Part 2Health service bodies
F78CHAPTER A1F245NHS England
Words in Act substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 1 para. 1(1)(2); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
Secretary of State's mandate to F245NHS England
13AMandate to F222NHS England
1
F246... The Secretary of State must publish and lay before Parliament a document to be known as “the mandate”.
2
The Secretary of State must specify in the mandate—
a
b
any requirements that the Secretary of State considers it necessary to impose on F245NHS England for the purpose of ensuring that it achieves those objectives.
F4072A
The objectives specified by the Secretary of State under subsection (2)(a) for NHS England must include objectives relating to outcomes for cancer patients, and those objectives are to be treated by NHS England as having priority over any other objectives relating specifically to cancer.
F2483
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F2494
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5
6
F2516A
The Secretary of State may revise the mandate.
6B
If the Secretary of State revises the mandate, the Secretary of State must publish and lay before Parliament the mandate as revised.
7
F245NHS England must—
a
seek to achieve the objectives specified in the mandate, and
b
comply with any requirements so specified.
8
Before specifying any objectives or requirements in the mandate, the Secretary of State must consult—
a
F245NHS England,
b
the Healthwatch England committee of the Care Quality Commission, and
c
such other persons as the Secretary of State considers appropriate.
9
Requirements included in the mandate have effect only if regulations so provide.
13BF225Review of NHS England’s performance in implementing the mandate
1
The Secretary of State must keep F245NHS England’s performance in achieving any objectives or requirements specified in the mandate under review.
F2532
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F2533
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F2534
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F2535
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General duties of F245NHS England
13CDuty to promote NHS Constitution
1
F245NHS England must, in the exercise of its functions—
a
act with a view to securing that health services are provided in a way which promotes the NHS Constitution, and
b
promote awareness of the NHS Constitution among patients, staff and members of the public.
2
In this section, “patients” and “staff” have the same meaning as in Chapter 1 of Part 1 of the Health Act 2009 (see section 3(7) of that Act).
13DDuty as to effectiveness, efficiency etc.
F245NHS England must exercise its functions effectively, efficiently and economically.
13EDuty as to improvement in quality of services
1
F245NHS England must exercise its functions with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with—
a
the prevention, diagnosis or treatment of illness, or
b
the protection or improvement of public health.
2
In discharging its duty under subsection (1), F245NHS England must, in particular, act with a view to securing continuous improvement in the outcomes that are achieved from the provision of the services.
3
The outcomes relevant for the purposes of subsection (2) include, in particular, outcomes which show—
a
the effectiveness of the services,
b
the safety of the services, and
c
the quality of the experience undergone by patients.
4
In discharging its duty under subsection (1), F245NHS England must have regard to—
a
any document published by the Secretary of State for the purposes of this section, and
b
the quality standards prepared by NICE under section 234 of the Health and Social Care Act 2012.
F25413FDuty as to promoting autonomy
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13GDuty as to reducing inequalities
F245NHS England must, in the exercise of its functions, have regard to the need to—
a
reduce inequalities between F255persons with respect to their ability to access health services, and
b
reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services F256(including the outcomes described in section 13E(3)).
13HDuty to promote involvement of each patient
F245NHS England must, in the exercise of its functions, promote the involvement of patients, and their carers and representatives (if any), in decisions which relate to—
a
the prevention or diagnosis of illness in the patients, or
b
their care or treatment.
13IDuty as to patient choice
F245NHS England must, in the exercise of its functions, act with a view to enabling patients to make choices with respect to aspects of health services provided to them.
13JDuty to obtain appropriate advice
F3921
F245NHS England must obtain advice appropriate for enabling it effectively to discharge its functions from persons who (taken together) have a broad range of professional expertise in—
a
the prevention, diagnosis or treatment of illness, and
b
the protection or improvement of public health.
F3932
Subsection (1) does not apply in relation to NHS England’s education and training functions (see section 102 of the Care Act 2014 for the obtaining of advice in relation to those functions).
13KDuty to promote innovation
1
F245NHS England must, in the exercise of its functions, promote innovation in the provision of health services (including innovation in the arrangements made for their provision).
2
F245NHS England may make payments as prizes to promote innovation in the provision of health services.
3
A prize may relate to—
a
work at any stage of innovation (including research);
b
work done at any time (including work before the commencement of section 23 of the Health and Social Care Act 2012).
13LDuty in respect of research
a
research on matters relevant to the health service, and
b
the use in the health service of evidence obtained from research.
13MDuty as to promoting education and training
13NDuty as to promoting integration
1
F245NHS England must exercise its functions with a view to securing that health services are provided in an integrated way where it considers that this would—
a
improve the quality of those services (including the outcomes that are achieved from their provision),
b
reduce inequalities between persons with respect to their ability to access those services, or
c
reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.
2
F245NHS England must exercise its functions with a view to securing that the provision of health services is integrated with the provision of health-related services or social care services where it considers that this would—
a
improve the quality of the health services (including the outcomes that are achieved from the provision of those services),
b
reduce inequalities between persons with respect to their ability to access those services, or
c
reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.
F3962A
Subsections (1) and (2) do not apply in relation to the exercise of NHS England’s education and training functions.
3
F245NHS England must encourage F258integrated care boards to enter into arrangements with local authorities in pursuance of regulations under section 75 where it considers that this would secure—
a
that health services are provided in an integrated way and that this would have any of the effects mentioned in subsection (1)(a) to (c), or
b
that the provision of health services is integrated with the provision of health-related services or social care services and that this would have any of the effects mentioned in subsection (2)(a) to (c).
4
In this section—
“health-related services” means services that may have an effect on the health of individuals but are not health services or social care services;
“social care services” means services that are provided in pursuance of the social services functions of local authorities (within the meaning of the Local Authority Social Services Act 1970 F206or for the purposes of the Social Services and Well-being (Wales) Act 2014).
F1985
For the purposes of this section, the provision of housing accommodation is a health-related service.
13NAF216Duty to have regard to wider effect of decisions
1
In making a decision about the exercise of its functions, NHS England must have regard to all likely effects of the decision in relation to—
a
the health and well-being of the people of England;
b
the quality of services provided to individuals—
i
by relevant bodies, or
ii
in pursuance of arrangements made by relevant bodies,
for or in connection with the prevention, diagnosis or treatment of illness, as part of the health service in England;
c
efficiency and sustainability in relation to the use of resources by relevant bodies for the purposes of the health service in England.
2
In subsection (1)—
a
the reference to a decision does not include a reference to a decision about the services to be provided to a particular individual for or in connection with the prevention, diagnosis or treatment of illness;
b
the reference to effects of a decision in relation to the health and well-being of the people of England includes a reference to its effects in relation to inequalities between the people of England with respect to their health and well-being;
c
the reference to effects of a decision in relation to the quality of services provided to individuals includes a reference to its effects in relation to inequalities between individuals with respect to the benefits that they can obtain from those services.
3
In discharging the duty under this section, NHS England must have regard to guidance published by it under section 13NB.
4
In this section “relevant bodies” means—
a
NHS England,
b
integrated care boards,
c
NHS trusts established under section 25, and
d
NHS foundation trusts.
13NBGuidance about discharge of duty
1
NHS England may publish guidance about the discharge of—
a
the duty imposed on it by section 13NA;
b
the duty imposed on integrated care boards by section 14Z43;
c
the duty imposed on NHS trusts by section 26A;
d
the duty imposed on NHS foundation trusts by section 63A.
2
NHS England must consult any persons NHS England considers it appropriate to consult—
a
before first publishing guidance under this section, and
b
before publishing any revised guidance containing changes that are, in the opinion of NHS England, significant.
13NCF217Duties as to climate change etc
1
NHS England must, in the exercise of its functions, have regard to the need to—
a
contribute towards compliance with—
i
section 1 of the Climate Change Act 2008 (UK net zero emissions target), and
ii
section 5 of the Environment Act 2021 (environmental targets), and
b
adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008.
2
In discharging the duty under this section, NHS England must have regard to guidance published by it under section 13ND.
13NDGuidance about discharge of duty under section 13NC etc
NHS England may publish guidance about the discharge of—
a
the duty imposed on it by section 13NC;
b
the duty imposed on integrated care boards by section 14Z44;
c
the duty imposed on NHS trusts by section 26B;
d
the duty imposed on NHS foundation trusts by section 63B.
13ODuty to have regard to impact on services in certain areas
1
In making commissioning decisions, F245NHS England must have regard to the likely impact of those decisions on the provision of health services to persons who reside in an area of Wales or Scotland that is close to the border with England.
2
In this section, “commissioning decisions”, in relation to F245NHS England, means decisions about the carrying out of its functions in arranging for the provision of health services.
13PDuty as respects variation in provision of health services
F245NHS England must not exercise its functions for the purpose of causing a variation in the proportion of services provided as part of the health service that is provided by persons of a particular description if that description is by reference to—
a
whether the persons in question are in the public or (as the case may be) private sector, or
b
some other aspect of their status.
13PAF390Duty to cooperate for education and training functions and specified functions
1
NHS England must, in exercising its education and training functions, co-operate with the Secretary of State in the exercise of the public health functions of the Secretary of State.
2
Regulations may require NHS England and a person specified in those regulations to co-operate with each other in the exercise of—
a
NHS England’s education and training functions;
b
the functions of the specified person;
c
such of the functions in paragraphs (a) or (b) as may be specified.
Public involvement
13QPublic involvement and consultation by F245NHS England
1
This section applies in relation to any health services which are, or are to be, provided pursuant to arrangements made by F245NHS England in the exercise of its functions (“commissioning arrangements”).
2
F245NHS England must make arrangements to secure that individuals to whom the services are being or may be provided F259, and their carers and representatives (if any), are involved (whether by being consulted or provided with information or in other ways)—
a
in the planning of the commissioning arrangements by F245NHS England,
b
in the development and consideration of proposals by F245NHS England for changes in the commissioning arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and
c
in decisions of F245NHS England affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact.
3
The reference in subsection (2)(b) to the delivery of services is a reference to their delivery at the point when they are received by users.
F2604
This section does not require NHS England to make arrangements in relation to matters to which a trust special administrator’s draft or final report under section 65F or 65I relates before—
a
in a case where the administrator’s report relates to an NHS trust, NHS England and the Secretary of State have made their decisions under section 65K(1) and (2), or
b
in a case where the administrator’s report relates to an NHS foundation trust, the Secretary of State is satisfied as mentioned in section 65KB(1) or 65KD(1) or makes a decision under section 65KD(9).
Functions in relation to information
13RInformation on safety of services provided by the health service
1
F245NHS England must establish and operate systems for collecting and analysing information relating to the safety of the services provided by the health service.
2
3
F245NHS England may impose charges, calculated on such basis as it considers appropriate, in respect of information made available by it under subsection (2).
4
F245NHS England must give advice and guidance, to such persons as it considers appropriate, for the purpose of maintaining and improving the safety of the services provided by the health service.
5
F245NHS England must monitor the effectiveness of the advice and guidance given by it under subsection (4).
6
F261An integrated care board must have regard to any advice or guidance given to it under subsection (4).
7
8
Arrangements made under subsection (7) do not affect the liability of F245NHS England for the exercise of any of its functions.
13SGuidance in relation to processing of information
1
F245NHS England must publish guidance for registered persons on the practice to be followed by them in relation to the processing of—
a
patient information, and
b
any other information obtained or generated in the course of the provision of the health service.
2
Registered persons who carry on an activity which involves, or is connected with, the provision of health care must have regard to any guidance published under this section.
3
In this section, “patient information”, “processing” and “registered person” have the same meaning as in section 20A of the Health and Social Care Act 2008.
13SAF228Information about inequalities
1
NHS England must publish a statement setting out—
a
a description of the powers available to relevant NHS bodies to collect, analyse and publish information relating to—
i
inequalities between persons with respect to their ability to access health services;
ii
inequalities between persons with respect to the outcomes achieved for them by the provision of health services (including the outcomes described in section 13E(3)); and
b
the views of NHS England about how those powers should be exercised in connection with such information.
2
NHS England may from time to time publish a revised statement under subsection (1).
3
In this section “relevant NHS bodies” means—
a
integrated care boards,
b
NHS trusts established under section 25, and
c
NHS foundation trusts.
F230Regulatory functions
13SBMinimising conflicts between regulatory and other functions
1
NHS England must make arrangements for—
a
minimising the risk of conflicts between the exercise of its regulatory functions and its other functions;
b
managing any conflicts that arise.
2
In this Act “regulatory functions”, in relation to NHS England, means—
a
its functions under the provisions listed in subsection (3),
b
its functions under Chapter 5A of Part 2 (trust special administrators) in relation to NHS foundation trusts, except for any functions that are conferred on it under section 65DA, 65F or 65G as a commissioner, and
3
Those provisions are—
a
in Part 2 of this Act, Chapter 5 (NHS foundation trusts);
b
in Part 3 of the Health and Social Care Act 2012—
i
Chapter 3 (licensing);
ii
Chapter 4 (NHS payment scheme);
iii
Chapter 5 (health special administration);
iv
Chapter 6 (financial assistance in special administration cases).
13SCF233Provision of regulatory information or assistance to the CMA
1
NHS England must give the Competition and Markets Authority (“the CMA”)—
a
any regulatory information that the CMA may require to enable the CMA to exercise its relevant functions,
b
any other regulatory information it considers would assist the CMA in exercising its relevant functions, and
c
any other assistance the CMA may require to assist the CMA in exercising its relevant functions.
2
In this section—
“regulatory information” means information held by NHS England in connection with—
“relevant functions”, in relation to the CMA, means its functions under the Competition Act 1998 and the Enterprise Act 2002 so far as those functions are exercisable on behalf of the CMA by the CMA Board or a CMA group (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013).
Business plan and report
13TBusiness plan
1
Before the start of each financial year, F245NHS England must publish a business plan setting out how it proposes to exercise its functions in that year and each of the next two financial years.
2
The business plan must, in particular, explain how F245NHS England proposes to discharge its duties under—
a
sections 13E, 13G F264, 13L and 13Q, and
b
sections 223C to 223E.
3
F2633A
The fact that the mandate is revised during the period to which a business plan relates does not require NHS England to revise the plan.
4
F245NHS England may revise the plan.
5
F245NHS England must publish any revised plan.
13UAnnual report
1
As soon as practicable after the end of each financial year, F245NHS England must publish an annual report on how it has exercised its functions during the year.
2
The annual report must, in particular, contain an assessment of—
F267a
the extent to which, in that year, it met any objectives or requirements specified in the mandate,
b
the extent to which it gave effect to the proposals for that year in its business plan, F387...
c
d
how effectively it discharged its relevant data functions (as defined by section 253(3) of the Health and Social Care Act 2012)F397, and
e
how effectively it has discharged its education and training functions including, in particular, the extent to which it has during the year achieved the outcomes set by the Secretary of State for the purpose of section 100(2) of the Care Act 2014.
F2652A
The annual report must include a statement explaining what NHS England has done, during the financial year, to comply with its duties under section 13SB.
F2662B
The annual report must include—
a
a statement of the amount of expenditure incurred by NHS England and integrated care boards during the year (taken together) in relation to mental health,
b
a calculation of the proportion of the expenditure incurred by NHS England and integrated care boards during the year (taken together) that relates to mental health, and
c
an explanation of the statement and calculation.
3
F245NHS England must—
a
lay the annual report before Parliament, and
b
once it has done so, send a copy of it to the Secretary of State.
4
5
The letter must, in particular, contain the Secretary of State's assessment of the matters mentioned in subsection (2)(a) to (c).
6
The Secretary of State must—
a
publish the letter to F245NHS England, and
b
lay it before Parliament.
F232Joint appointments
S. 13UA and cross-heading inserted (1.7.2022) by Health and Care Act 2022 (c. 31), ss. 74, 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
13UAGuidance about joint appointments
1
NHS England may publish guidance for a relevant NHS body about the making of a joint appointment to which this section applies.
