Health and Care Bill (HL Bill 71)

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for or in connection with the prevention, diagnosis or treatment
of illness, as part of the health service in England;

(c)efficiency and sustainability in relation to the use of resources
by relevant bodies for the purposes of the health service in
5England.

(2)The reference in subsection (1) to a decision does not include a reference
to a decision about the services to be provided to a particular individual
for or in connection with the prevention, diagnosis or treatment of
illness.

(3)10In discharging the duty under this section, NHS trusts must have
regard to guidance published by NHS England under section 13NB.

(4)In this section “relevant bodies” means—

(a)NHS England,

(b)integrated care boards,

(c)15NHS trusts established under section 25, and

(d)NHS foundation trusts.”

46 Oversight and support of NHS trusts

(1)The National Health Service Act 2006 is amended as follows.

(2)After section 27 insert—

27A 20Oversight and support of NHS trusts

NHS England must—

(a)monitor NHS trusts established under section 25 in the carrying
out of their functions, and

(b)provide such advice, guidance or other support as it considers
25appropriate to help NHS trusts established under section 25 in
the carrying out of their functions.”

(3)In Schedule 4—

(a)in paragraph 12 (reports etc), in sub-paragraph (1), for “the Secretary of
State”, in both places it occurs, substitute “NHS England”;

(b)30in paragraph 13 (provision of information by NHS trusts), in sub-
paragraph (1) (as created by section 20(4) of this Act)—

(i)after “the Secretary of State” insert “or NHS England”;

(ii)for “he” substitute “the Secretary of State or NHS England”.

47 Directions to NHS trusts

(1)35The National Health Service Act 2006 is amended as follows.

(2)After section 27A (inserted by section 46 of this Act) insert—

27B NHS England’s directions to NHS trusts

(1)NHS England may give directions to an NHS trust established under
section 25 about its exercise of any functions.

(2)40In so far as a direction under this section conflicts with a direction
under section 8 or paragraph 25(3) of Schedule 4, it is of no effect.”

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(3)In section 73 (directions and regulations under Parts 1 and 2), in subsection (1),
after paragraph (ba) (inserted by section 8 of this Act) insert—

(bb)section 27B,”.

(4)In Schedule 4—

(a)5in paragraph 20 (additional income), in sub-paragraph (2)—

(i)omit the “and” at the end of paragraph (a);

(ii)at the end of paragraph (b) insert “, and

(c)in circumstances specified in directions under
section 27B, with the consent of NHS
10England.”;

(b)in paragraph 25 (staff), in sub-paragraph (3), at the end insert “and any
directions given by NHS England under section 27B”.

48 Recommendations about restructuring of NHS trusts

After section 27B of the National Health Service Act 2006 (inserted by section
1547 of this Act) insert—

27C Recommendations about restructuring

(1)NHS England may—

(a)make recommendations to NHS trusts for or in connection with
the making of restructuring applications;

(b)20take such other steps as it considers appropriate to facilitate
restructuring applications involving NHS trusts.

(2)In this section “restructuring application”, in relation to an NHS trust,
means an application by the NHS trust under—

(a)section 56 (mergers involving NHS foundation trusts);

(b)25section 56A (acquisitions by NHS foundation trusts);

(c)section 69A (transfer of property etc between NHS bodies);

(d)paragraph 28 of Schedule 4 (dissolution of NHS trusts).”

49 Intervention in NHS trusts

After section 27C of the National Health Service Act 2006 (inserted by section
3048 of this Act) insert—

27D Intervention in NHS trusts: recommendations etc by NHS England

(1)If NHS England considers that Secretary of State ought to make an
order under section 66(2) or 68(2) in relation to an NHS trust
established under section 25, NHS England must—

(a)35make a recommendation to that effect,

(b)set out its reasons for the recommendation, and

(c)make any recommendations it considers appropriate as to the
contents of the order.

(2)NHS England must make any inquiries, and provide any other
40assistance, that the Secretary of State may require in connection with
deciding whether to make an order section 66(2) or 68(2) in relation to
an NHS trust established under section 25 and, if so, on what terms.”

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50 NHS trusts: conversion to NHS foundation trusts and dissolution

(1)The National Health Service Act 2006 is amended as follows.

(2)In section 33 (application by NHS trusts to become NHS foundation trusts), in
subsection (1), omit “, if the application is supported by the Secretary of State”.

(3)5In section 35 (authorisation of NHS foundation trusts), in subsection (1), after
“if” insert “the Secretary of State approves the authorisation and”.

(4)In section 57 (supplementary provision in connection with mergers and
acquisitions with NHS foundation trusts), in subsection (5), after “Secretary of
State” insert “or NHS England”.

