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Health and Social Care (Community Health and Standards) Bill


Health and Social Care (Community Health and Standards) Bill
Part 1 — NHS foundation trusts

1

 

A

Bill

[AS AMENDED ON REPORT]

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

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       

Independent Regulator of NHS Foundation Trusts

(1)   

There is to be a body corporate known as the Independent Regulator of NHS

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Foundation Trusts (referred to in this Part as “the regulator”).

(2)   

Schedule 1 (which makes further provision about the regulator) has effect.

2       

General duty of regulator

The regulator must exercise its functions in a manner that is consistent with the

performance by the Secretary of State of the duties under sections 1, 3 and 51

10

of the National Health Service Act 1977 (c. 49) (duty as to health service and

services generally and as to university clinical teaching and research).

 
HL Bill 11953/2
 
 

Health and Social Care (Community Health and Standards) Bill
Part 1 — NHS foundation trusts

2

 

3       

Appeals

The Secretary of State may provide in regulations that decisions of the

regulator are to be subject to specified appeal or review mechanisms.

Authorisation

4       

Applications by NHS trusts

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(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

Secretary of State.

(2)   

The application must—

(a)   

describe the goods and services which the NHS trust proposes should

10

be provided by the NHS foundation 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 NHS

trust to give.

(3)   

The applicant may modify the application with the agreement of the regulator

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at any time before authorisation is given under section 6.

(4)   

Once an NHS trust has made the application—

(a)   

the provisions of the proposed constitution which give effect to

paragraphs 3 to 18 of Schedule 1 have effect, but only for the purpose

of establishing the initial membership of the NHS foundation trust and

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of the board of governors, and the initial directors, and enabling the

board of governors and board of directors to make preparations for the

performance of their functions,

(b)   

the NHS trust may do anything (including the things mentioned in

paragraph 16 of Schedule 2 to the National Health Service and

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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

(1)   

An application may be made to the regulator by persons (other than an NHS

30

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—

(a)   

describe the goods and services which the applicants propose should

35

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.

(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 2,

(b)   

the trust as proposed to be constituted will be able to provide those

goods and services, and

 

 

Health and Social Care (Community Health and Standards) Bill
Part 1 — NHS foundation trusts

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(c)   

the proposed constitution accords with Schedule 1 and is otherwise

appropriate,

   

the regulator 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.

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(5)   

On the issue of the certificate, the applicants are incorporated as a public

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

10

the functions of the corporation on its behalf until a board of directors

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.

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6       

Authorisation of NHS foundation trusts

(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 the regulator is satisfied as to the following matters.

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(2)   

The matters are that—

(a)   

the applicant’s constitution will be in accordance with Schedule 1 and

will otherwise be appropriate,

(b)   

the applicant has taken steps to secure that (taken as a whole) the actual

membership of any public constituency, and (if there is one) of the

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patients’ constituency will be representative of those eligible for such

membership,

(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

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been taken,

(e)   

the applicant will be able to provide the goods and services which the

authorisation is to require it to provide, and

(f)   

any other requirements which the regulator considers appropriate are

met.

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(3)   

In deciding whether it is satisfied as to the matters referred to in subsection

(2)(e), the regulator is to consider (among other things)—

(a)   

any report or recommendation in respect of the applicant made by the

Commission for Healthcare Audit and Inspection,

(b)   

the financial position of the applicant.

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(4)   

The authorisation may be given on any terms the regulator considers

appropriate.

(5)   

The regulator must not give an authorisation unless it is satisfied that the

applicant has sought the views about the application of the following—

 

 

Health and Social Care (Community Health and Standards) Bill
Part 1 — NHS foundation trusts

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(a)   

if the applicant is an NHS trust, the Patients’ Forum for the trust and

the staff employed by the trust,

(b)   

individuals who live in any area specified in the proposed constitution

as the area for a public constituency,

(c)   

any local authority that would be authorised by the proposed

5

constitution to appoint a member of the board of governors,

(d)   

if the proposed constitution provides for a patients’ constituency,

individuals who would be able apply to become members of that

constituency,

(e)   

any persons prescribed by regulations.

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(6)   

If regulations make provision about consultation, the regulator may not give

an authorisation unless it is satisfied that the applicant has complied with the

regulations.

(7)   

The generality of the power in subsection (4) is not affected by the following

provisions of this Part.

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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,

(b)   

the proposed constitution has effect.

(2)   

In consequence of subsection (1)(a), any order made under section 5(1) of the

20

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.

(4)   

The authorisation is conclusive evidence that the body in question is an NHS

foundation trust.

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(5)   

Subsections (1) to (3) do not affect the continuity of the body or of its property

or liabilities.

(6)   

The validity of any act of an NHS foundation trust is not affected by any

vacancy among the directors or by any defect in the appointment of any

director.

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(7)   

An NHS foundation trust is not to be regarded as the servant or agent of the

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

35

An NHS foundation trust may make amendments of its constitution with the

approval of the regulator.

9       

Variation of authorisation

(1)   

The regulator may vary an authorisation.

(2)   

In deciding whether or not to vary an authorisation the regulator is to have

40

regard (among other things) to—

 

 

Health and Social Care (Community Health and Standards) Bill
Part 1 — NHS foundation trusts

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(a)   

any report or recommendation made to it by virtue of section 21(2)(f) of

the Local Government Act 2000 (c. 22) (overview and scrutiny

committees),

(b)   

any report or recommendation made to it by the Commission for

Patient and Public Involvement in Health under section 20(5)(b) or (6)

5

of the National Health Service Reform and Health Care Professions Act

2002 (c. 17).

10      

Register of NHS foundation trusts

(1)   

The regulator must establish and maintain a register of NHS foundation trusts.

(2)   

The register must contain in relation to each NHS foundation trust—

10

(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,

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(e)   

a copy of the latest document sent to the regulator under paragraph 26

of Schedule 1 (forward planning),

(f)   

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

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an annual report to the regulator, the register must contain a list of the persons

who were first elected or appointed as—

(a)   

the members of the board of governors,

(b)   

the directors.

(4)   

Members of the public may inspect the register at any reasonable time.

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(5)   

Any person who requests it is to be provided with a copy of or extract from any

document contained in the register on payment of a reasonable charge.

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

30

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

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agreement.

  “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.

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