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Health and Social Care (Community Health and Standards) Act 2003

CHAPTER 43

CONTENTS

PART 1

NHS FOUNDATION TRUSTS

Introductory 1 NHS foundation trusts 2 Independent Regulator of NHS Foundation Trusts 3 General duty of regulator

Authorisation 4 Applications by NHS trusts 5 Other applications 6 Authorisation of NHS foundation trusts 7 Effect of authorisation 8 Amendments of constitution 9 Variation of authorisation

10 Register of NHS foundation trusts

Financial matters 11 Power of Secretary of State to give financial assistance 12 Prudential borrowing code 13 Public dividend capital

Functions 14 Authorised services 15 Private health care

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

16 Protection of property 17 Financial powers 18 General powers 19 Information 20 Entry and inspection of premises 21 Fees 22 Trust funds and trustees

Failure 23 Failing NHS foundation trusts 24 Voluntary arrangements 25 Dissolution etc. 26 Sections 24 and 25: supplementary

Mergers 27 Mergers 28 Section 27: supplementary

Co-operation 29 Co-operation between NHS bodies

Patient and public involvement 30 Public involvement and consultation 31 Patients’ Forums 32 Commission for Patient and Public Involvement in Health

Miscellaneous 33 Taxation 34 Other amendments relating to NHS foundation trusts 35 Conduct of elections 36 Offence 37 Representative membership 38 Audit 39 General duty of NHS foundation trusts

Supplementary 40 Interpretation of Part 1

PART 2

STANDARDS

CHAPTER 1

REGULATORY BODIES

41 The Commission for Healthcare Audit and Inspection 42 The Commission for Social Care Inspection

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

43 Transfer of property etc to CHAI and CSCI 44 Abolition of former regulatory bodies

CHAPTER 2

NHS HEALTH CARE: INTRODUCTORY

45 Quality in health care 46 Standards set by Secretary of State 47 Standards set by Assembly

CHAPTER 3

NHS HEALTH CARE: FUNCTIONS OF CHAI

Healthcare provided by and for NHS bodies 48 Introductory 49 National performance data 50 Annual reviews 51 Reviews: England and Wales 52 Reviews and investigations: England 53 Failings 54 Functions relating to Secretary of State and Assembly 55 Reviews of data 56 Co-ordination of reviews

Other functions 57 Studies as to economy, efficiency etc 58 Additional functions

Supplementary 59 Criteria 60 Provision of material 61 Co-operation between CHAI and the regulator 62 Fees 63 Fees: Wales 64 Reports and information 65 Co-operation between CHAI and the Audit Commission 66 Right of entry 67 Right of entry: supplementary 68 Power to require documents and information etc 69 Power to require explanation

CHAPTER 4

NHS HEALTH CARE: FUNCTIONS OF NATIONAL ASSEMBLY FOR WALES

Reviews and investigations 70 Reviews and investigations relating to Wales 71 Reporting to Secretary of State and regulator

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

Ancillary powers 72 Right of entry 73 Right of entry: supplementary 74 Power to require documents and information 75 Power to require explanation

CHAPTER 5

SOCIAL SERVICES: FUNCTIONS OF CSCI

Provision of social services 76 Introductory 77 Information and advice 78 Review of studies and research 79 Annual reviews 80 Other reviews and investigations 81 Failings

Other functions 82 Studies as to economy, efficiency etc 83 Joint working with Audit Commission 84 Additional functions

Supplementary 85 Criteria 86 Fees 87 Reports and information 88 Right of entry 89 Right of entry: supplementary 90 Power to require information etc 91 Power to require explanation

CHAPTER 6

SOCIAL SERVICES: FUNCTIONS OF NATIONAL ASSEMBLY FOR WALES

Provision of social services 92 General function 93 Reviews of studies and research 94 Reviews and investigations 95 Studies as to economy, efficiency etc 96 Additional functions 97 General considerations

