Mr Adrian Bailey
To move the following Clause:
'An authorisation may require an NHS foundation trust to take steps to secure that (taken as a whole) the actual membership of its public constituency is representative of those eligible for such membership.'.
Extension of provisions of Part 1 following pilot tests
Mr Frank Field
Mr Geoffrey Robinson
Mr Graham Allen
To move the following Clause:
'(1) Within three months of the conclusion of the pilot test period
|(a) ||the Secretary of State,|
|(d) ||the Comptroller and Auditor General|
shall lay before each House of Parliament a report on the operation of the provisions of Part 1 of this Act during the pilot test period.
(2) After all of the reports under subsection (1) have been laid before Parliament, the Secretary of State may by order
|(a) ||amend the provisions of Part 1 so as to extend the application to other NHS trusts and Primary Care Trusts, and|
|(b) ||make such other amendments of Part 1 as arise from the reports.|
(3) No order may be made under subsection (2) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.'.
Public consultation relating to applications for foundation status
Dr Evan Harris
Mr Paul Burstow
Mrs Patsy Calton
To move the following Clause:
'(1) The Secretary of State shall
|(a) ||by regulations require that an NHS Trust proposing to make an application under section 4(1) or any person proposing to apply under section 5(1) shall first consult prescribed persons, and|
|(b) ||by regulations prescribe persons to be consulted which shall include the Patients Forums for the NHS Trusts and Primary Care Trusts in the area in which are resident all or any of the persons to whom the applicant NHS Trust has provided goods or services for the purposes of healthcare or to whom the applicant or person (as the case may be) intends to provide such services if its application is successful.|
(2) In section 7(3) of the Health and Social Care Act 2001 (functions of Overview and Scrutiny Committees)
|(a) ||at the beginning of subsection (3) (matters to be covered by regulations) for "may" there is substituted "shall";|
|(b) ||at the end of subsection (3)(b) there is inserted "which shall include all matters prescribed under subsection 7(3)(c) below,";|
|(c) ||at the end of subsection (3)(c) there is inserted "which shall include any application or proposed application under section 4 of the Health and Social Care (Community Health and Standards) Act 2003".'.|
NEW SCHEDULES RELATING TO PART 1
Mr Secretary Reid
To move the following Schedule:
'Audit of accounts of NHS foundation trusts
|1 || ||In auditing the accounts of any NHS foundation trust an auditor must by examination of the accounts and otherwise satisfy himself|
(a) that they are prepared in accordance with directions under paragraph 21 of Schedule 1,
(b) that they comply with the requirements of all other provisions contained in, or having effect under, any enactment which are applicable to the accounts,
(c) that proper practices have been observed in the compilation of the accounts, and
(d) that the trust has made proper arrangements for securing economy, efficiency and effectiveness in its use of resources.
Right to documents and information
|2 ||(1) ||An auditor of an NHS foundation trust has a right of access at all reasonable times to every document relating to the trust which appears to him necessary for the purposes of his functions under Part 1.|
(a) require a person holding or accountable for any such document to give him such information and explanation as he thinks necessary for the purposes of his functions under Part 1,
(b) if he thinks it necessary, require the person to attend before him in person to give the information or explanation or to produce the document.
|(3) ||The auditor may also|
(a) require any director or officer of the trust to give him such information or explanation as he thinks necessary for the purposes of his functions under Part 1,
(b) if he thinks it necessary, require the director or officer to attend before him in person to give the information or explanation.
|(4) ||The trust must provide the auditor with every facility and all information which he may reasonably require for the purposes of his functions under Part 1.|
This paragraph does not affect the generality of sub-paragraphs (1) to (3).
|(5) ||A person who without reasonable excuse fails to comply with any requirement of an auditor of an NHS foundation trust under any of sub-paragraphs (1) to (3) is guilty of an offence.|
|(6) ||A person guilty of an offence under sub-paragraph (5) is liable on summary conviction|
(a) to a fine not exceeding level 3 on the standard scale, and
(b) to an additional fine not exceeding £20 for each day on which the offence continues after conviction for the offence.
