Health and Social Care (Community Health and Standards) Act 2003 (c. 43)

(The document as of February, 2008)

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(a) a National Health Service trust;

(b) a Strategic Health Authority;

(d) a Health Authority;

(e) a Local Health Board;

(f) a Special Health Authority;

(g) a Primary Care Trust. "

(3) Section 7(3A)(b) of the Protection of Children Act 1999 (c. 14) has effect until the coming into force of paragraph 121 of Schedule 21 to the Education Act 2002 (c. 32) as if for "the list kept under section 1 above" there is substituted "any of the lists mentioned in subsection (1)(a)".

(4) The effect of subsections (1) to (3) is to be disregarded in determining for the purposes of section 1 of the Regulatory Reform Act 2001 (c. 6) (power by order to make provision reforming law which imposes burdens) whether any provision of either of the following Acts falls within subsection (4)(a) of that section (provision amended by an Act within previous two years)--

(a) the Protection of Children Act 1999 (c. 14);

(b) the Care Standards Act 2000 (c. 14).

Public Health Laboratory Service Board

190 Abolition of Public Health Laboratory Service Board

(1) The Public Health Laboratory Service Board is abolished.

(2) Schedule 13 has effect.

(3) On the day this section is commenced by order under section 199 the property, rights and liabilities of the Board vest in the Secretary of State.

Other provisions

191 Loans by Secretary of State to NHS trusts

(1) Paragraph 1 of Schedule 3 to the National Health Service and Community Care Act 1990 (c. 19) (borrowings of NHS trusts) is amended as follows.

(2) In sub-paragraph (6), the words ", with the consent of the Treasury," are omitted.

192 Amendment of provision relating to reform of Welsh health authorities

In section 27 of the Government of Wales Act 1998 (c. 38) (reform of Welsh health authorities), in subsection (7), for "(5)(b)" substitute "(7)(b)".

Part 6 Final provisions

193 Financial provisions

There shall be paid out of money provided by Parliament--

(a) any expenditure incurred by the Secretary of State by virtue of this Act; and

(b) any increase attributable to this Act in the sums payable out of money so provided under any other Act.

194 Interpretation

In this Act--

"the 1977 Act" means the National Health Service Act 1977 (c. 49);
"the Assembly" means the National Assembly for Wales.

195 Orders and regulations

(1) Any order or regulations under this Act--

(a) may make different provision for different purposes; and

(b) may make incidental, supplementary, consequential, transitory or transitional or saving provision.

(2) Any power to make regulations conferred by this Act (as well as being exercisable in relation to all cases to which it extends) may be exercised in relation to all those cases subject to exceptions or in relation to any particular case or class of case.

(3) Before making any regulations under Part 3 the Secretary of State must consult the Assembly.

(4) Any power to make an order or regulations under this Act is exercisable by statutory instrument.

(5) The Secretary of State may not make a statutory instrument containing--

(a) regulations under section 150(12),

(b) the first regulations made under section 26, 35 or 153(2), or

(c) an order or regulations under this Act making, by virtue of subsection (1)(b) or section 200 or 201, provision which amends or repeals any part of the text of an Act (including an Act of the Scottish Parliament),

unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

(6) A statutory instrument containing any other order or regulations under this Act made by the Secretary of State (apart from an order under section 22, 25(3), 28 or 199) is subject to annulment in pursuance of a resolution of either House of Parliament.

(7) The Scottish Ministers may not make a statutory instrument containing--

(a) regulations under section 150(12),

(b) the first regulations made under section 153(2), or

unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

(8) A statutory instrument containing any other order or regulations under this Act made by the Scottish Ministers (apart from an order under section 199) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

196 Repeals and revocations

The enactments mentioned in Schedule 14 (which include provisions of Acts of the Scottish Parliament) are repealed or revoked to the extent specified.

197 Wales

(1) In Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672), any reference to an Act which is amended by this Act shall (as from the time when the Act is so amended) be treated as referring to that Act as amended by this Act.

(2) Subsection (1) does not affect the power to make further Orders varying or omitting any reference to an Act which is amended by this Act.

