authorised person”) ”substitute “ Commission Visitor ”,

• (b) after that subsection insert—

(1A) Only a Commission Visitor who has also been appointed as a Medical Visitor may exercise the functions under subsection (1).

,

• (c) subsections (2) and (3) are repealed.

• (13) In section 16 (inspection etc. of records)—

• (a) in subsection (1)—

• (i) immediately before “may” insert “ or Commission Visitor ”,

• (ii) at the end add “ or, as the case may be, the Commission Visitor ”,

• (b) in subsection (2), paragraph (a) and the word “or” immediately following are repealed,

• (c) in subsection (3), the words “a member of the Commission or, as the case may be,” are repealed.

• (14) In section 17 (duties of Scottish Ministers, local authorities and others as respects Commission), after “afford the Commission,” insert “ any Commission Visitor, ”.

• (15) Schedule 18 (which makes provision about the governance of the Commission, and Commission Visitors) has effect.

Part 8 — Scrutiny and complaints

User focus

Scrutiny: user focus

112

• (1) The persons, bodies and office-holders listed in schedule 19 (the “listed scrutiny authorities”) must make arrangements which—

• (a) secure continuous improvement in user focus in the exercise of their scrutiny functions, and

• (b) demonstrate that improvement.

• (2) User focus is the involvement of users of scrutinised services in the design and delivery of scrutiny functions in relation to those services and the governance of the listed scrutiny authorities.

• (3) Scrutinised services are services provided in pursuance of functions and activities which are—

• (a) subject to scrutiny by a listed scrutiny authority, or

• (b) provided by a person, body or office-holder which is subject to scrutiny by a listed scrutiny authority.

• (4) Users of a service include—

• (a) persons who will or may use the service in the future,

• (b) persons who act on behalf of others in respect of whom the service is provided, and

• (c) other persons with a direct interest in, or directly affected by—

• (i) the provision of the service, or

• (ii) the scrutiny of the service or the person, body or office-holder providing it.

• (5) The Scottish Ministers may by order modify the list in schedule 19 by—

• (a) adding a person, body or office-holder which has scrutiny functions, or

• (b) removing an entry.

• (6) Before making an order under subsection (5)(a), the Scottish Ministers must consult the person, body or office-holder in question and may consult any other person they think fit.

• (7) In this section references to the scrutiny functions of a person, body or office-holder are to such of the functions of the person, body or office-holder as relate to the regulation, audit or inspection of other persons, bodies or office-holders or their functions or activities.

User focus: guidance etc.

113

• (1) In fulfilling its duty under subsection (1) of section 112 a listed scrutiny authority must have regard—

• (a) to any guidance in relation to the duty provided by the Scottish Ministers, and

• (b) to what are regarded as proper arrangements for the purposes of that subsection (or purposes which include those purposes).

• (2) Guidance provided by the Scottish Ministers may in particular include guidance on—

• (a) how to make, and what is to be included in, arrangements for the purposes of that subsection,

• (b) how to demonstrate continuous improvement in user focus.

• (3) Arrangements may be regarded as proper arrangements for the purposes of that subsection by reference to a generally recognised published code or otherwise.

• (4) Before providing guidance under this section the Scottish Ministers must consult any person they think fit.

• (5) If there is a conflict between guidance provided under subsection (1)(a) and proper arrangements referred to in subsection (1)(b), the guidance prevails.

• (6) The Scottish Ministers may require a listed scrutiny authority which does not comply with any guidance provided under subsection (1)(a) to provide a written explanation of why it has not done so; and the authority must comply with the requirement.

• (7) The Scottish Ministers may publish an explanation provided under subsection (6).

Duty of co-operation

Scrutiny: duty of co-operation

114

• (1) The persons, bodies and office-holders listed in schedule 20 (the “scheduled scrutiny authorities”) must co-operate and co-ordinate activity with—

• (a) each other, and

• (b) where appropriate, the Scottish Ministers,

with a view to achieving the purpose in subsection (2).

• (2) That purpose is improving the exercise of the scrutiny functions of the scheduled scrutiny authorities in relation to—

• (a) local authorities,

• (b) social services, ...

