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Consideration of Bill: 6 September 2011                  

2995

 

Health and Social Care (Re-Committed) Bill, continued

 
 

John Healey

 

Liz Kendall

 

Emily Thornberry

 

Derek Twigg

 

Andrew George

 

Owen Smith

 

1166

 

Page  159,  line  2,  leave out Clause 167.

 


 

Mr Secretary Lansley

 

185

 

Page  160,  line  24  [Clause  171],  after ‘(1)’, insert ‘—

 

(a)    

in paragraph (b), after “NHS trust” insert “established under section 25”,

 

and

 

(b)    

’.

 


 

Mr Secretary Lansley

 

186

 

Page  161,  line  8  [Clause  172],  after second ‘trust’, insert ‘established under section

 

25’.

 


 

Mr Secretary Lansley

 

187

 

Page  163,  line  12  [Clause  175],  at end insert—

 

‘( )    

In section 271(3)(b) of that Act (territorial limit of exercise of functions under

 

Chapter 5), for “Part 1” substitute “Part 2”.’.

 

John Healey

 

Liz Kendall

 

Emily Thornberry

 

Derek Twigg

 

Owen Smith

 

20

 

Page  163,  line  14,  leave out Clause 176.

 

Mr Secretary Lansley

 

188

 

Page  163,  line  17  [Clause  176],  leave out subsection (2) and insert—

 

‘(2)    

Omit sections 53 to 55 of, and Schedule 9 to, that Act (voluntary arrangements

 

and dissolution); and in consequence of that—

 

(a)    

in section 57 of that Act (as amended by section 175 of this Act)—

 

(i)    

in subsection (3)(a), for “the persons mentioned in section 54(4)”

 

substitute “another NHS foundation trust, an NHS trust

 

established under section 25 or the Secretary of State”,


 
 

Consideration of Bill: 6 September 2011                  

2996

 

Health and Social Care (Re-Committed) Bill, continued

 
 

(ii)    

omit subsection (3)(b), and

 

(iii)    

in subsection (4), for “any of the bodies mentioned in section

 

54(4)(a) or (c)” substitute “another NHS foundation trust or an

 

NHS trust established under section 25”,

 

(b)    

in section 64(4) of that Act (as amended by section 175 of this Act), omit

 

paragraph (b) (but not the following “or”), and

 

(c)    

omit section 18(2) to (6) and (11) of the Health Act 2009.’.

 

Mr Secretary Lansley

 

189

 

Page  163,  line  39  [Clause  177],  at end insert—

 

‘(1A)    

For the title to section 65B of that Act substitute “NHS trusts: appointment of

 

trust special administrator”.

 


 

Mr Secretary Lansley

 

190

 

Page  164,  line  6  [Clause  177],  after ‘trust.’, insert—

 

‘(3)    

As soon as reasonably practicable after the making of an order under

 

subsection (2), the Care Quality Commission must provide to the

 

regulator a report on the safety and quality of the services that the trust

 

provides under this Act.’.

 

Mr Secretary Lansley

 

191

 

Page  164,  line  12  [Clause  177],  leave out ‘(but not the “and” following it)’.

 

Mr Secretary Lansley

 

192

 

Page  164,  line  12  [Clause  177],  at end insert—

 

‘( )    

in paragraph (c), omit “goods or”’.

 

Mr Secretary Lansley

 

193

 

Page  164,  line  12  [Clause  177],  at end insert ‘, and

 

( )    

after paragraph (c) insert “, and

 

(d)    

the Care Quality Commission.”’.

 

Mr Secretary Lansley

 

194

 

Page  164,  line  26  [Clause  177],  at end insert—

 

‘(8A)    

A person appointed as a trust special administrator under this section

 

must manage the trust’s affairs, business and property, and exercise the

 

trust special administrator’s functions, so as to achieve the objective set

 

out in section 65DA as quickly and as efficiently as is reasonably

 

practicable.’


 
 

Consideration of Bill: 6 September 2011                  

2997

 

Health and Social Care (Re-Committed) Bill, continued

 
 

Mr Secretary Lansley

 

195

 

Page  164,  line  34  [Clause  177],  leave out ‘The Secretary of State’ and insert ‘The

 

regulator’.

