House of Lords
Session 2002 - 03|
Publications on the internet
Other Bills before Parliament
Arrangement of Clauses (Contents)
|Health And Social Care (Community Health And Standards) Bill|
These notes refer to the Health And Social Care (Community Health And Standards) Bill
HEALTH AND SOCIAL CARE (COMMUNITY HEALTH AND STANDARDS) BILL
1. These explanatory notes relate to the Health and Social Care (Community Health and Standards) Bill as brought from the House of Commons on 9th July. They have been prepared by the Department of Health in order to assist the reader in understanding the Bill and to inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The explanatory notes are to be read in conjunction with the Bill and are not meant to be a comprehensive description of the Bill. So where a clause or part of a clause of the Bill does not seem to require any explanation or comment, none is given.
3. The Bill extends to England and Wales only, save as mentioned below.
4. In July 2000 the Government published The NHS Plan, A plan for investment, a plan for reform 1. In April 2002 the Government published a further document, Delivering the NHS Plan: Next steps on investment, next steps on reform 2 and this Bill gives effect to the proposals to create NHS foundation trusts and to establish an independent healthcare regulator and an equivalent for social care.
1 For copies: - postal address: PO Box 777, London SE1 6XH. Website address: http://www.doh.gov.uk/nhsplan
2 ISBN 0101550324 Available from The Stationery Office. Website address: http://www.tso.co.uk/
5. The Bill provides for the establishment of NHS foundation trusts, of the new health care inspectorate and for the new inspectorate for social care, provides for the recovery of NHS charges, makes changes to the way that primary dental and medical services are delivered and provides for a replacement of the Welfare Food Scheme and other miscellaneous matters.
6. The Bill is in 6 parts:
3 For copies - website address: www.doh.gov.uk/deliveringthenhsplan/index.htm
4 For copies - website address: www.doh.gov.uk/nhsfoundationtrusts/index.htm
5 ISBN 0215004884 Available from The Stationery Office. Website address: http://www.tso.co.uk/
6 For copies - website address: www.doh.gov.uk/statementofpurpose/index.htm
7 For copies: - postal address: PO Box 777, London SE1 6XH. Website address: http://www.doh.gov.uk/cdo/optionsforchange/
TERRITORIAL APPLICATION: WALES
7. Part 1 (NHS foundation trusts) does not affect NHS trusts in Wales.
8. In relation to health reviews and investigations functions, Part 2 contains some NHS health care Wales only provisions (in clauses 68 to 73) in addition to some provisions that apply both to England and Wales. In addition, clauses 90 to 99 provide for social care functions that apply only to the Assembly.
9. Part 3 (recovery of NHS charges) as for the existing road traffic scheme is not devolved in respect of Wales and will be operated by the Secretary of State on behalf of both England and Wales. However, clause 191(3) requires that the Secretary of State consult the Assembly before making any regulations relating to the scheme under Part 3.
10. The dental and medical provisions in Part 4 apply to Wales and powers to make subordinate legislation are exercisable in relation to Wales by the Assembly.
11. The provisions for the replacement of the Welfare Food Scheme in Part 5 do not transfer all the functions in relation to Welfare Food Scheme as regards Wales. However, this Bill gives the Assembly powers to prescribe the range of foods and descriptions of advice in relation to the operation of the scheme in Wales and a power of direction over bodies administering part or all of the scheme in relation to matters relating to the operation of the scheme or part of a scheme in Wales with the consent of the Secretary of State.
12. Part 5 provides for the amendment to the Protection of Children Act 1999 ('POCA') and Care Standards Act 2000 ('CSA 2000') and these changes will apply equally to England and Wales. In addition, the appointments provisions in Part 5 will apply to Wales as they allow for a Special Health Authority to make appointments, for which the Secretary of State has responsibility, to certain bodies which cover Wales and England. However, appointments that are the responsibility of Ministers in the devolved administrations will remain the responsibility of those Ministers. Finally, the abolition of the Public Health Laboratory Service Board in clause 186 applies to Wales.
13. Annex C provides further detail on the provisions that affect the powers of the Assembly.
COMMENTARY ON CLAUSES
PART 1 - NHS FOUNDATION TRUSTS
Clause 1: NHS foundation trusts
14. Clause 1 sets out that an NHS foundation trust is a public benefit corporation which is authorised under this Part to provide goods and services for the purposes of the "health service" in England. As this term is defined in section 128 of the 1977 Act as being the health service that is provided by the Secretary of State, the effect is that every NHS foundation trust has a primary purpose of providing health care to the NHS.
15. Under subsection (2), a public benefit corporation is defined as a body corporate. Each public benefit corporation must have a constitution that accords with Schedule 1.