(5)10In Schedule 4—

(a)in paragraph 28 (power to dissolve NHS trusts)—

(i)in sub-paragraph (1), after “Secretary of State” insert “or NHS
England”;

(ii)after sub-paragraph (1) insert—

(1A)15An order under this paragraph may be made by NHS
England only with the approval of the Secretary of
State.”;

(iii)in sub-paragraphs (2)(b) and (3), after “the Secretary of State”
insert “or NHS England”;

(b)20in paragraph 29 (transfers), for sub-paragraph (1) substitute—

(1)If an NHS trust is dissolved under paragraph 28, the
Secretary of State or NHS England may by order transfer, or
provide for the transfer of, the property and liabilities of the
NHS trust to the Secretary of State or an NHS body; and such
25an order may include provisions corresponding to those of
paragraph 9.”;

(c)in paragraph 30 (transfers: pensions etc), in sub-paragraph (1), after
“he” insert “or NHS England”.

51 Appointment of chair of NHS trusts

30In paragraph 3(1)(a) of Schedule 4 to the National Health Service Act 2006
(appointment of chair of board of directors of NHS trust), for “the Secretary of
State” substitute “NHS England”.

52 Financial objectives for NHS trusts

In paragraph 2 of Schedule 5 of the National Health Service Act 2006 (financial
35obligations of NHS trusts), for sub-paragraphs (2) and (3) substitute—

(2)NHS England may set financial objectives for NHS trusts.

(3)An NHS trust must achieve any financial objectives set under sub-
paragraph (2).

(4)Financial objectives under sub-paragraph (2) may apply to NHS
40trusts generally, or to a particular NHS trust or NHS trusts of a
particular description.”

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NHS foundation trusts

53 Licensing of NHS foundation trusts

In section 88 of the Health and Social Care Act 2012 (application and grant of
licenses: NHS foundation trusts), for subsection (1) substitute—

(1)5This section applies where—

(a)an NHS trust becomes an NHS foundation trust in pursuance of
section 36 of the National Health Service Act 2006 (effect of
authorisation of NHS foundation trust), or

(b)an NHS foundation trust is established under sections 56 or 56B
10of that Act (mergers and separations).”

54 Capital spending limits for NHS foundation trusts

(1)The National Health Service Act 2006 is amended as follows.

(2)After section 42A insert—

42B Limits on capital expenditure

(1)15NHS England may make an order imposing a limit on the capital
expenditure of an NHS foundation trust.

(2)The order must specify—

(a)the trust,

(b)the capital expenditure limit, and

(c)20the period to which the limit relates.

(3)NHS England must consult the trust before making the order.

(4)NHS England must publish each order under this section.

(5)A trust that is the subject of an order under this section must not exceed
the capital expenditure limit imposed by the order during the period to
25which it relates.

(6)In this section “capital expenditure”, in relation to an NHS foundation
trust, means expenditure of the trust which falls to be capitalised in its
annual accounts.

42C Guidance in relation to orders under section 42B

(1)30NHS England must publish guidance about the exercise of its power to
make orders under section 42B, including guidance about—

(a)the circumstances in which it is likely to make an order, and

(b)the method it will use to determine the capital expenditure
limit.

(2)35NHS England must consult the Secretary of State before it publishes
guidance, or revised guidance, under this section.

(3)NHS England must have regard to the guidance in exercising its power
to make orders under section 42B.”

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(3)In section 64 (orders and regulations under Chapter 5), in subsection (1), after
“regulations” insert ”, other than the power to make an order under section
42B,”.

55 Accounts, reports and forward plans

(1)5In the National Health Service Act 2006—

(a)in section 43, omit subsections (3B) and (3C) (requirements relating to
content etc of forward plan for NHS foundation trusts);

(b)in paragraph 27 of Schedule 7, omit sub-paragraphs (2) and (3) (which
require the forward plan to be prepared by the directors etc).

(2)10In the Health and Social Care Act 2012—

(a)omit section 155 (accounts: transfer of functions relating to accounts
from the regulator to the Secretary of State);

(b)in section 156 omit—

(i)subsection (3) (power to provide for content of annual reports
15to be prescribed by regulations rather than determined by the
regulator);

(ii)subsection (4) (duty to give forward plan to Secretary of State,
rather than to the regulator).

56 NHS foundation trusts: joint exercise of functions

20After section 47 of the National Health Service Act 2006 insert—

47A Joint exercise of functions

An NHS foundation trust may enter into arrangements for the carrying
out, on such terms as the NHS foundation trust considers appropriate,
of any of its functions jointly with any other person.”

57 25NHS foundation trusts: mergers, acquisitions and separations

(1)The National Health Service Act 2006 is amended as follows.

