Health Bill [HL]- continued | House of Commons |
| back to previous text | |
|
Chapter 4: Innovation Clause 14: Innovation prizes 181. High Quality Care for All stated the Department of Health’s intention to create prizes for innovations in areas such as the prevention and treatment of lifestyle diseases. 182. Under the NHS Act, the Secretary of State can currently award grants for research. However, the power is limited to research and does not extend to awarding money retrospectively for work that has already been completed. 183. Clause 14 enables the Secretary of State to make payments as prizes to promote and reward innovation in the provision of health services in England. Prizes may be awarded for work that has already been completed, including research, or for the completion of future challenges. 184. To assist in this matter, Secretary of State may establish a committee to advise on the form and allocation of any such prizes. Subsection (3) enables Secretary of State to pay remuneration, allowances or expenses to a member of the committee. PART 2 - POWERS IN RELATION TO HEALTH BODIES Chapter 1 -Trust special administrators for NHS bodies in England Clauses 15 and 16 and Schedule 2: Trust special administrators: NHS trusts and NHS foundation trusts 185. Clause 15 inserts a new Chapter 5A of the NHS Act (sections 65A to 65O). The new sections provide for the Secretary of State to appoint Trust Special Administrators (TSAs) to NHS trusts and NHS foundation trusts; for the de-authorisation of NHS foundation trusts, and for the functions of the TSA during the period of appointment. In particular, provision is made for consultation by the TSA, the preparation of a draft report making recommendations to the Secretary of State and a final decision by the Secretary of State in relation to the trust. Clause 16 and Schedule 2 make further provision for de-authorised NHS foundation trusts. Application 186. New section 65A applies the new provisions to English NHS trusts only (those trusts all or most of whose hospitals, establishments or facilities are situated in England), and to NHS foundation trusts which were authorised after an application by an NHS trust under section 33 of the Act (a “section 33 foundation trust”). The provisions also apply to NHS foundation trusts which have been established under section 56 of the Act (mergers between NHS foundation trusts, or between NHS trusts and foundation trusts), but only where at least one of the trusts which formed part of the merged trust was an NHS trust or a section 33 foundation trust or, where there has been a succession of mergers under section 56, only if any of those mergers involved an NHS trust or a section 33 foundation trust. Appointment 187. New section 65B gives the Secretary of State the power to make an order authorising the appointment of a TSA to run an NHS trust, after consulting the trust, any Strategic Health Authority in whose area the trust has hospitals, establishments or facilities, and any other person who commissions services from the trust, for example a Strategic Health Authority or a PCT, where the Secretary of State considers it appropriate. The Secretary of State must be satisfied that the appointment of the TSA to the trust is in the interests of the health service (subsection (2)). An example where this might occur is if a key service provided by a small trust has to stop because of new clinical guidance about 24 hour cover and relatively small patient numbers mean that the trust can only provide such cover at a financial loss. Stopping this service may result in the organisation becoming unsustainable. A TSA is only likely to be appointed after previous performance interventions have been unsuccessful. The TSA would be appointed by the Secretary of State (subsection (6)) and would hold and vacate office in accordance with the terms of his appointment (subsection (7)). Under new section 65C, when the TSA’s appointment takes effect the members of the trust’s board of directors, including the chair, executive directors (for example, the Chief Executive) and non-executive directors, would be suspended from performing their duties as members of the board. Although suspended from the board, the executive directors would remain employed in their post with the trust (for example, as Chief Executive, Medical Director or Director of Finance). De-authorisation of NHS foundation trusts 188. New sections 65D and 65E make specific provision for NHS foundation trusts. New section 65D enables Monitor to give a notice to the Secretary of State which has the effect that the Secretary of State must make an order under new section 65E providing that the trust shall cease to be a foundation trust and instead become an NHS trust (described as “de-authorisation”) and an order under new section 65B appointing a TSA for the trust. Monitor would be able to give such a notice only where it was satisfied that the trust had failed to comply with a notice under section 52 and that a further notice would be unlikely to secure the provision of services which the trust is required by its authorisation to provide (new section 65D(1)). This is similar to the existing statutory test for the dissolution of an NHS foundation trust under section 54 of the NHS Act. A notice under section 52 of the NHS Act requires a specified trust, the directors or board governors of the trust to do, or not to do, specified things within a specified period. 189. New Schedule 10A to the NHS Act, to be inserted by clause 16 of, and Schedule 2 to, the Bill makes further provision for de-authorised NHS foundation trusts. In particular the trust’s constitution is to cease to have effect on de-authorisation (paragraph 2) and, subject to modifications in provisions of the Schedule, the trust is to be subject to the provisions for the constitution of NHS trusts in Schedule 4 to the NHS Act. The modifications include:
