Health and Social Care Bill

Session 2010 - 12
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Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
174

(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
5
section 71 of the Health and Social Care Act 2012 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
10
(b)
the failure is to be treated for those purposes as significant (and
section 71 of the Health and Social Care Act 2012 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
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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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(3)
In section 65L of that Act (trusts coming out of administration), after subsection
(2) insert—
“(2A)
For the purposes of subsection (1) in its application to the case of an
NHS foundation trust, the reference to section 65K is to be read as a
reference to section 65KD(9); and this section also applies in the case of
25
an NHS foundation trust if—
(a)
the Secretary of State is satisfied as mentioned in section
65KB(1) or 65KD(1) in relation to the trust, and
(b)
the action recommended in the final report is to do something
other than dissolve the trust.
30
(2B)
For the purposes of subsection (2) in its application to the case of an
NHS foundation trust—
(a)
the reference to the Secretary of State is to be read as a reference
to the regulator, and
(b)
the reference to the chairman and directors of the trust is to be
35
read as including a reference to the governors.”
(4)
Omit subsections (3) to (5) of that section.
(5)
At the end of that section insert—
“(6)
Subsection (7) applies in the case of an NHS foundation trust.
(7)
If it appears to the regulator to be necessary in order to comply with
40
Schedule 7, the regulator may by order—
(a)
terminate the office of any governor or of any executive or non-
executive director of the trust;
(b)
appoint a person to be a governor or an executive or non-
executive director of the trust.”
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Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
175

(6)
After that section insert—
“65LA
Trusts to be dissolved
(1)
This section applies if—
(a)
the Secretary of State is satisfied as mentioned in section
65KB(1) or 65KD(1), and
5
(b)
the action recommended in the final report is to dissolve the
NHS foundation trust in question.
(2)
This section also applies if the Secretary of State decides under section
65KD(9) to dissolve the NHS foundation trust in question.
(3)
The regulator may make an order—
10
(a)
dissolving the trust, and
(b)
transferring, or providing for the transfer of, the property and
liabilities of the trust—
(i)
to another NHS foundation trust or the Secretary of
State, or
15
(ii)
between another NHS foundation trust and the
Secretary of State.
(4)
An order under subsection (3) may include provision for the transfer of
employees of the trust.
(5)
The liabilities that may be transferred to an NHS foundation trust by
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virtue of subsection (3)(b) include criminal liabilities.”
(7)
For the cross-heading preceding section 65K substitute “Action by the
Secretary of State and the regulator”.
178
Sections 174 to 177: supplementary
(1)
At the end of section 65M of the National Health Service Act 2006 (replacement
25
of trust special administrator) insert—
“(3)
For the purposes of this section in its application to the case of an NHS
foundation trust, the references to the Secretary of State are to be read
as references to the regulator.”
(2)
In section 65N of that Act (power to issue guidance), after subsection (2)
30
insert—
“(2A)
It must include guidance about the publication of—
(a)
notices under section 65KC(4)(a);
(b)
statements under section 65KC(4)(b).”
(3)
At the end of that section insert—
35
“(4)
For the purposes of this section in its application to cases of NHS
foundation trusts, the reference in subsection (1) to the Secretary of
State is to be read as a reference to the regulator.”
(4)
In section 65O of that Act (interpretation of Chapter 5A), in the definition of
“trust special administrator”, after “65B(6)(a)” insert “, section 65D(2)”.
40
(5)
In section 39 of that Act (register of NHS foundation trusts), in subsection (2),

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
176

at the end insert “,
(g)
a copy of any order made under section 65D, 65J, 65KC, 65L or
65LA,
(h)
a copy of any report laid under section 65D,
(i)
a copy of any information published under section 65D,
5
(j)
a copy of any draft report published under section 65F,
(k)
a copy of any statement provided under section 65F,
(l)
a copy of any notice published under section 65F, 65G, 65H, 65J,
65KA, 65KB, 65KC or 65KD,
(m)
a copy of any statement published or provided under section
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65G,
(n)
a copy of any final report published under section 65I,
(o)
a copy of any statement published under section 65J or 65KC,
(p)
a copy of any information published under section 65M.”
(6)
In section 272 of that Act (orders etc.), in subsection (5), in paragraph (ab)—
15
(a)
after “65B(1),” insert “65D(2),”,
(b)
omit “65E(1),”,
(c)
after “65J(2),” insert “65KC(3),”, and
(d)
for “65L(2), (4) or (5)” substitute “65L(2) or (7), 65LA(3)”.
(7)
After subsection (6) insert—
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“(6ZA)
The Statutory Instruments Act 1946 applies in relation to the power of
the regulator to make an order under Chapter 5A as if the regulator
were a Minister of the Crown.”
(8)
In subsection (6A) of that section—
(a)
after “65B(1),” insert “65D(2),”,
25
(b)
omit “65E(1),”,
(c)
after “65J(2),” insert “65KC(3),”,
(d)
after “65L(2) or (4)” insert “, 65LA(3)”, and
(e)
for “(4)” substitute “(7)”.
(9)
In section 275(1) of that Act (interpretation), in the definition of “NHS trust”,
30
omit the words from “and” to the end.
(10)
In paragraph 22(1) of Schedule 7 to that Act (documents which must be made
available to the public free of charge), at the end insert “,
(g)
a copy of any order made under section 65D, 65J, 65KC, 65L
or 65LA,
35
(h)
a copy of any report laid under section 65D,
(i)
a copy of any information published under section 65D,
(j)
a copy of any draft report published under section 65F,
(k)
a copy of any statement provided under section 65F,
(l)
a copy of any notice published under section 65F, 65G, 65H,
40
65J, 65KA, 65KB, 65KC or 65KD,
(m)
a copy of any statement published or provided under section
65G,
(n)
a copy of any final report published under section 65I,
(o)
a copy of any statement published under section 65J or 65KC,
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(p)
a copy of any information published under section 65M.”