• (c) health services , and

• (d) policing.

having regard to efficiency, effectiveness and economy.

• (3) The Scottish Ministers may by order modify the list in schedule 20 by—

• (a) adding a person, body or office-holder which has scrutiny functions in relation to—

• (i) local authorities or public services provided by them or on their behalf,

• (ii) social services, ...

• (iii) health services, or

• (iv) policing, or

• (b) removing an entry.

• (4) Before making an order under subsection (3)(a) the Scottish Ministers must consult the person, body or office-holder in question and may consult any other person they think fit.

• (5) The duty in subsection (1) does not apply in so far as compliance with it would prevent or delay action by a scheduled scrutiny authority in the exercise of its scrutiny functions which the authority considers to be necessary as a matter of urgency.

• (6) In complying with the duty in subsection (1) the scheduled scrutiny authorities must—

• (a) comply with any directions given by the Scottish Ministers, and

• (b) have regard to any guidance provided by the Scottish Ministers.

• (7) Directions and guidance—

• (a) may be of a general or a specific nature,

• (b) may relate to all scheduled scrutiny authorities or to such authorities as are specified in the directions or guidance,

• (c) may relate to all the scrutiny functions of the authorities in question or to such of those functions as are specified in the directions or guidance.

• (8) The Scottish Ministers may vary or revoke any direction.

• (9) Before providing guidance the Scottish Ministers must consult any person they think fit.

• (10) In this section—

• (a) references to the scrutiny functions of a person, body or office-holder in relation to local authorities are to such of the functions of the person, body or office-holder as relate to the regulation, audit or inspection of—

• (i) local authorities, or

• (ii) public services provided by them or on their behalf,

• (b) references to the scrutiny functions of a person, body or office-holder in relation to social services , health services or policing are to such of the functions of the person, body or office-holder as relate to the regulation, audit or inspection of those services or, as the case may be, policing.

• (11) In this section—

• “health services” means—the health service within the meaning of section 108(1) of the National Health Service (Scotland) Act 1978 (c. 29), andindependent health care services within the meaning of section 10F of that Act;

• “local authorities” means councils constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);

• “ policing ” has the same meaning as in Part 1 of the Police and Fire Reform (Scotland) Act 2012;

• “social services” has the same meaning as in section 46 of this Act.

Joint inspections

Joint inspections

115

• (1) Any two or more of the persons and bodies to which this section applies must, at the request of the Scottish Ministers, conduct an inspection (a “joint inspection”) in relation to the provision of—

• (a) children's services,

• (b) such other services as the Scottish Ministers may specify in respect of which such persons or bodies have inspection functions, or

• (c) both.

• (2) The Scottish Ministers may specify purposes for any joint inspection.

• (3) The Scottish Ministers may request under subsection (1) that there be conducted a joint inspection of—

• (a) any services concerned in the relevant area,

• (b) such of the services concerned provided in the relevant area as they may specify, or

• (c) such of the services concerned provided to a particular child or other person or particular children or other persons as they may specify.

• (4) In paragraphs (a) and (b) of subsection (3), the “relevant area” is the whole of Scotland or such part of Scotland as the Scottish Ministers specify in their request.

• (5) A joint inspection is to be conducted in accordance with—

• (a) a timetable approved by the Scottish Ministers,

• (b) any directions given by the Scottish Ministers.

• (6) The persons and bodies to which this section applies are—

• Healthcare Improvement Scotland,

• Her Majesty's Inspectors of Constabulary appointed under section 71 of the Police and Fire Reform (Scotland) Act 2012 (asp 8),

• Her Majesty's Chief Inspector of Prisons for Scotland,

• Her Majesty's Chief Inspector of Prosecution in Scotland,

• His Majesty’s Chief Inspector of Education in Scotland,

• Mental Welfare Commission for Scotland,

• Scottish Housing Regulator,

• Social Care and Social Work Improvement Scotland,

• any Special Health Board.

• (7) Where, in the opinion of any person or body to whom this section applies, a joint inspection would be appropriate, it must bring that to the attention of the Scottish Ministers.

