Health and Social Care Bill

Session 2010 - 11
Internet Publications
Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
149

168
Dissolution
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.
5
(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 the
applicant.
(3)
The regulator must grant the application if it is satisfied that—
(a)
the trust has no liabilities, and
10
(b)
such steps as are necessary to prepare for the dissolution have
been taken.
(4)
Where an application under this section is granted, the regulator must
make an order—
(a)
dissolving the trust in question, and
15
(b)
transferring, or providing for the transfer of, the property of the
trust (if any) to the Secretary of State.”
169
Supplementary
(1)
In section 57 of the National Health Service Act 2006 (mergers:
supplementary), in subsection (1)—
20
(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
25
“such an application is granted, the regulator”, and
(b)
in paragraph (a), after “dissolving the” insert “trust or”, and
(c)
in paragraph (b), at the end insert “or trusts”.
(3)
After that subsection insert—
“(2A)
An order under section 56 or 56B is conclusive evidence of
30
incorporation and conclusive evidence that the corporation is an NHS
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
35
(b)
for “section 54(4)(a) to (c)” substitute “section 54(4)(a) or (c)”.
(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,
40
acquisitions and separations”.

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
150

(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” following paragraph (b), and
(b)
after paragraph (c), insert “, or
“(d)
section 57A.”
5
(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.”
Failure
10
170
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
“sections 52B to 52E and Chapter 5A do” substitute “Chapter 5A does”.
15
(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).
(5)
Omit section 15 of the Health Act 2009 (which inserts sections 52A to 52E and
20
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
(b)
in subsection (6A), omit “52D(1), 52E(6),”.
25
(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
definition of “NHS trust”, omit “52D(1) or”.
30
171
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—
“(b)
any NHS foundation trust.”, and
35
(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
trust is, or is likely to become, unable to pay its debts.
40

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
151

(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—
(a)
for “giving a notice” substitute “making an order”,
5
(b)
after paragraph (a) insert—
“(aa)
the National Health Service Commissioning Board,”,
and
(c)
omit paragraph (b) (but not the “and” following it).
(4)
After that subsection insert—
10
“(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
instrument containing the order) a report stating the reasons for
15
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
(b)
publish the name of the person appointed.
20
(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
section takes effect, the trust’s governors, chairman and executive and
25
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
the trust.
30
(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
trust special administrator”.
35
(6)
Omit the cross-heading preceding that section.
172
Procedure etc.
(1)
In section 65F of the National Health Service Act 2006 (administrator’s draft
report), in subsection (2), for paragraph (a) substitute—
“(a)
the Board,”.
40

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
152

(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.”
(3)
In section 65H of that Act (consultation requirements), in subsection (7), for
5
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
by the trust or to which the trust provides services;”.
10
(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—
15
“(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—
20
“(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.”
173
Action following final report
(1)
At the end of section 65K of the National Health Service Act 2006 (Secretary of
25
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
30
order—
(a)
dissolving the trust, and
(b)
transferring, or providing for the transfer of, the property and
liabilities of the trust—
(i)
to another NHS foundation trust or the Secretary of
35
State, or
(ii)
between another NHS foundation trust and the
Secretary of State.
(5)
Before making an order under subsection (4), the regulator must obtain
the consent of the Secretary of State.
40
(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

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
153

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
5
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—
10
(a)
the references to the Secretary of State are to be read as
references to the regulator, and
(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.
15
(4)
At the end of that section insert—
“(6)
Subsection (7) applies in the case of an NHS foundation trust.
(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-
20
executive director of the trust;
(b)
appoint a person to be a governor or an executive or non-
executive director of the trust.”
174
Sections 171 to 173: supplementary
(1)
At the end of section 65M of the National Health Service Act 2006 (replacement
25
of trust special administrator) insert—
“(3)
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.”
(2)
At the end of section 65N of that Act (power to issue guidance) insert—
30
“(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
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)”.
35
(4)
In section 39 of that Act (register of NHS foundation trusts), in subsection (2),
at the end insert “,
(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,
40
(j)
a copy of any statement under section 65G,
(k)
a copy of any notice published under section 65H, 65J or 65K,
(l)
a copy of any final report published under section 65I,

