The National Health Service (Direct Payments) Regulations 2010
| Jurisdiction | UK Non-devolved |
| Citation | SI 2010/1000 |
| Year | 2010 |
2010 No. 1000
National Health Service, England
The National Health Service (Direct Payments) Regulations 2010
Made 25th March 2010
Laid before Parliament 29th March 2010
Coming into force 1st June 2010
The Secretary of State for Health makes the following Regulations in exercise of the powers conferred by sections 8(1), 12A(4), 12B(1) to (4), 12C(1) to (6), 75, 272(7) and (8) and 273(4) of the National Health Service Act 20061.
PART 1
Introductory
Introductory
1.—(1) These Regulations may be cited as the National Health Service (Direct Payments) Regulations 2010 and shall come into force on 1st June 2010.
(2) In these Regulations—
“the 2002 Act” means the National Health Service Reform and Health Care Professions Act 20022;
“the 2005 Act” means the Mental Capacity Act 20053;
“after-care PCT” means a pilot PCT which may make direct payments under regulation 2(7) in accordance with its pilot scheme;
“after-care services” means services that must be provided by a Primary Care Trust under section 117 of the Mental Health Act 1983 (after-care)4;
“care plan” means a plan prepared in accordance with regulation 11;
“child” means a person under the age of 16;
“nominee” has the meaning given in regulation 9(1) and (2);
“parental responsibility” has the meaning given in section 3 of the Children Act 1989 (meaning of parental responsibility)5;
“patient” means a person to or in respect of whom direct payments may be made in accordance with regulation 7 or 8(1) to (4) or (7);
“pilot PCT” means a Primary Care Trust6in respect of which the Secretary of State has made a pilot scheme;
“regulated activity” has the meaning given in section 8 of the Health and Social Care Act 2008 (regulated activity)7;
“relevant services for a disabled person” means any services in relation to which direct payments regulations, within the meaning of section 42 of the Welfare Reform Act 2009 (provision that may be made about direct payments)8, have been made;
“relevant services for social care” means relevant services within the meaning of the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 20099;
“representative” means—
(a) in the case of a person in respect of whom any deputy has been appointed by the Court of Protection under section 16(2)(b) of the 2005 Act (powers to appoint deputies) to make decisions on that person’s behalf in relation to matters in respect of which direct payments may be made, any such deputy;
(b) in the case of a person who has appointed any donee of a lasting power of attorney within the meaning of section 9 of the 2005 Act (lasting powers of attorney) to make decisions on that person’s behalf in relation to matters in respect of which direct payments may be made, any such donee;
(c) in the case of a person who has created an enduring power of attorney within the meaning of Schedule 4 to the 2005 Act (provisions applying to existing enduring powers of attorney), which is registered in accordance with paragraphs 4 and 13 of that Schedule or in respect of which an application has been made for such registration, any attorney in whom the power is vested;
(d) in the case of a child, any person with parental responsibility for the child;
(e) in the case of a person aged 16 or over but who lacks capacity and in respect of whom there is a person with parental responsibility, any such person with parental responsibility; or
(f) in the case of a person in respect of whom a person has been appointed under regulation 8(4), that other person.
(3) In determining for the purposes of these Regulations what is in the best interests of a patient, other than a child, the person making the determination must comply with the requirements specified in section 4(1) to (7) of the 2005 Act (best interests).
PART 2
Pilot Schemes
Secretary of State’s power to make a pilot scheme
2.—(1) The Secretary of State may make pilot schemes in accordance with which direct payments may be made.
(2) The Secretary of State may make a pilot scheme only in response to a pilot proposal made in accordance with regulation 3.
(3) If a pilot proposal is submitted to the Secretary of State, the Secretary of State may make a pilot scheme—
(a)
(a) in accordance with the terms of the pilot proposal; or
(b)
(b) with provisions which differ from the terms of the pilot proposal, but which the Secretary of State considers appropriate in the interests of the health service10.
(4) The pilot scheme made by the Secretary of State may include, as respects payments to which the scheme applies, any provision within section 12B(2) of the National Health Service Act 2006 (regulations about direct payments).
(5) The Secretary of State may not make a pilot scheme for the whole of England.