Ancillary powers 98 Right of entry 99 Right of entry: supplementary

100 Power to require information 101 Power to require explanation

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

CHAPTER 7

FUNCTIONS UNDER THE CARE STANDARDS ACT 2000

Functions of CHAI and CSCI 102 Transfer of functions to CHAI and CSCI 103 General functions of CHAI 104 General functions of CSCI 105 Fees

Miscellaneous 106 Meaning of “independent medical agency” 107 Children’s homes providing secure accommodation 108 Information and inspection 109 Assembly: duties relating to children

CHAPTER 8

OTHER FUNCTIONS OF CSCI

110 Boarding schools and colleges 111 Boarding schools and colleges: reports 112 Secure training centres

CHAPTER 9

COMPLAINTS

113 Complaints about health care 114 Complaints about social services 115 Complaints regulations: supplementary 116 Further consideration of representations under the Children Act 1989 117 Representations relating to special guardianship support services 118 Complaints about handling of complaints 119 Complaints: data protection

CHAPTER 10

SUPPLEMENTARY AND GENERAL

Joint working 120 Co-operation etc 121 Reviews and investigations 122 Joint annual reviews 123 Power to assist

Arrangements with public authorities 124 Arrangements with Ministers etc: CHAI 125 Arrangements with Ministers etc: CSCI 126 Arrangements with the Isle of Man and Channel Islands: CHAI

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

127 Arrangements with the Isle of Man and Channel Islands: CSCI

Reports 128 Reports: CHAI 129 Reports: CSCI

Relationship with government 130 Duty to have regard to government policy: CHAI 131 Duty to have regard to government policy: CSCI 132 Failure in discharge of functions: CHAI 133 Failure in discharge of functions: CSCI

Inquiries 134 Inquiries: CHAI 135 Inquiries: CSCI

Information 136 Disclosure of information obtained by CHAI 137 Section 136: defence 138 Information obtained by CHAI: supplementary 139 Information obtained by CSCI: supplementary 140 Code of practice: CHAI 141 Code of practice: CSCI

Wales: supplementary 142 Annual reports of Assembly 143 Use by Assembly of information 144 Inquiries: Wales 145 Co-operation between Assembly and CHAI

General 146 Offences by bodies corporate 147 Minor and consequential amendments 148 Interpretation of Part 2 149 References to the provision of health care

PART 3

RECOVERY OF NHS CHARGES

NHS charges 150 Liability to pay NHS charges

Certificates of NHS charges 151 Applications for certificates of NHS charges 152 Section 151: supplementary

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

153 Information contained in certificates

Recovery of NHS charges 154 Payment of NHS charges 155 Recovery of NHS charges

Review and appeal 156 Review of certificates 157 Appeal against a certificate or a waiver decision 158 Appeal tribunals 159 Appeal to Social Security Commissioner

Information 160 Provision of information 161 Use of information held by the Secretary of State or the Scottish Ministers etc.

Payments to hospitals or ambulance trusts 162 Payment of NHS charges to hospitals or ambulance trusts

Miscellaneous and general 163 Regulations governing lump sums, periodical payments etc 164 Liability of insurers 165 Power to apply Part 3 to treatment at non-health service hospitals 166 The Crown 167 Regulations 168 Interpretation of Part 3 169 Consequential and minor repeals

PART 4

DENTAL AND MEDICAL SERVICES

Primary dental services 170 Provision of primary dental services 171 Dental public health 172 General dental services contracts 173 General dental services: transitional

Primary medical services 174 Provision of primary medical services 175 General medical services contracts 176 General medical services: transitional

Primary dental and medical services: supplementary 177 Arrangements under section 28C of the 1977 Act 178 Abolition of pilot schemes

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

179 Persons performing primary medical and dental services 180 Assistance and support

Dental services: miscellaneous 181 Abolition of Dental Practice Board 182 Special Health Authorities 183 Charges for dental services

General 184 Minor and consequential amendments

PART 5

MISCELLANEOUS

Welfare Food Schemes 185 Replacement of the Welfare Food Schemes: Great Britain 186 Replacement of the Welfare Food Schemes: Northern Ireland

Appointments and employment 187 Appointments to certain health and social care bodies 188 Appointments to certain health and social care bodies: joint functions 189 Validity of clearance for employment in certain NHS posts