 

Mr Secretary Lansley

 

196

 

Page  164,  line  35  [Clause  177],  leave out ‘the Secretary of State’ and insert ‘the

 

regulator’.

 

Mr Secretary Lansley

 

197

 

Page  164,  line  42  [Clause  178],  leave out from ‘(2)’ to end of line 43 and insert ‘—

 

(a)    

before paragraph (a) insert—

 

“(za)    

the Board,”, and

 

(b)    

omit paragraph (a) (but not the following “and”).’.

 


 

Mr Secretary Lansley

 

198

 

Page  165,  line  4  [Clause  178],  after ‘regulator.’, insert—

 

‘(5)    

In the case of an NHS foundation trust, the administrator may not provide

 

the draft report to the regulator under subsection (1)—

 

(a)    

without having obtained from each commissioner a statement

 

that the commissioner considers that the recommendation in the

 

draft report would achieve the objective set out in section 65DA,

 

or

 

(b)    

where the administrator does not obtain a statement to that effect

 

from one or more commissioners (other than the Board), without

 

having obtained a statement to that effect from the Board.

 

(6)    

Where the Board decides not to provide to the administrator a statement

 

to that effect, the Board must—

 

(a)    

give a notice of the reasons for its decision to the administrator

 

and to the regulator;

 

(b)    

publish the notice;

 

(c)    

lay a copy of it before Parliament.

 

(7)    

In subsection (5), “commissioner” means a person to which the trust

 

provides services under this Act.’.

 

Mr Secretary Lansley

 

199

 

Page  165,  line  4  [Clause  178],  at end insert—

 

‘( )    

At the end of section 65G of that Act (consultation plan) insert—

 

“(4)    

In the case of an NHS foundation trust, the administrator may not make

 

a variation to the draft report following the consultation period—

 

(a)    

without having obtained from each commissioner a statement

 

that the commissioner considers that the recommendation in the


 
 

Consideration of Bill: 6 September 2011                  

2998

 

Health and Social Care (Re-Committed) Bill, continued

 
 

draft report as so varied would achieve the objective set out in

 

section 65DA, or

 

(b)    

where the administrator does not obtain a statement to that effect

 

from one or more commissioners (other than the Board), without

 

having obtained a statement to that effect from the Board.

 

(5)    

Where the Board decides not to provide to the administrator a statement

 

to that effect, the Board must—

 

(a)    

give a notice of the reasons for its decision to the administrator

 

and to the regulator;

 

(b)    

publish the notice;

 

(c)    

lay a copy of it before Parliament.

 

(6)    

In subsection (4), “commissioner” means a person to which the trust

 

provides services under this Act.”’.

 

Mr Secretary Lansley

 

200

 

Page  165,  line  5  [Clause  178],  leave out from ‘(7)’ to end of line 7 and insert ‘—

 

(a)    

before paragraph (a) insert—

 

“(za)    

the Board,”,

 

(b)    

omit paragraph (a),

 

(c)    

in paragraph (b), omit “, if required by directions given by the Secretary

 

of State”, and

 

(d)    

after paragraph (c) insert “;

 

(d)    

any other person specified in a direction given by the

 

Secretary of State.”’.

 

Mr Secretary Lansley

 

201

 

Page  165,  line  8  [Clause  178],  leave out from ‘section,’ to end of line 10 and insert

 

‘omit paragraphs (a) to (d)’.

 

Mr Secretary Lansley

 

202

 

Page  165,  line  10  [Clause  178],  at end insert—

 

‘( )    

In subsection (9) of that section—

 

(a)    

after “representatives of” insert “the Board and”, and

 

(b)    

for “(7)(a) or (b)” substitute “(7)(b), (c) or (d)”.’.

 

Mr Secretary Lansley

 

203

 

Page  165,  line  13  [Clause  178],  after ‘trust’, insert ‘—

 

(a)    

in subsection (7)(b), the words “goods or” are to be ignored, and

 

(b)    

in subsections (7)(d) and (10),’.