16. Schedule 1 sets out minimum statutory requirements for the constitution, governance and membership of public benefit corporations that may be authorised as NHS foundation trusts. It also sets out the audit, accounting and reporting arrangements that are to apply.
17. Paragraph 1 requires every public benefit corporation to have a constitution that complies with the terms of the Schedule.
18. Paragraph 2 requires the constitution of a public benefit corporation to name the corporation, and if the corporation is an NHS foundation trust, to include the words "NHS foundation trust" in its name.
19. Paragraphs 3 to 5 set out the minimum eligibility criteria for the membership of a public benefit corporation. These membership criteria ensure that each corporation has representation from the public and staff. The membership may also include the patients of the hospitals managed by the corporation, and also their carers. Under paragraph 3, each public benefit corporation is given the power to specify membership criteria in its constitution. The members must include individuals drawn from the public who live in a specified area - "the public constituency", and individuals from its staff - "the staff constituency". The area from which members of the public constituency are drawn must be defined in terms of local government electoral areas in England. The public constituency may also include members who are eligible because they have attended any of the corporation's hospitals as a patient, or as the carer of a patient.
20. Paragraph 3(4) allows the staff constituency of a public benefit corporation to include individuals who exercise functions for the corporation, but are not directly employed by the corporation. Examples of such individuals include agency nurses, and individuals who work on the premises of the corporation but are employed by an independent subcontractor.
21. Paragraph 3(5) sets out a qualification to those individuals who may be members of the staff constituency. They may only include individuals with an employment contract of 12 months or longer, or without any fixed term at all; or alternatively, any person who has been continuously employed by the corporation, or exercised functions in terms of the previous subparagraph, for a 12 month period.
22. Paragraph 5 provides that, as a condition of membership, each member must agree to pay up to £1 to the public benefit corporation. The paragraph also gives public benefit corporations wide powers to set out other eligibility requirements in the constitution, as they see fit.
23. Paragraphs 6 to 9 require each public benefit corporation to have a Board of Governors. The Board of Governors comprises the elected representatives of the members of the public benefit corporation, and also individuals who have been appointed by the public benefit corporation to represent certain interests. Under paragraph 6, the public and staff constituencies are to elect representatives from their constituencies to the Board of Governors. Such elections, if contested, must be by way of secret ballot. Paragraph 7 disqualifies certain individuals from membership of the Board of Governors, and gives public benefit corporations the power to set out other eligibility requirements in the constitution. Under paragraph 8, representatives of the public constituency must be in the majority. There must also be at least one member from the staff constituency, one member appointed by a PCT to which the public benefit corporation provides services and one member appointed by a local authority for an area which includes all or part of the membership area specified for the purposes of the public constituency of the corporation. One member must also be appointed by a university if a hospital of the public benefit corporation includes a medical or dental school. In addition, members may be appointed to represent organisations specified in the constitution as partnership organisations.
24. Paragraphs 11 and 12 set out some minimum requirements for meetings of the Board of Governors, including requirements relating to public access to these meetings. Under paragraph 13, each public benefit corporation is also empowered to make other provisions about the Board of Governors in its constitution, as it deems necessary.
25. Paragraphs 14 to 17 require each public benefit corporation to have a Board of Directors. The Board of Directors is the body that is responsible for the day-to-day management of the public benefit corporation, and to this end, paragraph 14(2) requires each public benefit corporation to provide for its powers to be exercised by the Board of Directors on its behalf. The Board of Directors is made up of executive directors, one of whom is the Chief Executive, and non-executive directors, one of whom is the Chairman. The chief executive is appointed and removed by the non-executive directors. The chairman and the other non-executive directors are appointed and removed by the Board of Governors. Only members of the public constituency, and if a hospital of the public benefit corporation includes a medical or dental school provided by a university, a representative of that university, are eligible for such an appointment. Under paragraph 15(2), the disqualifications under paragraph 7(1) also apply to directors. Paragraph 17 sets out provisions for the remuneration of the Board of Directors, which must be included in each public benefit corporation's constitution.
26. Paragraph 18 requires that each public benefit corporation must keep a register of members and their constituency, members of the Board of Governors, directors, and directors' interests. The details of each register are left to the discretion of the public benefit corporation. In addition, under paragraph 19, the constitution of a public benefit corporation must include provision for dealing with conflicts of interest of the directors. The public benefit corporation must make the register, and other documents listed in paragraph 20(1) - including its constitution, authorisation, accounts and reports - available to the public.
27. Paragraph 21 requires each public benefit corporation to appoint an auditor. Paragraph 21(3) requires that such an auditor must be a member of the appropriate professional organisation, and paragraph 21(4) requires the establishment of an audit committee to monitor the auditor's functions.
