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(2) Protected property is property of the trust designated as protected in its | |
authorisation. | |
(3) The regulator may designate property as protected if he considers it is needed | |
for the purposes of any goods or services which the authorisation requires the | |
trust to provide wholly or partly for the purposes of the health service in | 5 |
England. | |
(4) The regulator may give approval under subsection (1) on any terms he | |
considers appropriate. | |
(5) An NHS foundation trust may not create a floating charge on its property. | |
17 Financial powers | 10 |
(1) An NHS foundation trust may borrow money for the purposes of or in | |
connection with its functions. | |
(2) But the total amount of the trust’s borrowing is subject to the limit imposed by | |
its authorisation. | |
(3) The limit must be reviewed annually by the regulator. | 15 |
(4) An NHS foundation trust may invest money (other than money held by it as | |
trustee) for the purposes of or in connection with its functions. | |
(5) The investment may include investment by— | |
(a) forming, or participating in forming, bodies corporate, | |
(b) otherwise acquiring membership of bodies corporate. | 20 |
(6) An NHS foundation trust may give financial assistance (whether by way of | |
loan, guarantee or otherwise) to any person for the purposes of or in | |
connection with its functions. | |
18 General powers | |
(1) An NHS foundation trust may do anything which appears to it to be necessary | 25 |
or desirable for the purposes of or in connection with its functions. | |
(2) In particular it may— | |
(a) acquire and dispose of property, | |
(b) enter into contracts, | |
(c) accept gifts of property (including property to be held on trust for the | 30 |
purposes of the NHS foundation trust or for any purposes relating to | |
the health service), | |
(d) employ staff. | |
(3) Any power of the trust to pay remuneration and allowances to any person | |
includes power to make arrangements for providing, or securing the provision | 35 |
of, pensions or gratuities (including those payable by way of compensation for | |
loss of employment or loss or reduction of pay). | |
19 Information | |
(1) An authorisation— | |
(a) must require an NHS foundation trust to disclose such information as | 40 |
the Secretary of State specifies to the regulator, | |
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(b) may require an NHS foundation trust to disclose other information to | |
the regulator. | |
(2) The regulator may require any other health service body to disclose any | |
information to him which he requires for the purposes of his functions. | |
20 Entry and inspection of premises | 5 |
An authorisation may require an NHS foundation trust to allow the regulator | |
to enter and inspect premises owned or controlled by the trust. | |
21 Fees | |
An authorisation may require an NHS foundation trust to pay a reasonable | |
annual fee to the regulator. | 10 |
22 Trust funds and trustees | |
(1) The Secretary of State may by order provide for the appointment of trustees for | |
an NHS foundation trust to hold property on trust— | |
(a) for the purposes of the NHS foundation trust, or | |
(b) for any purposes relating to the health service. | 15 |
(2) The order may— | |
(a) make provision as to the persons by whom trustees are to be appointed | |
and generally as to the method of their appointment, | |
(b) make any appointment subject to such conditions as may be specified | |
in the order (including conditions requiring the consent of the Secretary | 20 |
of State), | |
(c) make provision as to the number of trustees to be appointed, including | |
provision under which that number may from time to time be | |
determined by the Secretary of State after consultation with such | |
persons as he considers appropriate, | 25 |
(d) make provision with respect to the term of office of any trustee and his | |
removal from office. | |
(3) Where trustees have been appointed for an NHS foundation trust under this | |
section, the Secretary of State may by order provide for the transfer of any trust | |
property from the NHS foundation trust to the trustees. | 30 |
(4) Where an NHS trust for which trustees have been appointed under section 11 | |
of the 1990 Act is given an authorisation, the order appointing the trustees is to | |
have effect as an order under this section. | |
Failure | |
23 Failing NHS foundation trusts | 35 |
(1) If the regulator is satisfied— | |
(a) that an NHS foundation trust is contravening, or failing to comply | |
with, any term of its authorisation or any requirement imposed on it | |
under any enactment and that the contravention or failure is | |
significant, or | 40 |
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(b) that an NHS foundation trust has contravened, or failed to comply | |
