|
| |
|
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 |
| 5 |
amounts of loans to non-profit making bodies.
|
| |
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, |
| 10 |
(b) | every NHS trust intending to make an application to become an NHS |
| |
| |
(c) | such other persons as the regulator considers appropriate. |
| |
(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 |
| 15 |
to revising the code, but the regulator must also consult every NHS foundation |
| |
| |
13 | Public dividend capital |
| |
(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 |
| 20 |
authorisation continues as public dividend capital of the NHS foundation trust |
| |
held on the same conditions (“initial public dividend capital”), but subject to |
| |
| |
(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 |
| 25 |
| |
(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 |
| |
treated as having been issued. |
| |
(4) | But the dividend to be paid by the trust is to be the same as that payable by |
| 30 |
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 |
| |
| |
(6) | Any amount paid to the Secretary of State by an NHS foundation trust by way |
| 35 |
of repayment of public dividend capital is to be paid into the Consolidated |
| |
| |
| |
| |
(1) | An authorisation must authorise the NHS foundation trust to provide goods |
| 40 |
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 |
| |
| |
(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 |
| 5 |
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 |
| |
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, |
| 10 |
(b) | accommodation and other facilities. |
| |
(6) | The authorisation must authorise and may require the trust— |
| |
(a) | to carry out research in connection with the provision of health care, |
| |
(b) | to make facilities and staff available for the purposes of education, |
| |
training or research carried on by others. |
| 15 |
(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— |
| |
(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 |
| 20 |
| |
(c) | any other provision by the trust with which the provision of the goods |
| |
or services is connected, |
| |
(d) | any agreement or arrangement to which the body corporate which is |
| |
the trust is or was a party. |
| 25 |
(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, |
| |
(b) | goods or services required to meet the needs of health service bodies in |
| |
general or those of a particular description, |
| 30 |
(c) | goods or services required to meet the needs of other persons of a |
| |
| |
(d) | the volume of goods or services provided, |
| |
(e) | the place where goods or services are provided, |
| |
(f) | the period within which goods or services are provided. |
| 35 |
| |
(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 |
| |
| |
(2) | The power is to be exercised, in particular, with a view to securing that the |
| 40 |
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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
provided to patients other than patients being provided with goods and |
| 5 |
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 |
| |
the approval of the regulator. |
| 10 |
Disposing of property includes disposing of part of it or granting an interest |
| |
| |
(2) | Protected property is property of the trust designated as protected in its |
| |
| |
(3) | The regulator may designate property as protected if it considers it is needed— |
| 15 |
(a) | 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 England, or |
| |
(b) | for the purpose of doing anything which the trust is required to do |
| |
| 20 |
(4) | The regulator may give approval under subsection (1) on any terms it |
| |
| |
(5) | An NHS foundation trust may not create a floating charge on its property. |
| |
| |
(1) | An NHS foundation trust may borrow money for the purposes of or in |
| 25 |
connection with its functions. |
| |
(2) | But the total amount of the trust’s borrowing is subject to the limit imposed by |
| |
| |
(3) | The limit must be reviewed annually by the regulator. |
| |
(4) | An NHS foundation trust may invest money (other than money held by it as |
| 30 |
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. |
| |
(6) | An NHS foundation trust may give financial assistance (whether by way of |
| 35 |
loan, guarantee or otherwise) to any person for the purposes of or in |
| |
connection with its functions. |
| |
| |
(1) | An NHS foundation trust may do anything which appears to it to be necessary |
| |
or desirable for the purposes of or in connection with its functions. |
| 40 |
|
| |
|
| |
|
(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 |
| |
purposes of the NHS foundation trust or for any purposes relating to |
| 5 |
| |
| |
(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 |
| |
of, pensions or gratuities (including those payable by way of compensation for |
| 10 |
loss of employment or loss or reduction of pay). |
| |
| |
| |
(a) | must require an NHS foundation trust to disclose such information as |
| |
the Secretary of State specifies to the regulator, |
| 15 |
(b) | may require an NHS foundation trust to disclose other information to |
| |
| |
(2) | The regulator may require any other health service body to disclose any |
| |
information which the regulator requires for the purposes of its functions. |
| |
20 | Entry and inspection of premises |
| 20 |
An authorisation may require an NHS foundation trust to allow the regulator |
| |
to enter and inspect premises owned or controlled by the trust. |
| |
| |
An authorisation may require an NHS foundation trust to pay a reasonable |
| |
annual fee to the regulator. |
| 25 |
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. |
| 30 |
| |
(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 |
| 35 |
| |
(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, |
| 40 |
(d) | make provision with respect to the term of office of any trustee and his |
| |
| |
|
| |
|
| |
|
(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. |
| |
(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 |
| 5 |
have effect as an order under this section. |
| |
| |
23 | Failing NHS foundation trusts |
| |
(1) | If the regulator is satisfied— |
| |
(a) | that an NHS foundation trust is contravening, or failing to comply |
| 10 |
with, any term of its authorisation or any requirement imposed on it |
| |
under any enactment and that the contravention or failure is |
| |
| |
(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 |
| 15 |
the contravention or failure was significant, |
| |
| the regulator may by a notice to the trust exercise any one or more of the |
| |
powers in subsections (3) and (4). |
| |
(2) | The regulator may also by a notice to the trust exercise any one or more of those |
| |
powers if the regulator is satisfied that the trust has contravened or failed to |
| 20 |
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 |
| |
| |
(4) | The regulator may remove any or all of the directors or members of the board |
| 25 |
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 |
| |
disqualify him from holding office, as a director or member of the board of |
| |
governors of the trust for a specified period. |
| 30 |
24 | Voluntary arrangements |
| |
(1) | If the regulator is satisfied that it is necessary or desirable to do so, it may by a |
| |
notice to an NHS foundation trust require the directors— |
| |
(a) | to take steps to obtain a moratorium, or |
| |
(b) | to make a proposal for a voluntary arrangement. |
| 35 |
(2) | An order may provide for Part 1 of the Insolvency Act 1986 (c. 45) (company |
| |
voluntary arrangements) including any related provision of that Act to apply |
| |
with modifications in relation to NHS foundation trusts; and the references in |
| |
this Part to a moratorium or voluntary arrangement are to a moratorium under |
| |
section 1A, or a voluntary arrangement under Part 1, of that Act as modified |
| 40 |
| |
|
| |
|