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

(The document as of February, 2008)

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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 which the regulator requires for the purposes of its functions.

20 Entry and inspection of premises

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.

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.

(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 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,

(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.

(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

(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

(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,

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 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 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 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, 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.

(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 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 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 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.

(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,

(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 (winding up of companies), including any related provision of that Act, with 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 to be read as references to the corporation.

26 Sections 24 and 25: supplementary

(1) In sections 24 and 25, an order means an order made by the Secretary of State.

(2) The modifications of the Insolvency Act 1986 that may be made by an order under section 24(2) include (for example)--

(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.

(3) The power conferred by section 25(3) is to be exercised with a view to securing the provision of the goods and services which the authorisation requires the trust to provide.

(4) That power is also to be exercised (together, if required, with the power conferred by section 11(2)) with a view to securing that any transfer of property in pursuance of the power does not result in a net loss of value to the trust; and the question whether a transfer would result in a net loss of value is to be determined in accordance with regulations.

(5) The Insolvency Act 1986 (c. 45) may not be modified under section 25(6) so as to alter the priority of debts or the ranking of debts between themselves.

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,

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 NHS trust,

(b) specify the property and liabilities proposed to be transferred to the new NHS foundation trust,

(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 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 NHS foundation trust,

if the regulator 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,

(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 patients' constituency, 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

(d) any other requirements which the regulator considers appropriate are met.

(6) In deciding whether it is satisfied as to the matters referred to in subsection (5)(c), the regulator is to consider (among other things)--

(a) any report or recommendation in respect of either of the applicants made by the Commission for Healthcare Audit and Inspection,

(b) the financial position of the applicants.

(7) The applicants must consult about the application in accordance with regulations.

(8) In the course of the consultation the applicants must seek the views of --

(a) any Patients' Forum for an applicant,

(b) the staff employed by the applicants,

(d) any local authority that would be authorised by the proposed constitution to appoint a member of the board of governors,

(e) if the proposed constitution provides for a patients' constituency, individuals who would be able apply to become members of that constituency,

(f) any persons prescribed by regulations.

(9) The regulator may not give an authorisation under this section unless it is satisfied that the applicants have complied with the regulations.

(10) The certificate is conclusive evidence of incorporation; and the authorisation is conclusive evidence that the corporation is an NHS foundation trust.

(11) 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.

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--

(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 liabilities to the persons mentioned in section 25(3),

(b) include provisions corresponding to those of Schedule 3.

(4) 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.

(5) Section 6(4) applies to an authorisation under section 27 as it does in relation to an authorisation under that section.

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".

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 " .

31 Patients' Forums

(1) The National Health Service Reform and Health Care Professions Act 2002 (c. 17) is amended as follows.

(2) In section 15 (establishment of patients' forums)--

(a) in subsection (1), after paragraph (b) there is inserted " and

(b) in subsection (9), in the definition of "relevant overview and scrutiny committee", for "or NHS trust" there is substituted ", NHS trust or NHS foundation trust".

(3) In section 17 (entry and inspection of premises), in subsection (1), after paragraph (f) there is inserted--

" (fa) NHS foundation trusts, " .

(4) In section 18 (annual reports) in subsection (2)--

(a) in paragraph (c)(ii), after "NHS trust" there is inserted "or NHS foundation trust",

(b) after paragraph (d) there is inserted--

" (e) where the report includes provision which relates to any NHS foundation trust, the Independent Regulator of NHS Foundation Trusts " .

(5) In section 19 (supplementary) in subsection (2)--

(a) in paragraph (k), after "an NHS trust," there is inserted "an NHS foundation trust,",

(b) in paragraph (p), after "NHS trusts," there is inserted "NHS foundation trusts,";

and in subsection (4)(a), after "NHS trust" there is inserted "or NHS foundation trust".

32 Commission for Patient and Public Involvement in Health

(1) Section 20 of the National Health Service Reform and Health Care Professions Act 2002 (c. 17) (Commission for Patient and Public Involvement in Health) is amended as follows.

(2) In subsection (10), after "an NHS trust," there is inserted "an NHS foundation trust,".

(3) In subsection (12), in the definition of "health service bodies", for "and NHS trusts" there is substituted ", NHS trusts and NHS foundation trusts".

