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A | |
Bill | |
To | |
Amend the law about the National Health Service; to make provision about | |
quality and standards in the provision of health and social care, including | |
provision establishing the Commission for Healthcare Audit and Inspection | |
and the Commission for Social Care Inspection; to amend the law about the | |
recovery of NHS costs from persons making compensation payments; to | |
provide for the replacement of the Welfare Food Schemes; to make provision | |
about appointments to health and social care bodies; and for connected | |
purposes. | |
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and | |
consent of the Lords Spiritual and Temporal, and Commons, in this present | |
Parliament assembled, and by the authority of the same, as follows:— | |
Part 1 | |
NHS foundation trusts | |
Introductory | |
1 NHS foundation trusts | |
(1) An NHS foundation trust is a public benefit corporation which is authorised | 5 |
under this Part 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 Part, is constituted in accordance with Schedule 1. | |
2 Independent Regulator of NHS Foundation Trusts | 10 |
(1) There is to be an officer known as the Independent Regulator of NHS | |
Foundation Trusts (referred to in this Part as “the regulator”). | |
(2) The Secretary of State is to appoint a person to the office of regulator. | |
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(3) Schedule 2 (which makes further provision about the regulator) has effect. | |
3 General duty of regulator | |
The regulator must exercise his functions in a manner that is consistent with | |
the performance by the Secretary of State of the duties under sections 1, 3 and | |
51 of the National Health Service Act 1977 (c. 49) (duty as to health service and | 5 |
services generally and as to university clinical teaching and research). | |
Authorisation | |
4 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 | 10 |
Secretary of State. | |
(2) The application must— | |
(a) describe the goods and services which the NHS trust proposes should | |
be provided by the NHS foundation trust, and | |
(b) be accompanied by a copy of the proposed constitution of the trust; | 15 |
and must give any further information which the regulator requires the NHS | |
trust to give. | |
(3) The applicant may modify the application with the agreement of the regulator | |
at any time before authorisation is given under section 6. | |
(4) Once an NHS trust has made the application— | 20 |
(a) the provisions of the proposed constitution which give effect to | |
paragraphs 3 to 17 of Schedule 1 have effect, but only for the purpose | |
of electing a shadow board of governors and appointing a shadow | |
board of directors, | |
(b) the NHS trust may do anything (including the things mentioned in | 25 |
paragraph 16 of Schedule 2 to the National Health Service and | |
Community Care Act 1990 (c. 19) (general powers)) which appears to it | |
to be necessary or desirable for the purpose of preparing it for NHS | |
foundation trust status. | |
5 Other applications | 30 |
(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— | 35 |
(a) describe the goods and services which the applicants propose should | |
be provided by the trust, and | |
(b) be accompanied by a copy of the proposed constitution of the trust; | |
and must give any further information which the regulator requires the | |
applicants to give. | 40 |
(3) If it appears to the regulator that— | |
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(a) provision of the goods and services described in the application is | |
likely to assist in the performance of the duties mentioned in section 3, | |
(b) the trust as proposed to be constituted will be able to provide those | |
goods and services, and | |
(c) the proposed constitution accords with Schedule 1 and is otherwise | 5 |
appropriate, | |
he may issue a certificate of incorporation. | |
(4) The applicants may modify the application with the agreement of the regulator | |
at any time before the certificate is issued. | |
(5) On the issue of the certificate, the applicants are incorporated as a public | 10 |
benefit corporation. | |
(6) The certificate is conclusive evidence of incorporation. | |
(7) Once the certificate has been issued— | |
(a) the proposed constitution has effect, but the applicants may exercise | |
the functions of the corporation on its behalf until a board of directors | 15 |
is appointed in accordance with the constitution, | |
(b) the corporation may do anything (including the things mentioned in | |
section 18) which appears to it to be necessary or desirable for the | |
purpose of preparing it for NHS foundation trust status. | |
6 Authorisation of NHS foundation trusts | 20 |
(1) The regulator may give an authorisation under this section— | |
(a) to an NHS trust which has applied under section 4, or | |
(b) to a public benefit corporation, | |
if he is satisfied as to the following matters. | |
(2) The matters are that— | 25 |
(a) the applicant’s constitution will be in accordance with Schedule 1 and | |