• (8) Those persons or bodies conducting a joint inspection must—

• (a) report to the Scottish Ministers and make any recommendations to them which those conducting the inspection think appropriate,

• (b) have regard to any code of practice or practice note issued by the Scottish Ministers for the purpose of—

• (i) giving practical and general guidance on matters relating to such an inspection (including, without prejudice to that generality, such matters as access to confidential information and the holding, sharing and destruction of such information),

• (ii) promoting what appear to them to be desirable practices with regard to such matters.

• (9) Subsection (6) may be amended by the Scottish Ministers by order so as to—

• (a) add an entry to it, or

• (b) remove any entry from it.

• (10) The Scottish Ministers may vary or revoke any direction given under this section.

• (11) For the purposes of subsection (8) of this section and sections 116A(4) and 117(3), information is “confidential information” where—

• (a) the identity of an individual is ascertainable—

• (i) from that information, or

• (ii) from that information and other information which is in the possession of, or is likely to come into the possession of, the person holding that information, and

• (b) the information was obtained or generated by a person who, in the circumstances, owed an obligation of confidence to that individual.

• (12) In this section, “children's services” is to be construed in accordance with section 7 of the Children and Young People (Scotland) Act 2014.

Participation in joint inspections

116

• (1) The Scottish Ministers may direct a person or body—

• (a) not listed in section 115(6), but

• (b) which has inspection functions,

to participate in the conduct of a joint inspection to the extent and for the purposes specified in the direction.

• (2) In directing under subsection (1) a person or body to participate in a joint inspection, the Scottish Ministers may also direct that the person, or any person authorised by the body, is not to be able to exercise any such power conferred by regulations under section 117 as is specified in the direction; or is to be able to exercise any such power but only to the extent or for the purposes there specified.

Regulations relating to joint inspections

117

• (1) The Scottish Ministers may by regulations make further provision concerning joint inspections.

• (2) Regulations under subsection (1) may, in particular, make provision—

• (a) as to seizure and removal of anything found during the course of a joint inspection,

• (b) as to persons who may be authorised to carry out joint inspections,

• (c) requiring or facilitating the sharing or production of information (including health records) for the purposes of a joint inspection,

• (d) as to interviews and examinations (including physical and mental examinations) which may be carried out in connection with the inspections,

• (e) requiring any person to provide to a person authorised to carry out a joint inspection an explanation of information produced to an authorised person,

• (f) requiring information produced to a person authorised to carry out a joint inspection to be held in compliance with prescribed conditions and further disclosures to be made in compliance with such conditions,

• (g) empowering a person authorised to carry out a joint inspection to enter any premises for the purposes of such an inspection,

• (h) empowering a person authorised to carry out a joint inspection to disclose to a person prescribed for the purposes of this paragraph any information of a prescribed nature which the authorised person holds in consequence of such an inspection,

• (i) as to reports in relation to a joint inspection,

• (j) creating offences punishable on summary conviction by a fine not exceeding level 4 on the standard scale for the purpose of enforcing any provision of the regulations.

• (3) Where a person authorised to carry out a joint inspection is in possession of confidential information which has been obtained for the purposes of such an inspection, the person must not use or disclose that information other than—

• (a) for the purposes of that inspection,

• (b) so as to comply with an enactment or court order requiring disclosure,

• (c) to the extent considered necessary by the person for the purpose of protecting the welfare of—

• (i) any child,

• (ii) any adult at risk (within the meaning of section 3 of the Adult Support and Protection (Scotland) Act 2007 (asp 10)), or

• (d) to the extent considered necessary by the person for the purpose of the prevention or detection of crime or the apprehension or prosecution of offenders.

• (4) In subsection (2), “health records” has the same meaning as in Part 5.

• (5) In subsection (2), “prescribed” means prescribed by regulations under subsection (1).

• (6) In this section, “joint inspection” means an inspection conducted under section 115 or 116A.

Public finance and accountability

Amendment of Public Finance and Accountability (Scotland) Act 2000

118

• (1) The Public Finance and Accountability (Scotland) Act 2000 (asp 1) is amended in accordance with this section.

• (2) In section 10 (Audit Scotland), in subsection (2)(c), for the words “jointly by the Auditor General and the Chairman” substitute “ by the Scottish Commission for Public Audit ”.

