National Health Service Bill [HL]

House of Commons

Session 2005 - 06
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Other Bills before Parliament

National Health Service Bill [HL]

National Health Service Bill [HL]
Part 2 — Health service bodies
Chapter 3 — NHS trusts
13

(h)
the provision by Strategic Health Authorities, Primary Care Trusts and
Local Health Boards of reports or other information to the Secretary of
State in connection with plans under this section or section 17 of the
National Health Service (Wales) Act 2006 (c. 00).
(6)
In exercising its functions—
5
(a)
a Primary Care Trust must have regard to any plan prepared or
reviewed by it, and to any plan in relation to which it has participated
by virtue of subsection (4).
(b)
a Strategic Health Authority must have regard to any plan prepared or
reviewed by a Primary Care Trust any part of whose area falls within
10
its area, and
(c)
a local authority must have regard to any plan in relation to which it has
participated.
(7)
For the purposes of this section, the persons for whom a Primary Care Trust is
responsible are—
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(a)
the people in the area of the Primary Care Trust, and
(b)
such of the people outside the area as may be specified in directions
given by the Secretary of State.
(8)
“Health care” means—
(a)
services provided to individuals for or in connection with the
20
prevention, diagnosis or treatment of illness, and
(b)
the promotion and protection of public health.
Chapter 3
NHS trusts
25
NHS trusts
25
(1)
The Secretary of State may by order establish bodies, called National Health
Service trusts (“NHS trusts”), to provide goods and services for the purposes
of the health service.
(2)
An order under subsection (1) is referred to in this Act as “an NHS trust order”.
(3)
No NHS trust order may be made until after the completion of such
30
consultation as may be prescribed.
(4)
Schedule 4 makes further provision about NHS trusts.
26
General duty of NHS trusts
An NHS trust must exercise its functions effectively, efficiently and
economically.
35
27
Financial provisions relating to NHS trusts
Schedule 5 makes provision about the financing of NHS trusts.

National Health Service Bill [HL]
Part 2 — Health service bodies
Chapter 4 — Special Health Authorities
14

Chapter 4
Special Health Authorities
28
Special Health Authorities
(1)
The Secretary of State may by order establish special bodies for the purpose of
exercising any functions which may be conferred on them by or under this Act.
5
(2)
The Secretary of State may make such further provision relating to a body
established under subsection (1) as he considers appropriate.
(3)
A body established under this section is called a Special Health Authority.
(4)
An order may, in particular, contain provisions as to—
(a)
the membership of the body established by the order,
10
(b)
the transfer to the body of officers, property and liabilities, and
(c)
the name of the body.
(5)
The liabilities which may be transferred by virtue of this section, section 272(8)
and section 273(1) to an NHS body on the abolition of a Special Health
Authority include criminal liabilities.
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(6)
In this Act (apart from in Schedule 15) “NHS body” means—
(a)
a Strategic Health Authority,
(b)
a Primary Care Trust,
(c)
an NHS trust,
(d)
a Special Health Authority,
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(e)
an NHS foundation trust, and
(f)
a Local Health Board.
(7)
The Secretary of State must, before he makes an order under this section,
consult with respect to the order such bodies as he may recognise as
representing officers who in his opinion are likely to be transferred or affected
25
by transfers in pursuance of the order.
(8)
Schedule 6 makes further provision about Special Health Authorities.
29
Exercise of Special Health Authority functions
(1)
Regulations may provide for any functions which are exercisable by a Special
Health Authority under section 7 to be exercised—
30
(a)
by another Special Health Authority, or
(b)
jointly with one or more other Special Health Authorities.
(2)
Regulations may provide—
(a)
for any functions which are exercisable by a Special Health Authority
under section 7, section 14, section 19 or this section to be exercised on
35
behalf of that Special Health Authority by a committee, sub-committee
or officer of the Special Health Authority,
(b)
for any functions exercisable jointly under subsection (1)(b) to be
exercised, on behalf of the Special Health Authorities in question, by a
joint committee or joint sub-committee.
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National Health Service Bill [HL]
Part 2 — Health service bodies
Chapter 5 — NHS foundation trusts
15