(6) Where the Secretary of State has made a pilot scheme, the Secretary of State may direct11a pilot PCT to exercise—
(a)
(a) his powers to make a direct payment12in accordance with that scheme; and
(b)
(b) his functions in relation to the making of payments under that scheme under the following provisions—
(i) regulation 8(4) and (6) to (8),
(ii) regulation 9(1)(c), (4)(b) and (5),
(iii) regulations 10 to 13,
(iv) regulation 14(3), (5), (8) and (9),
(v) regulation 15(c), and
(vi) regulations 16 to 20.
(7) Where the Secretary of State has made a pilot scheme which includes provision for the making of direct payments for the purpose of securing the provision of after-care services, the pilot PCT may make direct payments in accordance with these Regulations.
Pilot proposal for direct payments for health care
3.—(1) A Primary Care Trust which seeks to become a pilot PCT must make a pilot proposal and submit it to the Secretary of State.
(2) A pilot proposal must specify—
(a)
(a) the name of the proposed pilot PCT;
(b)
(b) if there is more than one proposed pilot PCT, the name of the proposed pilot PCT which is to be principally responsible for the operation of the proposed pilot scheme;
(c)
(c) the geographical area in respect of which the proposed pilot scheme will operate;
(d)
(d) the health needs in respect of which services to patients may be secured by means of direct payments made in accordance with the proposed pilot scheme;
(e)
(e) whether the proposed pilot PCT intends to secure the provision of after-care services under the proposed pilot scheme;
(f)
(f) the other criteria by which patients who may benefit under the proposed pilot scheme may be identified;
(g)
(g) the period for which the proposed pilot scheme is to have effect; and
(h)
(h) any other provisions to be included in the proposed pilot scheme.
(3) The period mentioned in paragraph (2)(g) must not exceed three years.
(4) A Primary Care Trust making a pilot proposal must ensure that the proposals for the provisions to be included in the proposed pilot scheme, as respects the making of direct payments, are compatible with the requirements of regulations 7 to 20.
Secretary of State’s powers in relation to a pilot scheme
4.—(1) The Secretary of State may at any time amend a pilot scheme by a notice in writing to the pilot PCT if he considers that the amendment is appropriate in the interests of the health service.
(2) An amendment under paragraph (1) may include—
(a)
(a) an extension of the period for which a pilot scheme has effect, but the maximum period for which the pilot scheme has effect must not exceed five years; or
(b)
(b) an additional restriction or obligation imposed on the pilot PCT in relation to the pilot scheme.
(3) The Secretary of State may require a pilot PCT to notify the Secretary of State in writing of the intended arrangements to provide for continuity of care for patients on expiry of the pilot scheme, including—
(a)
(a) arrangements for services to be procured for a patient by means of a direct payment under another pilot scheme; or
(b)
(b) arrangements to continue to provide services to a patient by means other than by a direct payment.
(4) The Secretary of State may at any time revoke a pilot scheme by notice in writing to the pilot PCT if he considers that revocation is appropriate in the interests of the health service.
Review of pilot schemes
5.—(1) The Secretary of State must in relation to each pilot scheme—
(a)
(a) arrange for a person independent of the Secretary of State to review the pilot scheme; or
(b)
(b) require a pilot PCT to arrange for a person not employed or otherwise engaged by the pilot PCT or the Secretary of State to review the pilot scheme of the pilot PCT.
(2) Arrangements under paragraph (1) may provide for the person to conduct a review of a pilot scheme in conjunction with a review of one or more other pilot schemes.
(3) A review may be commenced at any time but must be completed within a reasonable time following the expiry of the period for which the pilot scheme is to have effect.
(4) The findings of a review must be published by the Secretary of State on completion of the review.
(5) The Secretary of State or pilot PCT may require that the following matters are considered as part of a review of a pilot scheme—
(a)
(a) the effect of direct payments on the health, well-being and satisfaction of—
(i) patients,
(ii) representatives,
(iii) nominees,
(iv) persons with parental responsibility for a child,
(v) persons who principally care for a child, and
(vi) carers who normally provide unpaid care for a member of the carer’s family or a friend;
(b)
(b) substantial differences in relation to the use of direct payments for, by or in respect of patients, or the effect on the health, well-being or satisfaction of patients, who vary one from another in—
(i) socio-economic background,
(ii) age,
(iii) gender,
(iv) ethnicity,
(v) disability, or
(vi) health needs;
(c)
(c) the effect of...
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