• (3) In section 12(2)(a) (Scottish Commission for Public Audit), immediately before the word “Audit” insert “ Public ”.

• (4) In section 13 (Auditor General for Scotland)—

• (a) after subsection (4) insert—

(4A) A person appointed to be the Auditor General holds office for a period of 8 years.

,

• (b) in subsection (5)—

• (i) after paragraph (a) insert—

(aa) vacates office on the expiry of the period of appointment,

,

• (ii) at the beginning of paragraph (c) insert “ in other respects, ”,

• (c) after that subsection insert—

(5A) A person having held the office of the Auditor General is not eligible for reappointment.

.

• (5) In section 22 (audit of accounts: further provisions), in subsection (5), at the beginning of paragraph (b) insert “ except where the account and the report are published by the body or office-holder in question, ”.

• (6) In section 23 (economy, efficiency and effectiveness examinations), after subsection (10) add—

(11) The Auditor General may publish the results of any examination carried out under this section.

.

• (7) After that section insert—

(23A) For the purposes of the law of defamation, the following are absolutely privileged— (a) reports sent to the Scottish Ministers under section 22(4), (b) results of an examination carried out and reported to the Parliament under section 23.

.

• (8) In schedule 2 (Audit Scotland: further provisions)—

• (a) in paragraph 2—

• (i) the word “not” is inserted after the word “is” where it second appears,

• (ii) the words from “but” to the end of the paragraph are repealed,

• (b) after that paragraph insert—

(2A) An appointment under section 10(2)(c) may be for a period not exceeding 3 years. (2B) A person appointed under section 10(2)(c) is, on ceasing to be a member, eligible for reappointment for a single further period.

,

• (c) in paragraph 3—

• (i) in sub-paragraph (a), for the words “Auditor General and the Chairman” substitute “ Scottish Commission for Public Audit ”,

• (ii) in sub-paragraph (c), for the words “Auditor General and the Chairman” substitute “ Scottish Commission for Public Audit ”,

• (d) in paragraph 4, for the words “Auditor General and the Chairman, acting jointly,” substitute “ Scottish Commission for Public Audit ”,

• (e) in paragraph 7—

• (i) in sub-paragraph (2), paragraph (b) is repealed,

• (ii) after that sub-paragraph add—

(3) The Scottish Commission for Public Audit must appoint one of the members of Audit Scotland appointed under section 10(2)(c) to preside at the meetings of Audit Scotland. (4) Audit Scotland must appoint one of its other members appointed under section 10(2)(c) to preside at its meetings where the member mentioned in sub-paragraph (3) is not present.

.

• (9) In schedule 3 (Scottish Commission for Public Audit: further provisions)—

• (a) in paragraph 1, immediately before the word “Audit”, where it occurs for the second time, insert “ Public ”,

• (b) after paragraph 7 add—

(8) For the purposes of the law of defamation, the following are absolutely privileged— (a) any statement made in proceedings of the Commission, (b) the publication under the authority of the Commission of any statement, and (c) any report to the Parliament under section 12(4). (9) In paragraph 8, “statement” has the same meaning as in the Defamation Act 1996 (c. 31).

.

Complaints handling procedures

Complaints handling procedures

119

In the Scottish Public Services Ombudsman Act 2002 (asp 11), after section 16 insert—