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
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(11)
In section 206(1) of the National Health Service (Wales) Act 2006, in the
definition of “NHS trust”, omit the words from “(including” to the end.
Abolition of NHS trusts
179
Abolition of NHS trusts in England
(1)
The NHS trusts established under section 25 of the National Health Service Act
5
2006 are abolished.
(2)
Chapter 3 of Part 2 of that Act (NHS trusts) is repealed.
(3)
Where arrangements (“franchise arrangements”) under which a person
exercises (or is to exercise) the main functions of an NHS trust on behalf of the
trust are in force immediately before the commencement of this section, the
10
trust is to continue after that commencement to be constituted as an NHS trust
until—
(a)
it is dissolved or becomes, merges with or is acquired by an NHS
foundation trust,
(b)
where none of those events occurs before the end of the period of three
15
years beginning with the day on which the franchise arrangements
come to an end, the end of that period, or
(c)
where other franchise arrangements come into force before the end of
that period, the end of the period of three years beginning with the day
on which those other franchise arrangements or any subsequent
20
franchise arrangements come to an end.
(4)
In subsection (3)(c), the reference to subsequent franchise arrangements is a
reference to franchise arrangements which come into force before the end of
the period of three years beginning with the day on which the preceding
franchise arrangements come to an end.
25
(5)
For the purposes of subsection (3)—
(a)
Chapter 3 of Part 2 of the National Health Service Act 2006 is, despite
subsection (2), to continue to have effect,
(b)
the amendments made by Schedule 14 are not to have effect (and
subsection (6) is to be read accordingly), and
30
(c)
the amendments made by paragraph 9 of Schedule 21 are not to have
effect (and section 297 is to be read accordingly).
(6)
Schedule 14 (which contains consequential amendments) has effect.
180
Repeal of provisions on authorisation for NHS foundation trusts
(1)
Omit section 33 of the National Health Service Act 2006 (application by NHS
35
trust for authorisation).
(2)
Omit section 35 of that Act (authorisation of NHS foundation trust).
(3)
Omit section 36(1), (3) and (4) of that Act (NHS trust to become NHS
foundation trust on being given authorisation but retain liabilities); in
consequence of that, omit section 88 of this Act (licences to provide health care
40
services: NHS foundation trusts).
(4)
For the title to section 36 of that Act substitute “Status etc. of NHS foundation
trusts”.

Health and Social Care Bill
Part 5 — Public involvement and local government
Chapter 1 — Public involvement
178

(5)
For the cross-heading preceding section 33 of that Act substitute “Status etc. of
NHS foundation trusts”.
(6)
Omit paragraph 19 of Schedule 7 to that Act and the preceding cross-heading
(initial directors of former NHS trust).
(7)
Despite the preceding provisions of this section, sections 33, 35 and 36(1), (3)
5
and (4) of, and paragraph 19 of Schedule 7 to, that Act, and section 88(1) and
(2) of this Act, continue to have effect in the case of an NHS trust continuing in
existence by virtue of section 179(3).
(8)
The repeal by subsection (3) of section 36(4) of that Act does not affect the
continuity of anything continuing by virtue of that provision immediately
10
before the commencement of this section.
Part 5
Public involvement and local government
Chapter 1
Public involvement
15
Healthwatch England
181
Healthwatch England
(1)
The Health and Social Care Act 2008 is amended as follows.
(2)
In Schedule 1 (the Care Quality Commission: constitution, etc.), in paragraph
6, after sub-paragraph (1) insert—
20
   “(1A)
A committee of the Commission known as “the Healthwatch
England committee” is to be appointed in accordance with
regulations.
     (1B)
The purpose of the Healthwatch England committee is to provide the
Commission or other persons with advice, information or other
25
assistance in accordance with provision made by or under this or any
other Act.”
(3)
After sub-paragraph (5) insert—
   “(5A)
Regulations under sub-paragraph (1A) must make provision
requiring a person who has power to appoint a member of the
30
Healthwatch England committee to secure that a majority of the
members of the committee are not members of the Commission.
     (5B)
Regulations under sub-paragraph (1A) may specify other results
which a person who has power to appoint a member of the
committee must secure.
35
     (5C)
Regulations under sub-paragraph (1A) may, in particular, make
provision as to—
(a)
eligibility for appointment;
(b)
procedures for selecting or proposing persons for
appointment.
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Health and Social Care Bill
Part 5 — Public involvement and local government
Chapter 1 — Public involvement
179