198 Isles of Scilly

The Secretary of State may by order provide that this Act, in its application to the Isles of Scilly, is to have effect with such modifications as may be specified in the order.

199 Commencement

(1) Subject to this section--

(a) the provisions of Part 1 (except section 1 and Schedule 1) and Parts 2 to 5, and

(b) section 196 and Schedule 14,

shall come into force on such day as the appropriate authority may by order appoint.

(2) The appropriate authority is--

(a) in relation to Part 1, and section 196 and Schedule 14 so far as relating to that Part, the Secretary of State;

(b) in relation to Part 2--

(i) for section 42 and Schedule 7, sections 57 and 61, Chapter 5, sections 102 to 105, 110, 112, 116(1), 124, 125, 127, 129, 131, 133, 135, 139 and 141, section 147 and Schedule 9 so far as relating to the Commission for Social Care Inspection, and section 196 and Schedule 14 so far as relating to those provisions, the Secretary of State;

(ii) for sections 47 and 63, Chapters 4 and 6, sections 109, 116(2), 142 to 145 and section 196 and Schedule 14 so far as relating to those provisions, the Assembly;

(iii) for sections 106 to 108, 111, 113, 114, 115, 116(3), 117, section 147 and paragraph 4 of Schedule 9 and section 196 and Schedule 14 so far as relating to those provisions, the Secretary of State, in relation to England, and the Assembly, in relation to Wales; and

(iv) for the other provisions of the Part, and section 196 and Schedule 14 so far as relating to those provisions, the Secretary of State after consulting the Assembly;

(i) in relation to England and Wales, the Secretary of State after consulting the Assembly; and

(ii) in relation to Scotland, the Scottish Ministers with the consent of the Secretary of State;

(d) in relation to section 181, and section 196 and Schedule 14 so far as relating to section 181, the Secretary of State;

(e) in relation to the other provisions of Part 4, and section 196 and Schedule 14 so far as relating to those provisions--

(i) in relation to England, the Secretary of State; and

(ii) in relation to Wales, the Assembly;

(f) in relation to Part 5, and section 196 and Schedule 14 so far as relating to that Part, the Secretary of State.

(3) Different days may be appointed for different purposes.

(4) Subsection (1) does not apply in relation to any provision of this Act so far as it confers power to make an order or regulations, or to section 167, 186 or 192.

200 Transitional or transitory provision and savings

(1) The appropriate authority may by order make such transitional or transitory provisions and savings as the authority considers appropriate in connection with the coming into force of any provision of this Act.

(2) For the purposes of this section "appropriate authority", in relation to any provision of this Act, means the authority which is the appropriate authority in relation to that provision for the purposes of section 199.

(3) An order under this section may modify any Act (including an Act of the Scottish Parliament) or subordinate legislation.

(4) Nothing in any transitional or transitory provisions and savings contained in this Act restricts the power under this section to make other transitional provisions and savings.

201 Supplementary and consequential provision

(1) The appropriate authority may by order make such supplementary, incidental or consequential provision as he or it thinks appropriate for the purposes of, in consequence of or for giving full effect to any provision of this Act.

(3) An order under this section may modify any Act (including an Act of the Scottish Parliament) or subordinate legislation.

(4) The power under this section is not restricted by any other provision of this Act.

202 Extent

(1) The amendment or repeal of any provision by this Act has the same extent as the provision being amended or repealed (subject to any express limitation contained in this Act).

(2) Subject to that and except as provided below this Act extends to England and Wales only.

(3) The following provisions also extend to Scotland--

(a) sections 124 and 125;

(b) Part 3, except for section 163(3);

(d) this Part.

(4) The following provisions also extend to Northern Ireland--

(a) sections 124 and 125;

(b) section 186;

(d) this Part.

203 Short title

This Act may be cited as the Health and Social Care (Community Health and Standards) Act 2003.

SCHEDULES

Section 1

SCHEDULE 1 Constitution of public benefit corporations

Requirement for a constitution

1 (1) A public benefit corporation is to have a constitution.

(2) As well as any provision authorised or required to be made by this Schedule, the constitution may make further provision (other than provision as to the powers of the corporation) consistent with this Schedule.

