Session 2010 - 12
Internet Publications
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

15

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.”

20

(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.”

45

 
 

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

20

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

10

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—

20

“(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,

45

(p)   

a copy of any information published under section 65M.”

 
 

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

177

 

(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.

40

 
 

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;

40

(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.

35

(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.

 
 

 
previous section contents continue
 

© Parliamentary copyright
Revised 15 March 2012