Chapter 5
NHS foundation trusts
Introductory
30
NHS foundation trusts
(1)
An NHS foundation trust is a public benefit corporation which is authorised
5
under this Chapter to provide goods and services for the purposes of the health
service in England.
(2)
A public benefit corporation is a body corporate which, in pursuance of an
application under this Chapter, is constituted in accordance with Schedule 7.
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Independent Regulator of NHS Foundation Trusts
10
(1)
There continues to be a body corporate known as the Independent Regulator
of NHS Foundation Trusts (referred to in this Act as “the regulator”).
(2)
Schedule 8 makes further provision about the regulator.
32
General duty of regulator
The regulator must exercise its functions in a manner consistent with the
15
performance by the Secretary of State of his duties under sections 1, 3 and 258.
Authorisation
33
Applications by NHS trusts
(1)
An NHS trust may make an application to the regulator for authorisation to
become an NHS foundation trust, if the application is supported by the
20
Secretary of State.
(2)
The application must—
(a)
describe the goods and services which the applicant proposes should
be provided by the NHS foundation trust, and
(b)
be accompanied by a copy of the proposed constitution of the NHS
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foundation trust,

and must give any further information which the regulator requires the
applicant to give.
(3)
The applicant may modify the application with the agreement of the regulator
at any time before authorisation is given under section 35.
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(4)
Once an NHS trust has made the application—
(a)
the provisions of the proposed constitution which give effect to
paragraphs 3 to 19 of Schedule 7 have effect, but only for the purpose
of establishing the initial membership of the NHS foundation trust and
of the board of governors, and the initial directors, and enabling the
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board of governors and board of directors to make preparations for the
performance of their functions,

National Health Service Bill [HL]
Part 2 — Health service bodies
Chapter 5 — NHS foundation trusts
16

(b)
the NHS trust may do anything (including the things mentioned in
paragraph 14 of Schedule 4) which appears to it to be necessary or
expedient for the purpose of preparing it for NHS foundation trust
status.
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Other applications
5
(1)
An application may be made to the regulator by persons (other than an NHS
trust) to be incorporated as a public benefit corporation and authorised to
become an NHS foundation trust, if the application is supported by the
Secretary of State.
(2)
The application must—
10
(a)
describe the goods and services which the applicants propose should
be provided by the NHS foundation trust, and
(b)
be accompanied by a copy of the proposed constitution of the NHS
foundation trust,

and must give any further information which the regulator requires the
15
applicants to give.
(3)
If it appears to the regulator that—
(a)
provision of the goods and services described in the application is
likely to assist in the performance of the duties mentioned in section 32,
(b)
the trust as proposed to be constituted will be able to provide those
20
goods and services, and
(c)
the proposed constitution accords with Schedule 7 and is otherwise
appropriate,

the regulator may issue a certificate of incorporation.
(4)
The applicants may modify the application with the agreement of the regulator
25
at any time before the certificate is issued.
(5)
On the issue of the certificate, the applicants are incorporated as a public
benefit corporation.
(6)
The certificate is conclusive evidence of incorporation.
(7)
Once the certificate has been issued—
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(a)
the proposed constitution has effect, but the applicants may exercise
the functions of the corporation on its behalf until a board of directors
is appointed in accordance with the constitution,
(b)
the corporation may do anything (including the things mentioned in
section 47 ) which appears to it to be necessary or expedient for the
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purpose of preparing it for NHS foundation trust status.
35
Authorisation of NHS foundation trusts
(1)
The regulator may give an authorisation under this section—
(a)
to an NHS trust which has applied under section 33, or
(b)
to a public benefit corporation,
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if the regulator is satisfied as to the following matters.
(2)
The matters are that—
(a)
the applicant’s constitution will be in accordance with Schedule 7 and
will otherwise be appropriate,

National Health Service Bill [HL]
Part 2 — Health service bodies
Chapter 5 — NHS foundation trusts
17