2
A joint appointment to which this section applies is an appointment of a person to a position in—
a
one or more relevant NHS commissioner and one or more relevant NHS provider,
b
one or more relevant NHS body and one or more local authority, F409...
c
one or more relevant NHS body and one or more combined authorityF410, or
d
one or more relevant NHS body and one or more combined county authority.
3
A relevant NHS body must have regard to guidance published under this section.
4
NHS England must consult such persons as NHS England considers appropriate—
a
before it first publishes guidance under this section, and
b
before it publishes any revised guidance containing changes that are, in the opinion of NHS England, significant.
5
In this section—
“local authority” has the same meaning as in section 2B;
“relevant NHS body” means—
- a
a relevant NHS commissioner;
- b
a relevant NHS provider;
- a
“relevant NHS commissioner” means—
- a
NHS England;
- b
an integrated care board;
- a
“relevant NHS provider” means—
- a
an NHS trust established under section 25;
- b
an NHS foundation trust.
- a
Additional powers
13VEstablishment of pooled funds
1
2
A pooled fund is a fund—
a
which is made up of contributions by the bodies which established it, and
b
out of which payments may be made, with the agreement of those bodies, towards expenditure incurred in the discharge of any of their commissioning functions.
3
In this section, “commissioning functions” means functions in arranging for the provision of services as part of the health service.
13WF223NHS England’s power to generate income, etc.
1
F245NHS England has power to do anything specified in section 7(2) of the Health and Medicines Act 1988 (provision of goods, services, etc.) for the purpose of making additional income available for improving the health service.
2
13XPower to make grants etc.
1
2
The payments may be made subject to such terms and conditions as F245NHS England considers appropriate.
13YF224NHS England’s incidental powers: further provision
The power conferred on F245NHS England by section 2 includes, in particular, power to—
a
enter into agreements,
b
acquire and dispose of property, and
c
accept gifts (including property to be held on trust for the purposes of F245NHS England).
F229Assistance and support
S. 13YA and cross-heading inserted (1.7.2022) by Health and Care Act 2022 (c. 31), ss. 12, 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
13YAPower of NHS England to provide assistance and support
1
NHS England may provide assistance or support to—
a
any person providing or proposing to provide services as part of the health service;
b
any person, not within paragraph (a), exercising functions in relation to the health service.
F400c
any public authority, where the assistance or support is in relation to the education or training of health care workers.
F3981A
In subsection (1), “health care workers” means persons in relation to whom the Secretary of State’s duty under section 1F(1) is to be performed.
2
The assistance that may be provided under F401subsection (1) includes making available the services of NHS England’s employees or any other resources of NHS England.
F4023
The assistance that may be provided under subsection (1)(a) or (c), or that may be provided under subsection (1)(b) to integrated care boards, also includes financial assistance.
4
Assistance or support provided under this section may be provided on such terms, including terms as to payment, as NHS England considers appropriate.
F3995
In this section, a reference to a public authority—
a
includes a public authority in the Channel Islands or the Isle of Man, but
b
subject to that, does not include a reference to a public authority outside the United Kingdom.
F391Discharge of functions
S. 13YB and cross-heading inserted (1.4.2023) by Health and Care Act 2022 (c. 31), ss. 13(2), 186(6); S.I. 2023/371, reg. 2(a)
13YBDirections in respect of functions relating to provision of services
C91
NHS England may by direction provide for any of its relevant functions to be exercised by one or more integrated care boards.
2
In this section “relevant function” means—
a
any function of NHS England under section 3B(1) (commissioning functions);
b
any function of NHS England, not within paragraph (a), that relates to the provision of—
i
primary medical services,
ii
primary dental services,
iii
primary ophthalmic services, or
iv
services that may be provided as pharmaceutical services, or as local pharmaceutical services, under Part 7;
c
3
Regulations may—
a
provide that the power in subsection (1) does not apply, or applies only to a prescribed extent, in relation to a prescribed function;
b
impose conditions on the exercise of the power.
4
A direction under subsection (1) may include provision prohibiting or restricting the integrated care board from making delegation arrangements in relation to a function that is exercisable by it by virtue of the direction.
5
In subsection (4) “delegation arrangements” means arrangements made by a person for the exercise of a function by someone else.
6
NHS England may make payments to an integrated care board in respect of the exercise by it of a function by virtue of a direction under subsection (1).
7
NHS England may give directions to an integrated care board as to the exercise by it of any functions in pursuance of a direction under subsection (1).
8
As soon as reasonably practicable after giving a direction under subsection (1), NHS England must publish it.
9
Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by an integrated care board of any function by virtue of this section are enforceable by or against it (and no other person).
F227...
S. 13Z-13ZB and cross-heading omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), ss. 71(4), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
F22713ZExercise of functions
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F22713ZASection 13Z: further provision in relation to devolved arrangements
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F22713ZBSection 13Z: arrangements in relation to the function under section 3B(1)(d)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F231Powers of direction
Ss. 13ZC-13ZF and cross-heading inserted (1.7.2022) by Health and Care Act 2022 (c. 31), ss. 45(2), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
13ZCSecretary of State directions as to exercise of NHS England functions
1
The Secretary of State may give NHS England directions as to the exercise of any of its functions.
2
The directions that may be given include a direction as to whether a power is to be exercised or not.
3
The directions that may be given include a direction as to—
a
when or how a function is, or is not, to be exercised;
b
conditions that must be met before a function is exercised (for example, conditions relating to the provision of information, consultation or approval);
c
matters to be taken into account in exercising a function.
4
5
A direction under subsection (1) must include a statement that the Secretary of State considers the direction to be in the public interest.
6
As soon as reasonably practicable after giving a direction under subsection (1), the Secretary of State must publish it.
7
The fact that the Secretary of State has a function under any other enactment in relation to NHS England’s exercise of functions is not to be read as limiting the power conferred by subsection (1).
8
The reference in subsection (7) to a function of the Secretary of State does not include a function of making subordinate legislation.
13ZDPower to give directions: exceptions
1
A direction under section 13ZC may not be given in relation to a function relating to the appointment or employment of a person.
2
A direction under section 13ZC may not be given in relation to a decision about the services to be provided to a particular individual for or in connection with the prevention, diagnosis or treatment of illness.
3
A direction under section 13ZC may not be given in relation to the provision of any drug, medicine or other treatment, or the use of any diagnostic technique, unless NICE has made a recommendation or issued guidance as to its clinical and cost effectiveness and the direction is not inconsistent with that recommendation or guidance.
13ZECompliance with directions: significant failure
1
This section applies where—
a
NHS England is given a direction under section 13ZC,
b
the direction —
i
states that the Secretary of State considers that NHS England is failing or has failed to discharge any of its functions, and
ii
states that the Secretary of State considers that the failure is significant and explains why,
c
the direction states that it is given for the purposes of addressing that failure, and
d
NHS England fails to comply with the direction.
2
The Secretary of State may—
a
discharge the functions to which the direction relates, or
b
make arrangements for any other person to discharge them on the Secretary of State’s behalf.
3
Where the Secretary of State exercises the power under subsection (2), the Secretary of State must publish the reasons for doing so.
4
For the purpose of this section—
a
a failure to discharge a function includes a failure to discharge it properly, and
b
a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service.
13ZFSecretary of State directions to provide information
1
The Secretary of State may direct NHS England to provide the Secretary of State with any documents or other information that may be specified in the direction.
2
The directions that may be given include a direction to provide documents or other information that NHS England would need to obtain from others in the exercise of some other power.
3
The directions may include provision as to—
a
the form or manner in which the documents or information must be provided;
b
the time at which or period within which the documents or information must be provided.
Power to confer additional functions
13Z1Power to confer additional functions on F245NHS England
1
Regulations may provide that F245NHS England is to have such additional functions in relation to the health service as may be specified in the regulations.
2
A function may be specified in regulations under subsection (1) only if the function is connected to another function of F245NHS England.
F226...
S. 13Z2 and cross-heading omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), ss. 45(3), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
F22613Z2Failure by the Board to discharge any of its functions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Disclosure of information
13Z3Permitted disclosures of information
1
F245NHS England may disclose information obtained by it in the exercise of its functions if—
a
the information has previously been lawfully disclosed to the public,
b
the disclosure is made under or pursuant to regulations under section 113 or 114 of the Health and Social Care (Community Health and Standards) Act 2003 (complaints about health care or social services),
c
the disclosure is made in accordance with any enactment or court order,
d
the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual,
e
the disclosure is made to any person in circumstances where it is necessary or expedient for the person to have the information for the purpose of exercising functions of that person under any enactment,
f
the disclosure is made for the purpose of facilitating the exercise of any of F245NHS England’s functions,
g
the disclosure is made in connection with the investigation of a criminal offence (whether or not in the United Kingdom), or
h
the disclosure is made for the purpose of criminal proceedings (whether or not in the United Kingdom).
2
Paragraphs (a) to (c) and (h) of subsection (1) have effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure.
Interpretation
13Z4Interpretation
1
In this Chapter—
“the health service” means the health service in England;
“health services” means services provided as part of the health service and, in sections 13O and 13Q, also includes services that are to be provided as part of the health service.
F2692
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F2693
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F2694
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F377CHAPTER A2Clinical commissioning groups
Pt. 2 Ch. A2 omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), s. 186(6), Sch. 4 para. 100; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 23, 24, 29, 30)
Establishment of clinical commissioning groups
F37714AGeneral duties of Board in relation to clinical commissioning groups
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714BApplications for the establishment of clinical commissioning groups
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714CDetermination of applications
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714DEffect of grant of application
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Variation of constitution
F37714EApplications for variation of constitution
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714FVariation of constitution otherwise than on application
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Mergers, dissolution etc.
F37714GMergers
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714HDissolution
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Supplemental provision about applications, variation, mergers etc.
F37714ITransfers in connection with variation, merger, dissolution etc.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714JPublication of constitution of clinical commissioning groups
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714KGuidance about the establishment of clinical commissioning groups etc.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Governing bodies of clinical commissioning groups
F37714LGoverning bodies of clinical commissioning groups
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714MAudit and remuneration committees of governing bodies
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714NRegulations as to governing bodies of clinical commissioning groups
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Conflicts of interest
F37714ORegisters of interests and management of conflicts of interest
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General duties of clinical commissioning groups
F37714PDuty to promote NHS Constitution
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714QDuty as to effectiveness, efficiency etc.
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F37714RDuty as to improvement in quality of services
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714SDuty in relation to quality of primary medical services
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714TDuties as to reducing inequalities
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714UDuty to promote involvement of each patient
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714VDuty as to patient choice
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714WDuty to obtain appropriate advice
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714XDuty to promote innovation
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714YDuty in respect of research
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714ZDuty as to promoting education and training
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z1Duty as to promoting integration
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Public involvement
F37714Z2Public involvement and consultation by clinical commissioning groups
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Arrangements with others
F37714Z3Arrangements by clinical commissioning groups in respect of the exercise of functions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z3AJoint exercise of functions with combined authorities
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z4Joint exercise of functions with Local Health Boards
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Additional powers of clinical commissioning groups
F37714Z5Raising additional income
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z6Power to make grants
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Board's functions in relation to clinical commissioning groups
F37714Z7Responsibility for payments to providers
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z8Guidance on commissioning by the Board
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z9Exercise of functions by, or jointly with, the Board
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z10Power of Board to provide assistance or support
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commissioning plans and reports
F37714Z11Commissioning plan
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z12Revision of commissioning plans
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z13Consultation about commissioning plans
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z14Opinion of Health and Wellbeing Boards on commissioning plans
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z15Reports by clinical commissioning groups
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Performance assessment of clinical commissioning groups
F37714Z16Performance assessment of clinical commissioning groups
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Powers to require information etc.
F37714Z17Circumstances in which powers in sections 14Z18 and 14Z19 apply
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z18Power to require documents and information etc.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z19Power to require explanation
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F37714Z20Use of information
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Intervention powers
F37714Z21Power to give directions, dissolve clinical commissioning groups etc.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Procedural requirements in connection with certain powers
F37714Z22Procedural requirements in connection with certain powers
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Disclosure of information
F37714Z23Permitted disclosures of information
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interpretation
F37714Z24Interpretation
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F209CHAPTER A3Integrated care boards
Pt. 2 Ch. A3 inserted (9.5.2022 but only for the insertion of ss. 14Z25 (for specified purposes), 14Z26, 14Z28, 1.7.2022 in so far as not already in force) by Health and Care Act 2022 (c. 31), ss. 19(2), 186(6); S.I. 2022/515, reg. 2(c); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
Establishment of integrated care boards (including by re-purposing clinical commissioning groups)
14Z25Duty to establish integrated care boards
1
NHS England must establish bodies called integrated care boards in accordance with this Chapter.
2
Each integrated care board is to be established by order made by NHS England for an area within England.
3
The area for which an integrated care board is established must not coincide or overlap with the area of any other integrated care board.
4
NHS England must ensure that, at all times on and after the appointed day, the areas of integrated care boards together cover the whole of England.
5
An order establishing an integrated care board must provide for the constitution of the board, either by setting out the constitution or by making provision by reference to a published document where it is set out.
6
In Schedule 1B—
a
Part 1 is about the constitution of an integrated care board (including its area);
b
Part 2 is about the status and powers of an integrated care board and its accounts.
7
Before varying or revoking an order under this section NHS England must consult any integrated care board that it considers likely to be affected.
8
NHS England must publish orders under this section.
9
In this section “the appointed day” means a day appointed under this subsection by regulations made by the Secretary of State.
14Z26Process for establishing initial integrated care boards
1
NHS England must publish a list of the initial areas for which integrated care boards are to be established (each of which is referred to in this section as an “initial area”).
2
The relevant clinical commissioning group or groups for an initial area must propose the constitution of the first integrated care board to be established for that area.
3
Before making a proposal under subsection (2), the relevant clinical commissioning group or groups must consult any persons they consider it appropriate to consult (and it is immaterial for this purpose whether the consultation is carried out before or after this section comes into force).
4
When establishing the first integrated care board under section 14Z25 for an initial area, NHS England must give effect to any proposal under subsection (2) unless it considers that—
a
the proposal is inappropriate, or
b
the relevant clinical commissioning group or groups have not carried out an appropriate consultation under subsection (3),
and in that case NHS England must determine the terms of the constitution itself.
5
Nothing in this section—
a
prevents NHS England from establishing the first integrated care board for an initial area in a case where the relevant clinical commissioning group or groups have failed within a reasonable period to make a proposal under subsection (2), or
b
limits the re-exercise of the power in section 14Z25.
6
NHS England may publish guidance for clinical commissioning groups about the exercise of their functions under this section.
7
A clinical commissioning group must have regard to guidance published under this section.
8
In this section “the relevant clinical commissioning group or groups” means—
a
in relation to an area that coincides with the area of a clinical commissioning group, that group;
b
in relation to an area that includes the whole or part of the area of more than one clinical commissioning group, those groups acting jointly.
14Z27Abolition of clinical commissioning groups
1
Any clinical commissioning group in existence immediately before the appointed day is abolished at the beginning of that day.
2
In this section “the appointed day” has the same meaning as in section 14Z25.
14Z28Transfer schemes in connection with integrated care boards
1
NHS England may, in connection with the abolition of a clinical commissioning group under section 14Z27, make a scheme for the transfer of the group’s property, rights or liabilities to NHS England or an integrated care board.
2
NHS England may, in connection with the establishment of an integrated care board, make a scheme for the transfer of property, rights or liabilities to the board from—
a
NHS England,
b
an NHS trust established under section 25,
c
an NHS foundation trust, or
d
a Special Health Authority established under section 28.
3
NHS England may, in connection with the variation of the constitution of an integrated care board or the abolition of an integrated care board, make a scheme for the transfer of the board’s property, rights or liabilities to NHS England or an integrated care board.
4
The reference in subsection (3) to the variation of the constitution of an integrated care board is to its variation by order under section 14Z25 or under provision included in its constitution by virtue of paragraph 14 of Schedule 1B.
