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'(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".'.
Government new schedule 2—Audit of accounts of NHS foundation trusts.
New schedule 1—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".
Members
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) Subparagraph (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.
Directors
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 subparagraph 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 subparagraph (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.
Auditor
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.
Accounts
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—
(a) the accounts,
(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—
(a) the annual accounts,
(b) any report of the auditor on them,
(c) the annual report.
Instruments etc.
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.'.
Amendment No. 228, in schedule 1, page 99, line 18, at end insert
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