National Health Service Act 2006 (c. 41)

(The document as of February, 2008)

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(a) the methods and principles according to which the accounts must be prepared,

(b) the information to be given in the accounts.

(3) In determining the form and content of the annual accounts the regulator must aim to ensure that the accounts present a true and fair view.

(4) The corporation must--

(a) lay a copy of the annual accounts, and any report of the auditor on them, before Parliament, and

(b) once it has done so, send copies of those documents to the regulator.

(5) The constitution must provide for the functions of the corporation under this paragraph to be delegated to the accounting officer.

(6) In this paragraph and paragraph 27 "financial year" means--

(a) the period beginning with the date on which the corporation is authorised under section 35 and ending with the next 31st March, and

(b) each successive period of twelve months beginning with 1st April.

Annual reports and forward plans

26 (1) A public benefit corporation must prepare annual reports and send them to the regulator.

(2) The reports must give--

(a) information on any steps taken by the corporation 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,

(b) any other information the regulator requires.

(3) It is for the regulator to decide--

(a) the form of the reports,

(b) when the reports must be sent to it,

27 (1) A public benefit corporation must give information to the regulator as to its forward planning in respect of each financial year.

(2) The document containing the information must be prepared by the directors.

(3) In preparing the document the directors must have regard to the views of the board of governors.

Meeting of board of governors to consider annual accounts and reports

28 The following documents must be presented to the board of governors of a public benefit corporation at a general meeting--

(a) the annual accounts,

(b) any report of the auditor on them,

Instruments etc

29 (1) The constitution must make provision for the authentication of the fixing of the corporation's seal.

(2) A document purporting to be duly executed under the corporation's seal or to be signed on its behalf must be received in evidence and, unless the contrary is proved, taken to be so executed or signed.

Section 31

SCHEDULE 8 Independent Regulator of NHS foundation Trusts

Membership

1 (1) The regulator consists of a number of members (but not more than 5) appointed by the Secretary of State.

(2) One of the members must be appointed as chairman and another as deputy chairman.

(3) The deputy chairman need not be appointed before the end of the period of six months beginning with the establishment of the regulator.

Tenure of office

2 (1) A person holds and vacates office as a member in accordance with the terms of his appointment.

(2) But--

(a) he may at any time resign his office by giving notice to the Secretary of State,

(b) the Secretary of State may at any time remove him from office on the ground of incapacity or misbehaviour.

(3) A person must not be appointed as a member for a period of more than four years.

(4) A person who ceases to be a member is eligible for re-appointment.

Remuneration and pensions

3 (1) The regulator must pay to the chairman--

(a) such remuneration, and

(b) such travelling and other allowances,

as the Secretary of State may determine.

(2) The regulator must pay to the members (other than the chairman) such travelling and other allowances as the Secretary of State may determine.

(3) In the case of any such person who holds or has held office as chairman as the Secretary of State may determine, the regulator must pay--

(a) such pension, allowance or gratuity to or in respect of him, or

(b) such contributions or payments towards provision for such a pension, allowance or gratuity,

as the Secretary of State may determine.

Staff

4 The regulator may, after consulting the Minister for the Civil Service as to numbers and terms and conditions of service, employ such staff as the regulator may determine.

Superannuation

5 (1) Sub-paragraph (2) applies where--

(a) a person is an active or deferred member of a scheme under section 1 of the Superannuation Act 1972 (c. 11), and

(b) he is appointed as chairman.

(2) The Minister for the Civil Service may determine that the person's term of office as chairman must be treated for the purposes of the scheme as service in the employment by reference to which he is a member (whether or not any benefits are payable by virtue of paragraph 3(3)).

(3) The regulator must pay to the Minister for the Civil Service, at such times as the Minister may direct, such sums as he may determine in respect of any increase attributable to sub-paragraph (2) or (3) in the sums payable out of money provided by Parliament under the Superannuation Act 1972.

Procedure

6 (1) The regulator may regulate its own procedure and make any arrangements it considers appropriate for the discharge of its functions.

(2) The validity of any act of the regulator is not affected by any vacancy among the members or by any defect in the appointment of any member.

Delegation of functions

7 Anything which the regulator is authorised or required to do may be done by--

(a) the chairman or deputy chairman or any committee,

(b) any member of the staff,

if authorised by the regulator (generally or specifically) for that purpose.

General powers

8 (1) The regulator may do anything which appears to it to be necessary or expedient for the purposes of or in connection with the exercise of its functions.

(2) That includes in particular--

(a) acquiring and disposing of property,

(b) entering into contracts,

and co-operating with other public authorities.