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
154

(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),”,
(b)
omit “65E(1),”,
5
(c)
after “65J(2),” insert “65K(4),”, and
(d)
for “(5)” substitute “(7)”.
(6)
After subsection (6) insert—
“(6ZA)
The Statutory Instruments Act 1946 applies in relation to the power of
the regulator to make an order under Chapter 5A as if the regulator
10
were a Minister of the Crown.”
(7)
In subsection (6A) of that section—
(a)
after “65B(1),” insert “65D(2),”,
(b)
omit “65E(1),”,
(c)
after “65J(2),” insert “65K(4),”, and
15
(d)
for “(4)” substitute “(7)”.
(8)
In section 275(1) of that Act (interpretation), in the definition of “NHS trust”,
omit the words from “and” to the end.
(9)
In paragraph 22(1) of Schedule 7 to that Act (documents which must be made
available to the public free of charge), at the end insert “,
20
(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,
25
(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.”
(10)
In section 206(1) of the National Health Service (Wales) Act 2006, in the
definition of “NHS trust”, omit the words from “(including” to the end.
30
175
Repeal of Chapter 5A of Part 2 of the National Health Service Act 2006
(1)
Chapter 5A of Part 2 of the National Health Service Act 2006 is repealed on—
(a)
the commencement of the first regulations under section 55A of that
Act and the first regulations under section 128 of this Act that make
provision for cases involving NHS foundation trusts, or
35
(b)
where the regulations come into force on different days, on whichever
commencement occurs first.
(2)
In consequence of subsection (1), the following are also repealed on the
commencement of the repeal of Chapter 5A of Part 2 of that Act—
(a)
section 39(2)(g) to (n) of that Act,
40
(b)
section 272(5)(ab), (6ZA) and (6A) of that Act,
(c)
in paragraph 28(3) of Schedule 4 to that Act, the words from “or where”
to “65I(3)”,
(d)
paragraph 22(1)(g) to (n) of Schedule 7 to that Act,

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
155

(e)
in the definition of “NHS trust” in section 206(1) of the National Health
Service (Wales) Act 2006, the words from “(including” to the end,
(f)
section 18(9), (10) and (12) of the Health Act 2009, and
(g)
sections 171 to 174 and 179(5) of this Act.
Abolition of NHS trusts
5
176
Abolition of NHS trusts in England
(1)
The NHS trusts established under section 25 of the National Health Service Act
2006 are abolished.
(2)
Chapter 3 of Part 2 of that Act (NHS trusts) is repealed.
(3)
This section and section 177 come into force on 1 April 2014.
10
(4)
The Secretary of State may by order substitute another date for the date for the
time being specified in subsection (3).
(5)
Where arrangements (“franchise arrangements”) under which a person
exercises (or is to exercise) the main functions of an NHS trust on behalf of the
trust are in force immediately before the commencement of this section, the
15
trust is to continue after that commencement to be constituted as an NHS trust
until—
(a)
it is dissolved or becomes, merges with or is acquired by an NHS
foundation trust,
(b)
where none of those events occurs before the end of the period of three
20
years beginning with the day on which the franchise arrangements
come to an end, the end of that period, or
(c)
where other franchise arrangements come into force before the end of
that period, the end of the period of three years beginning with the day
on which those other franchise arrangements or any subsequent
25
franchise arrangements come to an end.
(6)
In subsection (5)(c), the reference to subsequent franchise arrangements is a
reference to franchise arrangements which come into force before the end of
the period of three years beginning with the day on which the preceding
franchise arrangements come to an end.
30
(7)
For the purposes of subsection (5)—
(a)
Chapter 3 of Part 2 of the National Health Service Act 2006 is, despite
subsection (2), to continue to have effect,
(b)
Chapter 5A of that Part is, despite section 174(1), to continue to have
effect,
35
(c)
the repeals made by section 175(2) are not to have effect,
(d)
the amendments made by Schedule 14 are not to have effect (and
subsection (8) is to be read accordingly), and
(e)
the amendments made by paragraph 9 of Schedule 22 are not to have
effect (and section 289 is to be read accordingly).
40
(8)
Schedule 14 (which contains consequential amendments) has effect.