Public Health Laboratory Service Board 190 Abolition of Public Health Laboratory Service Board

Other provisions 191 Loans by Secretary of State to NHS trusts 192 Amendment of provision relating to reform of Welsh health authorities

PART 6

FINAL PROVISIONS

193 Financial provisions 194 Interpretation 195 Orders and regulations 196 Repeals and revocations 197 Wales 198 Isles of Scilly 199 Commencement 200 Transitional or transitory provision and savings 201 Supplementary and consequential provision 202 Extent 203 Short title

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

Schedule 1 — Constitution of public benefit corporations Schedule 2 — Independent Regulator of NHS Foundation Trusts Schedule 3 — Transfer of staff Schedule 4 — Amendments relating to NHS foundation trusts Schedule 5 — Audit of accounts of NHS foundation trusts Schedule 6 — CHAI: supplementary Schedule 7 — CSCI: supplementary Schedule 8 — CHAI and CSCI: transfers of property and staff, etc Schedule 9 — Part 2: minor and consequential amendments

Schedule 10 — Recovery of NHS charges: exempted payments Schedule 11 — Part 4: minor and consequential amendments Schedule 12 — Privy Council appointments Schedule 13 — Amendments consequential on the abolition of the Public

Health Laboratory Service Board Schedule 14 — Repeals and revocations

Part 1 — NHS foundation trusts Part 2 — Standards Part 3 — Recovery of NHS charges Part 4 — Dental and medical services Part 5 — Replacement of Welfare Food Schemes Part 6 — Loans by Secretary of State to NHS trusts Part 7 — Abolition of the Public Health Laboratory Service Board

ELIZABETH II c. 43

Health and Social Care (Community Health and Standards) Act 2003

2003 CHAPTER 43

An Act to amend the law about the National Health Service; to make provision about quality and standards in the provision of health and social care, including provision establishing the Commission for Healthcare Audit and Inspection and the Commission for Social Care Inspection; to amend the law about the recovery of NHS costs from persons making compensation payments; to provide for the replacement of the Welfare Food Schemes; to make provision about appointments to health and social care bodies; and for connected purposes. [20th November 2003]

E IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

PART 1

NHS FOUNDATION TRUSTS

Introductory

1 NHS foundation trusts

(1) An NHS foundation trust is a public benefit corporation which is authorised under this Part to provide 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 Part, is constituted in accordance with Schedule 1.

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

2 Independent Regulator of NHS Foundation Trusts

(1) There is to be a body corporate known as the Independent Regulator of NHS Foundation Trusts (referred to in this Part as “the regulator”).

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

3 General duty of regulator

The regulator must exercise its functions in a manner that is consistent with the performance by the Secretary of State of the duties under sections 1, 3 and 51 of the National Health Service Act 1977 (c. 49) (duty as to health service and services generally and as to university clinical teaching and research).

Authorisation

4 Applications by NHS trusts

(1) An NHS trust may make an application to the regulator for authorisation to become an NHS foundation trust, if the application is supported by the Secretary of State.

(2) The application must— (a) describe the goods and services which the NHS trust proposes should

be provided by the NHS foundation trust, and (b) be accompanied by a copy of the proposed constitution of the trust;

and must give any further information which the regulator requires the NHS trust to give.

(3) The applicant may modify the application with the agreement of the regulator at any time before authorisation is given under section 6.

(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 1 have effect, but only for the purpose of establishing the initial membership of the NHS foundation trust and of the board of governors, and the initial directors, and enabling the board 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 16 of Schedule 2 to the National Health Service and Community Care Act 1990 (c. 19) (general powers)) which appears to it to be necessary or desirable for the purpose of preparing it for NHS foundation trust status.

5 Other applications

(1) An application may be made to the regulator by persons (other than an NHS trust) to be incorporated as a public benefit corporation and authorised to become an NHS foundation trust, if the application is supported by the Secretary of State.