5
NHS England must exercise its powers under subsection (1) or (3) so as to ensure that—
a
on the abolition of a clinical commissioning group whose area coincides with that of an integrated care board, all of the group’s property, rights and liabilities (other than criminal liabilities) are transferred to that board;
b
on the abolition of a clinical commissioning group whose area does not coincide with that of an integrated care board, all of the group’s property, rights and liabilities (other than criminal liabilities) are transferred to one or more integrated care boards;
c
on the abolition of an integrated care board, all of the board’s liabilities (other than criminal liabilities) are transferred.
6
The things that may be transferred under a transfer scheme include—
a
property, rights and liabilities that could not otherwise be transferred;
b
property acquired, and rights and liabilities arising, after the making of the scheme;
c
criminal liabilities.
7
A transfer scheme may—
a
create rights, or impose liabilities, in relation to property or rights transferred;
b
make provision about the continuing effect of things done by, on behalf of or in relation to the transferor in respect of anything transferred;
c
make provision about the continuation of things (including legal proceedings) in the process of being done by, on behalf of or in relation to the transferor in respect of anything transferred;
d
make provision for references to the transferor in an instrument or other document in respect of anything transferred to be treated as references to the transferee;
e
make provision for the shared ownership or use of property;
f
make provision which is the same as or similar to the TUPE regulations;
g
make other consequential, supplementary, incidental or transitional provision.
8
A transfer scheme may provide—
a
for modifications by agreement;
b
for modifications to have effect from the date when the original scheme came into effect.
9
In subsection (7)(f), “the TUPE regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246).
10
In this section—
a
references to rights and liabilities include rights and liabilities relating to a contract of employment;
b
references to the transfer of property include the grant of a lease.
Constitution: publication
14Z29Duty for integrated care board to publish constitution
Conflicts of interest
14Z30Register of interests and management of conflicts of interests
1
Each integrated care board must maintain one or more registers of the interests of—
a
members of the board,
b
members of its committees or sub-committees, and
c
its employees.
2
Each integrated care board must publish the registers maintained under subsection (1) or make arrangements to ensure that members of the public have access to the registers on request.
3
Each integrated care board must make arrangements to ensure—
a
that a person mentioned in subsection (1) declares any conflict or potential conflict of interest that the person has in relation to a decision to be made in the exercise of the commissioning functions of the integrated care board,
b
that any such declaration is made as soon as practicable after the person becomes aware of the conflict or potential conflict and, in any event, within 28 days of the person becoming aware, and
c
that any such declaration is included in the registers maintained under subsection (1).
4
Each integrated care board must make arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the board’s decision-making processes.
5
For the purposes of this section, the commissioning functions of an integrated care board are the functions of the board in arranging for the provision of services as part of the health service.
F236People for whom integrated care board has responsibility
S. 14Z31 and cross-heading inserted (1.7.2022) by Health and Care Act 2022 (c. 31), ss. 20(2), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
14Z31C6People for whom integrated care board has responsibility
1
NHS England must from time to time publish rules for determining the group of people for whom each integrated care board has core responsibility.
2
The rules must ensure that the following are allocated to at least one group—
a
everyone who is provided with NHS primary medical services, and
b
everyone who is usually resident in England and is not provided with NHS primary medical services.
3
Regulations may create exceptions to subsection (2) in relation to people of a prescribed description (which may include a description framed by reference to the primary medical services with which the people are provided).
4
References in this Act to the group of people for whom an integrated care board has core responsibility are to be read in accordance with this section.
5
In this section, “NHS primary medical services” means services provided by a person, other than NHS England or an integrated care board, in pursuance of—
a
a general medical services contract to provide primary medical services of a prescribed description,
b
arrangements under section 83(2) for the provision of primary medical services of a prescribed description, or
c
section 92 arrangements for the provision of primary medical services of a prescribed description.
F237General duties of integrated care boards
Ss. 14Z32-14Z64 and cross-headings inserted (1.7.2022) by Health and Care Act 2022 (c. 31), ss. 25(2), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30, 33)
14Z32Duty to promote NHS Constitution
1
Each integrated care board must, in the exercise of its functions—
a
act with a view to securing that health services are provided in a way which promotes the NHS Constitution, and
b
promote awareness of the NHS Constitution among patients, staff and members of the public.
2
In this section, “patients” and “staff” have the same meaning as in Chapter 1 of Part 1 of the Health Act 2009 (see section 3(7) of that Act).
14Z33Duty as to effectiveness, efficiency etc
Each integrated care board must exercise its functions effectively, efficiently and economically.
14Z34Duty as to improvement in quality of services
1
Each integrated care board must exercise its functions with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness.
2
In discharging its duty under subsection (1), an integrated care board must, in particular, act with a view to securing continuous improvement in the outcomes that are achieved from the provision of the services.
3
The outcomes relevant for the purposes of subsection (2) include, in particular, outcomes which show—
a
the effectiveness of the services,
b
the safety of the services, and
c
the quality of the experience undergone by patients.
14Z35Duties as to reducing inequalities
Each integrated care board must, in the exercise of its functions, have regard to the need to—
a
reduce inequalities between persons with respect to their ability to access health services, and
14Z36Duty to promote involvement of each patient
Each integrated care board must, in the exercise of its functions, promote the involvement of patients, and their carers and representatives (if any), in decisions which relate to—
a
the prevention or diagnosis of illness in the patients, or
b
their care or treatment.
14Z37Duty as to patient choice
Each integrated care board must, in the exercise of its functions, act with a view to enabling patients to make choices with respect to aspects of health services provided to them.
14Z38Duty to obtain appropriate advice
Each integrated care board must obtain advice appropriate for enabling it effectively to discharge its functions from persons who (taken together) have a broad range of professional expertise in—
a
the prevention, diagnosis or treatment of illness, and
b
the protection or improvement of public health.
14Z39Duty to promote innovation
Each integrated care board must, in the exercise of its functions, promote innovation in the provision of health services (including innovation in the arrangements made for their provision).
14Z40Duty in respect of research
Each integrated care board must, in the exercise of its functions, facilitate or otherwise promote—
a
research on matters relevant to the health service, and
b
the use in the health service of evidence obtained from research.
14Z41Duty to promote education and training
Each integrated care board must, in exercising its functions, have regard to the need to promote education and training for the persons mentioned in section 1F(1) so as to assist the Secretary of State and F403NHS England in the discharge of the duty under that section.
14Z42Duty to promote integration
1
Each integrated care board must exercise its functions with a view to securing that health services are provided in an integrated way where it considers that this would—
a
improve the quality of those services (including the outcomes that are achieved from their provision),
b
reduce inequalities between persons with respect to their ability to access those services, or
c
reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.
2
Each integrated care board must exercise its functions with a view to securing that the provision of health services is integrated with the provision of health-related services or social care services where it considers that this would—
a
improve the quality of the health services (including the outcomes that are achieved from the provision of those services),
b
reduce inequalities between persons with respect to their ability to access those services, or
c
reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.
3
In this section—
“health-related services” means services that may have an effect on the health of individuals but are not health services or social care services;
“social care services” means services that are provided in pursuance of the social services functions of local authorities (within the meaning of the Local Authority Social Services Act 1970 or for the purposes of the Social Services and Well-being (Wales) Act 2014).
4
For the purposes of this section, the provision of housing accommodation is a health-related service.
14Z43Duty to have regard to wider effect of decisions
1
In making a decision about the exercise of its functions, an integrated care board must have regard to all likely effects of the decision in relation to—
a
the health and well-being of the people of England;
b
the quality of services provided to individuals—
i
by relevant bodies, or
ii
in pursuance of arrangements made by relevant bodies,
for or in connection with the prevention, diagnosis or treatment of illness, as part of the health service in England;
c
efficiency and sustainability in relation to the use of resources by relevant bodies for the purposes of the health service in England.
2
In subsection (1)—
a
the reference to a decision does not include a reference to a decision about the services to be provided to a particular individual for or in connection with the prevention, diagnosis or treatment of illness;
b
the reference to effects of a decision in relation to the health and well-being of the people of England includes a reference to its effects in relation to inequalities between the people of England with respect to their health and well-being;
c
the reference to effects of a decision in relation to the quality of services provided to individuals includes a reference to its effects in relation to inequalities between individuals with respect to the benefits that they can obtain from those services.
3
In discharging the duty under this section, integrated care boards must have regard to guidance published by NHS England under section 13NB.
4
In this section “relevant bodies” means—
a
NHS England,
b
integrated care boards,
c
NHS trusts established under section 25, and
d
NHS foundation trusts.
14Z44Duties as to climate change etc
1
Each integrated care board must, in the exercise of its functions, have regard to the need to—
a
contribute towards compliance with—
i
section 1 of the Climate Change Act 2008 (UK net zero emissions target), and
ii
section 5 of the Environment Act 2021 (environmental targets), and
b
adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008.
2
In discharging the duty under this section, integrated care boards must have regard to guidance published by NHS England under section 13ND.
Involvement of the public
14Z45Public involvement and consultation by integrated care boards
1
This section applies in relation to any health services which are, or are to be, provided pursuant to arrangements made by an integrated care board in the exercise of its functions (“commissioning arrangements”).
2
The integrated care board must make arrangements to secure that individuals to whom the services are being or may be provided, and their carers and representatives (if any), are involved (whether by being consulted or provided with information or in other ways)—
a
in the planning of the commissioning arrangements by the integrated care board,
b
in the development and consideration of proposals by the integrated care board for changes in the commissioning arrangements where the implementation of the proposals would have an impact on—
i
the manner in which the services are delivered to the individuals (at the point when the service is received by them), or
ii
the range of health services available to them, and
c
in decisions of the integrated care board affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact.
3
This section does not require an integrated care board to make arrangements in relation to matters to which a trust special administrator’s draft or final report under section 65F or 65I relates before—
a
in a case where the administrator’s report relates to an NHS trust, NHS England and the Secretary of State have made their decisions under section 65K(1) and (2), or
b
in a case where the administrator’s report relates to an NHS foundation trust, the Secretary of State is satisfied as mentioned in section 65KB(1) or 65KD(1) or makes a decision under section 65KD(9).
Joint exercise of functions with Local Health Boards
14Z46Joint exercise of functions with Local Health Boards
1
Regulations may provide for any prescribed functions of an integrated care board to be exercised jointly with a Local Health Board.
2
The regulations may permit or require any functions that are exercisable jointly by an integrated care board and a Local Health Board by virtue of the regulations to be exercised by a joint committee of those bodies.
3
Arrangements made by virtue of this section do not affect the liability of an integrated care board for the exercise of any of its functions.
Additional powers of integrated care boards
14Z47Raising additional income
1
An integrated care board has power to do anything specified in section 7(2)(a), (b) and (e) to (h) of the Health and Medicines Act 1988 (provision of goods etc) for the purpose of making additional income available for improving the health service.
2
An integrated care board may exercise a power conferred by subsection (1) only to the extent that its exercise does not to any significant extent interfere with the exercise by the board of its other functions.
14Z48Power to make grants
1
An integrated care board may make payments—
a
by way of grant to any of its partner NHS trusts or NHS foundation trusts;
b
by way of grant or loan to a voluntary organisation which provides or arranges for the provision of services which are similar to the services in respect of which the integrated care board has functions.
2
The payments may be made subject to such terms as the integrated care board considers appropriate.
3
For the purposes of this Act an NHS trust or NHS foundation trust is a “partner” of an integrated care board if the trust—
a
provides services for the purposes of the health service within the integrated care board’s area, and
b
has the function, under the integrated care board’s constitution, of participating in the nomination of members as a result of falling within a description prescribed for the purposes paragraph 8(2)(a) of Schedule 1B.
Experience of members
14Z49Duty to keep experience of members under review etc
An integrated care board must—
a
keep under review the skills, knowledge and experience that it considers necessary for members of the board to possess (when taken together) in order for the board effectively to carry out its functions, and
b
if it considers that the board as constituted lacks the necessary skills, knowledge and experience, take such steps as it considers necessary to address or mitigate that shortcoming.
NHS England’s functions in relation to integrated care boards
14Z50Responsibility for payments to providers
1
NHS England may publish a document specifying—
a
circumstances in which an integrated care board is liable to make a payment to a person in respect of services provided by that person in pursuance of arrangements made by another integrated care board in the discharge of commissioning functions, and
b
how the amount of any such payment is to be determined.
2
An integrated care board is required to make payments in accordance with any document published under subsection (1).
3
Where an integrated care board is required to make a payment by virtue of subsection (2), no other integrated care board is liable to make it.
4
Accordingly, any obligation of another integrated care board to make the payment ceases to have effect.
5
Any sums payable by virtue of subsection (2) may be recovered summarily as a civil debt (but this does not affect any other method of recovery).
6
NHS England may publish guidance for integrated care boards for the purpose of assisting them in understanding and applying any document published under subsection (1).
7
In this section “commissioning functions” means the functions of integrated care boards in arranging for the provision of services as part of the health service.
14Z51Guidance by NHS England
1
NHS England must publish guidance for integrated care boards on the discharge of their functions.
2
Each integrated care board must have regard to guidance under this section.
Forward planning and reports
14Z52Joint forward plans for integrated care board and its partners
1
Before the start of each financial year, an integrated care board and its partner NHS trusts and NHS foundation trusts must prepare a plan setting out how they propose to exercise their functions in the next five years.
2
The plan must, in particular—
a
describe the health services for which the integrated care board proposes to make arrangements in the exercise of its functions by virtue of this Act;
b
explain how the integrated care board proposes to discharge its duties under—
ii
sections 223GB to 223N (financial duties);
c
set out any steps that the integrated care board proposes to take to implement any joint local health and wellbeing strategy to which it is required to have regard under section 116B(1) of the Local Government and Public Involvement in Health Act 2007;
d
set out any steps that the integrated care board proposes to take to address the particular needs of children and young persons under the age of 25;
e
set out any steps that the integrated care board proposes to take to address the particular needs of victims of abuse (including domestic abuse and sexual abuse, whether of children or adults).
3
The integrated care board and its partner NHS trusts and NHS foundation trusts must publish the plan.
4
The integrated care board and its partner NHS trusts and NHS foundation trusts must give a copy of the plan to—
a
the integrated care partnership for the board’s area,
b
each relevant Health and Wellbeing Board, and
c
NHS England.
5
NHS England may give a direction as to the date by which subsection (4) must be complied with.
6
An integrated care board and its partner NHS trusts and NHS foundation trusts must have regard to the plan under subsection (1).
7
In this Chapter “relevant Health and Wellbeing Board”, in relation to an integrated care board (or an integrated care board and its partner NHS trusts and NHS foundation trusts), means a Health and Wellbeing Board established by a local authority whose area coincides with, or includes the whole or any part of, the area of the integrated care board.
8
In this Act “financial year”, in relation to an integrated care board, means—
a
the period beginning with the date on which the integrated care board is established and ending with the 31 March following that date, and
b
each successive period of twelve months.
14Z53Revision of forward plans
1
An integrated care board and its partner NHS trusts and NHS foundation trusts may revise a plan published under section 14Z52.
2
3
If the integrated care board and its partner NHS trusts and NHS foundation trusts revise the plan in any other way they must—
a
publish a document setting out the changes, and
b
give a copy of the document to—
i
the integrated care partnership for the board’s area,
ii
each relevant Health and Wellbeing Board, and
iii
NHS England.
14Z54Consultation about forward plans
1
This section applies where an integrated care board and its partner NHS trusts and NHS foundation trusts are—
a
preparing a plan under section 14Z52, or
b
revising a plan under section 14Z53 in a way that they consider to be significant.
2
The integrated care board and its partner NHS trusts and NHS foundation trusts must consult—
a
the group of people for whom the integrated care board has core responsibility, and
b
any other persons they consider it appropriate to consult.
3
The integrated care board and its partner NHS trusts and NHS foundation trusts must involve each relevant Health and Wellbeing Board in preparing or revising the plan.