(16A) (1) The Ombudsman must publish a statement of principles (referred to in this Act as “the statement of principles”) concerning complaints handling procedures of listed authorities. (2) A listed authority must ensure— (a) it has a complaints handling procedure in respect of action taken by the listed authority, and (b) any such procedure complies with the statement of principles. (3) A listed authority which is responsible, by virtue of any enactment, for a complaints handling procedure— (a) in relation to, or (b) operated by, another listed authority, must ensure the procedure complies with the statement of principles. (4) The first statement of principles under subsection (1) is not to be published unless a draft of the statement has been laid before, and approved by a resolution of, the Parliament. (5) Where a draft is laid in accordance with subsection (4), the Parliament may approve the draft no later than 2 months after being laid. (6) In calculating any period of 2 months for the purposes of subsection (5), no account is to be taken of any time during which the Parliament is dissolved or is in recess for more than 4 days. (7) Before laying a draft statement of principles before the Parliament in accordance with subsection (4) the Ombudsman must consult— (a) the Scottish Ministers, and (b) such listed authorities and other persons as the Ombudsman thinks fit. (8) The Ombudsman must, in preparing the draft statement of principles to be laid before the Parliament in accordance with subsection (4), have regard to any representations made during the consultation mentioned in subsection (7). (9) The statement of principles comes into force when it is published by the Ombudsman. (10) The Ombudsman may from time to time revise and re-publish the statement of principles. (11) Where the Ombudsman considers that any revision of the statement of principles under subsection (10) is material, subsections (4) to (8) apply to that statement of principles as they do to the first statement of principles. (12) In this section and sections 16B to 16E, “complaints handling procedures” means procedures of listed authorities which examine complaints or review decisions in respect of action taken by a listed authority where the matter in question is one in respect of which a complaint to the Ombudsman can be made and investigated under this Act. (16B) (1) The Ombudsman may publish model complaints handling procedures for listed authorities. (2) A model complaints handling procedure (referred to in this Act as a “model CHP”) must comply with the statement of principles. (3) The Ombudsman may publish different model CHPs for different purposes. (4) Before publishing a model CHP the Ombudsman must consult such listed authorities or groups of listed authorities as the Ombudsman thinks fit. (5) The Ombudsman may from time to time revise and re-publish any model CHP; and in doing so subsection (4) applies. (6) Where a model CHP is revised and re-published by virtue of subsection (5), section 16C has effect with the following modifications— (a) any specification under subsection (1) of that section in relation to the model CHP continues in effect as a specification in relation to the revised and re-published model CHP, (b) any other reference to a model CHP is to the model CHP as revised and re-published, (c) subsection (3) of that section is omitted. (7) The Ombudsman may withdraw any model CHP at any time; and any specification under section 16C(1) in relation the model CHP ceases to have effect. (16C) (1) The Ombudsman may specify any listed authority to which a model CHP is relevant; and must notify the authority accordingly. (2) Where a model CHP is relevant to a listed authority by virtue of a specification under subsection (1), the authority must ensure there is a complaints handling procedure which complies with the model CHP for the purposes of the specification. (3) Where subsection (2) applies the authority must submit a description of the complaints handling procedure, having taken account of the relevant model CHP, within 6 months of the specification mentioned in that subsection. (4) A listed authority may, with the consent of the Ombudsman, modify the application of the model CHP which is relevant to it but only to the extent that is necessary for the effective operation of the procedure by the authority. (5) The Ombudsman may revoke any specification under subsection (1) at any time. (16D) (1) Where a model CHP is relevant to a listed authority by virtue of a specification under section 16C(1) the Ombudsman may declare that the complaints handling procedure of the authority, a description of which was submitted by the authority under section 16C(3) or otherwise, does not comply with the model CHP. (2) Where there is no specification under section 16C(1) in relation to a listed authority the Ombudsman may declare that the complaints handling procedure of the authority, a description of which was submitted by the authority under section 16E or otherwise, does not comply with the statement of principles. (3) Where a declaration is made under subsection (1) or (2) the Ombudsman— (a) must give reasons in writing, (b) may specify such modifications to the complaints handling procedure as would result in the declaration being withdrawn. (4) Where a declaration is made under subsection (1) or (2) the listed authority must submit a description of its complaints handling procedure, having taken account of the reasons given under subsection (3)(a) and any modifications specified in subsection (3)(b), within 2 months of the declaration. (5) The Ombudsman may withdraw a declaration of non-compliance made under subsection (1) or (2) at any time if the Ombudsman thinks fit. (16E) (1) A listed authority must submit a description of its complaints handling procedure if the Ombudsman so directs; and must do so within 3 months of being so directed or such other period as the Ombudsman may direct. (2) Sections 16C(3) and 16D(4) are subject to any direction given under this section. (3) Where a listed authority has submitted a description of its complaints handling procedure to the Ombudsman under this Act or otherwise, the authority must provide such additional information in relation to that procedure as the Ombudsman may reasonably request; and must do so within such period as the Ombudsman directs. (16F) The duties in sections 16A(2) and (3) and 16C(2) do not apply to the extent that— (a) the listed authority lacks the necessary powers (other than by virtue of this Act) to ensure compliance with the duties, or (b) the duties are inconsistent with any other enactment. (16G) (1) The Ombudsman must— (a) monitor practice and identify any trends in practice as respects the way in which listed authorities handle complaints, (b) promote best practice in relation to such complaints handling, (c) encourage co-operation and the sharing of best practice among listed authorities in relation to complaints handling. (2) A listed authority must co-operate with the Ombudsman in the exercise of the function in subsection (1). (3) The duty in subsection (2) does not apply to the extent that— (a) the listed authority lacks the necessary powers (other than by virtue of this Act) to ensure compliance with the duty, or (b) the duty is inconsistent with any other enactment.