|(7) ||Any expenses incurred by an auditor of an NHS foundation trust in connection with proceedings for an offence under sub-paragraph (6) alleged to have been committed in relation to the audit of the accounts of the trust, so far as not recovered from any other source, are recoverable from the trust.|
|3 || ||In auditing the accounts of an NHS foundation trust, the auditor must consider|
(a) whether, in the public interest, he should make a report on any matter coming to his notice in the course of the audit, in order for it to be considered by the trust or brought to the attention of the public, and
(b) whether the public interest requires any such matter to be made the subject of an immediate report rather than of a report to be made at the conclusion of the audit.
|4 ||(1) ||When an auditor of an NHS foundation trust has concluded his audit of the trust's accounts, he must enter on the accounts|
(a) a certificate that he has completed the audit in accordance with Part 1, and
(b) his opinion on the accounts.
|(2) ||But where the auditor makes a report to the trust under paragraph 3 at the conclusion of the audit, he may instead include the certificate and his opinion in that report.|
|5 ||(1) ||Any report under paragraph 3 must be sent by the auditor to the trust and the regulator|
(a) at once if it is an immediate report,
(b) otherwise not later than 14 days after conclusion of the audit.
|(2) ||The trust must take the report into consideration as soon as practicable after receiving it.|
Referral to regulator
|6 || ||If the auditor of an NHS foundation trust has reason to believe that the trust or a director or officer of the trust|
(a) is about to make, or has made, a decision which involves or would involve the incurring of expenditure which is unlawful, or
(b) is about to take, or has taken, a course of action which, if pursued to its conclusion, would be unlawful and likely to cause a loss or deficiency,
he must refer the matter at once to the regulator.
Audit of accounts of directors or officers
|7 ||(1) ||Where a director or officer of an NHS foundation trust receives money or other property|
(a) on behalf of the trust, or
(b) for which he ought to account to the trust,
the accounts of the director or officer are to be audited by the auditor of the accounts of the trust.
|(2) ||The accounts of the director or officer are to be made up to 31st March.|
|(3) ||Paragraph 20(4) of Schedule 1 and paragraphs 1 to 5 of this Schedule apply with the necessary modifications to the audit under this paragraph.|
Restriction on disclosure of information
|8 ||(1) ||No information relating to an NHS foundation trust or other person and obtained by an auditor (or by a person acting on the auditor's behalf) under Part 1 or in the course of an audit under that Part is to be disclosed except|
(a) with the consent of the person to whom the information relates,
(b) for the purposes of any functions of an auditor of an NHS foundation trust,
(c) for the purposes of the functions of the regulator,
(d) for the purposes of the functions of the Comptroller and Auditor General under Part 1,
(e) for the purposes of the functions of the Commission for Healthcare Audit and Inspection under Part 2,
(f) for the purposes of any criminal proceedings.
|(2) ||A person who discloses information in contravention of sub-paragraph (1) is guilty of an offence.|
|(3) ||A person guilty of an offence under sub-paragraph (2) is liable|
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum (or to both),
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine (or to both).'.
Mr Andrew Lansley
To move the following Schedule:
'Constitution of public benefit organisations
Requirement for a constitution
|1 ||(1) ||A public benefit organisation is to have a constitution.|
|(2) ||As well as any provision authorised or required to be made by this Schedule, the constitution may make further provision (other than provision as to the powers of the organisation) consistent with this Schedule.|
|2 || ||The constitution is to name the organisation and, if the organisation is an NHS community trust, its name must include the words "NHS community trust".|
|3 ||(1) ||The members of a public benefit organisation are to be individuals who|
(a) live in the area specified for the purpose in the constitution ("the public constituency"), or
(b) are employed by the organisation ("the staff constituency").