(2) The application must— (a) describe the goods and services which the applicants propose should

be provided by the trust, and

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

(b) be accompanied by a copy of the proposed constitution of the trust; and must give any further information which the regulator requires the applicants to give.

(3) If it appears to the regulator that— (a) provision of the goods and services described in the application is

likely to assist in the performance of the duties mentioned in section 3, (b) the trust as proposed to be constituted will be able to provide those

goods and services, and (c) the proposed constitution accords with Schedule 1 and is otherwise

appropriate, the regulator may issue a certificate of incorporation.

(4) The applicants may modify the application with the agreement of the regulator at any time before the certificate is issued.

(5) On the issue of the certificate, the applicants are incorporated as a public benefit corporation.

(6) The certificate is conclusive evidence of incorporation.

(7) Once the certificate has been issued— (a) the proposed constitution has effect, but the applicants may exercise

the functions of the corporation on its behalf until a board of directors is appointed in accordance with the constitution,

(b) the corporation may do anything (including the things mentioned in section 18) which appears to it to be necessary or desirable for the purpose of preparing it for NHS foundation trust status.

6 Authorisation of NHS foundation trusts

(1) The regulator may give an authorisation under this section— (a) to an NHS trust which has applied under section 4, or (b) to a public benefit corporation,

if the regulator is satisfied as to the following matters.

(2) The matters are that— (a) the applicant’s constitution will be in accordance with Schedule 1 and

will otherwise be appropriate, (b) the applicant has taken steps to secure that (taken as a whole) the actual

membership of any public constituency, and (if there is one) of the patients’ constituency, will be representative of those eligible for such membership,

(d) the steps necessary to prepare for NHS foundation trust status have been taken,

(e) the applicant will be able to provide the goods and services which the authorisation is to require it to provide, and

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

(3) In deciding whether it is satisfied as to the matters referred to in subsection (2)(e), the regulator is to consider (among other things)—

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

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

(b) the financial position of the applicant.

(4) The authorisation may be given on any terms the regulator considers appropriate.

(5) The regulator must not give an authorisation unless it is satisfied that the applicant has sought the views about the application of the following—

(a) if the applicant is an NHS trust, the Patients’ Forum for the trust and the staff employed by the trust,

(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 board of governors,

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

(e) any persons prescribed by regulations.

(6) If regulations make provision about consultation, the regulator may not give an authorisation unless it is satisfied that the applicant has complied with the regulations.

(7) The generality of the power in subsection (4) is not affected by the following provisions of this Part.

7 Effect 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.

(2) In consequence of subsection (1)(a), any order made under section 5(1) of the 1990 Act (establishment of the NHS trust) is revoked.

(3) On an authorisation being given to a body corporate which is a public benefit corporation, it becomes an NHS foundation trust.

(4) The authorisation is conclusive evidence that the body in question is an NHS foundation trust.

(5) Subsections (1) to (3) do not affect the continuity of the body or of its property or liabilities.

(6) 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.

(7) An NHS foundation trust is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the trust’s property is not to be regarded as property of, or property held on behalf of, the Crown.

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

8 Amendments of constitution

An NHS foundation trust may make amendments of its constitution with the approval of the regulator.

9 Variation of authorisation

(1) The regulator may vary an authorisation.

(2) In deciding whether or not to vary an authorisation the regulator is to have regard (among other things) to—

(a) any report or recommendation made to it by virtue of section 21(2)(f) of the Local Government Act 2000 (c. 22) (overview and scrutiny committees),

(b) any report or recommendation made to it by the Commission for Patient and Public Involvement in Health under section 20(5)(b) or (6) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17).

10 Register of NHS foundation trusts

(1) The regulator must establish and 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, (b) a copy of the current authorisation, (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, (e) a copy of the latest document sent to the regulator under paragraph 27

of Schedule 1 (forward planning), (f) a copy of any notice given under section 23 (failing NHS foundation

trusts).

(3) In relation to any time before an NHS foundation trust is first required to send an annual report to the regulator, the register must contain a list of the persons who were first elected or appointed as—

(a) the members of the board of governors, (b) the directors.

(4) Members of the public may inspect the register at any reasonable time.