4
The integrated care board and its partner NHS trusts and NHS foundation trusts must, in particular—
a
give each relevant Health and Wellbeing Board a draft of the plan or (as the case may be) the plan as revised, and
b
consult each relevant Health and Wellbeing Board on whether the draft takes proper account of each joint local health and wellbeing strategy published by it which relates to the period (or any part of the period) to which the plan relates.
5
Where a Health and Wellbeing Board is consulted under subsection (4)(b)—
a
it must respond with its opinion on the matter mentioned there;
b
it may also give that opinion to NHS England.
6
Where a Health and Wellbeing Board gives its opinion to NHS England under subsection (5)(b) it must inform the integrated care board and its partner NHS trusts and NHS foundation trusts that it has done so (unless it informed them, in advance, that it was planning to do so).
7
If an integrated care board and its partner NHS trusts and NHS foundation trusts revise or further revise a draft after it has been given to each relevant Health and Wellbeing Board under subsection (4), subsections (4) and (5) apply in relation to the revised draft as they applied in relation to the original draft.
8
An integrated care board and its partner NHS trusts and NHS foundation trusts must include in a plan published under section 14Z52(3)—
a
a summary of the views expressed by anyone consulted under subsection (2),
b
an explanation of how they took account of those views, and
c
a statement of the final opinion of each relevant Health and Wellbeing Board consulted in relation to the plan under subsection (4).
9
In this section, “joint local health and wellbeing strategy” means a strategy under section 116A of the Local Government and Public Involvement in Health Act 2007.
14Z55Opinion of Health and Wellbeing Boards on forward plan
1
A relevant Health and Wellbeing Board—
a
may give NHS England its opinion on whether a plan published by an integrated care board and its partner NHS trusts and NHS foundation trusts under section 14Z52(3) takes proper account of each joint local health and wellbeing strategy published by the Health and Wellbeing Board which relates to the period (or any part of the period) to which the plan relates, and
b
if it does so, must give the integrated care board and its partner NHS trusts and NHS foundation trusts a copy of its opinion.
2
14Z56Joint capital resource use plan for integrated care board and its partners
1
Before the start of each financial year, an integrated care board and its partner NHS trusts and NHS foundation trusts must prepare a plan setting out their planned capital resource use.
2
The plan must relate to such period as may be specified in a direction by the Secretary of State.
3
The Secretary of State must publish any direction under subsection (2).
4
The integrated care board and its partner NHS trusts and NHS foundation trusts must publish the plan.
5
The integrated care board and its partner NHS trusts and NHS foundation trusts must give a copy of the plan to—
a
the integrated care partnership for the board’s area,
b
each relevant Health and Wellbeing Board, and
c
NHS England.
6
NHS England may give a direction as to the date by which subsection (5) must be complied with.
7
NHS England may publish guidance about the discharge by an integrated care board and its partner NHS trusts and NHS foundation trusts of their functions under this section.
8
An integrated care board and its partner NHS trusts and NHS foundation trusts must have regard to any guidance published under subsection (7).
9
NHS England may give directions, in relation to a financial year—
a
specifying descriptions of resources which must, or must not, be treated as capital resources for the purposes of this section;
b
specifying uses of capital resources which must, or must not, be taken into account for the purposes of this section.
10
The reference in subsection (1) to the use of capital resources is a reference to its expenditure, consumption or reduction in value.
14Z57Revision of joint capital resource use plans
1
An integrated care board and its partner NHS trusts and NHS foundation trusts may revise a plan published under section 14Z56.
2
3
If the integrated care board and its partner NHS trusts and NHS foundation trusts revise the plan in any other way, they must—
a
publish a document setting out the changes, and
b
give a copy of the document to—
i
the integrated care partnership for the board’s area,
ii
each relevant Health and Wellbeing Board, and
iii
NHS England.
14Z58Annual report
1
An integrated care board must, in each financial year, prepare a report (an “annual report”) on how it has discharged its functions in the previous financial year.
2
An annual report must, in particular—
a
b
c
review the extent to which the board has exercised its functions consistently with NHS England’s views set out in the latest statement published under section 13SA(1) (views about how functions relating to inequalities information should be exercised), and
d
review any steps that the board has taken to implement any joint local health and wellbeing strategy to which it was required to have regard under section 116B(1) of the Local Government and Public Involvement in Health Act 2007.
3
In undertaking the review required by subsection (2)(d), an integrated care board must consult each relevant Health and Wellbeing Board.
4
An annual report must include—
a
a statement of the amount of expenditure incurred by the integrated care board during the financial year in relation to mental health,
b
a calculation of the proportion of the expenditure incurred by the integrated care board during the financial year that relates to mental health, and
c
an explanation of the statement and calculation.
5
NHS England may give directions to integrated care boards as to the form and content of an annual report.
6
An integrated care board must—
a
give a copy of its annual report to NHS England before the date specified by NHS England in a direction, and
b
publish a copy of the annual report.
Performance assessment of integrated care boards
14Z59Performance assessment of integrated care boards
1
NHS England must conduct a performance assessment of each integrated care board in respect of each financial year.
2
A performance assessment is an assessment of how well the integrated care board has discharged its functions during that year.
3
The assessment must, in particular, include an assessment of how well the integrated care board has discharged its duties under—
a
section 14Z34 (improvement in quality of services),
b
section 14Z35 (reducing inequalities),
c
section 14Z38 (obtaining appropriate advice),
d
section 14Z40 (duty in respect of research),
e
section 14Z43 (duty to have regard to effect of decisions),
f
section 14Z45 (public involvement and consultation),
h
section 116B(1) of the Local Government and Public Involvement in Health Act 2007 (duty to have regard to assessments and strategies).
4
In conducting a performance assessment, NHS England must consult each relevant Health and Wellbeing Board as to its views on any steps that the board has taken to implement any joint local health and wellbeing strategy to which the board was required to have regard under section 116B(1) of that Act of 2007.
5
In conducting a performance assessment, NHS England must, in particular, have regard to—
a
any guidance published by the Secretary of State for the purposes of this section, and
b
any guidance published under section 14Z51.
6
NHS England must publish a report in respect of each financial year containing a summary of the results of each performance assessment conducted by NHS England in respect of that year.
Power of NHS England to obtain information
14Z60Power of NHS England to obtain information
1
NHS England may require an integrated care board to provide NHS England with information.
2
The information must be provided in such form, and at such time or within such period, as NHS England may require.
Intervention powers
14Z61Power to give directions to integrated care boards
1
This section applies if NHS England is satisfied that—
a
an integrated care board is failing or has failed to discharge any of its functions, or
b
there is a significant risk that an integrated care board will fail to do so.
2
NHS England may direct the integrated care board to discharge such of those functions in such manner and within such period or periods as may be specified in the direction.
3
NHS England may direct—
a
the integrated care board, or
b
the chief executive of the integrated care board,
to cease to perform any functions for such period or periods as may be specified in the direction.
4
NHS England may—
a
terminate the appointment of the integrated care board’s chief executive, and
b
direct the chair of the board as to which individual to appoint as a replacement and on what terms.
5
Where a direction is given under subsection (3)(a) NHS England may—
a
exercise, on behalf of the integrated care board, any of the functions that are the subject of the direction;
b
direct another integrated care board to perform any of those functions on behalf of the integrated care board, in such manner and within such period or periods as may be specified in the direction.
6
A direction under subsection (5)(b) may include provision prohibiting or restricting the integrated care board from making delegation arrangements in relation to a function that is exercisable by it by virtue of the direction.
7
In subsection (6) “delegation arrangements” means arrangements made by a person for the exercise of a function by someone else.
8
Where a direction is given under subsection (3)(b) NHS England may—
a
exercise, on behalf of the chief executive, any of the functions that are the subject of the direction;
b
direct the chief executive of another integrated care board to perform any of those functions on behalf of the chief executive, in such manner and within such period or periods as may be specified in the direction.
9
For the purposes of this section—
a
a failure to discharge a function includes a failure to discharge it properly, and
b
a failure to discharge a function properly includes a failure to discharge it consistently with what NHS England considers to be the interests of the health service.
14Z62Section 14Z61 directions: consultation and cooperation
1
2
Disclosure of information
14Z63Permitted disclosures of information
1
An integrated care board may disclose information obtained by it in the exercise of its functions if—
a
the information has previously been lawfully disclosed to the public,
b
the disclosure is made under or pursuant to regulations under section 113 or 114 of the Health and Social Care (Community Health and Standards) Act 2003 (complaints about health care or social services),
c
the disclosure is made in accordance with any enactment or court order,
d
the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual,
e
the disclosure is made to any person in circumstances where it is necessary or expedient for the person to have the information for the purpose of exercising functions of that person under any enactment,
f
the disclosure is made for the purpose of facilitating the exercise of any of the integrated care board’s functions,
g
the disclosure is made in connection with the investigation of a criminal offence (whether or not in the United Kingdom), or
h
the disclosure is made for the purpose of criminal proceedings (whether or not in the United Kingdom).
2
Interpretation
14Z64Interpretation
In this Chapter—
“the health service” means the health service in England;
“health services” means services provided as part of the health service;
“integrated care partnership” has the meaning given by section 116ZA(1) of the Local Government and Public Involvement in Health Act 2007;
“relevant Health and Wellbeing Board”, in relation to an integrated care board, has the meaning given by section 14Z52(7).
F79Chapter 1Strategic Health Authorities
Pt. 2 Ch. 1 repealed (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 33(2), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)
F7913Strategic Health Authorities
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7914Exercise of Strategic Health Authority functions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7915Strategic Health Authorities' directions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7916Section 92 arrangements and section 107 arrangements and LPS schemes
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7917Advice for Strategic Health Authorities
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7917AReports on consultation
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F80Chapter 2Primary Care Trusts
Pt. 2 Ch. 2 repealed (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 34(2), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)
F8018Primary Care Trusts
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8019Exercise of Primary Care Trust functions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8020Strategic Health Authority directions to Primary Care Trusts
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8021Provision of services etc
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8022Administration and management of services
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8023Advice for Primary Care Trusts
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8023AArrangements for improving quality of health care
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8024Plans for improving health etc
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8024AReport on consultation
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chapter 3NHS trusts
25NHS trusts
1
The Secretary of State may by order establish bodies, called National Health Service trusts (“NHS trusts”), to provide goods and services for the purposes of the health service.
2
An order under subsection (1) is referred to in this Act as “an NHS trust order”.
3
No NHS trust order may be made until after the completion of such consultation as may be prescribed.
4
Schedule 4 makes further provision about NHS trusts.
26General duty of NHS trusts
An NHS trust must exercise its functions effectively, efficiently and economically.
26AF210Duty to have regard to wider effect of decisions
1
In making a decision about the exercise of its functions, an NHS trust established under section 25 must have regard to all likely effects of the decision in relation to—
a
the health and well-being of the people of England;
b
the quality of services provided to individuals—
i
by relevant bodies, or
ii
in pursuance of arrangements made by relevant bodies,
for or in connection with the prevention, diagnosis or treatment of illness, as part of the health service in England;
c
efficiency and sustainability in relation to the use of resources by relevant bodies for the purposes of the health service in England.
2
In subsection (1)—
a
the reference to a decision does not include a reference to a decision about the services to be provided to a particular individual for or in connection with the prevention, diagnosis or treatment of illness;
b
the reference to effects of a decision in relation to the health and well-being of the people of England includes a reference to its effects in relation to inequalities between the people of England with respect to their health and well-being;
c
the reference to effects of a decision in relation to the quality of services provided to individuals includes a reference to its effects in relation to inequalities between individuals with respect to the benefits that they can obtain from those services.
3
In discharging the duty under this section, NHS trusts must have regard to guidance published by NHS England under section 13NB.
4
In this section “relevant bodies” means—
a
NHS England,
b
integrated care boards,
c
NHS trusts established under section 25, and
d
NHS foundation trusts.
26BF211Duties in relation to climate change etc
1
An NHS trust established under section 25 must, in the exercise of its functions, have regard to the need to—
a
contribute towards compliance with—
i
section 1 of the Climate Change Act 2008 (UK net zero emissions target), and
ii
section 5 of the Environment Act 2021 (environmental targets), and
b
adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008.
2
In discharging the duty under this section, NHS trusts must have regard to guidance published by NHS England under section 13ND.
27Financial provisions relating to NHS trusts
Schedule 5 makes provision about the financing of NHS trusts.
27AF212Oversight and support of NHS trusts
NHS England must—
a
monitor NHS trusts established under section 25 in the carrying out of their functions, and
b
provide such advice, guidance or other support as it considers appropriate to help NHS trusts established under section 25 in the carrying out of their functions.
27BF213NHS England’s directions to NHS trusts
1
NHS England may give directions to an NHS trust established under section 25 about its exercise of any functions.
2
In so far as a direction under this section conflicts with a direction under section 8 or paragraph 25(3) of Schedule 4, it is of no effect.
27CF214Recommendations about restructuring
1
NHS England may—
a
make recommendations to NHS trusts for or in connection with the making of restructuring applications;
b
take such other steps as it considers appropriate to facilitate restructuring applications involving NHS trusts.
2
In this section “restructuring application”, in relation to an NHS trust, means an application by the NHS trust under—
a
section 56 (mergers involving NHS foundation trusts);
b
section 56A (acquisitions by NHS foundation trusts);
c
section 69A (transfer of property etc between NHS bodies);
d
paragraph 28 of Schedule 4 (dissolution of NHS trusts).
27DF215Intervention in NHS trusts: recommendations etc by NHS England
1
If NHS England considers that Secretary of State ought to make an order under section 66(2) or 68(2) in relation to an NHS trust established under section 25, NHS England must—
a
make a recommendation to that effect,
b
set out its reasons for the recommendation, and
c
make any recommendations it considers appropriate as to the contents of the order.
2
NHS England must make any inquiries, and provide any other assistance, that the Secretary of State may require in connection with deciding whether to make an order under section 66(2) or 68(2) in relation to an NHS trust established under section 25 and, if so, on what terms.
Chapter 4Special Health Authorities
28Special Health Authorities
1
The Secretary of State may by order establish special bodies for the purpose of exercising any functions which may be conferred on them by or under this Act.
2
The Secretary of State may make such further provision relating to a body established under subsection (1) as he considers appropriate.
3
A body established under this section is called a Special Health Authority.
4
An order may, in particular, contain provisions as to—
a
the membership of the body established by the order,
b
the transfer to the body of officers, property and liabilities, and
c
the name of the body.
5
The liabilities which may be transferred by virtue of this section, section 272(8) and section 273(1) to an NHS body on the abolition of a Special Health Authority include criminal liabilities.
F206
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
The Secretary of State must, before he makes an order under this section, consult with respect to the order such bodies as he may recognise as representing officers who in his opinion are likely to be transferred or affected by transfers in pursuance of the order.
8
Schedule 6 makes further provision about Special Health Authorities.
F27028ASpecial Health Authorities: further provision
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29Exercise of Special Health Authority functions
1
Regulations may provide for any functions which are exercisable by a Special Health Authority under section 7 to be exercised—
a
by another Special Health Authority, or
b
jointly with one or more other Special Health Authorities.
2
Regulations may provide—
a
b
for any functions exercisable jointly under subsection (1)(b) to be exercised, on behalf of the Special Health Authorities in question, by a joint committee or joint sub-committee.
29AF243Special Health Authorities: accounts and audit
1
In this section a reference to a Special Health Authority is to a Special Health Authority which—
a
performs functions only or mainly in respect of England, or
b
neither performs functions only or mainly in respect of England, nor performs functions only or mainly in respect of Wales.
2
A Special Health Authority must keep proper accounts and proper records in relation to the accounts.
3
The Secretary of State may give a Special Health Authority directions as to the form in which its accounts must be kept.
4
A Special Health Authority must prepare, in respect of each financial year, annual accounts in such form as the Secretary of State may direct.
5
A Special Health Authority must send copies of any annual accounts prepared by it under subsection (4)—
a
to the Secretary of State, by such date as the Secretary of State may direct, and
b
to the Comptroller and Auditor General, as soon as is reasonably practicable following the end of the financial year in question.
6
The Comptroller and Auditor General must examine, certify and report on the annual accounts.