Specific powers

9 (1) The regulator may with the consent of the Secretary of State borrow money temporarily by way of overdraft, but may not otherwise borrow money.

(2) The regulator may conduct, commission or assist the conduct of research.

Finance

10 The Secretary of State may make contributions towards the regulator's expenses.

Reports and other information

11 (1) As soon as possible after the end of each financial year, the regulator must prepare an annual report on how it has exercised its functions during the year.

(2) The regulator must--

(a) lay a copy of the report before Parliament, and

(b) once it has done so, send a copy of it to the Secretary of State.

(3) The regulator must in respect of each financial year prepare a report which provides an overall summary of the accounts of NHS foundation trusts.

(4) The report must be prepared as soon as possible after the regulator has received the accounts of all NHS foundation trusts for the relevant financial year.

(5) The regulator must--

(a) lay a copy of the report before Parliament, and

(b) once it has done so, send a copy of it to the Secretary of State.

(6) The regulator must provide the Secretary of State with such other reports and information relating to the exercise of the regulator's functions as he may require.

12 (1) The regulator must keep accounts in such form as the Secretary of State may direct.

(2) The regulator must prepare in respect of each financial year annual accounts in such form as the Secretary of State may direct.

(3) The regulator must send copies of the annual accounts to the Secretary of State and the Comptroller and Auditor General within such period after the end of the financial year to which the accounts relate as the Secretary of State may direct.

(4) The Comptroller and Auditor General must examine, certify and report on the annual accounts and must lay copies of them and of his report before Parliament.

(5) In paragraph 11 and this paragraph, "financial year" means--

(a) the period beginning with the establishment of the regulator and ending with the next 31st March, and

(b) each successive period of twelve months beginning with 1st April.

13 The regulator must respond in writing to any recommendation which--

(a) is made by a Committee of either House of Parliament, or a Committee of both Houses, and

(b) relates to the exercise by the regulator of its functions.

Seal and evidence

14 The application of the regulator's seal must be authenticated by the signature of the chairman or deputy chairman or of any member of the staff who has been authorised by the regulator (whether generally or specifically) for that purpose.

15 A document purporting to be duly executed under the regulator's seal or to be signed on its behalf must be received in evidence and, unless the contrary is proved, taken to be so executed or signed.

General

16 (1) The regulator must not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown.

(2) The regulator's property must not be regarded as property of, or property held on behalf of, the Crown.

(3) The regulator must exercise its functions effectively, efficiently and economically.

Section 54

SCHEDULE 9 NHS foundation trusts: transfer of staff

1 An order under section 54(4) may provide for the transfer of employees of an NHS foundation trust to a person mentioned in that subsection.

2 The contract of employment of an employee transferred under such an order--

(a) is not terminated by the transfer,

(b) has effect from the date of transfer as if originally made between the employee and the transferee.

3 Where an employee is so transferred--

(a) all the rights, powers, duties and liabilities of the trust under or in connection with the contract of employment are by virtue of this paragraph transferred to the transferee on the date of transfer, and

(b) anything done before that date by or in relation to the trust in respect of that contract or the employee must be treated from that date as having been done by or in relation to the transferee.

This paragraph does not affect the generality of paragraph 2.

4 But if the employee informs the trust or the proposed transferee that he objects to the transfer--

(a) paragraphs 2 and 3 do not apply, and

(b) the contract of employment is terminated immediately before the date of transfer but the employee must not be treated, for any purpose, as having been dismissed by the trust.

5 This Schedule does not affect any right of an employee to terminate his contract of employment if (apart from the change of employer) a substantial change is made to his detriment in his working conditions.

6 In this Schedule, "date of transfer" means the date decided under the order for the transfer of the employee.

Section 62

SCHEDULE 10 Audit of accounts of NHS foundation trusts

General duty

1 In auditing the accounts of any NHS foundation trust an auditor must by examination of the accounts and otherwise satisfy himself that--

(a) they are prepared in accordance with directions under paragraph 25 of Schedule 7,

(b) they comply with the requirements of all other provisions contained in, or having effect under, any enactment which are applicable to them,

(d) the trust has made proper arrangements for securing economy, efficiency and effectiveness in its use of resources.

Right to documents and information

2 (1) An auditor of an NHS foundation trust has a right of access at all reasonable times to every document relating to the trust which appears to him necessary for the purposes of his functions under this Chapter.

(2) The auditor may--

(a) require a person holding or accountable for any such document to give him such information and explanation as he considers necessary for the purposes of his functions under this Chapter,

(b) if he considers it necessary, require the person to attend before him in person to give the information or explanation or to produce the document.

(3) The auditor may also--

(a) require any director or officer of the trust to give him such information or explanation as he considers necessary for the purposes of his functions under this Chapter,

(b) if he considers it necessary, require the director or officer to attend before him in person to give the information or explanation.