|(2) ||The constitution may also provide for the public constituency to comprise individuals who have received goods or services commissioned or provided by the Primary Care Trust as patients (including individuals attending as the carer of a patient).|
|(3) ||The constitution may also provide for the staff constituency to comprise NHS professionals who provide services to the Primary Care Trust or who a self-employed contractor or in a self-employed contract with the Primary Care Trust.|
|(4) ||Sub-paragraph (1)(a) does not apply to a person who is eligible for membership of the staff constituency.|
|4 || ||The constitution is to require a minimum number of members of each constituency.|
|5 ||(1) ||A person may not be a member of a public benefit organisation unless he has agreed to pay a sum not exceeding £1 to the organisation.|
|(2) ||A person may not be a member of a public benefit organisation if|
(a) he has been adjudged bankrupt or has made a composition or arrangement with his creditors,
(b) he has within the preceding five years been convicted in the British Islands of any offence if a sentence of imprisonment (whether suspended or not) for a period of three months or more (without the option of a fine) was imposed on him.
|(3) ||The constitution may make further provision as to the circumstances in which a person may not be a member.|
Board of Governors
|6 ||(1) ||A public benefit organisation is to have a board of governors.|
|(2) ||Only the following may be members of the board|
(a) members of the organisation, and
(b) individuals appointed under the following provisions who do not fall within paragraph 5(2)(a) or (b).
|(3) ||The members of the board other than the appointed members are to be chosen by election.|
|(4) ||Members of the public constituency or the staff constituency may elect any of their number to be a member of the board.|
|(5) ||If contested, the election must be by postal ballot.|
|7 ||(1) ||More than half of the members of the board of governors are to be elected by the public constituency.|
|(2) ||Not fewer than one-third of the members of the board are to be elected by the staff constituency.|
|8 ||(1) ||A member of the board of governors elected by the public constituency or the staff constituency may hold office for a period of three years.|
|(2) ||Such a member is to be eligible for re-election at the end of that period.|
|(3) ||But a person elected to membership of the board ceases to hold office if he ceases to be a member of the relevant constituency.|
|9 || ||The organisation may pay travelling and other expenses to members of the board of governors at rates decided by the organisation.|
|10 || ||The constitution is to provide for the chairman of the organisation or (in his absence) another person to preside at meetings of the board of governors.|
|11 ||(1) ||The constitution is to provide for meetings of the board of governors to be open to members of the public.|
|(2) ||But the constitution may provide for members of the public to be excluded from a meeting for special reasons.|
|12 ||(1) ||The constitution is to make provision as to|
(a) the conduct of elections for membership of the board,
(b) the appointment of persons to membership,
(c) the practice and procedure of the board,
(d) the removal of a member from office.
|(2) ||The constitution may make further provision about the board.|
|13 ||(1) ||A public benefit organisation is to have a board of directors.|
|(2) ||The constitution is to provide for all the powers of the organisation to be exercisable by the board of directors on its behalf.|
|(3) ||But the constitution may provide for any of those powers to be delegated to a committee of directors or to an executive director.|
|14 ||(1) ||The board is to consist of|
(a) executive directors, one of whom is to be the chief executive and another the finance director,
(b) non-executive directors, one of whom is to be the chairman.
|(2) ||Only a member of the public constituency is eligible for appointment as a non-executive director.|
|15 ||(1) ||It is for the board of governors at a general meeting to appoint or remove the non-executive directors.|
Removal of a non-executive director under this sub-paragraph requires the approval of three-quarters of the members of the board.
|(2) ||It is for the non-executive directors to appoint or remove the chief executive.|
|(3) ||It is for the chief executive to appoint or remove the executive directors.|
|(4) ||An appointment or removal under sub-paragraph (2) or (3) requires the approval of a majority of the board of governors voting at a general meeting.|
|16 ||(1) ||It is for the board of governors at a general meeting to decide the remuneration and allowances, and the other terms and conditions of office, of the non-executive directors.|
|(2) ||The organisation is to establish a committee of non-executive directors to decide the remuneration and allowances, and the other terms and conditions of office, of the executive directors.|
Register of members etc.