28. Paragraphs 22 and 23 set out the accounting arrangements for public benefit corporations. The Independent Regulator is given general power to dictate the form and content of these accounts, with the approval of Treasury. The Independent Regulator is also given powers to direct the standards, procedures and techniques for the audit of accounts. To ensure that these bodies remain accountable for their use of public funds, paragraph 23(4) requires that each public benefit corporation must lay a copy of their annual accounts before Parliament.
29. Paragraph 24 requires each public benefit corporation to make annual reports to the Independent Regulator. These reports must include information on steps taken by the public benefit corporation to secure that the membership of its public constituency is representative of the population that is eligible for such membership, and any other information the Independent Regulator requires. The timing, and form of these reports is left to the Independent Regulator's decision.
30. Paragraph 25 requires that each public benefit corporation must provide the Independent Regulator with annual forward business plans prepared by the directors of the public benefit corporation. The forward plan must be prepared in consultation with the Board of Governors.
31. Paragraph 26 provides that copies of a public benefit corporation's annual accounts, auditor's reports and annual reports must be presented to the Board of Governors at a public meeting.
Clause 2: Independent Regulator of NHS foundation trusts
32. This clause establishes the office of an Independent Regulator of NHS foundation trusts. The Independent Regulator is appointed by the Secretary of State and is responsible for setting the terms of, and granting authorisation to, NHS foundation trusts, and monitoring their compliance with the terms of authorisation and the requirements set out in Part 1.
33. The office of the Independent Regulator of NHS foundation trusts will be established as a non-ministerial department.
34. Subsection (3) introduces Schedule 2, which makes detailed provisions regarding the Independent Regulator. The Schedule includes provisions about the Independent Regulator's terms of appointment and remuneration, staffing of the office and their remuneration, and also funding arrangements, reporting and accounts procedures.
35. Paragraphs 1 and 2 give the Secretary of State general powers to set the terms and conditions of the Independent Regulator's appointment.
36. Paragraph 3 provides for the staffing of the Independent Regulator's office. The Independent Regulator is given the power to appoint staff on terms and conditions he thinks appropriate, subject to consultation with the Minister for the Civil Service. In addition, paragraph 3(2) requires the Independent Regulator to appoint a deputy who is to act in his place in the Independent Regulator's absence.
37. Under paragraph 5, the Secretary of State may make contributions to the Independent Regulator's expenses. This provision is to be read in conjunction with clause 21 which allows the Independent Regulator to impose fees on NHS foundation trusts.
38. Paragraph 6 sets out provisions that ensure the accountability of the Independent Regulator to the Secretary of State and to Parliament. He must make an annual report on the way he has exercised his functions, which he must lay before Parliament, and send a copy to the Secretary of State. In addition, paragraph 6(3) gives the Secretary of State the power to require any other reports and information relating to the exercise of the Independent Regulator's functions.
39. Paragraph 7 places a requirement on the Independent Regulator to respond in writing to any recommendation relating to the exercise of his functions made by a Committee of either or both Houses of Parliament.
40. Paragraphs 11 and 12 disqualify the Independent Regulator from membership of the House of Commons and the Northern Ireland Assembly.
Clause 3: General duty of regulator
41. This clause requires the Independent Regulator to exercise his functions in a manner that is consistent with the Secretary of State's general duties under the 1977 Act. Amongst other things, the Secretary of State must promote and provide a comprehensive health service in England and to provide clinical facilities to universities with medical or dental schools. The Secretary of State must also secure that NHS goods and services are provided free of charge.
Clause 4: Applications by NHS trusts
42. This clause allows NHS trusts to make applications to become NHS foundation trusts. They may only do so with the support of the Secretary of State.
43. The clause sets out the minimum information which must be included in an application by an NHS trust for NHS foundation trust status. In addition, once an application to be an NHS foundation trust has been made, subsection (4) gives an NHS trust that has made an application the shadow powers necessary to prepare for authorisation to be an NHS foundation trust.
Clause 5: Other applications
44. This clause allows persons other than NHS trusts to apply to set up an NHS foundation trust. They may only do so with the support of the Secretary of State. This allows organisations that are not currently part of the NHS such as charities and voluntary sector organisations to become involved in the establishment of a new NHS foundation trust.
45. Subsection (2) sets out the minimum information which must be included in such an application. In conjunction with this, subsection (3) imposes a test which requires the Independent Regulator to consider certain matters before an application made under this clause may proceed, and a certificate of incorporation be issued. Once such a certificate is issued, the applicants are incorporated as a public benefit corporation and are given the shadow powers necessary to prepare for authorisation to be an NHS foundation trust.
|© Parliamentary copyright 2003||Prepared: 14 July 2003|