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Health and Social Care Bill


Health and Social Care Bill
Part 4 — NHS Foundation trusts & NHS trusts

129

 

152     

Significant transactions

After section 51 of the National Health Service Act 2006 insert—

“51A    

Significant transactions

(1)   

An NHS foundation trust may enter into a significant transaction only

if more than half of the members of the council of governors of the trust

5

voting approve entering into the transaction.

(2)   

“Significant transaction” means a transaction or arrangement of such

description as may be specified in the trust’s constitution.

(3)   

If an NHS foundation trust does not wish to specify any descriptions of

transaction or arrangement for the purposes of subsection (2), the

10

constitution of the trust must specify that it contains no such

descriptions.”

Mergers, acquisitions, separations and dissolution

153     

Mergers

(1)   

In section 56 of the National Health Service Act 2006 (mergers), in subsection

15

(1), for the words from “authorisation” to the end substitute “the dissolution of

the trusts and the establishment of a new NHS foundation trust.”

(2)   

After that subsection insert—

“(1A)   

An application under this section may be made only with the approval

of more than half of the members of the council of governors of each

20

applicant.”

(3)   

In subsection (2) of that section, omit—

(a)   

paragraph (a),

(b)   

paragraph (c) (but not the “and” following it), and

(c)   

the words from “and must give” to the end.

25

(4)   

Omit subsection (3) of that section.

(5)   

For subsection (4) of that section substitute—

“(4)   

The regulator must grant the application if it is satisfied that such steps

as are necessary to prepare for the dissolution of the trusts and the

establishment of the proposed new trust have been taken.”

30

(6)   

Omit subsections (5) to (10) of that section.

(7)   

In subsection (11) of that section, for “On an authorisation being given under

this section” substitute “On the grant of the application”.

154     

Acquisitions

After section 56 of the National Health Service Act 2006 insert—

35

“56A    

Acquisitions

(1)   

An application may be made jointly by—

(a)   

an NHS foundation trust (A), and

 
 

Health and Social Care Bill
Part 4 — NHS Foundation trusts & NHS trusts

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(b)   

another NHS foundation trust or an NHS trust (B),

   

to the regulator for the acquisition by A of B.

(2)   

An application under this section may be made only with the approval

of more than half of the members of the council of governors of each

applicant.

5

(3)   

The application must be accompanied by a copy of the proposed

constitution of A, amended on the assumption that A acquires B.

(4)   

The regulator must grant the application if it is satisfied that such steps

as are necessary to prepare for the acquisition have been taken.

(5)   

On the grant of the application, the proposed constitution has effect,

10

but where a person who is specified as a director of A in the

constitution has yet to be appointed as such, the directors of A may

exercise that person’s functions under the constitution.”

155     

Separations

After section 56A of the National Health Service Act 2006 insert—

15

“56B    

Separations

(1)   

An application may be made to the regulator by an NHS foundation

trust for the dissolution of the trust and the establishment of two or

more new NHS foundation trusts.

(2)   

An application under this section may be made only with the approval

20

of more than half of the members of the council of governors of the

applicant.

(3)   

The application must, by reference to each of the proposed new trusts—

(a)   

specify the property and liabilities proposed to be transferred

to it;

25

(b)   

be accompanied by a copy of its proposed constitution.

(4)   

The regulator must grant the application if it is satisfied that such steps

as are necessary to prepare for the dissolution of the trust and the

establishment of each of the proposed new trusts have been taken.

(5)   

On the grant of the application, the proposed constitution of each of the

30

new trusts has effect but, in the case of each of the new trusts, the

proposed directors may exercise the functions of the trust on its behalf

until a board of directors is appointed in accordance with the

constitution.”

156     

Dissolution

35

After section 57 of the National Health Service Act 2006 insert—

“57A    

Dissolution

(1)   

An application may be made by an NHS foundation trust to the

regulator for dissolution.

(2)   

The regulator must grant the application if it is satisfied that—

40

(a)   

the trust has no liabilities, and

 
 

Health and Social Care Bill
Part 4 — NHS Foundation trusts & NHS trusts

131

 

(b)   

such steps as are necessary to prepare for the dissolution have

been taken.

(3)   

Where an application under this section is granted, the regulator must

make an order—

(a)   

dissolving the trust in question, and

5

(b)   

transferring, or providing for the transfer of, the property of the

trust (if any) to the Secretary of State.”

157     

Supplementary

(1)   

In section 57 of the National Health Service Act 2006 (mergers:

supplementary), in subsection (1)—

10

(a)   

for “an authorisation is given under section 56” substitute “an

application is granted under section 56 or 56B”, and

(b)   

at the end insert “or trusts”.

(2)   

In subsection (2) of that section—

(a)   

for “such an authorisation is given, the Secretary of State” substitute

15

“such an application is granted, the regulator”, and

(b)   

in paragraph (a), after “dissolving the” insert “trust or”.

(3)   

After that subsection insert—

“(2A)   

An order under section 56 or 56B is conclusive evidence of

incorporation and conclusive evidence that the corporation is an NHS

20

foundation trust.”