 

Mr Secretary Lansley

 

204

 

Page  165,  line  14  [Clause  178],  after ‘regulator.’, insert—

 

‘(13)    

In the case of an NHS foundation trust, the Secretary of State may direct

 

the regulator as to persons from whom it should direct the administrator

 

under subsection (10) to request or seek a response.’.


 
 

Consideration of Bill: 6 September 2011                  

2999

 

Health and Social Care (Re-Committed) Bill, continued

 
 

Mr Secretary Lansley

 

205

 

Page  165,  line  25  [Clause  179],  for subsection (1) substitute—

 

‘(1)    

In section 65K of the National Health Service Act 2006 (Secretary of State’s

 

decision on what action to take), in subsection (1), after “a final report under

 

section 65I” insert “relating to an NHS trust”; and in consequence of that, for the

 

title to that section substitute “Secretary of State’s decision in case of NHS trust”.

 

(1A)    

After that section insert—

 

“65KA

Regulator’s decision in case of NHS foundation trust

 

(1)    

Within the period of 20 working days beginning with the day on which

 

the regulator receives a final report under section 65I relating to an NHS

 

foundation trust, the regulator must decide whether it is satisfied—

 

(a)    

that the action recommended in the final report would achieve

 

the objective set out in section 65DA, and

 

(b)    

that the trust special administrator has carried out the

 

administration duties.

 

(2)    

In subsection (1)(b), “administration duties” means the duties imposed

 

on the administrator by—

 

(a)    

this Chapter,

 

(b)    

a direction under this Chapter, or

 

(c)    

the administrator’s terms of appointment.

 

(3)    

If the regulator is satisfied as mentioned in subsection (1), it must as soon

 

as reasonably practicable provide to the Secretary of State—

 

(a)    

the final report, and

 

(b)    

the report provided to the regulator by the Care Quality

 

Commission under section 65D(3).

 

(4)    

If the regulator is not satisfied as mentioned in subsection (1), it must as

 

soon as reasonably practicable give a notice of that decision to the

 

administrator.

 

(5)    

Where the regulator gives a notice under subsection (4), sections 65F to

 

65J apply in relation to the trust to such extent, and with such

 

modifications, as the regulator may specify in the notice.

 

(6)    

The regulator must as soon as reasonably practicable after giving a notice

 

under subsection (4)—

 

(a)    

publish the notice;

 

(b)    

lay a copy of it before Parliament.

 

65KB  

Secretary of State’s response to regulator’s decision

 

(1)    

Within the period of 30 working days beginning with the day on which

 

the Secretary of State receives the reports referred to in section 65KA(3),

 

the Secretary of State must decide whether the Secretary of State is

 

satisfied—

 

(a)    

that the persons to which the NHS foundation trust in question

 

provides services under this Act have discharged their functions

 

for the purposes of this Chapter,

 

(b)    

that the trust special administrator has carried out the

 

administration duties (within the meaning of section

 

65KA(1)(b)),


 
 

Consideration of Bill: 6 September 2011                  

3000

 

Health and Social Care (Re-Committed) Bill, continued

 
 

(c)    

that the regulator has discharged its functions for the purposes of

 

this Chapter,

 

(d)    

that the action recommended in the final report would secure the

 

continued provision of the services provided by the trust to

 

which the objective set out in section 65DA applies,

 

(e)    

that the recommended action would secure the provision of

 

services that are of sufficient safety and quality to be provided

 

under this Act, and

 

(f)    

that the recommended action would provide good value for

 

money.

 

(2)    

If the Secretary of State is not satisfied as mentioned in subsection (1),

 

the Secretary of State must as soon as reasonably practicable—

 

(a)    

give the trust special administrator a notice of the decision and of

 

the reasons for it;

 

(b)    

give a copy of the notice to the regulator;

 

(c)    

publish the notice;

 

(d)    

lay a copy of it before Parliament.

 

65KC  

Action following Secretary of State’s rejection of final report

 

(1)    

Within the period of 20 working days beginning with the day on which

 

the trust special administrator receives a notice under section 65KB(2),

 

the administrator must provide to the regulator the final report varied so

 

far as the administrator considers necessary to secure that the Secretary

 

of State is satisfied as mentioned in section 65KB(1).

