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]
Schedule 8 — Independent Regulator of NHS foundation Trusts
223

(b)
any member of the staff,

if authorised by the regulator (generally or specifically) for that purpose.
General powers
8     (1)
The regulator may do anything which appears to it to be necessary or
expedient for the purposes of or in connection with the exercise of its
5
functions.
      (2)
That includes in particular—
(a)
acquiring and disposing of property,
(b)
entering into contracts,
(c)
accepting gifts of property,
10

and co-operating with other public authorities.
Specific powers
9     (1)
The regulator may with the consent of the Secretary of State borrow money
temporarily by way of overdraft, but may not otherwise borrow money.
      (2)
The regulator may conduct, commission or assist the conduct of research.
15
Finance
10
The Secretary of State may make contributions towards the regulator’s
expenses.
Reports and other information
11    (1)
As soon as possible after the end of each financial year, the regulator must
20
prepare an annual report on how it has exercised its functions during the
year.
      (2)
The regulator must—
(a)
lay a copy of the report before Parliament, and
(b)
once it has done so, send a copy of it to the Secretary of State.
25
      (3)
The regulator must in respect of each financial year prepare a report which
provides an overall summary of the accounts of NHS foundation trusts.
      (4)
The report must be prepared as soon as possible after the regulator has
received the accounts of all NHS foundation trusts for the relevant financial
year.
30
      (5)
The regulator must—
(a)
lay a copy of the report before Parliament, and
(b)
once it has done so, send a copy of it to the Secretary of State.
      (6)
The regulator must provide the Secretary of State with such other reports
and information relating to the exercise of the regulator’s functions as he
35
may require.
12    (1)
The regulator must keep accounts in such form as the Secretary of State may
direct.
      (2)
The regulator must prepare in respect of each financial year annual accounts
in such form as the Secretary of State may direct.
40

National Health Service Bill [HL]
Schedule 9 — NHS foundation trusts: transfer of staff
224

      (3)
The regulator must send copies of the annual accounts to the Secretary of
State and the Comptroller and Auditor General within such period after the
end of the financial year to which the accounts relate as the Secretary of State
may direct.
      (4)
The Comptroller and Auditor General must examine, certify and report on
5
the annual accounts and must lay copies of them and of his report before
Parliament.
      (5)
In paragraph 11 and this paragraph, “financial year” means—
(a)
the period beginning with the establishment of the regulator and
ending with the next 31st March, and
10
(b)
each successive period of twelve months beginning with 1st April.
13
The regulator must respond in writing to any recommendation which—
(a)
is made by a Committee of either House of Parliament, or a
Committee of both Houses, and
(b)
relates to the exercise by the regulator of its functions.
15
Seal and evidence
14
The application of the regulator’s seal must be authenticated by the
signature of the chairman or deputy chairman or of any member of the staff
who has been authorised by the regulator (whether generally or specifically)
for that purpose.
20
15
A document purporting to be duly executed under the regulator’s seal or to
be signed on its behalf must be received in evidence and, unless the contrary
is proved, taken to be so executed or signed.
General
16    (1)
The regulator must not be regarded as the servant or agent of the Crown or
25
as enjoying any status, immunity or privilege of the Crown.
      (2)
The regulator’s property must not be regarded as property of, or property
held on behalf of, the Crown.
      (3)
The regulator must exercise its functions effectively, efficiently and
economically.
30
Schedule 9
Section 54

NHS foundation trusts: transfer of staff
1
An order under section 54(4) may provide for the transfer of employees of
an NHS foundation trust to a person mentioned in that subsection.
2
The contract of employment of an employee transferred under such an
35
order—
(a)
is not terminated by the transfer,
(b)
has effect from the date of transfer as if originally made between the
employee and the transferee.
3
Where an employee is so transferred—
40

National Health Service Bill [HL]
Schedule 10 — Audit of accounts of NHS foundation trusts
225

(a)
all the rights, powers, duties and liabilities of the trust under or in
connection with the contract of employment are by virtue of this
paragraph transferred to the transferee on the date of transfer, and
(b)
anything done before that date by or in relation to the trust in respect
of that contract or the employee must be treated from that date as
5
having been done by or in relation to the transferee.