|17 ||(1) ||A public benefit organisation is to have|
(a) a register of members showing, in respect of each member, the constituency to which he belongs,
(b) a register of members of the board of governors,
(c) a register of directors.
|(2) ||The constitution may make further provision about the registers including, in particular, admission to, and removal from, the registers.|
|18 ||(1) ||The following documents of a public benefit organisation are to be available for inspection by members of the public free of charge at all reasonable times|
(a) a copy of the current constitution,
(b) a copy of the current authorisation,
(c) the register of members, the register of members of the board of governors and the register of directors,
(d) a copy of the latest annual accounts and of any report of the auditor on them,
(e) a copy of the latest annual report,
(f) a copy of the latest information as to its forward planning.
|(2) ||Any person who requests it is to be provided with a copy of or extract from any of the above documents.|
|(3) ||If the person requesting the copy or extract is not a member of the organisation, the organisation may impose a reasonable charge for doing so.|
|19 ||(1) ||A public benefit organisation is to have an auditor.|
|(2) ||It is for the board of governors to appoint or remove the auditor at a general meeting of the board.|
|(3) ||But a person may not be appointed as auditor unless he (or, in the case of a firm, each of its members) is a member of one or more of the following bodies|
(a) the bodies mentioned in section 3(7)(a) to (e) of the Audit Commission Act 1998 (c.18),
(b) any other body of accountants established in the United Kingdom and for the time being approved by the Secretary of State for the purposes of this paragraph.
|(4) ||The organisation is to establish a committee of non-executive directors to monitor the exercise of the auditor's functions.|
|20 ||(1) ||A public benefit organisation is to keep accounts in such form as the Secretary of State may with the approval of the Treasury direct.|
|(2) ||The accounts are to be audited by the organisation's auditor.|
|(3) ||But the Comptroller and Auditor General may examine|
(b) any records relating to them, and
(c) any report of the auditor on them.
|21 ||(1) ||A public benefit organisation is to prepare in respect of each financial year annual accounts in such form as the Secretary of State may with the approval of the Treasury direct.|
|(2) ||In preparing its annual accounts, the organisation is to comply with any directions given by the Secretary of State with the approval of the Treasury as to|
(a) the methods and principles according to which the accounts are to be prepared,
(b) the information to be given in the accounts.
|(3) ||In determining the form and content of the annual accounts the Secretary of State is to aim to ensure that the accounts present a true and fair view.|
|(4) ||The organisation must|
(a) lay a copy of the annual accounts, and any report of the auditor on them, before Parliament, and
(b) once it has done so, send copies of those documents to the Secretary of State.
|(5) ||In this paragraph and paragraph 23 "financial year" means|
(a) the period beginning with the date on which the organisation is authorised under section [authorisation of NHS community trusts] and ending with the next 31st March, and
(b) each successive period of twelve months beginning with 1st April.
Annual reports and forward plans
|22 ||(1) ||A public benefit organisation is to prepare annual reports and send them to the Secretary of State.|
|(2) ||The reports are to give any information the Secretary of State requires.|
|(3) ||It is for the Secretary of State to decide|
(a) the form of the reports,
(b) when the reports are to be sent to him,
(c) the periods to which the reports are to relate.
|23 ||(1) ||A public benefit organisation is to give information as to its forward planning in respect of each financial year to the Secretary of State.|
|(2) ||The information is to be prepared by the directors after consulting the board of governors.|
Meeting of board of governors to consider annual accounts and reports
|24 || ||The following documents are to be presented to the board of governors of a public benefit organisation at a general meeting|
(b) any report of the auditor on them,
|25 ||(1) ||The constitution is to make provision for the authentication of the fixing of the organisation's seal.|
|(2) ||A document purporting to be duly executed under the organisation's seal or to be signed on its behalf is to be received in evidence and, unless the contrary is proved, taken to be so executed or signed.'.|