     (5D)
Regulations under sub-paragraph (1A) may, in particular, make
provision as to—
(a)
the removal or suspension of members of the committee;
(b)
the payment of remuneration and allowances to members.”
(4)
In Chapter 3 of Part 1 (quality of health and social care), before section 46 and
5
the preceding cross-heading insert—
“Healthwatch England and Local Healthwatch organisations
45A
Functions to be exercised by Healthwatch England
(1)
The Commission has the functions set out in subsections (2) to (5), but
must arrange for the Healthwatch England committee to exercise the
10
functions on its behalf.
(2)
The function in this subsection is to provide Local Healthwatch
organisations with general advice and assistance in relation to—
(a)
the making of arrangements under section 221(1) of the Local
Government and Public Involvement in Health Act 2007 (local
15
care services);
(b)
the making of arrangements in pursuance of arrangements
made under section 221(1) of that Act (see section 222(2B) of that
Act);
(c)
the carrying on of activities specified in section 221(2) of that
20
Act.
(3)
The function in this subsection is a power to make recommendations of
a general nature to English local authorities about the making of
arrangements under section 221(1) of that Act.
(4)
The function in this subsection is a power, where the Healthwatch
25
England committee is of the opinion that the activities specified in
section 221(2) of that Act are not being carried on properly in an English
local authority’s area, to give the authority concerned written notice of
its opinion.
(5)
The function in this subsection is to provide the persons mentioned in
30
subsection (6) with information and advice on—
(a)
the views of people who use health or social care services and of
other members of the public on their needs for and experiences
of health and social care services, and
(b)
the views of Local Healthwatch organisations and of other
35
persons on the standard of provision of health and social care
services and on whether or how the standard could or should
be improved.
(6)
The persons referred to in subsection (5) are—
(a)
the Secretary of State;
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(b)
the National Health Service Commissioning Board;
(c)
Monitor;
(d)
English local authorities.
(7)
A person provided with advice under subsection (5) must inform the
Healthwatch England committee in writing of its response or proposed
45
response to the advice.

Health and Social Care Bill
Part 5 — Public involvement and local government
Chapter 1 — Public involvement
180

(8)
The Healthwatch England committee may provide the Commission
with information and advice on the matters mentioned in subsection
(5)(a) and (b); and the Commission must inform the committee in
writing of its response or proposed response to the advice.
(9)
The Commission must publish details of arrangements it makes under
5
subsection (1) (including details of payments of remuneration or other
amounts); and inclusion of the details in a report under section 83 is not
to be regarded as a discharge of the duty imposed by this subsection.
(10)
In performing functions under this section, the Healthwatch England
committee must have regard to such aspects of government policy as
10
the Secretary of State may direct.
45B
Conflicts of interest
(1)
In making arrangements under section 45A(1), the Commission must
have regard to any conflicts guidance issued by the Secretary of State.
(2)
In exercising functions on behalf of the Commission, the Healthwatch
15
England committee must have regard to any conflicts guidance issued
by the Secretary of State.
(3)
In this section, “conflicts guidance” means guidance about managing
conflicts between—
(a)
the exercise of functions by the Commission, and
20
(b)
the exercise of functions by the Healthwatch England
committee on the Commission’s behalf.
45C
Reports
(1)
As soon as possible after the end of each financial year, the
Healthwatch England committee—
25
(a)
must make a report to the Commission (whether or not in
writing) on the matters mentioned in section 45A(5)(a) and (b),
and
(b)
must publish a report on the way in which it has exercised
during the year the functions exercisable by it.
30
(2)
The committee must—
(a)
lay before Parliament a copy of each report made under
subsection (1)(b), and
(b)
send a copy of each such report to the Secretary of State and to
every Local Healthwatch organisation.
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(3)
The committee may publish other reports at such times, and on such
matters relating to health or social care, as it thinks appropriate.
(4)
Where a recommendation is made to the committee under section
221(2)(h) of the Local Government and Public Involvement in Health
Act 2007 (reports under subsection (3)), the committee must have
40
regard to the recommendation.
(5)
Before publishing a report under subsection (1)(b) or (3), the committee
must, so far as practicable, exclude any matter which relates to the
private affairs of an individual the publication of which, in the
committee’s opinion, would or might seriously and prejudicially affect
45
that individual’s interests.