7
The Special Health Authority must lay before Parliament—
a
a copy of the annual accounts, and
b
the Comptroller and Auditor General’s report on them.
8
Nothing in subsection (2) requires any annual accounts prepared by a Special Health Authority to include matters relating to a charitable trust of which it is a trustee.
9
Nothing in subsection (4) has effect in relation to accounts relating to a charitable trust of which the Special Health Authority is a trustee.
Chapter 5NHS foundation trusts
Introductory
30NHS foundation trusts
1
An NHS foundation trust is a public benefit corporation F92the function of which is to provide in accordance with this Chapter goods and services for the purposes of the health service in England.
2
A public benefit corporation is a body corporate which, in pursuance of an application under this Chapter, is constituted in accordance with Schedule 7.
F5731Independent Regulator of NHS Foundation Trusts
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5832General duty of regulator
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Authorisation
33Applications by NHS trusts
1
2
The application must—
F93a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
be accompanied by a copy of the proposed constitution of the NHS foundation trust,
and must give any further information which F272NHS England requires the applicant to give.
3
The applicant may modify the application with the agreement of F272NHS England at any time before authorisation is given under section 35.
4
Once an NHS trust has made the application—
a
the provisions of the proposed constitution which give effect to paragraphs 3 to 19 of Schedule 7 have effect, but only for the purpose of establishing the initial membership of the NHS foundation trust and of the F21council of governors, and the initial directors, and enabling the F21council 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 14 of Schedule 4) which appears to it to be necessary or expedient for the purpose of preparing it for NHS foundation trust status.
F1534Other applications
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
35Authorisation of NHS foundation trusts
1
F273NHS England may give an authorisation under this section—
a
to an NHS trust which has applied under section 33, F16...
F16b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
The matters are that—
a
the applicant's constitution will be in accordance with Schedule 7 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
there will be a F22council 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 been taken,
F94e
the applicant will be able to provide goods and services for the purposes of the health service in England,
f
any other requirements which F275NHS England considers appropriate are met.
3
In deciding whether it is satisfied as to the matters referred to in subsection (2)(e), F276NHS England must consider (among other things)—
a
any report or recommendation in respect of the applicant made by F11the Care Quality Commission,
b
the financial position of the applicant.
F954
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
F278NHS England must not give an authorisation unless it is satisfied that the applicant has sought the views about the application of the following—
F1a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 constitution to appoint a member of the F23council of governors,
d
if the proposed constitution provides for a patients' constituency, individuals who would be able to apply to become members of that constituency,
e
any prescribed persons.
6
If regulations make provision about consultation, F277NHS England may not give an authorisation unless it is satisfied that the applicant has complied with the regulations.
F967
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
36Effect 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, and
c
any order under section 25(1) is revoked.
F172
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
The authorisation is conclusive evidence that the body in question is an NHS foundation trust.
4
Subsections (1) to (3) do not affect the continuity of the body or of its property or liabilities (including its criminal liabilities).
5
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.
6
An NHS foundation trust must not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and an NHS foundation trust's property must not be regarded as property of, or property held on behalf of, the Crown.
37Amendments of constitution
F991
An NHS foundation trust may make amendments of its constitution F98only if—
a
more than half of the members of the council of governors of the trust voting approve the amendments, and
b
more than half of the members of the board of directors of the trust voting approve the amendments.
F972
Amendments made under this section take effect as soon as the conditions in subsection (1)(a) and (b) are satisfied.
3
But an amendment is of no effect in so far as the constitution would, as a result of the amendment, not accord with Schedule 7.
4
F10038Variation of authorisation
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
39Register of NHS foundation trusts
1
F282NHS England must continue to maintain a register of NHS foundation trusts.
2
The register must contain in relation to each NHS foundation trust—
a
a copy of the current constitution,
F101b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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,
F76e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F102f
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F59g
a copy of any order made under section 65D, 65J, 65KC, 65L or 65LA,
h
a copy of any report laid under section 65D,
i
a copy of any information published under section 65D,
j
a copy of any draft report published under section 65F,
k
a copy of any statement provided under section 65F,
l
a copy of any notice published under section 65F, 65G, 65H, 65J, 65KA, 65KB, 65KC or 65KD,
m
a copy of any statement published or provided under section 65G,
n
a copy of any final report published under section 65I,
o
a copy of any statement published under section 65J or 65KC,
p
a copy of any information published under section 65M.
3
In relation to any time before an NHS foundation trust is first required to send an annual report to F283NHS England, the register must contain a list of the persons who were first elected or appointed as—
a
the members of the F24council of governors,
b
the directors.
4
Members of the public may inspect the register at any reasonable time.
5
Any person who requests it must be provided with a copy of, or extract from, any document contained in the register on payment of a reasonable charge.
39AF77Panel for advising governors
1
F284NHS England may appoint a panel of persons to which a governor of an NHS foundation trust may refer a question as to whether the trust has failed or is failing—
a
to act in accordance with its constitution, or
b
to act in accordance with provision made by or under this Chapter.
2
A governor may refer a question to the panel only if more than half of the members of the council of governors voting approve the referral.
3
The panel—
a
may regulate its own procedure, and
b
may establish such procedures, and make such other arrangements, as it considers appropriate for the purpose of determining questions referred to it under this section.
4
The panel may decide whether, or to what extent, to carry out an investigation on a question referred to it under this section.
5
The panel may for that purpose, or for the purpose of carrying out such an investigation, request information or advice.
6
Where the panel has carried out such an investigation, it must publish a report of its determination of the question referred to it.
7
If a person refuses to comply with a request made under subsection (5), the report under subsection (6) may refer to the refusal.
8
On any proceedings before a court or tribunal relating to a question referred to the panel under this section, the court may take the panel's report of its determination of the question into account.
9
F285NHS England—
a
must pay expenses properly incurred by the panel, and
b
must make administrative support available to the panel.
10
Regulations may make provision as to—
a
eligibility for membership of the panel;
b
the number of persons that may be appointed as members;
c
the terms of appointment of members;
d
circumstances in which a person ceases to be a member or may be suspended.
Financial matters
40Power of Secretary of State to give financial assistance
1
The Secretary of State may give financial assistance to any NHS foundation 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 agreement.
4
“Externally financed development agreement” has the same meaning as in paragraph 23 of Schedule 4, reading references in sub-paragraphs (3) and (5) of that paragraph to the NHS trust as references to the NHS foundation trust.
F1035
As soon as is practicable after the end of each financial year, the Secretary of State must prepare a report on the exercise of the power under subsection (1).
6
In relation to each exercise of the power under that subsection during the year to which the report relates, the report must specify the amount of the loan, issue of public dividend capital, grant or other payment and—
a
in the case of a loan, the amount (if any) outstanding at the end of the year and the other terms on which the loan was made,
b
in the case of an issue of public dividend capital, the terms on which it was issued (or, where a decision under section 42(3) is made in relation to it during that year, the terms so decided as those on which it is treated as having been issued), and
c
in the case of a grant or other payment, the terms on which it was made.
7
In relation to each loan made under that subsection during a previous financial year but not repaid by the beginning of the year to which the report relates, the report must specify—
a
the amount outstanding at the beginning of the year,
b
the amount (if any) outstanding at the end of the year, and
c
the other terms on which the loan was made.
8
A report under subsection (5) must, in relation to each NHS foundation trust, specify—
a
the amount of the public dividend capital of that trust at the end of the year to which the report relates, and
b
the conditions on which it is held.
9
The Secretary of State must publish a report under subsection (5).
F10441Prudential borrowing code
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42Public dividend capital
1
Where an NHS trust becomes an NHS foundation trust, the amount which was the public dividend capital of the NHS trust immediately before the giving of the authorisation continues as public dividend capital of the NHS foundation trust held on the same conditions (“initial public dividend capital”), but subject to this section.
2
Any amount issued to an NHS foundation trust as public dividend capital under section 40 is (like initial public dividend capital) an asset of the Consolidated Fund.
3
The Secretary of State may, with the consent of the Treasury, decide the terms on which any public dividend capital of an NHS foundation trust must be treated as having been issued.
F1064
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1075
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
Any amount paid to the Secretary of State by an NHS foundation trust by way of repayment of public dividend capital must be paid into the Consolidated Fund.
F1057
The terms which may be decided under subsection (3) include terms to which the exercise of any power of an NHS foundation trust to do any of the following will be subject as a consequence—
a
providing goods or services,
b
borrowing or investing money,
c
providing financial assistance,
d
acquiring or disposing of property,
e
entering into contracts, or making other arrangements, to do anything referred to in paragraphs (a) to (d),
f
applying for dissolution (whether or not when also applying for the establishment of one or more other trusts),
g
applying to acquire another body.
42AF89Criteria for making loans etc.
1
The Secretary of State must publish guidance on the powers conferred by sections 40 and 42.
2
The guidance on the power to make a loan under section 40(1) must in particular—
a
explain that, in exercising the power, the Secretary of State will apply the principle that a loan should be made only where there is a reasonable expectation that it will be repaid in accordance with the terms on which it is made;
b
include other criteria that the Secretary of State will apply when determining whether to exercise the power and, if so, the terms on which to make the loan.
3
The guidance on that power must also explain—
a
the process for applying for a loan under section 40(1);
b
the consequences of failing to comply with terms on which a loan is made under that provision.
4
The guidance on the power to decide terms under section 42(3) must, in particular, include the criteria that the Secretary of State will apply when deciding the terms.
5
The guidance on that power must also explain the consequences of failing to comply with the terms decided.
6
In preparing guidance under this section, the Secretary of State must have regard (among other things) to any generally accepted principles used by financial institutions to determine whether to make loans to bodies corporate and the terms on which to make loans to them.
7
Before publishing the guidance, the Secretary of State must consult—
a
the Treasury,
b
F286NHS England, and
c
such other persons as the Secretary of State considers appropriate.
42BF240Limits on capital expenditure
1
NHS England may make an order imposing a limit on the capital expenditure of an NHS foundation trust in respect of a single financial year.
2
The order must specify—
a
the trust,
b
the capital expenditure limit, and
c
the financial year to which the limit relates.
3
NHS England must consult the trust before making the order.
4
NHS England must publish each order under this section.
5
An order under this section may be made at any time during or before the financial year to which it relates.
6
A trust that is the subject of an order under this section must not exceed the capital expenditure limit imposed by the order during the financial year to which it relates.
7
In this section “capital expenditure”, in relation to an NHS foundation trust, means expenditure of the trust which falls to be capitalised in its annual accounts.
42CGuidance in relation to orders under section 42B
1
NHS England must publish guidance about the exercise of its power to make orders under section 42B, including guidance about—
a
the circumstances in which it is likely to make an order, and
b
the method it will use to determine the capital expenditure limit.
2
NHS England must consult the Secretary of State before it publishes guidance, or revised guidance, under this section.
3
NHS England must have regard to the guidance in exercising its power to make orders under section 42B.
Functions
43F108Provision of goods and services
F251
The principal purpose of an NHS foundation trust is the provision of goods and services for the purposes of the health service in England.
F252
An NHS foundation trust may provide goods and services for any purposes related to—
a
the provision of 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.
F252A
An NHS foundation trust does not fulfil its principal purpose unless, in each financial year, its total income from the provision of goods and services for the purposes of the health service in England is greater than its total income from the provision of goods and services for any other purposes.
3
F263A
Each annual report prepared by an NHS foundation trust must give information on the impact that income received by the trust otherwise than from the provision of goods and services for the purposes of the health service in England has had on the provision by the trust of goods and services for those purposes.
F2873B
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2883C
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3D
An NHS foundation trust which proposes to increase by 5% or more the proportion of its total income in any financial year attributable to activities other than the provision of goods and services for the purposes of the health service in England may implement the proposal only if more than half of the members of the council of governors of the trust voting approve its implementation.
F1094
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1095
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1096
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1097
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
44F30Power to charge for accommodation etc.
F331
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F312
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F322A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F343
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F344
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F345
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
According to the nature of its functions, an NHS foundation trust may, in the case of patients being provided with goods and services for the purposes of the health service, make accommodation or further services available for patients who give undertakings (or for whom undertakings are given) to pay any charges imposed by the NHS foundation trust in respect of the accommodation or services.
7
An NHS foundation trust may exercise the power conferred by subsection (6) only to the extent that its exercise does not to any significant extent interfere with the performance by the NHS foundation trust of its functions.
F11045Protection of property
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46Financial powers
1
An NHS foundation trust may borrow money for the purposes of or in connection with its functions.
F1112
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1113
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
An NHS foundation trust may invest money (other than money held by it as trustee) for the purposes of or in connection with its functions.
5
The investment may include investment by—
a
forming, or participating in forming, bodies corporate,
b
otherwise acquiring membership of bodies corporate.
6
An NHS foundation trust may give financial assistance (whether by way of loan, guarantee or otherwise) to any person for the purposes of or in connection with its functions.
47General powers
1
An NHS foundation trust may do anything which appears to it to be necessary or expedient for the purpose of or in connection with its functions.
2
In particular it may—
a
acquire and dispose of property,
b
enter into contracts,
c
accept gifts of property (including property to be held on trust for the purposes of the NHS foundation trust or for any purposes relating to the health service),
d
employ staff.
3
Any power of the NHS foundation trust to pay remuneration and allowances to any person includes power to make arrangements for providing, or securing the provision of, pensions or gratuities (including those payable by way of compensation for loss of employment or loss or reduction of pay).
4
“The purposes of the NHS foundation trust” means the general or any specific purposes of the trust (including the purposes of any specific hospital at or from which services are provided by the trust).
47AF244Joint exercise of functions
An NHS foundation trust may enter into arrangements for the carrying out, on such terms as the NHS foundation trust considers appropriate, of any of its functions jointly with any other person.
F6048Information
1
The Secretary of State may require an NHS foundation trust to provide the Secretary of State with such information as the Secretary of State considers it necessary to have for the purposes of the functions of the Secretary of State in relation to the health service.
F2891A
An integrated care board may require any of its partner NHS foundation trusts to provide it with any information that it requires.
2
F290Information required under this section must be provided in such form, and at such time or within such period, as may be specified by the person imposing the requirement.
F11249Entry and inspection of premises
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
50F113Fees
An NHS foundation trust must pay to F291NHS England such fee as F291NHS England may determine in respect of its exercise of functions under—
a
section 39;
b
section 39A.
F20851Trust funds and trustees
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
51AF88Significant transactions
1
An NHS foundation trust may enter into a significant transaction only if more than half of the members of the council of governors of the trust voting approve entering into the transaction.
2
“Significant transaction” means a transaction or arrangement of such description as may be specified in the trust's constitution.
3
If an NHS foundation trust does not wish to specify any descriptions of transaction or arrangement for the purposes of subsection (2), the constitution of the trust must specify that it contains no such descriptions.
Failure
F11452Failing NHS foundation trusts
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7452AApplication of sections 52B to 52E
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7352BDe-authorisation: regulator's notice
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F6152CGrounds for de-authorisation notice
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7252DDe-authorisation
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7152ESecretary of State's request
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8553Voluntary arrangements
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8554Dissolution etc
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8555Sections 53 and 54: supplementary
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F82Mergers, acquisitions and separations
S. 56 cross-heading substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 172(9), 306(4); S.I. 2013/671, art. 2(3)
56Mergers
1
An application may be made jointly by—
a
an NHS foundation trust, and
b
another NHS foundation trust or an NHS trust F129established under section 25,
F1281A
An application under this section may be made only with the approval of more than half of the members of the council of governors of each applicant (that is an NHS foundation trust).
2
The application must—
F294a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
specify the property and liabilities proposed to be transferred to the new NHS foundation trust,
c
F132...and
d
be accompanied by a copy of the proposed constitution of the new trust,
F131...
F1333
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2934
NHS England must grant the application if—
a
it is satisfied that such steps as are necessary to prepare for the dissolution of the trusts and the establishment of the new trust have been taken, and
b
the Secretary of State approves the grant of the application,
and must otherwise refuse the application.