will otherwise be appropriate, | |
(b) taken as a whole the actual membership of the applicant’s public | |
constituency will be representative of those eligible for such | |
membership, | 30 |
(c) there will be a board of governors, and a board of directors, constituted | |
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 | 35 |
authorisation is to require it to provide, and | |
(f) any other requirements which he considers appropriate are met. | |
(3) The authorisation may be given on any terms the regulator considers | |
appropriate. | |
(4) If regulations require the applicant to consult prescribed persons about the | 40 |
application, the regulator may not give an authorisation unless he is satisfied | |
that the applicant has complied with the regulations. | |
(5) The regulator must send a copy of the authorisation to the registrar of | |
companies. | |
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(6) The generality of the power in subsection (3) is not affected by the following | |
provisions of this Part. | |
7 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, | 5 |
(b) the proposed constitution has effect. | |
(2) In consequence of subsection (1)(a), any order made under section 5(1) of the | |
1990 Act (establishment of the NHS trust) is revoked. | |
(3) On an authorisation being given to a body corporate which is a public benefit | |
corporation, it becomes an NHS foundation trust. | 10 |
(4) The authorisation is conclusive evidence that the body in question is an NHS | |
foundation trust. | |
(5) Subsections (1) to (3) do not affect the continuity of the body or of its property | |
or liabilities. | |
(6) An NHS foundation trust is not to be regarded as the servant or agent of the | 15 |
Crown or as enjoying any status, immunity or privilege of the Crown; and the | |
trust’s property is not to be regarded as property of, or property held on behalf | |
of, the Crown. | |
8 Amendments of constitution | |
(1) An NHS foundation trust may make amendments of its constitution with the | 20 |
approval of the regulator. | |
(2) An NHS foundation trust must send a copy of its constitution, and any | |
amendment of it, to the registrar of companies. | |
9 Variation of authorisation | |
(1) The regulator may vary an authorisation. | 25 |
(2) In deciding whether or not to vary an authorisation the regulator is to have | |
regard (among other things) to— | |
(a) any report or recommendation made to him by virtue of section 21(2)(f) | |
of the Local Government Act 2000 (c. 22) (overview and scrutiny | |
committees), | 30 |
(b) any report or recommendation made to him by the Commission for | |
Patient and Public Involvement in Health under section 20(5)(b) or (6) | |
of the National Health Service Reform and Health Care Professions Act | |
2002 (c. 17). | |
(3) The regulator must send a copy of any variation of the authorisation to the | 35 |
registrar of companies. | |
10 Register of NHS foundation trusts | |
(1) The registrar of companies must establish and maintain a register of NHS | |
foundation trusts. | |
(2) The register must contain in relation to each NHS foundation trust— | 40 |
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(a) a copy of the current constitution, | |
(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, | 5 |
(e) a copy of any notice given under section 23 (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 | |
who were first elected or appointed as— | 10 |
(a) the members of the board of governors, | |
(b) the directors. | |
(4) Sections 707A(2) and (3) and 709 of the Companies Act 1985 (c. 6) (records kept | |
by the registrar of companies) apply to the register as if it were required to be | |
kept by the registrar of companies under that Act. | 15 |
(5) The Secretary of State is to pay any expenses incurred by the registrar of | |
companies by virtue of this section. | |
Financial matters | |
11 Power of Secretary of State to give financial assistance | |
(1) The Secretary of State may give financial assistance to any NHS foundation | 20 |
trust. | |
(2) The financial assistance may be given by way of loan, public dividend capital, | |
grant or other payment. | |
(3) The Secretary of State may guarantee the payment of any amount payable by | |
an NHS foundation trust under an externally financed development | 25 |
agreement.
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“Externally financed development agreement” has the same meaning as in | |
section 1 of the National Health Service (Private Finance) Act 1997 (c. 56), | |
reading references in subsections (3) and (5) of that section to the trust as | |
references to the NHS foundation trust. | 30 |
12 Prudential borrowing code | |
(1) The regulator must make a code for determining the limit on the total amount | |
of the borrowing of any NHS foundation trust. | |
(2) In making the code the regulator is to have regard (among other things) to any | |
generally accepted principles used by financial institutions to determine the | 35 |
amounts of loans to non-profit making bodies.