190. In addition, the Schedule provides that the de-authorisation of the NHS foundation trust does not prevent the trust from continuing as a party to contracts entered into as an NHS foundation trust, continuing to hold property held as an NHS foundation trust or continuing as a member of another corporate body, even if being a party to those contracts, holding that property or retaining that membership would not have been lawful if the trust had not been an NHS foundation trust (paragraphs 9 to 11). These provisions ensure continuity and that the rights of third parties are not affected by de-authorisation. Paragraph 12 of the new Schedule 10A clarifies that the provisions for continuity do not affect the power of the Secretary of State to direct the new NHS trust; for example, to direct them to dispose of certain property. Consultation and report 191. New section 65F requires that, within 45 working days of appointment, the TSA must produce for the Secretary of State and publish a draft report, outlining the action which he recommends that the Secretary of State should take in relation to the trust. The Secretary of State must lay this report in Parliament. The TSA must set out, in a published statement, how he plans to consult on his draft report (new section 65G(1)). The consultation period will last for 30 working days (new section 65G(2)). 192. New section 65H specifies the duties which apply during the consultation period. In particular, it specifies that the TSA must publish a notice stating that the TSA is seeking responses to the draft report and describing how people can give their responses (subsection (2)). Subsections (4) and (5) provide that the TSA must hold meetings with the public and the staff of the trust and staff representatives. Staff for these purposes includes staff employed by contractors and volunteers working for the trust (subsection (11)). Section 65H also requires the TSA to seek written responses from and meet with any Strategic Health Authority in whose area the trust has hospitals, establishments or facilities, and any person to which the trust provides goods and services which the Secretary of State directs the TSA to consult, (in practice likely to be persons who commission goods and services from the trust) (subsections (7)(a) and (b) and (9)). The TSA is also required to request a written response from such of the persons named in subsection (8) as the Secretary of State directs. In addition, the Secretary of State may, through directions, impose additional requirements to hold meetings or seek written responses; this may include, for example the local university medical school, if the organisation has a training role (subsection (10)). 193. New section 65I provides that within 15 working days of the consultation closing, the TSA must provide the Secretary of State with a report containing his final recommendations for the trust. The TSA must attach to the report a summary of all oral and written responses to the consultation received during the consultation process. The Secretary of State must publish this report and lay it before Parliament (subsection (3)). 194. New section 65J enables the Secretary of State to make an order extending any of the time periods for preparing the draft report, conducting the consultation or providing the final report. The power will be exercisable only where it would not be reasonable to expect the administrator to complete the relevant activity in the specified period and it is envisaged that the power will only be used in exceptional circumstances; for example, where the TSA was seriously ill or if the organisation had to deal with a significant unplanned event, for example a SARS (severe acute respiratory syndrome) outbreak. Where the time is extended, the TSA must publish a notice stating the date when the revised period expires (subsections (3) and (4)). Action by the Secretary of State 195. New section 65K requires the Secretary of State to decide what action to take in relation to the trust within 20 working days of receiving the final report. The decision and the reasons for it must be laid before Parliament as well as published. 