Office of Public Sector Information
PART 1 continued
(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,
(c) describe the goods and services which it is proposed should be provided by the new trust, and
(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,
(c) individuals who live in any area specified in the proposed constitution as the area for a public constituency,
(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.
(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.
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”.
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”.
(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
(c) for each NHS foundation trust.”, 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”.
(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”.
(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”.
Schedule 4 (which makes amendments relating to NHS foundation trusts) has effect.
(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,
(c) filling of vacancies,
(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.
(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.
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.
Schedule 5 (which makes provision in relation to the audit of the accounts of NHS foundation trusts) has effect.
An NHS foundation trust must exercise its functions effectively, efficiently and economically.
(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).
Health and Social Care (Community Health and Standards) Act 2003