(4)   

In subsection (3)(a) of that section, for “section 54(3)” substitute “section 54(4)”.

(5)   

In subsection (4) of that section—

(a)   

for “section 56(1) and (2)” substitute “sections 56(2) and 56B(3)”, and

(b)   

for “section 54(4)(a) to (c)” substitute “section 54(4)(a) or (c)”.

25

(6)   

In subsection (5) of that section, after “section 56” insert “or 56A”.

(7)   

Omit subsection (6) of that section.

(8)   

For the title to that section substitute “Sections 56 to 56B: supplementary”.

(9)   

For the cross-heading preceding section 56 of that Act substitute “Mergers,

acquisitions and separations”.

30

(10)   

In section 64 of that Act (orders and regulations under Chapter 5 of Part 2 of

that Act), in subsection (4)—

(a)   

omit the “or” immediately after paragraph (b), and

(b)   

after paragraph (c), insert “, or

“(d)   

section 57A.”

35

(11)   

After that subsection insert—

“(4A)   

The Statutory Instruments Act 1946 applies in relation to the power of

the regulator to make an order under section 57 or 57A as if the

regulator were a Minister of the Crown.”

 
 

Health and Social Care Bill
Part 4 — NHS Foundation trusts & NHS trusts

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Failure

158     

Repeal of de-authorisation provisions

(1)   

Omit section 52C of the National Health Service Act 2006 (guidance etc. on de-

authorisation notices).

(2)   

In section 53 of that Act (voluntary arrangements), in subsection (4A), for

5

“sections 52B to 52E and Chapter 5A do” substitute “Chapter 5A does”.

(3)   

Omit section 65E of that Act (NHS foundation trusts: de-authorisation and

appointment of administrator).

(4)   

Omit Schedule 8A to that Act (de-authorised NHS trusts and NHS foundation

trusts).

10

(5)   

Omit section 15 of the Health Act 2009 (which inserts sections 52A to 52E and

Schedule 8A in the National Health Service Act 2006).

(6)   

In section 272 of the National Health Service Act 2006 (orders, regulations,

rules and directions)—

(a)   

in subsection (5), omit paragraph (aa), and

15

(b)   

in subsection (6A), omit “52D(1), 52E(6),”.

(7)   

In section 275(1) of that Act (interpretation), in the definition of “NHS trust”—

(a)   

omit “, subject to Schedule 8A,”, and

(b)   

omit “52D(1) or”.

(8)   

In section 206(1) of the National Health Service (Wales) Act 2006, in the

20

definition of “NHS trust”, omit “52D(1) or”.

159     

Trust special administrators

(1)   

In section 65A of the National Health Service Act 2006 (bodies to which trust

special administration regime applies)—

(a)   

in subsection (1), for paragraphs (b) and (c) substitute—

25

“(b)   

any NHS foundation trust.”, and

(b)   

omit subsection (2).

(2)   

In section 65D of that Act (NHS foundation trusts: regulator’s notice), for

subsections (1) to (3) substitute—

“(1)   

This section applies if the regulator is satisfied that an NHS foundation

30

trust is, or is likely to become, unable to pay its debts.

(2)   

The regulator may make an order authorising the appointment of a

trust special administrator to exercise the functions of the governors,

chairman and directors of the trust.”

(3)   

In subsection (4) of that section—

35

(a)   

for “giving a notice” substitute “making an order”,

(b)   

after paragraph (a) insert—

“(aa)   

the National Health Service Commissioning Board,”,

and

(c)   

omit paragraph (b) (but not the “and” following it).

40

 
 

Health and Social Care Bill
Part 4 — NHS Foundation trusts & NHS trusts

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(4)   

After that subsection insert—

“(5)   

An order under subsection (2) must specify the date when the

appointment is to take effect, which must be within the period of 5

working days beginning with the day on which the order is made.

(6)   

The regulator must lay before Parliament (with the statutory

5

instrument containing the order) a report stating the reasons for

making the order.

(7)   

If the regulator makes an order under subsection (2), it must—

(a)   

appoint a person as the trust special administrator with effect

from the day specified in the order, and

10

(b)   

publish the name of the person appointed.

(8)   

A person appointed as a trust special administrator under this section

holds and vacates office in accordance with the terms of the

appointment.

(9)   

When the appointment of a trust special administrator under this

15

section takes effect, the trust’s governors, chairman and executive and

non-executive directors are suspended from office; and Chapter 5 of

this Part, in its application to the trust, is to be read accordingly.

(10)   

But subsection (9) does not affect the employment of the executive

directors or their membership of any committee or sub-committee of

20

the trust.

(11)   

The Secretary of State may indemnify a trust special administrator

appointed under this section in respect of such matters as the Secretary

of State may determine.”

(5)   

For the title to that section substitute “NHS foundation trusts: appointment of

25

trust special administrator”.

(6)   

Omit the cross-heading preceding that section.

160     

Procedure etc.

(1)   

In section 65F of the National Health Service Act 2006 (administrator’s draft

report), in subsection (2), for paragraph (a) substitute—

30

“(a)   

the Board,”.