196. If the Secretary of State decides to take any action in relation to the trust (for example, to dissolve the trust and merge it with another trust, or to direct it to close or transfer particular establishments or services), he will exercise existing powers under the NHS Act. If the Secretary of State decides not to dissolve the trust, however, new section 65L provides for the Secretary of State to make an order specifying when the appointment of the TSA and the suspension of the chairman and directors of the trust will come to an end (subsection (2)). If the trust is a de-authorised NHS foundation trust, an order must be made specifying the name of the NHS trust, the functions of the NHS trust and the number of non-executive and executive directors. If the trust has significant teaching commitments then one of the non-executive directors should be a person from a university with a medical or dental school (subsection (4)). In the case of a de-authorised NHS foundation trust, the number of suspended directors may exceed the number permitted under the regulations governing NHS trust membership, or there may be an insufficient number. New subsection (5) therefore enables the Secretary of State to remove directors or appoint new directors to meet requirements for NHS trusts. Supplementary 197. New section 65M provides that if the TSA ceases to hold office either before the Secretary of State has dissolved the trust or before he has reinstated the chairman and directors to the trust, the Secretary of State must appoint another TSA and publish his name. At this point the new TSA takes over from the same stage in the process, unless the Secretary of State directs that the new TSA should start from a different point (for example to start at the beginning of the process) (subsection (2)). 198. New section 65N requires the Secretary of State to publish guidance for TSAs, which must include guidance in relation to the publication of notices relating to consultation and extensions of time and also the preparation of the draft report. Clause 17: Trust Special Administrators: Primary Care Trusts 199. Clause 17 inserts a new Chapter 5B of the NHS Act (new sections 65P to 65Z3). The new sections provide the Secretary of State with powers to direct a PCT to appoint a TSA to exercise specified “provider” functions of the PCT. The new sections also set out the functions of the TSA during the period of appointment which will apply if the directions making power is exercised. In particular, provision is made for consultation by the TSA, the preparation of a draft report making recommendations to the Secretary of State and a final decision by the Secretary of State. Appointment 200. New section 65P gives the Secretary of State the power to give directions requiring a PCT to appoint a TSA to exercise certain “provider” functions of the PCT on its behalf (subsection (1)). A “provider” function is any function which (i) involves the provision of goods and services, but only where that function is exercised by the PCT by means of direct provision (for example not by the making of commissioning arrangements with other persons) and (ii) is not a function of providing goods and services but which may be exercised for that purpose (e.g. employing staff) (subsection (10)). Precisely which functions are to be exercised by the TSA will be specified in the directions; that may differ in each case. The Secretary of State may only exercise the direction making power if he considers it appropriate in the interests of the health service to do so (subsection (2)) and only after consulting the PCT, any Strategic Health Authority whose area includes any part of the PCT’s area, and any other person which commissions services from the PCT, where the Secretary of State considers it appropriate (subsection (4)). The TSA holds and vacates office in accordance with the terms of his appointment (subsection (7)) and the Secretary of State can require in the directions that the terms of appointment contain specified terms for example provision could be included to ensure that the Board of the PCT cannot interfere in the exercise of the TSA’s functions (subsection (8)). New section 65Q provides that when the TSA’s appointment takes effect, the relevant functions (meaning those exercisable by the TSA) will no longer be exercisable by any committee, subcommittee or officer of the PCT, but that provision will not affect the employment of any PCT employee (subsection (2)). Consultation and report 201. New section 65R requires that, within 45 working days of appointment, the TSA must produce and publish a draft report, recommending the action that the Secretary of State should take in relation to the performance of the relevant functions. The Secretary of State must lay this report before Parliament (subsection (3)). The TSA must set out, in a published statement, how he plans to consult on the draft report (new section 65S(1)). The consultation period will last for 30 working days (new section 65S(2)). 202. New section 65T specifies the duties which apply during the consultation period. In particular, it specifies that the TSA must publish a notice stating that the TSA is seeking responses to the draft report and describing how people can give their response (subsection (2)). It provides that the TSA must hold meetings with the public and staff of the PCT and staff representatives (subsection (4) and (5)). Staff for these purposes only includes staff who are employed in connection with the relevant functions (i.e. the provider functions which are being exercised by the TSA) and it includes staff employed by contractors and volunteers working for the PCT (subsection (10)). The TSA is required to seek written responses from and meet any Strategic Health Authority in whose area any part of the PCT’s area falls, and any person to which the trust provides goods and services which the Secretary of State directs the TSA to consult (in practice likely to be persons who commission goods and services from the trust) (subsections (7)(a) and (b) and (8)). The TSA is also required to request a written response from such persons within section 65H(8) as the Secretary of State may direct (subsection 7(c)). The Secretary of State may also direct the TSA to seek written responses from or hold meetings with additional persons specified in the directions (subsection (9)). 