(b)
the applicant has taken steps to secure that (taken as a whole) the actual
membership of any public constituency, and (if there is one) of the
patients’ constituency, will be representative of those eligible for such
membership,
(c)
there will be a board of governors, and a board of directors, constituted
5
in accordance with the constitution,
(d)
the steps necessary to prepare for NHS foundation trust status have
been taken,
(e)
the applicant will be able to provide the goods and services which the
authorisation will require it to provide, and
10
(f)
any other requirements which the regulator considers appropriate are
met.
(3)
In deciding whether it is satisfied as to the matters referred to in subsection
(2)(e), the regulator must consider (among other things)—
(a)
any report or recommendation in respect of the applicant made by the
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Commission for Healthcare Audit and Inspection,
(b)
the financial position of the applicant.
(4)
The authorisation may be given on any terms the regulator considers
appropriate.
(5)
The regulator must not give an authorisation unless it is satisfied that the
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applicant has sought the views about the application of the following—
(a)
if the applicant is an NHS trust, the Patients’ Forum for the NHS trust
and the staff employed by the NHS trust,
(b)
individuals who live in any area specified in the proposed constitution
as the area for a public constituency,
25
(c)
any local authority that would be authorised by the proposed
constitution to appoint a member of the board of governors,
(d)
if the proposed constitution provides for a patients’ constituency,
individuals who would be able to apply to become members of that
constituency,
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(e)
any prescribed persons.
(6)
If regulations make provision about consultation, the regulator may not give
an authorisation unless it is satisfied that the applicant has complied with the
regulations.
(7)
The generality of the power in subsection (4) is not affected by the following
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provisions of this Chapter.
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Effect of authorisation
(1)
On an authorisation being given to a body corporate which is an NHS trust—
(a)
it ceases to be an NHS trust and becomes an NHS foundation trust,
(b)
the proposed constitution has effect, and
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(c)
any order under section 25(1) is revoked.
(2)
On an authorisation being given to a body corporate which is a public benefit
corporation, it becomes an NHS foundation trust.
(3)
The authorisation is conclusive evidence that the body in question is an NHS
foundation trust.
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National Health Service Bill [HL]
Part 2 — Health service bodies
Chapter 5 — NHS foundation trusts
18

(4)
Subsections (1) to (3) do not affect the continuity of the body or of its property
or liabilities (including its criminal liabilities).
(5)
The validity of any act of an NHS foundation trust is not affected by any
vacancy among the directors or by any defect in the appointment of any
director.
5
(6)
An NHS foundation trust must not be regarded as the servant or agent of the
Crown or as enjoying any status, immunity or privilege of the Crown; and an
NHS foundation trust’s property must not be regarded as property of, or
property held on behalf of, the Crown.
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Amendments of constitution
10
An NHS foundation trust may make amendments of its constitution with the
approval of the regulator.
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Variation of authorisation
(1)
The regulator may vary an authorisation.
(2)
In deciding whether or not to vary an authorisation, the regulator must have
15
regard (among other things) to—
(a)
any report or recommendation made to it by virtue of section 21(2)(f) of
the Local Government Act 2000 (c. 22) (overview and scrutiny
committees),
(b)
any report or recommendation made to it by the Commission for
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Patient and Public Involvement in Health under section 243(5)(b) or (6).
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Register of NHS foundation trusts
(1)
The regulator must continue to maintain a register of NHS foundation trusts.
(2)
The register must contain in relation to each NHS foundation trust—
(a)
a copy of the current constitution,
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(b)
a copy of the current authorisation,
(c)
a copy of the latest annual accounts and of any report of the auditor on
them,
(d)
a copy of the latest annual report,
(e)
a copy of the latest document sent to the regulator under paragraph 27
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of Schedule 7 (forward planning),
(f)
a copy of any notice given under section 52 (failing NHS foundation
trusts).
(3)
In relation to any time before an NHS foundation trust is first required to send
an annual report to the regulator, the register must contain a list of the persons
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who were first elected or appointed as—
(a)
the members of the board of governors,
(b)
the directors.
(4)
Members of the public may inspect the register at any reasonable time.
(5)
Any person who requests it must be provided with a copy of, or extract from,
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any document contained in the register on payment of a reasonable charge.