Health and Social Care Bill (HL Bill 132)

(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) 5Where 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) 10lay a copy of it before Parliament.

(7) In subsection (5), “commissioner” means a person to which the trust
provides services under this Act.”

(3) 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
15a 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 draft report as so varied would achieve the objective set out
in section 65DA, or

(b) 20where 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
25statement 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) 30In subsection (4), “commissioner” means a person to which the trust
provides services under this Act.”

(4) In section 65H of that Act (consultation requirements), in subsection (7)—

(a) before paragraph (a) insert—

“(za) the Board,”,

(b) 35omit 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
40Secretary of State.”

(5) In subsection (8) of that section, omit paragraphs (a) to (d).

(6) 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)”.

(7) At the end of that section insert—

“(12) For the purposes of this section in its application to the case of an NHS
foundation trust—

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

(b) 5in subsections (7)(c) and (d) and (10), the references to the
Secretary of State are to be read as references to the regulator.

(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.”

(8) 10At the end of section 65I of that Act (administrator’s final report) insert—

“(4) 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.”

(9) At the end of section 65J of that Act (power to extend time limits for preparing
15reports and carrying out consultation) insert—

“(5) 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.”

177 Action following final report

(1) 20In 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”.

(2) 25After 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
30satisfied—

(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) 35In 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) 40If 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
565J 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) 10lay 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
15satisfied—

(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
20administration duties (within the meaning of section
65KA(1)(b)),

(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
25the 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) 30that 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
35of 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) 40Within 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) 45Where 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
5reasonable 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,
10and

(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 15Secretary 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
20matters in 65KB(1)(a) to (f).

(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) 25Where 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) 30the 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
35failed 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) 40Where, 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
45discharge 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) 5the 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)).

(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
10having failed to discharge the function, and

(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
15the 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) 20lay a copy of the notice before Parliament.”

(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
25reference to section 65KD(9); and this section also applies in the case of
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
30other than dissolve the trust.

(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) 35the reference to the chairman and directors of the trust is to be
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) 40If it appears to the regulator to be necessary in order to comply with
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-
45executive director of the trust.”

(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
565KB(1) or 65KD(1), and

(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) 10The regulator may make an order—

(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
15State, or

(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) 20The liabilities that may be transferred to an NHS foundation trust by
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) 25At the end of section 65M of the National Health Service Act 2006 (replacement
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) 30In section 65N of that Act (power to issue guidance), after subsection (2)
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) 35At the end of that section insert—

“(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
40“trust special administrator”, after “65B(6)(a)” insert “, section 65D(2)”.

(5) In section 39 of that Act (register of NHS foundation trusts), in subsection (2),

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) 5a 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, 65J,
65KA, 65KB, 65KC or 65KD,

(m) 10a 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,

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

(6) 15In section 272 of that Act (orders etc.), in subsection (5), in paragraph (ab)—

(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) 20After subsection (6) insert—

“(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) 25after “65B(1),” insert “65D(2),”,

(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) 30In section 275(1) of that Act (interpretation), in the definition of “NHS trust”,
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
35or 65LA,

(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) 40a 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
65G,

(n) a copy of any final report published under section 65I,

(o) 45a copy of any statement published under section 65J or 65KC,

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

(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) 5The NHS trusts established under section 25 of the National Health Service Act
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
10trust are in force immediately before the commencement of this section, the
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) 15where none of those events occurs before the end of the period of three
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
20on which those other franchise arrangements or any subsequent
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
25franchise arrangements come to an end.

(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
30subsection (6) is to be read accordingly), and

(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) 35Omit section 33 of the National Health Service Act 2006 (application by NHS
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
40consequence of that, omit section 88 of this Act (licences to provide health care
services: NHS foundation trusts).

(4) For the title to section 36 of that Act substitute “Status etc. of NHS foundation
trusts”.

(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) 5Despite the preceding provisions of this section, sections 33, 35 and 36(1), (3)
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
10continuity of anything continuing by virtue of that provision immediately
before the commencement of this section.

Part 5 Public involvement and local government

CHAPTER 1 Public involvement

15Healthwatch 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—

“(1A) 20A 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
25assistance 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
30Healthwatch 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.

(5C) 35Regulations under sub-paragraph (1A) may, in particular, make
provision as to—

(a) eligibility for appointment;

(b) procedures for selecting or proposing persons for
appointment.

(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) 5In Chapter 3 of Part 1 (quality of health and social care), before section 46 and
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
10must arrange for the Healthwatch England committee to exercise the
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
15Government and Public Involvement in Health Act 2007 (local
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) 20the carrying on of activities specified in section 221(2) of that
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) 25The function in this subsection is a power, where the Healthwatch
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) 30The function in this subsection is to provide the persons mentioned in
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) 35the views of Local Healthwatch organisations and of other
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) 40the Secretary of State;

(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
45Healthwatch England committee in writing of its response or proposed
response to the advice.