F1355
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1356
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1357
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1358
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1359
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F13510
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
F134On the grant of the application, 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.
56AF86Acquisitions
1
An application may be made jointly by—
a
an NHS foundation trust (A), and
b
another NHS foundation trust or an NHS trust established under section 25 (B),
to F295NHS England for the acquisition by A of B.
2
An application under this section may be made only with the approval of more than half of the members of the council of governors of each applicant (that is an NHS foundation trust).
3
The application must—
F297a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
be accompanied by a copy of the proposed constitution of A, amended on the assumption that A acquires B.
F2984
NHS England must grant the application if—
a
it is satisfied that such steps as are necessary to prepare for the acquisition have been taken, and
b
the Secretary of State approves the grant of the application,
and must otherwise refuse the application.
F2004A
Where F296NHS England proposes to grant the application, it may by order make provision for the transfer of employees of B to A on the grant of the application.
5
On the grant of the application, the proposed constitution has effect, but where a person who is specified as a director of A in the constitution has yet to be appointed as such, the directors of A may exercise that person's functions under the constitution.
56AAF199Acquisitions under section 56A: supplementary
1
On the grant of an application under section 56A—
a
any order made by F299NHS England under section 56A(4A) takes effect,
b
the property and liabilities of the acquired NHS foundation trust or NHS trust are transferred to the acquiring NHS foundation trust (other than rights and liabilities which may be dealt with by order under section 56A(4A)),
c
the acquired NHS foundation trust or NHS trust is dissolved, and
d
where the acquired trust is an NHS trust, the NHS trust order establishing it is revoked.
2
So far as may be necessary for the purposes of subsection (1)(b)—
a
anything done before the grant of the application by or in relation to the acquired trust is to be treated (on and after the grant) as having been done by or in relation to the acquiring trust;
b
any reference in a document to the acquired trust is to be read as a reference to the acquiring trust.
3
Anything (including legal proceedings) that, immediately before the grant of the application, is in the process of being done by or in relation to the acquired trust may continue to be done afterwards by or in relation to the acquiring trust.
4
In subsection (1)—
a
“liabilities” includes criminal liabilities;
b
“property” includes trust property.
56BF87Separations
1
An application may be made to F301NHS England by an NHS foundation trust for the dissolution of the trust and the establishment of two or more new NHS foundation trusts.
2
An application under this section may be made only with the approval of more than half of the members of the council of governors of the applicant.
3
The application must, by reference to each of the proposed new trusts—
a
specify the property and liabilities proposed to be transferred to it;
b
be accompanied by a copy of its proposed constitution.
F3004
NHS England must grant the application if—
a
it is satisfied that such steps as are necessary to prepare for the dissolution of the trust and the establishment of each of the proposed new trusts have been taken, and
b
the Secretary of State approves the grant of the application,
and must otherwise refuse the application.
5
On the grant of the application, the proposed constitution of each of the new trusts has effect but, in the case of each of the new trusts, the proposed directors may exercise the functions of the trust on its behalf until a board of directors is appointed in accordance with the constitution.
57F137Sections 56 to 56B: supplementary
1
2
a
dissolving the F141trust or trusts in question, and
F1362A
An order under section 56 or 56B is conclusive evidence of incorporation and conclusive evidence that the corporation is an NHS foundation trust.
3
The order may—
a
transfer, or provide for the transfer of, any of the remaining property or liabilities to F147another NHS foundation trust, an NHS trust established under section 25 or the Secretary of State,
F148b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2013A
The order may include provision for the transfer of employees of the trust or trusts dissolved by the order.
4
In F143sections 56(2) and 56B(3), and subsections (1) and (2) of this section, “liabilities” includes criminal liabilities; and an order under subsection (3) of this section may transfer any remaining criminal liabilities to F146another NHS foundation trust or an NHS trust established under section 25.
5
F1456
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
57AF84Dissolution
1
An application may be made by an NHS foundation trust to F308NHS England for dissolution.
2
An application under this section may be made only with the approval of more than half of the members of the council of governors of the applicant.
3
F309NHS England must grant the application if it is satisfied that—
F305a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
such steps as are necessary to prepare for the dissolution have been taken.
4
Where an application under this section is granted, F310NHS England must make an order—
a
dissolving the trust in question, and
F306b
transferring, or providing for the transfer of, the property and liabilities (including criminal liabilities) to another NHS foundation trust, an NHS trust established under section 25 or the Secretary of State.
F3075
The order must include provision for the transfer of any employees of the NHS foundation trust that is dissolved.
Miscellaneous
F1858Taxation
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
59Conduct of elections
1
Regulations may make provision as to the conduct of elections for membership of the F35council 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 F36council of governors, at contested elections,
c
filling of vacancies,
d
supervision of elections,
e
elections 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 F37council of governors of an NHS foundation trust, if contested, must be by secret ballot.
60Voting and standing for election
1
A person may not vote at an election for the F38council 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 F39the council unless—
a
he has within the specified period 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
b
he is not prevented from being a member of F39the council by paragraph 8 of Schedule 7.
3
a
he has within the specified period made a declaration in the specified form of the particulars of his qualification to vote as a member of the trust, and
b
he is not prevented from being a member of F39the council by paragraph 8 of Schedule 7.
4
This section does not apply to an election held for the staff constituency.
5
“Specified” means specified 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.
61Representative membership
F1161
F117An NHS foundation trust must 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.
F1152
In deciding which areas are to be areas for public constituencies, or in deciding whether there is to be a patients' constituency, an NHS foundation trust must have regard to the need for those eligible for such membership to be representative of those to whom the trust provides services.
62Audit
Schedule 10 makes provision in relation to the audit of accounts of NHS foundation trusts.
63General duty of NHS foundation trusts
An NHS foundation trust must exercise its functions effectively, efficiently and economically.
63AF234Duty to have regard to wider effect of decisions
1
In making a decision about the exercise of its functions, an NHS foundation trust must have regard to all likely effects of the decision in relation to—
a
the health and well-being of the people of England;
b
the quality of services provided to individuals—
i
by relevant bodies, or
ii
in pursuance of arrangements made by relevant bodies,
for or in connection with the prevention, diagnosis or treatment of illness, as part of the health service in England;
c
efficiency and sustainability in relation to the use of resources by relevant bodies for the purposes of the health service in England.
2
In subsection (1)—
a
the reference to a decision does not include a reference to a decision about the services to be provided to a particular individual for or in connection with the prevention, diagnosis or treatment of illness;
b
the reference to effects of a decision in relation to the health and well-being of the people of England includes a reference to its effects in relation to inequalities between the people of England with respect to their health and well-being;
c
the reference to effects of a decision in relation to the quality of services provided to individuals includes a reference to its effects in relation to inequalities between individuals with respect to the benefits that they can obtain from those services.
3
In discharging the duty under this section, NHS foundation trusts must have regard to guidance published by NHS England under section 13NB.
4
In this section “relevant bodies” means—
a
NHS England,
b
integrated care boards,
c
NHS trusts established under section 25, and
d
NHS foundation trusts.
63BF235Duties in relation to climate change etc
1
An NHS foundation trust must, in the exercise of its functions, have regard to the need to—
a
contribute towards compliance with—
i
section 1 of the Climate Change Act 2008 (UK net zero emissions target), and
ii
section 5 of the Environment Act 2021 (environmental targets), and
b
adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008.
2
In discharging the duty under this section, NHS foundation trusts must have regard to guidance published by NHS England under section 13ND.
Supplementary
64Orders and regulations under this Chapter
1
Any power under this Chapter to make an order or regulations F312, other than the power to make an order under section 42B, is exercisable by statutory instrument.
2
Subject to subsections (3) and (4), a statutory instrument made by virtue of this Chapter is subject to annulment in pursuance of a resolution of either House of Parliament.
3
A statutory instrument containing—
a
the first regulations under section 55(4) or 59,
F19aa
regulations under paragraph 30(1) of Schedule 7, or
b
an order or regulations under this Chapter making, by virtue of subsection (5)(b), provision which amends or repeals any part of the text of an Act,
may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.
4
Subsection (2) does not apply to a statutory instrument containing an order under—
a
section 51,
F120b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F202ba
section 56A(4A),
c
section 57 F119, or
d
section 57A.
F1184A
5
Any order or regulations under this Chapter—
a
may make different provision for different purposes, and
b
may make incidental, supplementary, consequential, transitory or transitional or saving provision.
6
Any power under this Chapter to make an order or regulations (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.
65Interpretation of this Chapter
1
In this Chapter—
“authorisation” means an authorisation under section 35 or 56,
“health service body” means a Strategic Health Authority, a Primary Care Trust, an NHS trust, a Special Health Authority or an NHS foundation trust.
2
Any references in this Chapter to goods and services include, in particular, facilities, education and training.
F13Chapter 5ATrust special administrators: NHS trusts and NHS foundation trusts
Pt. 2 Ch. 5A inserted (15.2.2010) by Health Act 2009 (c. 21), ss. 16, 40(1); S.I. 2010/30, art. 3(a)
Application
65AApplication
1
This Chapter applies to—
a
an NHS trust all or most of whose hospitals, establishments and facilities are in England;
F62b
any NHS foundation trust.
F632
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appointment
65BF218NHS trusts: appointment of trust special administrator
1
NHS England may make an order in accordance with this section authorising the appointment of a trust special administrator to exercise the functions of the chair and directors of an NHS trust to which this Chapter applies.
2
NHS England—
a
must make an order under subsection (1) if required to do so by the Care Quality Commission, and
b
may otherwise make an order under subsection (1) only if—
i
NHS England considers it appropriate to do so in the interests of the health service, and
ii
the Secretary of State has approved the making of the order.
3
The Care Quality Commission may require NHS England to make an order under subsection (1) only if it is satisfied that there is a serious failure by the NHS trust to provide services that are of sufficient quality to be provided under this Act.
4
Before requiring NHS England to make an order under subsection (1) the Care Quality Commission must—
a
consult the Secretary of State and NHS England, and
b
having done that, consult—
i
the trust,
ii
any integrated care board in whose area the trust has hospitals, establishments or facilities, and
iii
any person to which the trust provides goods or services under this Act and which the Commission considers it appropriate to consult.
5
Before making an order under subsection (1) in a case where it is not required to do so by the Care Quality Commission, NHS England must consult—
a
the trust,
b
any integrated care board in whose area the trust has hospitals, establishments or facilities,
c
any other person to which the trust provides goods or services under this Act and which NHS England considers it appropriate to consult, and
d
the Care Quality Commission.
6
An order under subsection (1) must specify the date when the appointment is to take effect, which must be within the period of 5 working days beginning with the day on which the order is made.
7
NHS England must lay before Parliament (with the statutory instrument containing the order) a report stating the reasons for making the order.
8
If an order is made under subsection (1), NHS England must—
a
appoint a person as the trust special administrator with effect from the day specified in the order, and
b
publish the name of the person appointed.
9
A person appointed as a trust special administrator holds and vacates office in accordance with the terms of the appointment.
10
NHS England may pay remuneration and expenses to a trust special administrator appointed under this section.
65BACare Quality Commission report on safety and quality of services
1
2
The Care Quality Commission must, as soon as reasonably practicable after the making of the order, provide to NHS England and the Secretary of State a report on the safety and quality of the services that the trust provides under this Act.
65CSuspension of directors
1
When the appointment of a trust special administrator takes effect, the trust's chairman and executive and non-executive directors are suspended from office.
2
Subsection (1) does not affect the employment of the executive directors or their membership of any committee or sub-committee of the trust.
F69 ...
S. 65D cross-heading omitted (1.11.2012) by virtue of Health and Social Care Act 2012 (c. 7), ss. 174(7), 306(4); S.I. 2012/2657, art. 2(2)
65DF75NHS foundation trusts: appointment of trust special administrator
F651
a
an NHS foundation trust is, or is likely to become, unable to pay its debtsF170, or
b
there is a serious failure by an NHS foundation trust to provide services that are of sufficient quality to be provided under this Act and it is appropriate to make an order under subsection (2).
F1671A
This section also applies if the Care Quality Commission—
a
is satisfied that there is a serious failure by an NHS foundation trust to provide services that are of sufficient quality to be provided under this Act and that it is appropriate to make an order under subsection (2),
b
c
requires F315NHS England to make an order under subsection (2).
F652
F3172A
Where NHS England is not required to make an order under this section as a result of subsection (1A), it may do so only if the Secretary of State has approved the making of the order.
F653
As soon as reasonably practicable after the making of an order under subsection (2), the Care Quality Commission must provide to F318NHS England a report on the safety and quality of the services that the trust provides under this Act.
F1683A
Before imposing a requirement as mentioned in subsection (1A)(c), the Care Quality Commission must—
a
consult the Secretary of State and F319NHS England, and
b
having done that, consult—
i
the trust,
ii
F320... and
iii
any other person to which the trust provides services under this Act and which the Commission considers it appropriate to consult.
F3214
Before making an order under this section in a case where it is not required to do so as a result of subsection (1A), NHS England must consult—
a
the trust,
b
any person to which the trust provides services under this Act and which NHS England considers it appropriate to consult, and
c
the Care Quality Commission.
F645
An order under subsection (2) must specify the date when the appointment is to take effect, which must be within the period of 5 working days beginning with the day on which the order is made.
6
F322NHS England must lay before Parliament (with the statutory instrument containing the order) a report stating the reasons for making the order.
7
If F323NHS England makes an order under subsection (2), it must—
a
appoint a person as the trust special administrator with effect from the day specified in the order, and
b
publish the name of the person appointed.
8
A person appointed as a trust special administrator under this section holds and vacates office in accordance with the terms of the appointment.
9
A person appointed as a trust special administrator under this section must manage the trust's affairs, business and property, and exercise the trust special administrator's functions, so as to achieve the objective set out in section 65DA as quickly and as efficiently as is reasonably practicable.
10
When the appointment of a trust special administrator under this section takes effect, the trust's governors, chairman and executive and non-executive directors are suspended from office; and Chapter 5 of this Part, in its application to the trust, is to be read accordingly.
11
But subsection (10) does not affect the employment of the executive directors or their membership of any committee or sub-committee of the trust.
F32412
NHS England may pay remuneration and expenses to a trust special administrator appointed under this section.
65DAF70Objective of trust special administration
1
The objective of a trust special administration is to secure—
a
the continued provision of such of the services provided for the purposes of the NHS by the NHS foundation trust that is subject to an order under section 65D(2), at such level, as the commissioners of those services determine, and
F173aa
that the services whose continuous provision is secured as mentioned in paragraph (a) are of sufficient safety and quality to be provided under this Act,
b
that it becomes unnecessary for the order to remain in force for that purpose.
2
The commissioners may determine that the objective set out in subsection (1) is to apply to a service only if they are satisfied that the criterion in subsection (3) is met.
3
The criterion is that ceasing to provide the service under this Act would, in the absence of alternative arrangements for its provision under this Act, be likely to—
a
have a significant adverse impact on the health of persons in need of the service or significantly increase health inequalities, or
b
cause a failure to prevent or ameliorate either a significant adverse impact on the health of such persons or a significant increase in health inequalities.
4
In determining whether that criterion is met, the commissioners must (in so far as they would not otherwise be required to do so) have regard to—
a
the current and future need for the provision of the service under this Act,
b
whether ceasing to provide the service under this Act would significantly reduce equality between those for whom the commissioner arranges for the provision of services under this Act with respect to their ability to access services so provided, and
c
such other matters as may be specified in relation to NHS foundation trusts in guidance published by F325NHS England.
5
F326NHS England may revise guidance under subsection (4)(c) and, if it does so, must publish the guidance as revised.
F1725A
Before publishing guidance under subsection (4)(c), F327NHS England must consult the Care Quality Commission.
6
Before publishing guidance under subsection (4)(c) or (5), F328NHS England must obtain the approval of—
a
the Secretary of State;
F329b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
F330NHS England must make arrangements for facilitating agreement between commissioners in determining the services provided by the trust under this Act to which the objective set out in subsection (1) is to apply.