203. New section 65U provides that within 15 working days of the end of the consultation period, the TSA must give the Secretary of State a report containing his recommendations. The TSA must attach to the report a summary of all oral and written responses to the consultation received during the consultation process. The Secretary of State must publish the TSA’s report and lay it before Parliament (subsection (3)). 204. New section 65V enables the Secretary of State to make an order extending any of the time periods for preparing the draft report, conducting the consultation or providing the final report. The power will be exercisable only where it would not be reasonable to expect the administrator to complete the relevant activity in the specified period and the Government envisages that the power will only be used in exceptional circumstances; for example, where the TSA was seriously ill or if the organisation had to deal with a significant unplanned event, for example a SARS (severe acute respiratory syndrome) outbreak. Where the time is extended, the TSA must publish a notice stating the date when the revised period expires (subsections (2) and (3)). Action by the Secretary of State 205. New section 65W requires the Secretary of State to decide what action to take in relation to the performance of the relevant provider functions within 20 working days of receiving the final report. The decision and the reasons for it must be laid before Parliament as well as published. 206. If the Secretary of State decides to take any action in relation to the relevant provider function (for example, he may decide that the PCT should stop providing services itself and commission them from elsewhere) he will exercise existing powers under the NHS Act. 207. New section 65X allows the Secretary of State to give directions to the PCT and the TSA, requiring that the TSA is removed with effect from a specified day. Supplementary 208. New section 65Y provides that if the TSA ceases to hold office before the Secretary of State has published his decision, the Secretary of State must appoint a new TSA and publish his name. The new TSA takes over from the same stage in the process, unless the Secretary of State directs that the new TSA should start from a different point (for example to start at the beginning of the process) (subsection (3)). 209. New section 65Z allows the Secretary of State to give further directions to the TSA about the exercise of the TSA’s functions. 210. New section 65Z1 requires the Secretary of State to publish guidance for TSAs, which must include guidance in relation to the publication of notices relating to consultation and extensions of time and also the preparation of the draft report. 211. New section 65Z2 requires the following directions to be laid before Parliament: the initial directions requiring the appointment of a TSA and specifying which functions are to be exercised by the TSA on the PCT’s behalf; additional directions about the TSA’s exercise of functions; directions bringing the appointment of the TSA to an end. Clause 18: Consequential amendments 212. Clause 18 makes consequential amendments to the NHS Act. In particular, subsections (2) to (6) amend sections 53 and 54 so that the existing provisions for voluntary arrangements and the dissolution of NHS foundation trusts apply only to NHS foundation trusts to which the new regime does not apply (meaning those authorised on an application by a body other than an NHS trust under section 34 of the Act, or those established under section 56 which are not within section 65A(2)). 213. Subsection (7) amends section 242 of the Act (public involvement and consultation), so that PCTs, NHS trusts and NHS foundation trusts will not be obliged to consult, or make other arrangements for involvement, in relation to matters to which the draft report or final report relates as relevant consultation will be undertaken by the TSA under the new sections. Chapter 2 - NHS and other health appointments: suspension Clause 19: NHS and other health appointments: suspension 214. Clause 19 gives effect to Schedule 3. Schedule 3: NHS and other health appointments: suspension 215. Part 1 of Schedule 3 amends enactments to allow for suspension from office of chairs and members of NHS and other health bodies and to make provision required in consequence of the new powers of suspension. The powers to suspend will allow a flexible approach to enable investigation of allegations or circumstances while considering decisions about whether to remove chairs or members from office. The amendments provide (or enable provision to be made in regulations) for an initial period of suspension, procedures for reviewing, revoking or extending suspension, a right for the person suspended to have the suspension reviewed, the appointment of an interim chair or, in a case where there is a vice or deputy chair appointed by the body in question for the appointment by the Secretary of State of a new vice or deputy chair. The amendments also provide for the membership of a suspended person not to count where legislation provides for a maximum number of members. What is required by way of amendments to primary legislation to achieve the policy varies from case to case. 216. Part 2 of Schedule 3 makes supplementary provision. 