(5) Any person who requests it is to be provided with a copy of or extract from any document contained in the register on payment of a reasonable charge.

Financial matters

11 Power 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.

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

(3) The Secretary of State may guarantee the payment of any amount payable by an NHS foundation trust under an externally financed development agreement.

“Externally financed development agreement” has the same meaning as in section 1 of the National Health Service (Private Finance) Act 1997 (c. 56), reading references in subsections (3) and (5) of that section to the trust as references to the NHS foundation trust.

12 Prudential borrowing code

(1) The regulator must make a code for determining the limit on the total amount of the borrowing of any NHS foundation trust.

(2) In making the code the regulator is to have regard (among other things) to any generally accepted principles used by financial institutions to determine the amounts of loans to non-profit making bodies.

A body is non-profit making if it does not carry on activities for the purpose of making profits for distribution to its members or others.

(3) Before making the code, the regulator must consult— (a) the Secretary of State, (b) every NHS trust intending to make an application to become an NHS

foundation trust, (c) such other persons as the regulator considers appropriate.

(4) The regulator must lay a copy of the code before Parliament.

(5) The regulator may revise the code; and subsections (2) to (4) apply in relation to revising the code, but the regulator must also consult every NHS foundation trust.

13 Public dividend capital

(1) Where an NHS trust becomes an NHS foundation trust, the amount which was the public dividend capital of the 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 11 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 is to be treated as having been issued.

(4) But the dividend to be paid by the trust is to be the same as that payable by NHS trusts in England in pursuance of section 9(7) of the 1990 Act (dividend on public dividend capital).

(5) Before exercising the power in subsection (3), the Secretary of State must consult the regulator.

(6) Any amount paid to the Secretary of State by an NHS foundation trust by way of repayment of public dividend capital is to be paid into the Consolidated Fund.

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

Functions

14 Authorised services

(1) An authorisation must authorise the NHS foundation trust to provide goods and services for purposes related to the provision of health care.

(2) But the authorisation must secure that the principal purpose of the trust is the provision of goods and services for the purposes of the health service in England.

(3) The trust may also carry on activities other than those mentioned in subsection (1), subject to any restrictions in the authorisation, for the purpose of making additional income available in order to carry on its principal purpose better.

(4) The authorisation may require the provision, wholly or partly for the purposes of the health service in England, of goods and services by the trust.

(5) References in this Part to goods and services include, in particular— (a) education and training, (b) accommodation and other facilities.

(6) The authorisation must authorise and may require the trust— (a) to carry out research in connection with the provision of health care, (b) to make facilities and staff available for the purposes of education,

training or research carried on by others; and, in deciding how to exercise its functions under this subsection in a case where any of the corporation’s hospitals includes a medical or dental school provided by a university, the regulator is to have regard to the need to establish and maintain appropriate arrangements with the university.

(7) In deciding whether or not to require the trust to provide, wholly or partly for the purposes of the health service in England, any goods or services the regulator is to have regard (among other things) to—

(a) the need for the provision of goods or services in the area in question, (b) any provision of goods or services by other health service bodies in the

area in question, (c) any other provision by the trust with which the provision of the goods

or services is connected, (d) any agreement or arrangement to which the body corporate which is

the trust is or was a party.

(8) Such a requirement as is mentioned in subsection (4) may be framed by reference (among other things) to—

(a) goods or services in general or of a particular description, (b) goods or services required to meet the needs of health service bodies in

general or those of a particular description, (c) goods or services required to meet the needs of other persons of a

particular description, (d) the volume of goods or services provided, (e) the place where goods or services are provided, (f) the period within which goods or services are provided.

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

15 Private health care

(1) An authorisation may restrict the provision, for purposes other than those of the health service in England, of goods and services by an NHS foundation trust.

(2) The power is to be exercised, in particular, with a view to securing that the proportion of the total income of an NHS foundation trust which was an NHS trust in any financial year derived from private charges is not greater than the proportion of the total income of the NHS trust derived from such charges in the base financial year.