8
Where commissioners fail to reach agreement in pursuance of arrangements under subsection (7), F331NHS England may make the determination (and the duty imposed by subsection (1)(a), so far as applying to the commissioners concerned, is to be regarded as discharged).
9
In this section—
“commissioners” means the persons to which the trust provides services under this Act, and
“health inequalities” means the inequalities between persons with respect to the outcomes achieved for them by the provision of services that are provided as part of the health service.
F6665ENHS foundation trusts: de-authorisation and appointment of trust special administrator
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Consultation and report
65FDraft report
F3321
A trust special administrator appointed in relation to an NHS trust must, within the period of 65 working days beginning with the day on which the administrator’s appointment takes effect—
a
provide NHS England and the Secretary of State with a draft report recommending any action that NHS England or the Secretary of State should take in relation to the trust, and
b
publish a copy of that draft report.
1A
A trust special administrator appointed in relation to an NHS foundation trust must, within the period of 65 working days beginning with the day on which the administrator’s appointment takes effect—
a
provide NHS England with a draft report recommending the action that NHS England should take in relation to the trust, and
b
publish a copy of that draft report,
1B
A trust special administrator may not provide a draft report under subsection (1A)—
a
without having obtained a statement from each commissioner that the commissioner considers that the recommendation in the draft report—
i
would achieve the objective set out in section 65DA(1)(a), and
ii
would do so without harming essential services provided for the purposes of the NHS by any other NHS foundation trust or NHS trust that provides services under this Act to the commissioner, or
b
where the administrator is unable to obtain a statement to that effect from one or more of the commissioners (other than NHS England), without having obtained a statement to that effect from NHS England.
1C
A trust special administrator may not provide a draft report under subsection (1A) without having obtained a statement from the Care Quality Commission that it considers that the recommendation in the draft report would achieve that part of the objective set out in section 65DA(1)(aa).
2
a
any person to which the trust provides goods or services under this Act and which NHS England directs the administrator to consult, and
b
the Care Quality Commission.
3
F3334
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3345
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3355A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3366
Where NHS England decides not to provide to the administrator a statement to the effect mentioned in subsection (1B)(b), NHS England must—
a
give a notice of the reasons for its decision to the administrator,
b
publish the notice, and
c
lay a copy of it before Parliament.
6A
Where the Care Quality Commission decides not to provide to the administrator a statement to the effect mentioned in subsection (1C), the Commission must—
a
give a notice of the reasons for its decision to the administrator and to NHS England,
b
publish the notice, and
c
lay a copy of it before Parliament.
7
In subsection (5), “commissioner” means a person to which the trust provides services under this Act.
F1768
Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (5) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.
9
A service provided by an NHS foundation trust or an NHS trust is an essential service for the purposes of subsection (5) if the person making the statement in question is satisfied that the criterion in section 65DA(3) is met.
10
Section 65DA(4) applies to the person making the statement when that person is determining whether that criterion is met.
65GConsultation plan
1
At the same time as publishing a draft report under section 65F, a trust special administrator must publish a statement setting out the means by which the administrator will seek responses to the draft report.
2
The statement must specify a period of F17940 working days within which the administrator seeks responses (the “consultation period”).
3
The first day of the consultation period must be within the period of 5 working days beginning with the day on which the draft report is published.
F494
In the case of an NHS foundation trust, the administrator may not make a variation to the draft report following the consultation period—
a
without having obtained from each commissioner a statement that the commissioner considers that the recommendation in the draft report as so varied F180—
i
would achieve the objective set out in section 65DA(1)(a), and
ii
would do so without harming essential services provided for the purposes of the NHS by any other NHS foundation trust or NHS trust that provides services under this Act to the commissioner, or
F1774A
Nor may the administrator make a variation to the draft report following the consultation period without having obtained from the Care Quality Commission a statement that it considers that the recommendation in the draft report as so varied would achieve that part of the objective set out in section 65DA(1)(aa).
F3385
Where NHS England decides not to provide to the administrator a statement to the effect mentioned in subsection (4)(b), NHS England must—
a
give a notice of the reasons for its decision to the administrator,
b
publish the notice, and
c
lay a copy of it before Parliament.
5A
Where the Care Quality Commission decides not to provide to the administrator a statement to the effect mentioned in subsection (4A), the Commission must—
a
give a notice of the reasons for its decision to the administrator and to NHS England,
b
publish the notice, and
c
lay a copy of it before Parliament.
6
In subsection (4), “commissioner” means a person to which the trust provides services under this Act.
F1787
Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (4) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.”
8
A service provided by an NHS foundation trust or an NHS trust is an essential service for the purposes of subsection (4) if the person making the statement in question is satisfied that the criterion in section 65DA(3) is met.
9
Section 65DA(4) applies to the person making the statement when that person is determining whether that criterion is met.
65HConsultation requirements
1
The following duties apply during the consultation period.
2
The trust special administrator must publish a notice stating that the administrator is seeking responses to the draft report and describing how people can give their responses.
3
A notice under subsection (2) must include details of how responses can be given in writing.
4
The trust special administrator must F194—
a
hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust F195, and
b
in the case of each affected trust, hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust.
5
The trust special administrator must hold at least one other meeting to seek responses from any person who wishes to attend, after publishing notice of the date, time and place of the meeting.
6
Notices under subsections (2) and (5) must be published at least once in the first 5 working days of the consultation period.
7
The trust special administrator must request a written response from—
F378za
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F51a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F189bza
any affected trust;
bzb
any person to which an affected trust provides goods or services under this Act that would be affected by the action recommended in the draft report;
bzc
any local authority in whose area the trust provides goods or services under this Act;
bzd
any local authority in whose area an affected trust provides goods or services under this Act;
bze
any Local Healthwatch organisation for the area of a local authority mentioned in paragraph (bzc) or (bzd);
F188ba
the Care Quality Commission;
F380c
the member of Parliament for any constituency, if required by directions given by NHS England;
d
any other person specified in a direction given by NHS England.
F3818
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
The trust special administrator must F193—
a
F191b
hold at least one meeting to seek responses from representatives of each of the trusts from which the administrator must request a written response under subsection (7)(bza), and
c
hold at least one meeting to seek responses from representatives of each of the local authorities and Local Healthwatch organisations from which the administrator must request a written response under subsection (7)(bzc), (bzd) and (bze).
F3839A
NHS England may direct the administrator to hold a meeting to seek a response from any person.
F38410
The Secretary of State may direct NHS England as to the persons from whom it should direct the administrator to—
a
request a written response (for NHS England’s powers of direction, see subsection (7)(c) and (d));
b
seek a response by holding a meeting (for NHS England’s power of direction, see subsection (9A)).
11
In subsection (4) “staff of the trust” means persons employed by the trust or otherwise working for the trust (whether as or on behalf of a contractor, as a volunteer or otherwise).
F18711A
In this section, “affected trust” means—
a
where the trust in question is an NHS trust, another NHS trust, or an NHS foundation trust, which provides goods or services under this Act that would be affected by the action recommended in the draft report;
b
where the trust in question is an NHS foundation trust, another NHS foundation trust, or an NHS trust, which provides services under this Act that would be affected by the action recommended in the draft report.
11B
In this section, a reference to a local authority includes a reference to the council of a district only where the district is comprised in an area for which there is no county council.
F5412
For the purposes of this section in its application to the case of an NHS foundation trust—
F385b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F38613
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
65IFinal report
F3391
A trust special administrator appointed in relation to an NHS trust must, within the period of 15 working days beginning with the end of the consultation period, provide NHS England and the Secretary of State with a final report stating any action that the administrator recommends that NHS England or Secretary of State should take in relation to the trust.
1A
A trust special administrator appointed in relation to an NHS foundation trust must, within the period of 15 working days beginning with the end of the consultation period, provide NHS England with a final report stating the action that the administrator recommends that NHS England should take in relation to the trust.
2
The administrator must attach to the final report F340mentioned in subsection (1) or (1A) a summary of all responses to the draft report which were received by the administrator in the period beginning with the publication of the draft report and ending with the last day of the consultation period.
3
After receiving the administrator's final report, F341NHS England must publish it and lay it before Parliament.
F3424
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
65JPower to extend time
1
This section applies to—
a
the duty of a trust special administrator to provide a draft report within the period specified in section 65F(1) F343or (1A);
b
the duty of a trust special administrator to consult in the consultation period specified under section 65G(2);
c
the duty of a trust special administrator to provide a final report within the period specified in section 65I(1) F344or (1A).
2
3
If an order is made extending the period mentioned in subsection (1)(a) or (c) the trust special administrator must publish a notice stating the new date on which the period will expire.
4
If an order is made extending the period mentioned in subsection (1)(b) the trust special administrator must—
a
publish a notice stating the new date on which the period will expire, and
b
publish a statement setting out the means by which the administrator will seek responses to the draft report during the extended consultation period.
F3465
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F14Action by the Secretary of State and F219NHS England
S. 65K cross-heading substituted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 177(7), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)
Words in s. 65K cross-heading substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 8 para. 10; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
65K.F347Decision of NHS England or Secretary of State in case of NHS trust
1
Within the period of 20 working days beginning with the day on which NHS England receives a final report under section 65I relating to an NHS trust, NHS England must decide what (if any) action to take in relation to the trust.
2
Within the period of 20 working days beginning with the day on which the Secretary of State receives a final report under section 65I relating to an NHS trust, the Secretary of State must decide what (if any) action to take in relation to the trust.
3
NHS England and the Secretary of State must consult one another before taking the decision under subsection (1) or (2).
4
After taking a decision under subsection (1) or (2) NHS England or the Secretary of State (as the case may be) must, as soon as reasonably practicable—
a
publish a notice of the decision and of the reasons for it;
b
lay a copy of the notice before Parliament.
65KAF50F220NHS England’s decision in case of NHS foundation trust
1
Within the period of 20 working days beginning with the day on which F349NHS England receives a final report under section 65I relating to an NHS foundation trust, F349NHS England must decide whether it is satisfied—
a
that the action recommended in the final report would achieve the objective set out in section 65DA, and
b
that the trust special administrator has carried out the administration duties.
2
In subsection (1)(b), “administration duties” means the duties imposed on the administrator by—
a
this Chapter,
b
a direction under this Chapter, or
c
the administrator's terms of appointment.
3
If F348NHS England is satisfied as mentioned in subsection (1), it must as soon as reasonably practicable provide to the Secretary of State—
a
the final report, and
b
the report provided to F348NHS England by the Care Quality Commission under section 65D(3).
4
If F348NHS England is not satisfied as mentioned in subsection (1), it must as soon as reasonably practicable give a notice of that decision to the administrator.
5
6
F350NHS England must as soon as reasonably practicable after giving a notice under subsection (4)—
a
publish the notice;
b
lay a copy of it before Parliament.
65KBSecretary of State's response to F221NHS England’s decision
1
Within the period of 30 working days beginning with the day on which the Secretary of State receives the reports referred to in section 65KA(3), the Secretary of State must decide whether the Secretary of State is satisfied—
a
that the persons to which the NHS foundation trust in question provides services under this Act have discharged their functions for the purposes of this Chapter,
b
that the trust special administrator has carried out the administration duties (within the meaning of section 65KA(1)(b)),
c
that F351NHS England has discharged its functions for the purposes of this Chapter,
F186ca
that the Care Quality Commission has discharged its functions for the purposes of this Chapter,
d
that the action recommended in the final report would secure the continued provision of the services provided by the trust to which the objective set out in section 65DA applies,
e
that the recommended action would secure the provision of services that are of sufficient safety and quality to be provided under this Act, and
f
that the recommended action would provide good value for money.
2
If the Secretary of State is not satisfied as mentioned in subsection (1), the Secretary of State must as soon as reasonably practicable—
a
give the trust special administrator a notice of the decision and of the reasons for it;
c
publish the notice;
d
lay a copy of it before Parliament.
65KCAction following Secretary of State's rejection of final report
1
Within the period of 20 working days beginning with the day on which the trust special administrator receives a notice under section 65KB(2), the administrator must provide to F353NHS England the final report varied so far as the administrator considers necessary to secure that the Secretary of State is satisfied as mentioned in section 65KB(1).
2
Where the administrator provides to F354NHS England a final report under subsection (1), section 65KA applies in relation to the report as it applies in relation to a final report under section 65I; and for that purpose, that section has effect as if—
a
in subsection (1), for “20 working days” there were substituted “10 working days”, and
b
subsection (3)(b) were omitted.
3
If the Secretary of State thinks that, in the circumstances, it is not reasonable for the administrator to be required to carry out the duty under subsection (1) within the period mentioned in that subsection, the Secretary of State may by order extend the period.
4
If an order is made under subsection (3), the administrator must—
a
publish a notice stating the date on which the period will expire, and
b
where the administrator is proposing to carry out consultation in response to the notice under section 65KB(2), publish a statement setting out the means by which the administrator will consult during the extended period.
65KDSecretary of State's response to re-submitted final report
1
Within the period of 30 working days beginning with the day on which the Secretary of State receives a final report under section 65KA(3) as applied by section 65KC(2), the Secretary of State must decide whether the Secretary of State is, in relation to the report, satisfied as to the matters in section 65KB(1)(a) to (f).
2
If the Secretary of State is not satisfied as mentioned in subsection (1), the Secretary of State must as soon as reasonably practicable—
a
publish a notice of the decision and the reasons for it;
b
lay a copy of the notice before Parliament.
3
F3564
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3575
If the notice states that an integrated care board has failed to discharge a function—
a
the board is to be treated for the purposes of this Act as having failed to discharge the function,
b
c
NHS England may not exercise any of its functions under section 14Z61.
6
F3587
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3598
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1838A
If the notice states that the Care Quality Commission has failed to discharge a function—
a
the Care Quality Commission is to be treated for the purposes of this Act as having failed to discharge the function, and
b
the failure is to be treated for those purposes as significant (and section 82 of the Health and Social Care Act 2008 applies accordingly).
9
Within the period of 60 working days beginning with the day on which the Secretary of State publishes a notice under subsection (2)(a), the Secretary of State must decide what action to take in relation to the trust.
10
The Secretary of State must as soon as reasonably practicable—
a
publish a notice of the decision and the reasons for it;
b
lay a copy of the notice before Parliament.
65LTrusts coming out of administration
F3601
Subsection (2) applies, in relation to an NHS trust, if NHS England and the Secretary of State both decide under section 65K not to dissolve the trust.
2
NHS England must make an order specifying a date when the following come to an end—
a
the appointment of the trust special administrator, and
b
the suspension of the chair and directors of the trust.
2A
Subsection (2B) applies, in relation to an NHS foundation trust, if—
a
the Secretary of State decides under section 65KD(9) not to dissolve the trust, or
b
the Secretary of State decides under section 65KB(1) or 65KD(1) that the Secretary of State is satisfied of the matters mentioned there, and the action recommended in the final report is to do something other than dissolve the trust.
2B
NHS England must make an order specifying a date when the following come to an end—
a
the appointment of the trust special administrator, and
b
the suspension of the governors, chair and directors of the trust.
F483
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F484
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F485
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F556
Subsection (7) applies in the case of an NHS foundation trust.
7
If it appears to F361NHS England to be necessary in order to comply with Schedule 7, F361NHS England may by order—
a
terminate the office of any governor or of any executive or non-executive director of the trust;
b
appoint a person to be a governor or an executive or non-executive director of the trust.
65LAF56Trusts to be dissolved
1
This section applies if—
a
the Secretary of State is satisfied as mentioned in section 65KB(1) or 65KD(1), and
b
the action recommended in the final report is to dissolve the NHS foundation trust in question.
2
This section also applies if the Secretary of State decides under section 65KD(9) to dissolve the NHS foundation trust in question.
3
F362NHS England may make an order—
a
dissolving the trust, and
b
transferring, or providing for the transfer of, the property and liabilities of the trust F204—
i
to an NHS body;
ii
to the Secretary of State;
iii
between more than one NHS body or between one or more NHS bodies and the Secretary of State.