Miscellaneous

33 Taxation

(1) In section 519A of the Income and Corporation Taxes Act 1988 (c. 1) (taxation of health service bodies), in subsection (2), after paragraph (b) there is inserted--

" (bb) an NHS foundation trust " .

(2) Section 61(3) of the 1990 Act (health service bodies: stamp duty) applies to an NHS foundation trust as it applies to an NHS trust.

(3) In section 41 of the Value Added Tax Act 1994 (c. 23) (application to the Crown), in subsection (7), after "1978" there is inserted "an NHS foundation trust".

34 Other amendments relating to NHS foundation trusts

Schedule 4 (which makes amendments relating to NHS foundation trusts) has effect.

35 Conduct of elections

(1) Regulations may make provision as to the conduct of elections for membership of the board of governors of an NHS foundation trust.

(2) The regulations may in particular provide for--

(a) nomination of candidates and obligations to declare their interests,

(b) systems and methods of voting, and the allocation of places on the board of governors, at contested elections,

(d) supervision of elections,

(e) election expenses and publicity,

(f) questioning of elections and the consequences of irregularities.

(3) Regulations under this section may create offences punishable on summary conviction with a maximum fine not exceeding level 4 on the standard scale.

(4) An NHS foundation trust must secure that its constitution is in accordance with regulations under this section.

(5) Pending the coming into force of regulations under this section, elections for membership of the board of governors of an NHS foundation trust, if contested, must be by secret ballot.

36 Offence

(1) A person may not vote at an election for the board of governors of an NHS foundation trust unless, within the specified period, he has made a declaration in the specified form of the particulars of his qualification to vote as a member of the constituency, or class within a constituency, for which the election is being held.

(2) A person may not stand for election to the board unless, within the specified period, he has made a declaration in the specified form of the particulars of his qualification to vote as a member of the constituency, or class within a constituency, for which the election is being held and is not prevented from being a member of the board by paragraph 8 of Schedule 1.

(3) A person elected to the board may not vote at a meeting of the board unless, within the specified period, he has made a declaration in the specified form of the particulars of his qualification to vote as a member of the trust and is not prevented from being a member of the board by paragraph 8 of Schedule 1.

(4) This section does not apply to an election held for the staff constituency.

(5) Specified means specified for the purpose in the trust's constitution.

(6) A person is guilty of an offence if he--

(a) makes a declaration under this section which he knows to be false in a material particular, or

(b) recklessly makes such a declaration which is false in a material particular.

(7) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

37 Representative membership

An authorisation may require an NHS foundation trust to take steps to secure that (taken as a whole) the actual membership of any public constituency and (if there is one) of the patients' constituency is representative of those eligible for such membership.

38 Audit

Schedule 5 (which makes provision in relation to the audit of the accounts of NHS foundation trusts) has effect.

39 General duty of NHS foundation trusts

An NHS foundation trust must exercise its functions effectively, efficiently and economically.

Supplementary

40 Interpretation of Part 1

(1) In this Part--

"the 1990 Act" means the National Health Service and Community Care Act 1990 (c. 19),
"authorisation" means an authorisation under section 6 or 27,
"health service body" means a Strategic Health Authority, a Special Health Authority, an NHS trust, an NHS foundation trust or a Primary Care Trust,
"regulations" means regulations made by the Secretary of State.

(2) Other expressions used in this Part and in the 1977 Act have the same meaning in this Part as in that Act.

(3) Any references in this Part, in relation to property held on trust, to the purposes of an NHS foundation trust are to the general or any specific purposes of the NHS foundation trust (including the purposes of any specific hospital at or from which services are provided by the trust).

(4) Any references in this Part to goods and services are to be interpreted in accordance with section 14(5).

Part 2 Standards

Chapter 1 Regulatory bodies

41 The Commission for Healthcare Audit and Inspection

(1) There is to be a body corporate known as the Commission for Healthcare Audit and Inspection (in this Part referred to as the CHAI).

(2) Schedule 6 (which makes further provision about the CHAI) has effect.

42 The Commission for Social Care Inspection

(1) There is to be a body corporate known as the Commission for Social Care Inspection (in this Part referred to as the CSCI).