This paragraph does not affect the generality of paragraph 2.
4
But if the employee informs the trust or the proposed transferee that he
objects to the transfer—
(a)
paragraphs 2 and 3 do not apply, and
10
(b)
the contract of employment is terminated immediately before the
date of transfer but the employee must not be treated, for any
purpose, as having been dismissed by the trust.
5
This Schedule does not affect any right of an employee to terminate his
contract of employment if (apart from the change of employer) a substantial
15
change is made to his detriment in his working conditions.
6
In this Schedule, “date of transfer” means the date decided under the order
for the transfer of the employee.
Schedule 10
Section 62

Audit of accounts of NHS foundation trusts
20
General duty
1
In auditing the accounts of any NHS foundation trust an auditor must by
examination of the accounts and otherwise satisfy himself that—
(a)
they are prepared in accordance with directions under paragraph 25
of Schedule 7,
25
(b)
they comply with the requirements of all other provisions contained
in, or having effect under, any enactment which are applicable to
them,
(c)
proper practices have been observed in their compilation, and
(d)
the trust has made proper arrangements for securing economy,
30
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 this Chapter.
35
      (2)
The auditor may—
(a)
require a person holding or accountable for any such document to
give him such information and explanation as he considers necessary
for the purposes of his functions under this Chapter,
(b)
if he considers it necessary, require the person to attend before him
40
in person to give the information or explanation or to produce the
document.

National Health Service Bill [HL]
Schedule 10 — Audit of accounts of NHS foundation trusts
226

      (3)
The auditor may also—
(a)
require any director or officer of the trust to give him such
information or explanation as he considers necessary for the
purposes of his functions under this Chapter,
(b)
if he considers it necessary, require the director or officer to attend
5
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
this Chapter; but this sub-paragraph does not affect the generality of sub-
paragraphs (1) to (3).
10
      (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—
15
(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 (5) alleged
20
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.
Reports
3
In auditing the accounts of an NHS foundation trust, the auditor must
consider—
25
(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
30
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 this
35
Chapter, and
(b)
his opinion on the accounts.
      (2)
But where the auditor makes a report to the board of governors and board
of directors of the trust under paragraph 3 at the conclusion of the audit, he
may instead include the certificate and his opinion in that report.
40
5     (1)
Any report under paragraph 3 must be sent by the auditor to the board of
governors and board of directors of the trust and to 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 directors must take the report into consideration as soon as practicable
45
after receiving it.

National Health Service Bill [HL]
Schedule 10 — Audit of accounts of NHS foundation trusts
227

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
5
(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
10
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 must be audited by the auditor of the
15
accounts of the trust.
      (2)
The accounts of the director or officer must be made up to 31st March.
      (3)
Paragraph 25(5) of Schedule 7 and paragraphs 1 to 5 of this Schedule apply
with the necessary modifications to the audit under this paragraph.
Restriction on disclosure of information
20
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
this Chapter or in the course of an audit under this Chapter may be disclosed
except—
(a)
with the consent of the person to whom the information relates,
25
(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 this Chapter,
30
(e)
for the purposes of the functions of the Commission for Healthcare
Audit and Inspection under Part 2 of the Health and Social Care
(Community Health and Standards) Act 2003 (c. 43),
(f)
for the purposes of any criminal proceedings.
      (2)
A person who discloses information in contravention of sub-paragraph (1)
35
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
twelve months or to a fine not exceeding the statutory maximum (or
to both),
40
(b)
on conviction on indictment, to imprisonment for a term not
exceeding two years or to a fine (or to both).
      (4)
In relation to an offence committed before the commencement of section
154(1) of the Criminal Justice Act 2003 (c. 44) (general limit on magistrates’

National Health Service Bill [HL]
Schedule 11 — Pilot schemes
228

courts power to impose imprisonment) the reference in sub-paragraph (3) to
a period of imprisonment of 12 months is a reference to a period of
imprisonment of 6 months.
Schedule 11
Section 135