217. Paragraph 1 of Schedule 3 amends Schedule 1A to the Medicines Act 1968 (provisions relating to Commission on Human Medicine and Committees) as follows— 218. New paragraph 6(2) of Schedule 1A enables the Secretary of State to make certain ancillary provisions in regulations as seem fitting relating to the terms on which members of the Commission on Human Medicine, committees established under section 4 of the 1968 Act or Expert Advisory Groups hold and vacate office. Such provision may be required to give full effect to the suspension regime. 219. Paragraph 2 amends Schedule 1 to the Licensing (Alcohol Education and Research) Act 1981 (the Alcohol Education and Research Council) as follows— 220. New paragraph 3A of Schedule 1 enables the Secretary of State to suspend a member of the Council from office if it appears to him that one of the grounds for termination of the member’s appointment may apply. 221. New paragraph 3B of Schedule 1 sets out details as to how the suspension process will operate including details about notification of suspension, the initial period of suspension, procedures for reviewing, revoking or extending a suspension and providing that a suspended member is not to be counted for the purposes of determining whether the membership of the Council exceeds 15 (the maximum permitted by the 1981 Act). 222. New sub-paragraph (4) of paragraph 4 of Schedule 1 will have the effect that when the chairman is suspended from office as a member of the Council, he will also be suspended from office as chairman of the Council. 223. New paragraph 4A of Schedule 1 will enable the Secretary of State to appoint an interim chairman where the chairman has been suspended, and sets out procedural details including for holding and vacating office, the term of office, resignation or termination of the appointment. 224. Paragraph 3 amends Schedule 1 to the Human Fertilisation and Embryology Act 1990 (the Human Fertilisation and Embryology Authority: supplementary provisions) as follows— 225. New paragraph 5A of Schedule 1 enables the Secretary of State to suspend a member from office as the chairman, deputy chairman or other member of the Human Fertilisation and Embryology Authority if it appears there may be grounds for the Secretary of State to declare the office vacant. 226. New paragraph 5B of Schedule 1 sets out details as to how the suspension process will operate, including details about notification of suspension, the initial period of suspension and reviewing, revoking or extending a suspension. 227. Paragraphs 4, 5 & 6 amend Schedule 1 to the Health Protection Agency Act 2004 (the Health Protection Agency) as follows— 228. New sub-paragraph (3A) of paragraph 1 of Schedule 1 will have the effect that where a member of the Agency appointed by the Scottish Ministers, DHSSPSNI or the Welsh Ministers is suspended by that authority pursuant to regulations under the Schedule, another member could be appointed by the authority pursuant to paragraph 1(3). The suspended member would also not be counted toward the total number of members of the Agency prescribed in regulations. 229. New sub-paragraph (5A) of paragraph 1 of Schedule 1 will enable regulations made by the Secretary of State to address what would happen in relation to the deputy chair (who is appointed by the other members of the Agency, not the Secretary of State) if the chairman of the Agency were suspended. Regulations could enable the Secretary of State to direct that the appointment of the deputy chairman would end and provide for the Secretary of State to appoint another non-executive member to be deputy chairman. 230. New sub-paragraph (3) of paragraph 29 of Schedule 1 will enable the Secretary of State to include in regulations under the Schedule certain ancillary provisions that appear to him to be suitable. Such provisions may be required to give full effect to the proposed suspension regime. 231. Paragraph 7 amends Schedule 2 to the Human Tissue Act 2004 (the Human Tissue Authority) as follows— 232. New paragraph 9A of Schedule 2 will enable the authority who appointed the chairman or a member (the Secretary of State in the case of the chairman or such other number of members as he thinks fit, the Welsh Ministers in the case of one member and DHSSPSNI in respect of one member) to suspend the chairman or member they have appointed as members of the Human Tissue Authority. 