(4) The trust must provide the auditor with every facility and all information which he may reasonably require for the purposes of his functions under this Chapter; but this sub-paragraph does not affect the generality of sub-paragraphs (1) to (3).

(5) A person who without reasonable excuse fails to comply with any requirement of an auditor of an NHS foundation trust under any of sub-paragraphs (1) to (3) is guilty of an offence.

(6) A person guilty of an offence under sub-paragraph (5) is liable on summary conviction--

(a) to a fine not exceeding level 3 on the standard scale, and

(b) to an additional fine not exceeding £20 for each day on which the offence continues after conviction for the offence.

(7) Any expenses incurred by an auditor of an NHS foundation trust in connection with proceedings for an offence under sub-paragraph (5) alleged to have been committed in relation to the audit of the accounts of the trust, so far as not recovered from any other source, are recoverable from the trust.

Reports

3 In auditing the accounts of an NHS foundation trust, the auditor must consider--

(a) whether, in the public interest, he should make a report on any matter coming to his notice in the course of the audit, in order for it to be considered by the trust or brought to the attention of the public, and

(b) whether the public interest requires any such matter to be made the subject of an immediate report rather than of a report to be made at the conclusion of the audit.

4 (1) When an auditor of an NHS foundation trust has concluded his audit of the trust's accounts, he must enter on the accounts--

(a) a certificate that he has completed the audit in accordance with this Chapter, and

(b) his opinion on the accounts.

(2) But where the auditor makes a report to the board of governors and board of directors of the trust under paragraph 3 at the conclusion of the audit, he may instead include the certificate and his opinion in that report.

5 (1) Any report under paragraph 3 must be sent by the auditor to the board of governors and board of directors of the trust and to the regulator--

(a) at once if it is an immediate report,

(b) otherwise not later than 14 days after conclusion of the audit.

(2) The directors must take the report into consideration as soon as practicable after receiving it.

Referral to regulator

6 If the auditor of an NHS foundation trust has reason to believe that the trust or a director or officer of the trust--

(a) is about to make, or has made, a decision which involves or would involve the incurring of expenditure which is unlawful, or

(b) is about to take, or has taken, a course of action which, if pursued to its conclusion, would be unlawful and likely to cause a loss or deficiency,

he must refer the matter at once to the regulator.

Audit of accounts of directors or officers

7 (1) Where a director or officer of an NHS foundation trust receives money or other property--

(a) on behalf of the trust, or

(b) for which he ought to account to the trust,

the accounts of the director or officer must be audited by the auditor of the accounts of the trust.

(2) The accounts of the director or officer must be made up to 31st March.

(3) Paragraph 25(5) of Schedule 7 and paragraphs 1 to 5 of this Schedule apply with the necessary modifications to the audit under this paragraph.

Restriction on disclosure of information

8 (1) No information relating to an NHS foundation trust or other person and obtained by an auditor (or by a person acting on the auditor's behalf) under this Chapter or in the course of an audit under this Chapter may be disclosed except--

(a) with the consent of the person to whom the information relates,

(b) for the purposes of any functions of an auditor of an NHS foundation trust,

(d) for the purposes of the functions of the Comptroller and Auditor General under this Chapter,

(e) for the purposes of the functions of the Commission for Healthcare Audit and Inspection under Part 2 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43),

(f) for the purposes of any criminal proceedings.

(2) A person who discloses information in contravention of sub-paragraph (1) is guilty of an offence.

(3) A person guilty of an offence under sub-paragraph (2) is liable--

(a) on summary conviction, to imprisonment for a term not exceeding twelve months or to a fine not exceeding the statutory maximum (or to both),

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine (or to both).

(4) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44) (general limit on magistrates' courts power to impose imprisonment) the reference in sub-paragraph (3) to a period of imprisonment of 12 months is a reference to a period of imprisonment of 6 months.

Section 135

SCHEDULE 11 Pilot schemes

How pilot schemes may be initiated

1 (1) A pilot scheme may be made--

(a) on the initiative of a Primary Care Trust, or

(b) in response to a request made by a person wishing to participate in the scheme.

(2) The request referred to in sub-paragraph (1)(b) must--

(a) be made in writing, and

(b) comply with such requirements (if any) as may be prescribed.

Preliminary steps to be taken

2 (1) Before making a pilot scheme, the Primary Care Trust concerned must prepare proposals for the scheme and submit them to the Secretary of State.

(2) But proposals may be submitted by a Primary Care Trust only with the agreement of the other proposed participants.