2 The constitution is to name the corporation and, if the corporation is an NHS foundation trust, its name must include the words "NHS foundation trust".

Eligibility for membership

3 (1) The persons who may become or continue as members of a public benefit corporation are--

(a) individuals who live in any area specified in the constitution as the area for a public constituency,

(b) individuals employed by the corporation under a contract of employment and, if the constitution so provides, individuals who exercise functions for the purposes of the corporation otherwise than under a contract of employment with the corporation,

(c) if the constitution so provides, individuals who have attended any of the corporation's hospitals as either a patient or the carer of a patient within a period specified in the constitution.

(2) The constitution may specify one or more areas as areas for public constituencies, each of which must be an electoral area for the purposes of local government elections in England and Wales or an area consisting of two or more such electoral areas.

(3) A person may become or continue as a member of the corporation by virtue of sub-paragraph (1)(b) only if--

(a) he is employed by the corporation under a contract of employment which has no fixed term or has a fixed term of at least 12 months, or

(b) he has been continuously employed by the corporation for at least 12 months or, where he exercises functions for the purposes of the corporation as mentioned in that sub-paragraph, he has done so continuously for such a period.

Chapter 1 of Part 14 of the Employment Rights Act 1996 (c. 18) applies for the purpose of determining whether an individual has been continuously employed by the corporation, or has continuously exercised functions for the purposes of the corporation, as it applies for the purposes of that Act.

(4) The constitution may divide those who come within sub-paragraph (1)(b) into two or more descriptions of individuals.

(5) An individual providing care in pursuance of a contract (including a contract of employment), or as a volunteer for a voluntary organisation, does not come within sub-paragraph (1)(c).

A voluntary organisation is a body, other than a public or local authority, the activities of which are not carried on for profit.

(6) The constitution may divide those who come within sub-paragraph (1)(c) into three or more descriptions of individuals, one of which is to comprise the carers of patients.

(7) The constitution may make further provision as to the circumstances in which a person may not become or continue as a member.

Constituencies

4 (1) Members of a public benefit corporation are referred to as follows.

(2) Those who live in an area specified in the constitution as an area for any public constituency are referred to collectively as a public constituency.

(3) Those who come within paragraph 3(1)(b) are referred to collectively as the staff constituency and, if the power in paragraph 3(4) is exercised, each description of members is referred to as a class within that constituency.

(4) Those who come, within paragraph 3(1)(c) are referred to collectively as the patients' constituency and, if the power in paragraph 3(6) is exercised, each description of members is referred to as a class within that constituency.

(5) A person who is a member of a constituency, or of a class within a constituency, may not while that membership continues be a member of any other constituency or class.

(6) A person who comes within paragraph 3(1)(b) may not become or continue as a member of any constituency other than the staff constituency.

5 The constitution is to require a minimum number of members of each constituency or, where there are classes within the constituency, of each class.

Becoming a member

6 (1) An individual who is eligible to become a member of a public benefit corporation may do so on an application made to the corporation.

(2) The constitution may provide for any individual who is--

(a) eligible to become a member of the staff constituency, and

(b) invited by the corporation to become a member of that constituency (and, where there are classes within the constituency, a member of the appropriate class),

to become a member of the corporation as a member of that constituency (and class) without an application being made, unless he informs the corporation that he does not wish to do so.

(3) The constitution may provide for any individual who is--

(a) eligible to become a member of the patients' constituency (otherwise than as the carer of a patient), and

(b) invited by the corporation to become a member of a specified constituency (and where there are classes within the constituency, a member of the specified class),

to become a member of the corporation as a member of that constituency (and class) without an application being made, unless he informs the corporation that he does not wish to do so.

(4) The constituency and, where applicable, class to be specified--

(a) if he is eligible to be a member of any public constituency, is that constituency,

(b) otherwise, is the patients' constituency and, where applicable, the class of which he is eligible to become a member.

Board of Governors

7 (1) A public benefit corporation is to have a board of governors.

(2) Only members of the corporation and persons appointed under the following provisions may become or continue as members of the board.

(3) The members of the board other than the appointed members are to be chosen by election.