233. New paragraph 9B of Schedule 2 sets out procedural details about how the suspension process will operate, including details about notification of suspension, the initial period of suspension and reviewing, revoking or extending a suspension. Sub-paragraph (9) of new paragraph 9B will ensure that where a member appointed by the Welsh Ministers or DHSSPSNI was suspended by that authority another member could be appointed by the authority pursuant to paragraph 1(1)(c) or (d) of Schedule 2. 234. New paragraph 9C of Schedule 2 will enable the Secretary of State to appoint an interim chairman where the chairman has been suspended, and sets out procedural details including for holding and vacating office, the term of office, or resignation or removal from office. 235. Paragraph 8 amends Schedule 4 to the Health Act 2006 (the Appointments Commission: supplementary) as follows— 236. New paragraph 6(2) of Schedule 4 will enable regulations by the Secretary of State to address what would happen in relation to the vice-chairman (who is appointed by the members of the Commission, not the Secretary of State) if the chairman of the Appointments Commission is suspended from office. Regulations could enable the Secretary of State to direct that the appointment of the vice-chairman would end and provide for the Secretary of State to appoint another non-executive member to be vice-chairman. 237. Paragraphs 9, 10, 11, 12 and 13 amend Schedules 2 (Strategic Health Authorities), 6 (Special Health Authorities), 8 (Independent Regulator of NHS foundation trusts), and 19 (further provision about standing advisory committees) of the NHS Act as follows— 238. Substituted sub-paragraph (d) of paragraph 9 of Schedule 2 amends the Secretary of State’s regulation-making power at paragraph 9 of the Schedule to enable regulations to provide for suspension of the chairman, vice-chairman or any member of a Strategic Health Authority. 239. Substituted sub-paragraph (d) of paragraph 5 of Schedule 6 amends the Secretary of State’s regulation-making power at paragraph 5 of Schedule 6 to enable regulations to provide for suspension of the chairman, vice-chairman or any member of a Special Health Authority. 240. New sub-paragraph (c) of paragraph 2(2) of Schedule 8 will enable the Secretary of State to suspend the chairman or another member of Monitor on suspicion of there being grounds that would enable him to remove the member from office. 241. New paragraph 2A of Schedule 8 sets out procedural details about how the suspension process would operate, including details about notification of suspension, the initial period of suspension, reviewing, revoking or extending the suspension and that the suspended member would not be counted towards the maximum number of members of Monitor during the suspension. 242. New Paragraph 5A of Schedule 19 expands the regulation-making power at paragraph 1 of that Schedule to enable regulations to provide for the Secretary of State to appoint an interim chairman following removal or suspension from office of the chairman of a standing advisory committee. The amendment to paragraph 1(b) of Schedule 19 enables regulations under paragraph 1 could make provision with respect to removal or suspension from office of members of any standing advisory committee. 243. Paragraphs 14, 15, 16 and 17 amend Schedules 5 (Special Health Authorities established under section 22), 10 (further provision about community health councils), and 13 (further provision about standing advisory committees) of the NHS (Wales) Act as follows— 244. Substituted sub-paragraph (d) of paragraph 5 of Schedule 5 amends the Welsh Ministers’ regulation-making power at paragraph 5 to enable regulations to provide for suspension of the chairman, vice-chairman or any member of a Special Health Authority. 245. New paragraph 2A of Schedule 10 will enable regulations about the membership of community health councils to include provision, in cases where the chair elected by the members is removed or suspended from office, for the appointment by Welsh Ministers of a member as interim chair. The omission in paragraph 2(a) of Schedule 10 is consequential on this amendment. 246. New paragraph 5A of Schedule 13 will enable regulations under paragraph 1(b) of that Schedule to provide for the appointment by Welsh Ministers of an interim chairman following removal or suspension of the elected chairman of a standing advisory committee. The amendment to paragraph 1(b) enables regulations under paragraph 1 to address removal or suspension from office of members of a standing advisory committee. 247. Paragraph 18 of Part 2 of Schedule 3 (supplementary) provides that in the case of a cross-border body, regulation-making powers in relation to such a body conferred on the Secretary of State and the Welsh Ministers by the amendments made in Part 1 of the Schedule are exercisable concurrently. This replicates the existing position in respect of regulation-making powers in relation to such bodies. A cross-border body is a body exercising functions, or carrying out activities in or with respect to Wales (or any part of Wales) and England (see section 158(1) of the Government of Wales Act 2006). 248. Paragraph 19 has the effect that the changes relating to suspension will apply to existing appointees to the bodies mentioned in Part 1 of the Schedule as well as to future appointees. |
| |
| © Parliamentary copyright 2009 | Prepared: 14 May 2009 |