Pilot schemes
5
How pilot schemes may be initiated
1     (1)
A pilot scheme may be made—
(a)
on the initiative of a Primary Care Trust, or
(b)
in response to a request made by a person wishing to participate in
the scheme.
10
      (2)
The request referred to in sub-paragraph (1)(b) must—
(a)
be made in writing, and
(b)
comply with such requirements (if any) as may be prescribed.
Preliminary steps to be taken
2     (1)
Before making a pilot scheme, the Primary Care Trust concerned must
15
prepare proposals for the scheme and submit them to the Secretary of State.
      (2)
But proposals may be submitted by a Primary Care Trust only with the
agreement of the other proposed participants.
      (3)
In preparing proposals for a pilot scheme, a Primary Care Trust must
comply with any directions given to it by the Secretary of State as to—
20
(a)
the matters to be dealt with, and information to be included, in the
proposals, and
(b)
the procedure to be followed by the Primary Care Trust.
      (4)
Before submitting proposals for a pilot scheme, a Primary Care Trust must
(in addition to complying with any requirements about consultation
25
imposed by or under any other enactment) comply with any directions
given to it by the Secretary of State about the extent to which, and manner in
which, it must consult on the proposals.
      (5)
The Secretary of State may give directions—
(a)
requiring a Primary Care Trust to submit proposals to him,
30
(b)
as to the matters to which a Primary Care Trust must have regard in
making any recommendation to the Secretary of State when
submitting proposals for a pilot scheme,
(c)
as to the form in which any such recommendation must be made,
(d)
requiring Primary Care Trusts to provide the Secretary of State with
35
summaries (prepared and presented in the manner specified in the
directions) of all requests received by them during the period
specified in the directions.
      (6)
A direction under this paragraph may be given so as to apply—
(a)
generally in circumstances specified in the direction, or
40
(b)
in relation to a particular case.

National Health Service Bill [HL]
Schedule 11 — Pilot schemes
229

Approval
3     (1)
If proposals for a pilot scheme are submitted under paragraph 2, the
Secretary of State must—
(a)
approve them as submitted,
(b)
make such modifications as he considers appropriate and approve
5
them as modified, or
(c)
reject them.
      (2)
The Secretary of State may not approve proposals for a pilot scheme unless
satisfied that they include satisfactory provision for any participant other
than the Primary Care Trust to withdraw from the scheme if he wishes to do
10
so.
      (3)
When the Secretary of State makes a decision under this paragraph—
(a)
he must notify the Primary Care Trust concerned of the decision, and
(b)
the Primary Care Trust must, without delay, notify the other
participants in the proposed scheme.
15
Preliminary approval
4     (1)
This paragraph applies if a Primary Care Trust proposes to make a pilot
scheme but has not determined who the participants, or who all of the
participants, will be.
      (2)
The Primary Care Trust may apply to the Secretary of State for preliminary
20
approval to be given to its proposals.
      (3)
If such an application is made, the Secretary of State must—
(a)
give preliminary approval to the proposals as submitted,
(b)
make such modifications as he considers appropriate and give
preliminary approval to them as modified, or
25
(c)
reject them.
      (4)
If a Primary Care Trust is given preliminary approval, it must take such
steps, with a view to obtaining final approval for the proposed pilot scheme,
as the Secretary of State may direct.
      (5)
The fact that the Secretary of State has given preliminary approval to
30
proposals for a pilot scheme does not affect his right to refuse to approve the
completed proposals when they are submitted under paragraph 2.
      (6)
Sub-paragraphs (3) to (6) of paragraph 2 apply in relation to an application
for preliminary approval of proposals under this paragraph as they apply in
relation to proposals under that paragraph.
35
Effect of proposals on existing services
5     (1)
Proposals for a pilot scheme submitted under paragraph 2, or included in an
application for preliminary approval of proposals under paragraph 4, must
include—
(a)
an assessment by the Primary Care Trust of the likely effect of the
40
implementation of the proposals in the area of the Primary Care
Trust on the services mentioned in sub-paragraph (2),
(b)
any assessment supplied to the Primary Care Trust by another
Primary Care Trust under sub-paragraph (4).