(4) Members of a constituency or, where there are classes within it, members of each class may elect any of their number to be a member of the board.

8 (1) The following may not become or continue as members of the board of governors--

(a) a person who has been adjudged bankrupt or whose estate has been sequestrated and (in either case) has not been discharged,

(b) a person who has made a composition or arrangement with, or granted a trust deed for, his creditors and has not been discharged in respect of it,

(c) a person who within the preceding five years has been convicted in the British Islands of any offence if a sentence of imprisonment (whether suspended or not) for a period of not less than three months (without the option of a fine) was imposed on him.

(2) The constitution may make further provision as to the circumstances in which a person may not become or continue as a member of the board.

9 (1) More than half of the members of the board of governors are to be elected by members of the corporation other than those who come within paragraph 3(1)(b).

(2) At least three members of the board are to be elected by the staff constituency or, where there are classes within it, at least one member of the board is to be elected by each class and at least three members are to be elected altogether.

(3) At least one member of the board is to be appointed by a Primary Care Trust for which the corporation provides goods or services.

(4) At least one member of the board is to be appointed by one or more qualifying local authorities.

A qualifying local authority is a local authority for an area which includes the whole or part of an area specified in the constitution as the area for a public constituency.

(5) If any of the corporation's hospitals includes a medical or dental school provided by a university, at least one member of the board is to be appointed by that university.

(6) An organisation specified in the constitution as a partnership organisation may appoint a member of the board.

10 (1) An elected member of the board of governors may hold office for a period of three years.

(2) Such a member is to be eligible for re-election at the end of that period.

(3) But such a member ceases to hold office if he ceases to be a member of the corporation.

11 The corporation may pay travelling and other expenses to members of the board of governors at rates decided by the corporation.

12 The constitution is to provide for the chairman of the corporation or (in his absence) another person to preside at meetings of the board of governors.

13 (1) The constitution is to provide for meetings of the board of governors to be open to members of the public.

(2) But the constitution may provide for members of the public to be excluded from a meeting for special reasons.

14 (1) The constitution is to make provision as to--

(a) the conduct of elections for membership of the board,

(b) the appointment of persons to membership,

(d) the removal of a member from office.

(2) The constitution may make further provision about the board.

Directors

15 (1) A public benefit corporation is to have a board of directors.

(2) The constitution is to provide for all the powers of the corporation to be exercisable by the board of directors on its behalf.

(3) But the constitution may provide for any of those powers to be delegated to a committee of directors or to an executive director.

16 (1) The board is to consist of--

(a) executive directors, one of whom is to be the chief executive (and accounting officer) and another the finance director,

(b) non-executive directors, one of whom is to be the chairman.

(2) One of the executive directors is to be a registered medical practitioner or a registered dentist (within the meaning of the Dentists Act 1984 (c. 24)); and another is to be a registered nurse or a registered midwife.

(3) A person may not be appointed as an executive director if he is within paragraph 8(1).

(4) A person may be appointed as a non-executive director only if--

(a) he is a member of a public constituency or the patients' constituency, or

(b) where any of the corporation's hospitals includes a medical or dental school provided by a university, he exercises functions for the purposes of that university,

and he is not within paragraph 8(1).

17 (1) It is for the board of governors at a general meeting to appoint or remove the chairman and the other non-executive directors.

Removal of a non-executive director under this sub-paragraph requires the approval of three-quarters of the members of the board.

(2) It is for the non-executive directors to appoint or remove the chief executive.

(3) It is for a committee consisting of the chairman, the chief executive and the other non-executive directors to appoint or remove the executive directors.

(4) The appointment of a chief executive requires the approval of the board of governors.

18 (1) It is for the board of governors at a general meeting to decide the remuneration and allowances, and the other terms and conditions of office, of the non-executive directors.

(2) The corporation is to establish a committee of non-executive directors to decide the remuneration and allowances, and the other terms and conditions of office, of the executive directors; but the constitution may make provision for those matters to be decided pending the establishment of such a committee.

Initial directors of former NHS trusts

19 (1) This paragraph applies, where the application for authorisation is made under section 4, to the exercise of the powers mentioned in paragraph 17 to appoint the initial non-executive directors and the initial chief executive.