with, any such term or requirement and is likely to do so again and that | |
the contravention or failure was significant, | |
he may by a notice to the trust exercise any one or more of the powers in | |
subsections (3) and (4). | 5 |
(2) He may also by a notice to the trust exercise any one or more of those powers | |
if he is satisfied that the trust has contravened or failed to comply with a | |
previous notice. | |
(3) The regulator may require the trust, the directors or the board of governors to | |
do, or not to do, specified things or things of a specified description within a | 10 |
specified period. | |
(4) The regulator may remove any or all of the directors or members of the board | |
of governors and appoint interim directors or members of the board. | |
(5) The regulator’s power to remove a director, or member of the board of | |
governors, of the trust includes power to suspend him from office, or to | 15 |
disqualify him from holding office, as a director or member of the board of | |
governors of the trust for a specified period. | |
24 Voluntary arrangements | |
(1) If the regulator is satisfied that it is necessary or desirable to do so, he may by | |
a notice to an NHS foundation trust require the directors— | 20 |
(a) to take steps to obtain a moratorium, or | |
(b) to make a proposal for a voluntary arrangement. | |
(2) An order may provide for Part 1 of the Insolvency Act 1986 (c. 45) (company | |
voluntary arrangements) to apply with modifications in relation to NHS | |
foundation trusts; and the references in this Part to a moratorium or voluntary | 25 |
arrangement are to a moratorium under section 1A, or a voluntary | |
arrangement under Part 1, of that Act as modified by the order. | |
25 Dissolution etc. | |
(1) The powers conferred by this section are exercisable where— | |
(a) an NHS foundation trust contravenes or fails to comply with a notice | 30 |
under section 23 or 24 or the trust’s compliance with a notice under | |
section 24 does not result in the implementation of a voluntary | |
arrangement, and | |
(b) the regulator considers that further exercise of any of the powers | |
conferred by those sections would not be likely to secure the provision | 35 |
of the goods and services which the authorisation requires the trust to | |
provide. | |
(2) Before the powers conferred by this section are exercised, the regulator must | |
consult prescribed persons about prescribed matters. | |
“Prescribed” means prescribed by an order. | 40 |
(3) An order may transfer, or provide for the transfer of, any property or liabilities | |
of the trust to— | |
(a) another NHS foundation trust, | |
(b) a Primary Care Trust, | |
(c) an NHS trust, | 45 |
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(d) the Secretary of State. | |
(4) Schedule 3 (which provides for the transfer of employees) has effect. | |
(5) An order may provide for the dissolution of the trust. | |
(6) An order may apply any provision of Part 4 of the Insolvency Act 1986 (c. 45) | |
(winding up of companies), including any related provision of that Act, with | 5 |
modifications. | |
(7) Where the regulator refuses to give an authorisation to a public benefit | |
corporation— | |
(a) the powers conferred by this section are also exercisable, | |
(b) references in this section and Schedule 3 to an NHS foundation trust are | 10 |
to be read as references to the corporation. | |
26 Sections 23 to 25: supplementary | |
(1) This section applies for the purposes of sections 23 to 25. | |
(2) An order means an order made by the Secretary of State. | |
(3) The regulator must send a copy of any notice given under section 23 to the | 15 |
registrar of companies. | |
(4) The regulator must give notice of any dissolution of the trust to the registrar of | |
companies. | |
(5) The modifications of the Insolvency Act 1986 that may be made by an order | |
include (for example)— | 20 |
(a) provision for securing that the goods and services which the trust is | |
required by the authorisation to provide continue to be provided | |
(whether by the trust or another), | |
(b) provision for securing the protection of property needed for the | |
purposes of those goods and services. | 25 |
Mergers | |
27 Mergers | |
(1) An application may be made jointly by— | |
(a) an NHS foundation trust, and | |
(b) another NHS foundation trust or an NHS trust, | 30 |
to the regulator for authorisation of the dissolution of the trusts and the | |
transfer of some or all of their property and liabilities to a new NHS foundation | |
trust established under this section. | |
(2) The application must— | |
(a) be supported by the Secretary of State if one of the parties to it is an | 35 |
NHS trust, | |
(b) specify the property and liabilities proposed to be transferred to the | |
new NHS foundation trust, | |
(c) describe the goods and services which it is proposed should be | |
provided by the new trust, and | 40 |