 

(2)    

Where the administrator provides to the regulator a final report under

 

subsection (1), section 65KA applies in relation to the report as it applies

 

in relation to a final report under section 65I; and for that purpose, that

 

section has effect as if—

 

(a)    

in subsection (1), for “20 working days” there were substituted

 

“10 working days”, and

 

(b)    

subsection (3)(b) were omitted.

 

(3)    

If the Secretary of State thinks that, in the circumstances, it is not

 

reasonable for the administrator to be required to carry out the duty under

 

subsection (1) within the period mentioned in that subsection, the

 

Secretary of State may by order extend the period.

 

(4)    

If an order is made under subsection (3), the administrator must—

 

(a)    

publish a notice stating the date on which the period will expire,

 

and

 

(b)    

where the administrator is proposing to carry out consultation in

 

response to the notice under section 65KB(2), publish a

 

statement setting out the means by which the administrator will

 

consult during the extended period.

 

65KD  

Secretary of State’s response to re-submitted final report

 

(1)    

Within the period of 30 working days beginning with the day on which

 

the Secretary of State receives a final report under section 65KA(3) as

 

applied by section 65KC(2), the Secretary of State must decide whether

 

the Secretary of State is, in relation to the report, satisfied as to the

 

matters in 65KB(1)(a) to (f).


 
 

Consideration of Bill: 6 September 2011                  

3001

 

Health and Social Care (Re-Committed) Bill, continued

 
 

(2)    

If the Secretary of State is not satisfied as mentioned in subsection (1),

 

the Secretary of State must as soon as reasonably practicable—

 

(a)    

publish a notice of the decision and the reasons for it;

 

(b)    

lay a copy of the notice before Parliament.

 

(3)    

Where the Secretary of State publishes a notice under subsection (2)(a),

 

subsections (4) to (8) apply.

 

(4)    

If the notice states that the Board has failed to discharge a function—

 

(a)    

the Board is to be treated for the purposes of this Act as having

 

failed to discharge the function, and

 

(b)    

the failure is to be treated for those purposes as significant (and

 

section 13Z1 applies accordingly).

 

(5)    

If the notice states that a clinical commissioning group has failed to

 

discharge a function—

 

(a)    

the group is to be treated for the purposes of this Act as having

 

failed to discharge the function,

 

(b)    

the Secretary of State may exercise the functions of the Board

 

under section 14Z19(2), (3)(a) and (8)(a), and

 

(c)    

the Board may not exercise any of its functions under section

 

14Z19.

 

(6)    

Where, by virtue of subsection (5)(b), the Secretary of State exercises the

 

function of the Board under subsection (3)(a) of section 14Z19,

 

subsection (9)(a) of that section applies but with the substitution for the

 

references to the Board of references to the Secretary of State.

 

(7)    

If the notice states that the trust special administrator has failed to

 

discharge the administration duties (within the meaning of section

 

65KA(1)(b))—

 

(a)    

the administration duties are to be treated for the purposes of this

 

Act as functions of the regulator,

 

(b)    

the regulator is to be treated for the purposes of this Act as having

 

failed to discharge those functions, and

 

(c)    

the failure is to be treated for those purposes as significant (and

 

section 66 of the Health and Social Care Act 2011 applies

 

accordingly, but with the omission of subsection (3)).

 

(8)    

If the notice states that the regulator has failed to discharge a function—

 

(a)    

the regulator is to be treated for the purposes of this Act as having

 

failed to discharge the function, and

 

(b)    

the failure is to be treated for those purposes as significant (and

 

section 66 of the Health and Social Care Act 2011 applies

 

accordingly, but with the omission of subsection (3)).

 

(9)    

Within the period of 60 working days beginning with the day on which

 

the Secretary of State publishes a notice under subsection (2)(a), the

 

Secretary of State must decide what action to take in relation to the trust.

 

(10)    

The Secretary of State must as soon as reasonably practicable—

 

(a)    

publish a notice of the decision and the reasons for it;

 

(b)    

lay a copy of the notice before Parliament.”’.

 



 
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