4
An order under subsection (3) may include provision for the transfer of employees of the trust.
5
The liabilities that may be transferred F205to an NHS body by virtue of subsection (3)(b) include criminal liabilities.
Supplementary
65MReplacement of trust special administrator
F3631
If a trust special administrator ceases to hold office for any reason before an order is made under section 65L(2) or (2B) or the trust is dissolved, NHS England must—
a
appoint another person as the trust special administrator, and
b
publish the name of the person appointed.
2
Where a person is appointed under subsection (1) in relation to a trust, anything done by or in relation to a previous trust special administrator has effect as if done by or in relation to that person, unless F364NHS England directs otherwise.
F3653
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
65NGuidance
1
F366NHS England must publish guidance for trust special administrators.
F1811A
It must, in so far as it applies to NHS trusts, include guidance about—
a
seeking the support of commissioners for an administrator's recommendation;
F367b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
It must include guidance about the publication of notices under sections 65H and 65J.
F672A
It must include guidance about the publication of—
a
notices under section 65KC(4)(a);
b
statements under section 65KC(4)(b).
3
It must include guidance about the preparation of draft reports, as to—
a
persons to be consulted;
b
factors to be taken into account;
c
relevant publications.
F1823A
Before publishing guidance under this section, F368NHS England must consult the Care Quality Commission.
F3694
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
65OInterpretation of this Chapter
F1751
In this Chapter—
“trust special administrator” means a person appointed under section F37065B(8)(a)F68, section 65D(2) or section 65M(1)(a);
“working day” means any day which is not Saturday, Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.
F1742
The references in this Chapter to taking action in relation to an NHS trust include a reference to taking action, including in relation to another NHS trust or an NHS foundation trust, which is necessary for and consequential on action taken in relation to that NHS trust.
3
The references in this Chapter to taking action in relation to an NHS foundation trust include a reference to taking action, including in relation to another NHS foundation trust or an NHS trust, which is necessary for and consequential on action taken in relation to that NHS foundation trust.
F81Chapter 5BTrust special administrators: Primary Care Trusts
Pt. 2 Ch. 5B omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 15; S.I. 2013/160, art. 2(2) (with arts. 7-9)
F81Appointment
F8165PAppointment of trust special administrator
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8165QDisplacement of functions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chapter 6Miscellaneous
F238Consolidated accounts
65Z4Consolidated accounts for NHS trusts and NHS foundation trusts
1
NHS England must, in respect of each financial year, prepare a set of accounts that consolidates the annual accounts of—
a
all NHS trusts established under section 25, and
b
all NHS foundation trusts.
2
The Secretary of State may give NHS England directions as to—
a
the content and form of the consolidated accounts, and
b
the methods and principles to be applied in preparing them.
3
NHS England must, within such period as the Secretary of State may direct, send a copy of the consolidated accounts to—
a
the Secretary of State, and
b
the Comptroller and Auditor General.
4
The accounts must be accompanied by such reports or other information as the Secretary of State may direct.
5
The Comptroller and Auditor General must—
a
examine, certify and report on the consolidated accounts, and
b
send a copy of the report to the Secretary of State and NHS England.
6
NHS England must lay before Parliament a copy of—
a
the consolidated accounts, and
b
the Comptroller and Auditor General’s report on them.
F239Joint working arrangements and delegation
Ss. 65Z5-65Z7 and cross-heading inserted (1.7.2022) by Health and Care Act 2022 (c. 31), ss. 71(2), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
65Z5Joint working and delegation arrangements
C7C81
A relevant body may arrange for any functions exercisable by it to be exercised by or jointly with any one or more of the following—
a
a relevant body;
b
a local authority (within the meaning of section 2B);
c
a combined authority.
F411d
a combined county authority.
2
In this section “relevant body” means—
a
NHS England,
b
an integrated care board,
c
an NHS trust established under section 25,
d
an NHS foundation trust, or
e
such other body as may be prescribed.
3
Regulations may—
a
provide that the power in subsection (1) does not apply, or applies only to a prescribed extent, in relation to prescribed functions;
b
impose conditions on the exercise of the power.
4
Arrangements under this section may be made on such terms as may be agreed between the parties, including—
a
terms as to payment;
b
terms prohibiting or restricting a body from making delegation arrangements in relation to a function that is exercisable by it by virtue of arrangements under this section.
5
In subsection (4)(b) “delegation arrangements” means arrangements made by a body for the exercise of a function by someone else.
6
Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a body of any function by virtue of this section are enforceable by or against that body (and no other person).
65Z6Joint committees and pooled funds
1
This section applies where a function is exercisable jointly (by virtue of section 65Z5 or otherwise) by a relevant body and any one or more of the following—
a
a relevant body;
b
a local authority (within the meaning of section 2B);
c
a combined authority;
F412d
a combined county authority.
2
The bodies by whom the function is exercisable jointly may—
a
arrange for the function to be exercised by a joint committee of theirs;
b
arrange for one or more of the bodies, or a joint committee of the bodies, to establish and maintain a pooled fund.
3
A pooled fund is a fund—
a
which is made up of payments received in accordance with the arrangements from relevant bodies that are party to the arrangements, and
b
out of which payments may be made in accordance with the arrangements towards expenditure incurred in the exercise of functions in relation to which the arrangements are made.
4
Arrangements under this section may be made on such terms as may be agreed between the parties, including terms as to payment.
5
65Z7Joint working and delegation: guidance by NHS England
1
2
A relevant body must have regard to any guidance published under this section.
3
Intervention orders and default powers
C266Intervention orders
C4F1211
This section applies to—
a
NHS trusts, and
b
Special Health Authorities.
2
If the Secretary of State—
a
considers that a body to which this section applies is not performing one or more of its functions adequately or at all, or that there are significant failings in the way the body is being run, and
b
is satisfied that it is appropriate for him to intervene under this section,
he may make an order under this section in respect of the body (an “intervention order”).
3
An intervention order may make any provision authorised by section 67 (including any combination of such provisions).
67Effect of intervention orders
1
In this section—
2
An intervention order may provide for the removal from office of—
a
all the members, or
b
those specified in the order,
and for their replacement with individuals specified in or determined in accordance with the order (who need not be the same in number as the removed individuals).
3
An intervention order may provide for the suspension (either wholly, or in respect only of powers and duties specified in or determined in accordance with the order) of—
a
all the members, or
b
those specified in the order,
and for the powers of the suspended members to be exercised, and their duties performed, during their suspension by individuals specified in or determined in accordance with the order (who need not be the same in number as the suspended individuals).
4
The powers and duties referred to in subsection (3) are, in the case of an employee member, only those which he has in his capacity as a member.
5
An intervention order may contain directions to the body to which it relates to secure that a function of the body specified in the directions—
a
is performed, to the extent specified in the directions, on behalf of the body and at its expense, by such person as is specified in the directions, and
b
is so performed in such a way as to achieve such objectives as are so specified,
and the directions may require that any contract or other arrangement made by the body with that person contains such terms and conditions as may be so specified.
6
If the person referred to in subsection (5)(a) is a body to which section 66 applies, the functions of that body include the performance of the functions specified in the directions under subsection (5).
7
Subsection (8) applies in relation to any provision in this Act, or in any order or regulations made, or directions given, under this Act, relating to—
a
the membership of the body to which an intervention order relates F156..., or
b
the procedure of the body.
8
The intervention order may provide in relation to any provision specified in the order—
a
that it does not apply in relation to the body while the order remains in force, or
b
that it applies in relation to the body, while the order remains in force, with modifications specified in the order.
9
An intervention order may contain such supplementary directions to the body to which it relates as the Secretary of State considers appropriate for the purpose of giving full effect to the order.
C368Default powers
C5F1221
This section applies to—
a
NHS trusts established under section 25, and
b
Special Health Authorities.
2
If the Secretary of State considers that a body to which this section applies—
a
has failed to carry out any functions conferred or imposed on it by or under this Act, or
b
has in carrying out those functions failed to comply with any regulations or directions relating to those functions,
he may after such inquiry as he considers appropriate make an order declaring it to be in default.
3
The members of the body in default must immediately vacate their office, and the order—
a
must provide for the appointment, in accordance with the provisions of this Act, of new members of the body, and
b
may contain such provisions as seem to the Secretary of State expedient for authorising any person to act in the place of the body pending the appointment of new members.
4
An order under this section may contain such supplementary and incidental provisions as appear to the Secretary of State to be necessary or expedient, including—
a
provision for the transfer to the Secretary of State of property and liabilities of the body in default, and
b
where any such order is varied or revoked by a subsequent order, provision in the subsequent order for the transfer to the body in default of any property or liabilities acquired or incurred by the Secretary of State in discharging any of the functions transferred to him.
F415Reconfiguration of NHS services
S. 68A and cross-heading inserted (31.1.2024) by Health and Care Act 2022 (c. 31), ss. 46(1), 186(6); S.I. 2023/1431, reg. 4(a)
68AReconfiguration of NHS services
Schedule 10A confers intervention powers on the Secretary of State in relation to the reconfiguration of NHS services.
Protection of members and officers of health service bodies
69Protection from personal liability
1
Section 265 of the Public Health Act 1875 (c. 55) (which relates to the protection of members and officers of certain authorities) has effect as if there were included in the authorities referred to in that section a reference to an NHS body.
2
Any reference in that section to the Public Health Act 1875 has effect as if it included a reference to this Act and the National Health Service (Wales) Act 2006 (c. 42).
F241Transfer schemes
S. 69A and cross-heading inserted (1.7.2022) by Health and Care Act 2022 (c. 31), ss. 69, 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
69ATransfer schemes: NHS trusts and NHS foundation trusts
1
NHS England may make one or more schemes for the transfer of property, rights and liabilities from a relevant NHS body to another relevant NHS body on an application made to it under this section.
2
The application must—
a
be made jointly by the relevant NHS bodies, and
b
state the property, rights or liabilities to be transferred.
3
NHS England may grant an application under this section only if it is satisfied that such steps as are necessary to prepare for the transfer have been taken.
4
The things that may be transferred under a transfer scheme include—
a
property, rights and liabilities that could not otherwise be transferred;
b
property acquired, and rights and liabilities arising, after the making of the scheme;
c
criminal liabilities.
5
A transfer scheme may—
a
create rights, or impose liabilities, in relation to property or rights transferred;
b
make provision about the continuing effect of things done by the transferor in respect of anything transferred;
c
make provision about the continuation of things (including legal proceedings) in the process of being done by, on behalf of or in relation to the transferor in respect of anything transferred;
d
make provision for references to the transferor in an instrument or other document in respect of anything transferred to be treated as references to the transferee;
e
make provision for the shared ownership or use of property;
f
make provision which is the same as or similar to the TUPE regulations;
g
make other consequential, supplementary, incidental or transitional provision.
6
A transfer scheme may provide—
a
for modifications by agreement;
b
for modifications to have effect from the date when the original scheme came into effect.
7
In this section—
a
references to rights and liabilities include rights and liabilities relating to a contract of employment;
b
references to the transfer of property include the grant of a lease.
8
In this section—
“relevant NHS body” means—
- a
an NHS trust established under section 25;
- b
an NHS foundation trust;
- a
“the TUPE regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246).
Transfer of residual liabilities
70Transfer of residual liabilities F83of certain health service bodies
1
2
A liability is dealt with by being transferred to an NHS body, the Secretary of State or the Welsh Ministers.
Losses and liabilities of certain health service bodies
71Schemes for meeting losses and liabilities etc of certain health service bodies
1
The Secretary of State may by regulations made with the consent of the Treasury establish a scheme whereby any of the bodies F4or other persons specified in subsection (2) may make provision to meet—
a
expenses arising from any loss of or damage to their property, and
b
liabilities to third parties for loss, damage or injury arising out of the carrying out of the functions of the bodies F4or other persons concerned.
C12
The bodies F5 and other persons referred to in subsection (1) are—
F371zb
integrated care boards,
F160a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F161b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
NHS trusts,
d
Special Health Authorities,
F157da
NICE,
F388db
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F404dc
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e
NHS foundation trusts,
f
F12the Care Quality Commission , and
F197fa
the Health Research Authority;
F408fb
the Health Services Safety Investigations Body,
F162g
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F207ga
the Commissioner for Patient Safety,
F7h
the Secretary of State,
F41ha
a company formed under section 223 and wholly or partly owned by the Secretary of State or F245NHS England,
hb
a subsidiary of a company which is formed under that section and wholly owned by the Secretary of State, and
i
but a scheme under this section may limit the class or description of bodies which F6, or other persons who, are eligible to participate in it.
F22A
In subsection (1)(b) “functions”—
a
in relation to the Secretary of State, means the Secretary of State's functions in connection with the health service;
F42ab
in relation to a company within paragraph (ha) or (hb) of subsection (2), means the company's activities in providing facilities or services to any person or body;
b
in relation to a body or other person within paragraph (i) of subsection (2), means the body's or person's functions of providing, or arranging the provision of, health services whose provision is the subject of arrangements with a body or other person within any of F45paragraphs (za) to (h) of that subsection.
3
A scheme under this section may, in particular—
a
b
require any body which F8, or other person who, participates in the scheme to make payments in accordance with the scheme, and
c
provide for the making of payments for the purposes of the scheme by the Secretary of State F9 (whether or not a participator in the scheme and, if a participator, whether or not required to make payments as a participator) .
4
If the Secretary of State so directs, a body which is eligible to participate in a scheme must do so.
F105
6
Where a scheme provides for the scheme to be administered by the Secretary of State, F47F245NHS England or a F165... F166... NHS trust, Special Health Authority or NHS foundation trust must carry out such functions in connection with the administration of the scheme by the Secretary of State as he may direct.
7
Subsections (4) and (6) do not affect any other power of direction of the Secretary of State.
8
A person or body administering a scheme under this section does not require permission under any provision of the Financial Services and Markets Act 2000 (c. 8) as respects activities carried out under the scheme.
F39
In subsection (2)(i), the reference to a person providing health services does not include a person providing health services under a contract of employment.
10
In this section “ health services ” means services provided as part of the health service.
Co-operation between NHS bodies
72Co-operation between NHS bodies
F1261
It is the duty of NHS bodies to co-operate with each other in exercising their functions.
F3721A
The Secretary of State may publish guidance on the discharge of the duty under subsection (1) in relation to England.
1B
An NHS body other than a Welsh NHS body must have regard to any guidance published under subsection (1A).
F1252
For the purposes of this section, NICE is an NHS body.
F3893
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F4054
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3735
In this section “Welsh NHS body” means—
a
an NHS trust established under the National Health Service (Wales) Act 2006,
b
a Special Health Authority established under that Act, or
c
a Local Health Board.
F242NHS trusts and foundation trusts: exemption from merger legislation
S. 72A and cross-heading inserted (1.7.2022) by Health and Care Act 2022 (c. 31), ss. 83(1), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
72AExemption from Part 3 of the Enterprise Act 2002
1
For the purposes of Part 3 of the Enterprise Act 2002 (mergers), a relevant merger situation is not to be treated as having been created where two or more relevant NHS enterprises cease to be distinct enterprises.
2
But subsection (1) does not apply to a case where two or more relevant NHS enterprises and one or more enterprises that are not relevant NHS enterprises cease to be distinct enterprises.
3
In this section “relevant NHS enterprise” means the activities, or part of the activities, of—
a
an NHS trust established under section 25;
b
an NHS foundation trust.
Directions and regulations under this Part
73Directions and regulations under this Part
1
This section applies to directions and regulations under any of—
a
section 7,
F375ab
section 7C,
b
section 8,
F127c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F127d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F127e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F127f
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
g
section 29.
2
Except in prescribed cases, the directions and regulations must not preclude a person or body by whom the function is exercisable apart from the directions or regulations from exercising the function.
Pt. 2 Ch. A1 inserted (27.3.2012 for specified purposes, 1.10.2012 for specified purposes, 1.2.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 23(1), 306(1)(d)(4); S.I. 2012/1831, art. 2(2) (with art. 4); S.I. 2012/2657, art. 2(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)