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(d) be accompanied by a copy of the proposed constitution of the new | |
trust; | |
and must give any further information which the regulator requires the | |
applicants to give. | |
(3) The applicants may modify the application with the agreement of the regulator | 5 |
at any time before authorisation is given under this section. | |
(4) The regulator may— | |
(a) issue a certificate incorporating the directors of the applicants as a | |
public benefit corporation, and | |
(b) give an authorisation under this section to the corporation to become an | 10 |
NHS foundation trust, | |
if he is satisfied as to the following matters. | |
(5) The matters are that— | |
(a) the constitution of the new trust will be in accordance with Schedule 1 | |
and will otherwise be appropriate, | 15 |
(b) taken as a whole the actual membership of the public constituency of | |
the new trust will be representative of those eligible for such | |
membership, | |
(c) the new trust will be able to provide the goods and services which the | |
authorisation is to require it to provide, and | 20 |
(d) any other requirements which he considers appropriate are met. | |
(6) If regulations require the applicants to consult prescribed persons about the | |
application, the regulator may not give an authorisation under this section | |
unless he is satisfied that the applicants have complied with the regulations. | |
(7) The certificate is conclusive evidence of incorporation; and the authorisation is | 25 |
conclusive evidence that the corporation is an NHS foundation trust. | |
(8) On an authorisation being given under this section, the proposed constitution | |
of the NHS foundation trust has effect, but the directors of the applicants may | |
exercise the functions of the trust on its behalf until a board of directors is | |
appointed in accordance with the constitution. | 30 |
28 Section 27: supplementary | |
(1) Where an authorisation is given under section 27, the regulator is to specify the | |
property and liabilities to be transferred to the new NHS foundation trust. | |
(2) Where such an authorisation is given, the Secretary of State is to make an | |
order— | 35 |
(a) dissolving the trusts in question, and | |
(b) transferring, or providing for the transfer of, the property and liabilities | |
specified by the regulator to the new NHS foundation trust. | |
(3) The order may— | |
(a) transfer, or provide for the transfer of, any of the remaining property or | 40 |
liabilities to the persons mentioned in section 25(3), | |
(b) include provisions corresponding to those of Schedule 3. | |
(4) Where an NHS foundation trust is dissolved under this section, the regulator | |
must give notice of the dissolution to the registrar of companies. | |
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(5) Where one of the parties to an application under section 27 is an NHS trust, the | |
powers conferred on the Secretary of State by Part 4 of Schedule 2 to the 1990 | |
Act are not exercisable in relation to the trust. | |
(6) Subsections (3) and (5) of section 6 apply to an authorisation under section 27 | |
as they do in relation to an authorisation under that section. | 5 |
Co-operation | |
29 Co-operation between NHS bodies | |
In section 26 of the Health Act 1999 (c. 8) (co-operation between NHS bodies), | |
for “and NHS trusts” there is substituted “, NHS trusts and NHS foundation | |
trusts”. | 10 |
Patient and public involvement | |
30 Public involvement and consultation | |
In section 11(2) of the Health and Social Care Act 2001 (c. 15) (public | |
involvement and consultation), at the end there is inserted— | |
“(d) NHS foundation trusts”. | 15 |
31 Patients’ Forums | |
(1) The National Health Service Reform and Health Care Professions Act 2002 | |
(c. 17) is amended as follows. | |
(2) In section 16 (additional functions of PCT Patients’ Forums), in subsection (4), | |
after paragraph (c) there is inserted— | 20 |
“(ca) NHS foundation trusts which provide services to patients in the | |
area of the Primary Care Trust,”. | |
(3) In section 17 (entry and inspection of premises), in subsection (1), after | |
paragraph (f) there is inserted— | |
“(fa) NHS foundation trusts,”. | 25 |
(4) In section 18 (annual reports), in subsection (2), at the end there is inserted— | |
“(e) where the report includes provision which relates to any NHS | |
foundation trust, the Independent Regulator of NHS | |
Foundation Trusts”. | |
32 Commission for Patient and Public Involvement in Health | 30 |
In section 20(12) of the National Health Service Reform and Health Care | |
Professions Act 2002 (Commission for Patient and Public Involvement in | |
Health), in the definition of “health service bodies”, for “and NHS trusts” there | |
is substituted “, NHS trusts and NHS foundation trusts”. | |
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