(2)   

At the end of that section insert—

“(4)   

For the purposes of this section in its application to the case of an NHS

foundation trust, the references to the Secretary of State are to be read

as references to the regulator.”

35

(3)   

In section 65H of that Act (consultation requirements), in subsection (7), for

paragraph (a) substitute—

“(a)   

the Board,”.

(4)   

In subsection (8) of that section, for paragraphs (a) to (d) substitute—

“(a)   

any local authority which arranges for the provision of services

40

by the trust or to which the trust provides services,”.

 
 

Health and Social Care Bill
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(5)   

At the end of that section insert—

“(12)   

For the purposes of this section in its application to the case of an NHS

foundation trust, the references to the Secretary of State are to be read

as references to the regulator.”

(6)   

At the end of section 65I of that Act (administrator’s final report) insert—

5

“(4)   

For the purposes of this section in its application to the case of an NHS

foundation trust, the references to the Secretary of State are to be read

as references to the regulator.”

(7)   

At the end of section 65J of that Act (power to extend time limits for preparing

reports and carrying out consultation) insert—

10

“(5)   

For the purposes of this section in its application to the case of an NHS

foundation trust, the references to the Secretary of State are to be read

as references to the regulator.”

161     

Action following final report

(1)   

At the end of section 65K of the National Health Service Act 2006 (Secretary of

15

State’s decision on what action to take) insert—

“(3)   

For the purposes of subsections (1) and (2) in their application to the

case of an NHS foundation trust, the references to the Secretary of State

are to be read as references to the regulator.

(4)   

The regulator may, in the case of an NHS foundation trust, make an

20

order—

(a)   

dissolving the trust, and

(b)   

transferring, or providing for the transfer of, the property and

liabilities of the trust to—

(i)   

another NHS foundation trust, or

25

(ii)   

the Secretary of State.

(5)   

Before making an order under subsection (4), the regulator must obtain

the consent of the Secretary of State.

(6)   

Where the Secretary of State refuses consent, the regulator must within

the period of 20 working days beginning with the day on which the

30

regulator receives written notification of the Secretary of State’s refusal,

decide on alternative action to take in relation to the trust.

(7)   

The liabilities that may be transferred by virtue of subsection (4)(b)(i)

include criminal liabilities.

(8)   

An order under subsection (4) may include provisions corresponding

35

to those in Schedule 9.”

(2)   

In section 65L of that Act (trusts coming out of administration), after subsection

(2) insert—

“(2A)   

For the purposes of subsections (1) and (2) in their application to the

case of an NHS foundation trust—

40

(a)   

the references to the Secretary of State are to be read as

references to the regulator, and

 
 

Health and Social Care Bill
Part 4 — NHS Foundation trusts & NHS trusts

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(b)   

the reference to the chairman and directors of the trust is to be

read as including a reference to the governors.”

(3)   

Omit subsections (3) to (5) of that section.

(4)   

At the end of that section insert—

“(6)   

Subsection (7) applies in the case of an NHS foundation trust.

5

(7)   

If it appears to the regulator to be necessary in order to comply with

Schedule 7, the regulator may by order—

(a)   

terminate the office of any governor or of any executive or non-

executive director of the trust;

(b)   

appoint a person to be a governor or an executive or non-

10

executive director of the trust.”

162     

Sections 159 to 161: supplementary

(1)   

At the end of section 65M of the National Health Service Act 2006 (replacement

of trust special administrator) insert—

“(3)   

For the purposes of this section in its application to the case of an NHS

15

foundation trust, the references to the Secretary of State are to be read

as references to the regulator.”

(2)   

At the end of section 65N of that Act (power to issue guidance) insert—

“(4)   

For the purposes of this section in its application to cases of NHS

foundation trusts, the reference in subsection (1) to the Secretary of

20

State is to be read as a reference to the regulator.”

(3)   

In section 65O of that Act (interpretation of Chapter 5A), in the definition of

“trust special administrator”, after “65B(6)(a)” insert “, section 65D(2)”.

(4)   

In section 39 of that Act (register of NHS foundation trusts), in subsection (2),

at the end insert “,

25

(g)   

a copy of any order made under section 65D, 65J, 65K or 65L,

(h)   

a copy of any report laid under section 65D,

(i)   

a copy of any draft report published under section 65F,

(j)   

a copy of any statement under section 65G,

(k)   

a copy of any notice published under section 65H, 65J or 65K,

30

(l)   

a copy of any final report published under section 65I,

(m)   

a copy of any statement published under section 65J,

(n)   

a copy of any information published under section 65M.”

(5)   

In section 272 of that Act (orders etc.), in subsection (5), in paragraph (ab)—

(a)   

after “65B(1),” insert “65D(2),”,

35

(b)   

omit “65E(1),”,

(c)   

after “65J(2),” insert “65K(4),”, and

(d)   

for “or (5)” substitute “, (5) or (7)”.

(6)   

After that subsection insert—

“(6ZA)   

The Statutory Instruments Act 1946 applies in relation to the power of

40

the regulator to make an order under Chapter 5A as if the regulator

were a Minister of the Crown.”

 
 

 
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