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A body is non-profit making if it does not carry on activities for the purpose | |
of making profits for distribution to its members or others. | |
(3) Before making the code, the regulator must consult— | |
(a) the Secretary of State, | 40 |
(b) every NHS trust intending to make an application to become an NHS | |
foundation trust, | |
(c) such other persons as the regulator considers appropriate. | |
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(4) The regulator must lay a copy of the code before Parliament. | |
(5) The regulator may revise the code; and subsections (2) to (4) apply in relation | |
to revising the code, but the regulator must also consult every NHS foundation | |
trust. | |
13 Public dividend capital | 5 |
(1) Where an NHS trust becomes an NHS foundation trust, the amount which was | |
the public dividend capital of the trust immediately before the giving of the | |
authorisation continues as public dividend capital of the NHS foundation trust | |
held on the same conditions (“initial public dividend capital”), but subject to | |
this section. | 10 |
(2) Any amount issued to an NHS foundation trust as public dividend capital | |
under section 11 is (like initial public dividend capital) an asset of the | |
Consolidated Fund. | |
(3) The Secretary of State may, with the consent of the Treasury, decide the terms | |
on which any public dividend capital of an NHS foundation trust is to be | 15 |
treated as having been issued. | |
(4) But the dividend to be paid by the trust is to be the same as that payable by | |
NHS trusts in England in pursuance of section 9(7) of the 1990 Act (dividend | |
on public dividend capital). | |
(5) Before exercising the power in subsection (3), the Secretary of State must | 20 |
consult the regulator. | |
(6) Any amount paid to the Secretary of State by an NHS foundation trust by way | |
of repayment of public dividend capital is to be paid into the Consolidated | |
Fund. | |
Functions | 25 |
14 Authorised services | |
(1) An authorisation must authorise the NHS foundation trust to provide goods | |
and services for purposes related to the provision of health care. | |
(2) But the authorisation must secure that the principal purpose of the trust is the | |
provision of goods and services for the purposes of the health service in | 30 |
England. | |
(3) The trust may also carry on activities other than those mentioned in subsection | |
(1), subject to any restrictions in the authorisation, for the purpose of making | |
additional income available in order to carry on its principal purpose better. | |
(4) The authorisation may require the provision, wholly or partly for the purposes | 35 |
of the health service in England, of goods and services by the trust. | |
(5) References in this Part to goods and services include, in particular— | |
(a) education and training, | |
(b) accommodation and other facilities. | |
(6) The authorisation must authorise and may require the trust— | 40 |
(a) to carry out research in connection with the provision of health care, | |
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(b) to make facilities and staff available for the purposes of education, | |
training or research carried on by others. | |
(7) In deciding whether or not to require the trust to provide, wholly or partly for | |
the purposes of the health service in England, any goods or services the | |
regulator is to have regard (among other things) to— | 5 |
(a) the need for the provision of goods or services in the area in question, | |
(b) any provision of goods or services by other health service bodies in the | |
area in question, | |
(c) any other provision by the trust with which the provision of the goods | |
or services is connected, | 10 |
(d) any agreement or arrangement to which the body corporate which is | |
the trust is or was a party. | |
(8) Such a requirement as is mentioned in subsection (4) may be framed by | |
reference (among other things) to— | |
(a) goods or services in general or of a particular description, | 15 |
(b) goods or services required to meet the needs of health service bodies in | |
general or those of a particular description, | |
(c) goods or services required to meet the needs of other persons of a | |
particular description, | |
(d) the volume of goods or services provided, | 20 |
(e) the place where goods or services are provided, | |
(f) the period within which goods or services are provided. | |
15 Private health care | |
(1) An authorisation may restrict the provision, for purposes other than those of | |
the health service in England, of goods and services by an NHS foundation | 25 |
trust. | |
(2) The power is to be exercised, in particular, with a view to securing that the | |
proportion of the total income of an NHS foundation trust which was an NHS | |
trust in any financial year derived from private charges is not greater than the | |
proportion of the total income of the NHS trust derived from such charges in | 30 |
the base financial year. | |
(3) The base financial year means the first financial year throughout which the | |
body corporate was an NHS trust or, if it was an NHS trust throughout the | |
financial year ending with 31st March 2003, that year. | |
(4) Private charges means charges imposed in respect of goods and services | 35 |
provided to patients other than patients being provided with goods and | |
services for the purposes of the health service. | |
(5) Section 14(8) applies for the purposes of this section. | |
16 Protection of property | |
(1) An NHS foundation trust may not dispose of any protected property without | 40 |
the approval of the regulator. | |
Disposing of property includes disposing of part of it or granting an interest | |
in it. | |
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