(2) Schedule 7 (which makes further provision about the CSCI) has effect.

43 Transfer of property etc to CHAI and CSCI

Schedule 8 (which makes provision for the transfer of property, rights and liabilities to the CHAI and the CSCI) has effect.

44 Abolition of former regulatory bodies

(1) The Commission for Health Improvement is abolished.

(2) The National Care Standards Commission is abolished.

Chapter 2 NHS health care: introductory

45 Quality in health care

(1) It is the duty of each NHS body to put and keep in place arrangements for the purpose of monitoring and improving the quality of health care provided by and for that body.

(2) In this Part "health care" means--

(a) services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness; and

(b) the promotion and protection of public health.

(3) In subsection (2)(a), "illness" has the meaning given by section 128(1) of the 1977 Act.

46 Standards set by Secretary of State

(1) The Secretary of State may prepare and publish statements of standards in relation to the provision of health care by and for English NHS bodies and cross-border SHAs.

(2) The Secretary of State must keep the standards under review and may publish amended statements whenever he considers it appropriate.

(3) The Secretary of State must consult such persons as he considers appropriate--

(a) before publishing a statement under this section;

(b) before publishing an amended statement under this section which in the opinion of the Secretary of State effects a substantial change in the standards.

(4) The standards set out in statements under this section are to be taken into account by every English NHS body and cross-border SHA in discharging its duty under section 45.

47 Standards set by Assembly

(1) The Assembly may prepare and publish statements of standards in relation to the provision of health care by and for Welsh NHS bodies.

(2) The Assembly must keep the standards under review and may publish amended statements whenever it considers it appropriate.

(3) The Assembly must consult such persons as it considers appropriate--

(a) before publishing a statement under this section;

(b) before publishing an amended statement under this section which in the opinion of the Assembly effects a substantial change in the standards.

(4) The standards set out in statements under this section are to be taken into account by every Welsh NHS body in discharging its duty under section 45.

Chapter 3 NHS health care: functions of CHAI

Healthcare provided by and for NHS bodies

48 Introductory

(1) The CHAI has the general function of encouraging improvement in the provision of health care by and for NHS bodies.

(2) In exercising its functions under subsection (1) and sections 49 to 56 in relation to such provision, the CHAI shall be concerned in particular with--

(a) the availability of, and access to, the health care;

(b) the quality and effectiveness of the health care;

(d) the availability and quality of information provided to the public about the health care;

(e) the need to safeguard and promote the rights and welfare of children; and

(f) the effectiveness of measures taken for the purpose of paragraph (e) by the body in question and any person who provides, or is to provide, health care for that body.

49 National performance data

The CHAI has the function of publishing data relating to the provision of health care by and for NHS bodies.

50 Annual reviews

(1) In each financial year the CHAI must conduct a review of the provision of health care by and for--

(a) each English NHS body, and

(b) each cross-border SHA,

and must award a performance rating to each such body.

(2) The CHAI is to exercise its function under subsection (1) by reference to criteria from time to time devised by it and approved by the Secretary of State.

(3) The CHAI must publish the criteria devised and approved from time to time under subsection (2).

(4) In exercising its functions under this section in relation to any health care the CHAI must take into account the standards set out in statements published under section 46.

(5) For the purposes of this section the CHAI may, subject to this Part, conduct an inspection of--

(a) the body being reviewed; and

(b) any person who provides, or is to provide, health care for that body (wherever the health care is or is to be provided).

(6) The Secretary of State may, after consulting the CHAI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CHAI before the award of a performance rating under this section.

51 Reviews: England and Wales

(1) The CHAI has the function of conducting reviews of--

(a) the overall provision of health care by and for NHS bodies;

(b) the overall provision of particular kinds of health care by and for NHS bodies;

(c) the provision of health care, or a particular kind of health care, by and for NHS bodies of a particular description.

(2) If the Secretary of State so requests, the CHAI must conduct--

(a) a review under subsection (1)(a);

(b) a review under subsection (1)(b) of the overall provision of a kind of health care specified in the request; or

(c) a review under subsection (1)(c) of the provision of health care, or health care of a kind specified in the request, by or for NHS bodies of a description so specified.

(3) The Secretary of State must consult the Assembly before making a request under subsection (2).

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