.

Part 9 — Charities

Information to appear on charity websites

120

• (1) In section 15 of the 2005 Act (references in documents), after subsection (2) insert—

(3) For the purposes of this section, a reference to a document issued or signed on behalf of the charity includes a reference to a web page on a website operated by or on behalf of the charity.

.

• (2) In section 52 of that Act (name and status of Scottish charitable incorporated organisations), after subsection (4) insert—

(5) For the purposes of this section, a reference to a document— (a) issued by or on behalf of the SCIO, or (b) signed by or on behalf of the SCIO, includes a reference to a web page on a website operated by or on behalf of the SCIO.

.

Variation, revocation and review of directions

121

• (1) In section 30 of the 2005 Act (removal from Register of charity which no longer meets charity test), after subsection (2) insert—

(2A) The power of OSCR to give a direction under subsection (1)(a) includes the power to— (a) vary the direction, but only by— (i) extending the time period specified in the direction, or (ii) removing steps which the charity is required to take, or (b) revoke such a direction.

.

• (2) In section 71 of that Act (decisions), after paragraph (i) insert—

(ia) give a direction under section 30(1)(a),

.

• (3) In section 73(2) of that Act (effect of decisions), after “(i),” insert “ (ia), ”.

Powers of Court of Session: deemed removal of persons

122

In section 34(5) of the 2005 Act (powers of Court of Session), after paragraph (e) insert—

(ea) make an order declaring that any person who was concerned in the management or control of a charity or body is to be treated, for the purpose of section 69(2)(c) (disqualification from being charity trustee) as having been removed from being concerned in the management or control of the charity or body, notwithstanding that— (i) the person is no longer concerned in the management or control of the charity or body, (ii) the body is no longer a charity, (iii) the body is no longer controlled by a charity (or charities), or (iv) the charity or body has ceased to exist,

.

Delegation of functions

123

In section 38(1) of the 2005 Act (exercise of OSCR functions by Scottish Ministers), after “section 30)” insert “ and section 70A ”.

Reorganisation of charities

124

• (1) In section 39 of the 2005 Act (reorganisation of charities: applications by charity)—

• (a) in subsection (1)(b)(ii), after “paragraph (c)” insert “ or (d) ”,

• (b) after subsection (1) insert—

(1A) But OSCR must not approve a reorganisation scheme where— (a) the reorganisation condition satisfied is that set out in section 42(2)(d), and (b) the proposed provision would enable the charity to make amendments to its constitution which would not be consistent with the spirit of the constitution.

.

• (2) In section 40 of that Act (reorganisation of charities: applications by OSCR)—

• (a) in subsection (1)(b)(ii), after “paragraph (c)” insert “ or (d) ”,

• (b) after subsection (2) insert—

(2A) But the Court of Session must not approve a reorganisation scheme where— (a) the reorganisation condition satisfied is that set out in section 42(2)(d), and (b) the proposed provision would enable the charity to make amendments to its constitution which would not be consistent with the spirit of the constitution.

.

• (3) In section 42(2) of that Act (reorganisation: supplementary)—

• (a) the word “and” immediately following paragraph (b) is repealed, and

• (b) after paragraph (c) insert

, and (d) that it is desirable to introduce a provision (other than a provision setting out a new purpose) to a charity's constitution.

.

Reorganisation of restricted funds

125

• (1) After section 43 of the 2005 Act insert—