(2)In section 56 (mergers)—

(a)in subsection (2), omit paragraph (a);

(b)for subsection (4) substitute—

(4)30NHS England must grant the application if—

(a)it is satisfied that such steps as are necessary to prepare
for the dissolution of the trusts and the establishment of
the new trust have been taken, and

(b)the Secretary of State approves the grant of the
35application,

and must otherwise refuse the application.”

(3)In section 56A (acquisitions)—

(a)in subsection (3), omit paragraph (a) and the “and” at the end;

(b)for subsection (4) substitute—

(4)40NHS England must grant the application if—

(a)it is satisfied that such steps as are necessary to prepare
for the acquisition have been taken, and

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(b)the Secretary of State approves the grant of the
application,

and must otherwise refuse the application.”

(4)In section 56B (separations), for subsection (4) substitute—

(4)5NHS England must grant the application if—

(a)it is satisfied that such steps as are necessary to prepare for the
dissolution of the trust and the establishment of each of the
proposed new trusts have been taken, and

(b)the Secretary of State approves the grant of the application,

10and must otherwise refuse the application.”

58 Transfers on dissolution of NHS foundation trusts

In section 57A of the National Health Service Act 2006 (dissolution)—

(a)in subsection (3), omit paragraph (a) and the “and” at the end;

(b)in subsection (4), for paragraph (b) substitute—

(b)15transferring, or providing for the transfer of, the
property and liabilities (including criminal liabilities) to
another NHS foundation trust, an NHS trust established
under section 25 or the Secretary of State.”;

(c)after subsection (4) insert—

(5)20The order must include provision for the transfer of any
employees of the NHS foundation trust that is dissolved.”

59 NHS foundation trusts: wider effect of decisions

In the National Health Service Act 2006, after section 63 insert—

63A Duty to have regard to wider effect of decisions

(1)25In making a decision about the exercise of its functions, an NHS
foundation trust must have regard to all likely effects of the decision in
relation to—

(a)the health and well-being of the people of England;

(b)the quality of services provided to individuals—

(i)30by relevant bodies, or

(ii)in pursuance of arrangements made by relevant bodies,

for or in connection with the prevention, diagnosis or treatment
of illness, as part of the health service in England;

(c)efficiency and sustainability in relation to the use of resources
35by relevant bodies for the purposes of the health service in
England.

(2)The reference in subsection (1) to a decision does not include a reference
to a decision about the services to be provided to a particular individual
for or in connection with the prevention, diagnosis or treatment of
40illness.

(3)In discharging the duty under this section, NHS foundation trusts must
have regard to guidance published by NHS England under section
13NB.

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(4)In this section “relevant bodies” means—

(a)NHS England,

(b)integrated care boards,

(c)NHS trusts established under section 25, and

(d)5NHS foundation trusts.”

NHS trusts and NHS foundation trusts

60 Transfer schemes between trusts

After section 69 of the National Health Service Act 2006 insert—

“Transfer schemes
69A 10Transfer schemes: NHS trusts and NHS foundation trusts

(1)NHS England may make one or more schemes for the transfer of
property, rights and liabilities from a relevant NHS body to another
relevant NHS body on an application made to it under this section.

(2)The application must—

(a)15be made jointly by the relevant NHS bodies, and

(b)state the property, rights or liabilities to be transferred.

(3)NHS England may grant an application under this section only if it is
satisfied that such steps as are necessary to prepare for the transfer have
been taken.

(4)20The things that may be transferred under a transfer scheme include—

(a)property, rights and liabilities that could not otherwise be
transferred;

(b)property acquired, and rights and liabilities arising, after the
making of the scheme;

(c)25criminal liabilities.

(5)A transfer scheme may—

(a)create rights, or impose liabilities, in relation to property or
rights transferred;

(b)make provision about the continuing effect of things done by
30the transferor in respect of anything transferred;

(c)make provision about the continuation of things (including
legal proceedings) in the process of being done by, on behalf of
or in relation to the transferor in respect of anything transferred;

(d)make provision for references to the transferor in an instrument
35or other document in respect of anything transferred to be
treated as references to the transferee;

(e)make provision for the shared ownership or use of property;

(f)make provision which is the same as or similar to the TUPE
regulations;

(g)40make other consequential, supplementary, incidental or
transitional provision.

(6)A transfer scheme may provide—

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(a)for modifications by agreement;

(b)for modifications to have effect from the date when the original
scheme came into effect.

(7)In this section—

(a)5references to rights and liabilities include rights and liabilities
relating to a contract of employment;

(b)references to the transfer of property include the grant of a
lease.

(8)In this section—

  • 10“relevant NHS body” means—

    (a)

    an NHS trust established under section 25;

    (b)

    an NHS foundation trust;

  • “the TUPE regulations” means the Transfer of Undertakings
    (Protection of Employment) Regulations 2006 (S.I. 2006/246).”