(2) The power to appoint the initial chairman of the corporation is to be exercised by appointing the chairman of the NHS trust, if he wishes to be appointed.

(3) The power to appoint the other initial non-executive directors of the corporation is to be exercised, so far as possible, by appointing any of the non-executive directors of the NHS trust (other than the chairman) who wish to be appointed.

(4) A person appointed in accordance with sub-paragraph (2) or (3) is to be appointed for the unexpired period of his term of office as chairman or (as the case may be) non-executive director of the NHS trust; but if, on any such appointment, that period is less than 12 months, he is to be appointed for 12 months.

(5) The power to appoint the initial chief executive of the corporation is to be exercised by appointing the chief officer of the NHS trust, if he wishes to be appointed.

(6) Sub-paragraphs (a) and (b) of paragraph 16(4) do not apply to the appointment of any initial non-executive director in pursuance of this paragraph; and paragraph 17(4) does not apply to the appointment of the initial chief executive of the corporation in pursuance of sub-paragraph (5).

Register of members etc.

20 (1) A public benefit corporation is to have--

(a) a register of members showing, in respect of each member, the constituency to which he belongs and, where there are classes within it, the class to which he belongs,

(b) a register of members of the board of governors,

(d) a register of directors,

(e) a register of interests of the directors.

(2) The constitution may make further provision about the registers including, in particular, admission to, and removal from, the registers.

21 The constitution is to make provision for dealing with conflicts of interest of members of the board of governors and of the directors.

22 (1) A public benefit corporation is to make the following documents available for inspection by members of the public free of charge at all reasonable times--

(a) a copy of the current constitution,

(b) a copy of the current authorisation,

(d) a copy of the latest annual report,

(e) a copy of the latest information as to its forward planning,

(f) a copy of any notice given under section 23.

(2) Any person who requests it is to be provided with a copy of or extract from any of the above documents.

(3) The corporation is also to make the registers mentioned in paragraph 20 available for inspection by members of the public, except in circumstances prescribed by regulations; and, so far as the registers are required to be available--

(a) they are to be available free of charge at all reasonable times,

(b) a person who requests it is to be provided with a copy of or extract from them.

(4) If the person requesting a copy or extract under this paragraph is not a member of the corporation, the corporation may impose a reasonable charge for doing so.

Auditor

23 (1) A public benefit corporation is to have an auditor.

(2) It is for the board of governors to appoint or remove the auditor at a general meeting of the board.

(3) An officer of the Audit Commission may be the auditor if he is appointed by the board with the agreement of the Commission.

(4) But a person may not be appointed as auditor unless he (or, in the case of a firm, each of its members) is a member of one or more of the following bodies--

(a) the bodies mentioned in section 3(7)(a) to (e) of the Audit Commission Act 1998 (c. 18),

(b) any other body of accountants established in the United Kingdom and for the time being approved by the regulator for the purposes of this paragraph.

(5) Where an officer of the Audit Commission is appointed as auditor, the Commission is to charge the public benefit corporation such fees for his services as will cover the full cost of providing them.

(6) The corporation is to establish a committee of non-executive directors as an audit committee to perform such monitoring, reviewing and other functions as are appropriate.

(7) In this paragraph "the Audit Commission" means the Audit Commission for Local Authorities and the National Health Service in England and Wales.

Accounts

24 (1) A public benefit corporation is to keep accounts in such form as the regulator may with the approval of the Treasury direct.

(2) The accounts are to be audited by the corporation's auditor.

(3) But the Comptroller and Auditor General may examine--

(a) the accounts,

(b) any records relating to them, and

(4) If trustees are appointed under section 22, the Comptroller and Auditor General may also examine--

(a) the accounts kept by the trustees,

(b) any records relating to them, and

(5) In auditing the accounts the auditor is to comply with any directions given by the regulator as to the standards, procedures and techniques to be adopted.

25 (1) A public benefit corporation is to prepare in respect of each financial year annual accounts in such form as the regulator may with the approval of the Treasury direct.

(2) In preparing its annual accounts, the corporation is to comply with any directions given by the regulator with the approval of the Treasury as to--

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