(3) In preparing proposals for a pilot scheme, a Primary Care Trust must comply with any directions given to it by the Secretary of State as to--

(a) the matters to be dealt with, and information to be included, in the proposals, and

(b) the procedure to be followed by the Primary Care Trust.

(4) Before submitting proposals for a pilot scheme, a Primary Care Trust must (in addition to complying with any requirements about consultation imposed by or under any other enactment) comply with any directions given to it by the Secretary of State about the extent to which, and manner in which, it must consult on the proposals.

(5) The Secretary of State may give directions--

(a) requiring a Primary Care Trust to submit proposals to him,

(b) as to the matters to which a Primary Care Trust must have regard in making any recommendation to the Secretary of State when submitting proposals for a pilot scheme,

(d) requiring Primary Care Trusts to provide the Secretary of State with summaries (prepared and presented in the manner specified in the directions) of all requests received by them during the period specified in the directions.

(6) A direction under this paragraph may be given so as to apply--

(a) generally in circumstances specified in the direction, or

(b) in relation to a particular case.

Approval

3 (1) If proposals for a pilot scheme are submitted under paragraph 2, the Secretary of State must--

(a) approve them as submitted,

(b) make such modifications as he considers appropriate and approve them as modified, or

(2) The Secretary of State may not approve proposals for a pilot scheme unless satisfied that they include satisfactory provision for any participant other than the Primary Care Trust to withdraw from the scheme if he wishes to do so.

(3) When the Secretary of State makes a decision under this paragraph--

(a) he must notify the Primary Care Trust concerned of the decision, and

(b) the Primary Care Trust must, without delay, notify the other participants in the proposed scheme.

Preliminary approval

4 (1) This paragraph applies if a Primary Care Trust proposes to make a pilot scheme but has not determined who the participants, or who all of the participants, will be.

(2) The Primary Care Trust may apply to the Secretary of State for preliminary approval to be given to its proposals.

(3) If such an application is made, the Secretary of State must--

(a) give preliminary approval to the proposals as submitted,

(b) make such modifications as he considers appropriate and give preliminary approval to them as modified, or

(4) If a Primary Care Trust is given preliminary approval, it must take such steps, with a view to obtaining final approval for the proposed pilot scheme, as the Secretary of State may direct.

(5) The fact that the Secretary of State has given preliminary approval to proposals for a pilot scheme does not affect his right to refuse to approve the completed proposals when they are submitted under paragraph 2.

(6) Sub-paragraphs (3) to (6) of paragraph 2 apply in relation to an application for preliminary approval of proposals under this paragraph as they apply in relation to proposals under that paragraph.

Effect of proposals on existing services

5 (1) Proposals for a pilot scheme submitted under paragraph 2, or included in an application for preliminary approval of proposals under paragraph 4, must include--

(a) an assessment by the Primary Care Trust of the likely effect of the implementation of the proposals in the area of the Primary Care Trust on the services mentioned in sub-paragraph (2),

(b) any assessment supplied to the Primary Care Trust by another Primary Care Trust under sub-paragraph (4).

(2) The services are--

(a) pharmaceutical services,

(b) local pharmaceutical services provided under existing pilot schemes or LPS schemes,

(3) If it appears to a Primary Care Trust that the proposals would, if implemented, affect any of the services mentioned in sub-paragraph (2) provided in the area of another Primary Care Trust, it must consult that other Primary Care Trust about the proposals before submitting them under paragraph 2 or including them in an application for preliminary approval under paragraph 4.

(4) A Primary Care Trust consulted under sub-paragraph (3) must prepare an assessment of the likely effect of the implementation of the proposals on those services and supply it to the Primary Care Trust which consulted it.

Guidance

6 The Secretary of State may issue guidance about the criteria by reference to which, as a general rule, powers under paragraph 3 or 4 are likely to be exercised.

Making a scheme

7 (1) If the Secretary of State approves proposals for a pilot scheme under paragraph 3 and notifies the Primary Care Trust concerned in accordance with that paragraph, the Primary Care Trust must implement the proposals in accordance with directions given by the Secretary of State.

(2) A proposed participant in a pilot scheme (other than the Primary Care Trust concerned) may withdraw at any time before the proposals relating to him are implemented.

(3) A pilot scheme, as implemented, may differ from the proposals for the scheme approved by the Secretary of State only if he agrees to the variation or--

(a) directions given by him (either under sub-paragraph (1) or generally) authorise variations that satisfy specified requirements, and

(b) the variation satisfies those requirements.

(4) As soon as is reasonably practicable after implementing proposals for a pilot scheme, the Primary Care Trust concerned must (in accordance with any directions given to it by the Secretary of State) publish details of the scheme.

Section 144

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