61 15Trust special administrators

Schedule 8 contains amendments to Chapter 5A of the National Health Service
Act 2006 (which transfer functions to NHS England in relation to trust special
administrators).

Joint working and delegation of functions

62 20Joint working and delegation arrangements

(1)The National Health Service Act 2006 is amended as follows.

(2)After section 65Z4 (inserted by section 9 of this Act) insert—

“Joint working arrangements and delegation
65Z5 Joint working and delegation arrangements

(1)25A relevant body may arrange for any functions exercisable by it to be
exercised by or jointly with any one or more of the following—

(a)a relevant body;

(b)a local authority (within the meaning of section 2B);

(c)a combined authority.

(2)30In this section “relevant body” means—

(a)NHS England,

(b)an integrated care board,

(c)an NHS trust established under section 25,

(d)an NHS foundation trust, or

(e)35such other body as may be prescribed.

(3)Regulations may—

(a)provide that the power in subsection (1) does not apply, or
applies only to a prescribed extent, in relation to prescribed
functions;

(b)40impose conditions on the exercise of the power.

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(4)Arrangements under this section may be made on such terms as may
be agreed between the parties, including—

(a)terms as to payment;

(b)terms prohibiting or restricting a body from making delegation
5arrangements in relation to a function that is exercisable by it by
virtue of arrangements under this section.

(5)In subsection (4)(b) “delegation arrangements” means arrangements
made by a body for the exercise of a function by someone else.

(6)Any rights acquired, or liabilities (including liabilities in tort) incurred,
10in respect of the exercise by a body of any function by virtue of this
section are enforceable by or against that body (and no other person).

65Z6 Joint committees and pooled funds

(1)This section applies where a function is exercisable jointly (by virtue of
section 65Z5 or otherwise) by a relevant body and any one or more of
15the following—

(a)a relevant body;

(b)a local authority (within the meaning of section 2B);

(c)a combined authority.

(2)The bodies by whom the function is exercisable jointly may—

(a)20arrange for the function to be exercised by a joint committee of
theirs;

(b)arrange for one or more of the bodies, or a joint committee of the
bodies, to establish and maintain a pooled fund.

(3)A pooled fund is a fund—

(a)25which is made up of payments received in accordance with the
arrangements from relevant bodies that are party to the
arrangements, and

(b)out of which payments may be made in accordance with the
arrangements towards expenditure incurred in the exercise of
30functions in relation to which the arrangements are made.

(4)Arrangements under this section may be made on such terms as may
be agreed between the parties, including terms as to payment.

(5)In this section “relevant body” has the meaning given by
section 65Z5(2).

65Z7 35Joint working and delegation: guidance by NHS England

(1)NHS England may publish guidance for relevant bodies about the
exercise of their powers under sections 65Z5 and 65Z6.

(2)A relevant body must have regard to any guidance published under
this section.

(3)40In this section “relevant body” has the meaning given by
section 65Z5(2).”

(3)In section 75(7B)—

(a)at the end of paragraph (a) insert “or”;

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(b)for paragraphs (b) and (c) substitute—

(b)section 65Z5 (joint working and delegation
arrangements).”

(4)In consequence of subsection (2), omit sections 13Z to 13ZB and the italic
5heading before those sections.

63 References to functions: treatment of delegation arrangements etc

(1)After section 275 of the National Health Service Act 2006 insert—

275A References to functions: delegation etc

(1)A reference in this Act to the functions of a person includes functions of
10others that are exercisable by the person by virtue of any provision of
any enactment (unless the context otherwise requires).

(2)Regulations may create exceptions to subsection (1).”

(2)Schedule 9 contains—

(a)amendments that are consequential on this section and other
15provisions of this Part, and

(b)other related amendments.

Collaborative working

64 Repeal of duties to promote autonomy

(1)In the National Health Service Act 2006 omit—

(a)20section 1D (Secretary of State’s duty to promote of autonomy);

(b)section 13F (NHS Commissioning Board’s duty to promote autonomy).

(2)In consequence of subsection (1), in the Health and Social Care Act 2012, omit
section 5.

65 Guidance about joint appointments

25After section 13U of the National Health Service Act 2006 insert—

“Joint appointments
13UA Guidance about joint appointments

(1)NHS England may publish guidance for a relevant NHS body about the
making of a joint appointment to which this section applies.

(2)30A joint appointment to which this section applies is an appointment of
a person to a position in—

(a)one or more relevant NHS commissioner and one or more
relevant NHS provider,

(b)one or more relevant NHS body and one or more local
35authority, or

(c)one or more relevant NHS body and one or more combined
authority.