(3) The base financial year means the first financial year throughout which the body corporate was an NHS trust or, if it was an NHS trust throughout the financial year ending with 31st March 2003, that year.

(4) Private charges means charges imposed in respect of goods and services provided to patients other than patients being provided with goods and services for the purposes of the health service.

(5) Section 14(8) applies for the purposes of this section.

16 Protection of property

(1) An NHS foundation trust may not dispose of any protected property without the approval of the regulator.

Disposing of property includes disposing of part of it or granting an interest in it.

(2) Protected property is property of the trust designated as protected in its authorisation.

(3) The regulator may designate property as protected if it considers it is needed— (a) for the purposes of any goods or services which the authorisation

requires the trust to provide wholly or partly for the purposes of the health service in England, or

(b) for the purpose of doing anything which the trust is required to do under section 14(6).

(4) The regulator may give approval under subsection (1) on any terms it considers appropriate.

(5) An NHS foundation trust may not create a floating charge on its property.

17 Financial powers

(1) An NHS foundation trust may borrow money for the purposes of or in connection with its functions.

(2) But the total amount of the trust’s borrowing is subject to the limit imposed by its authorisation.

(3) The limit must be reviewed annually by the regulator.

(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—

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

(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.

18 General powers

(1) An NHS foundation trust may do anything which appears to it to be necessary or desirable for the purposes 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 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).

19 Information

(1) An authorisation— (a) must require an NHS foundation trust to disclose such information as

the Secretary of State specifies to the regulator, (b) may require an NHS foundation trust to disclose other information to

the regulator.

(2) The regulator may require any other health service body to disclose any information which the regulator requires for the purposes of its functions.

20 Entry and inspection of premises

An authorisation may require an NHS foundation trust to allow the regulator to enter and inspect premises owned or controlled by the trust.

21 Fees

An authorisation may require an NHS foundation trust to pay a reasonable annual fee to the regulator.

22 Trust funds and trustees

(1) The Secretary of State may by order provide for the appointment of trustees for an NHS foundation trust to hold property on trust—

(a) for the purposes of the NHS foundation trust, or (b) for any purposes relating to the health service.

(2) The order may—

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

(a) make provision as to the persons by whom trustees are to be appointed and generally as to the method of their appointment,

(b) make any appointment subject to such conditions as may be specified in the order (including conditions requiring the consent of the Secretary of State),

(c) make provision as to the number of trustees to be appointed, including provision under which that number may from time to time be determined by the Secretary of State after consultation with such persons as he considers appropriate,

(d) make provision with respect to the term of office of any trustee and his removal from office.

(3) Where trustees have been appointed for an NHS foundation trust under this section, the Secretary of State may by order provide for the transfer of any trust property from the NHS foundation trust to the trustees.

(4) Where an NHS trust for which trustees have been appointed under section 11 of the 1990 Act is given an authorisation, the order appointing the trustees is to have effect as an order under this section.

Failure

23 Failing NHS foundation trusts

(1) If the regulator is satisfied— (a) that an NHS foundation trust is contravening, or failing to comply

with, any term of its authorisation or any requirement imposed on it under any enactment and that the contravention or failure is significant, or

(b) that an NHS foundation trust has contravened, or failed to comply with, any such term or requirement and is likely to do so again and that the contravention or failure was significant,

the regulator may by a notice to the trust exercise any one or more of the powers in subsections (3) and (4).

(2) The regulator may also by a notice to the trust exercise any one or more of those powers if the regulator is satisfied that the trust has contravened or failed to comply with a previous notice.

(3) The regulator may require the trust, the directors or the board of governors to do, or not to do, specified things or things of a specified description within a specified period.

(4) The regulator may remove any or all of the directors or members of the board of governors and appoint interim directors or members of the board.

(5) The regulator’s power to remove a director, or member of the board of governors, of the trust includes power to suspend him from office, or to disqualify him from holding office, as a director or member of the board of governors of the trust for a specified period.

24 Voluntary arrangements

(1) If the regulator is satisfied that it is necessary or desirable to do so, it may by a notice to an NHS foundation trust require the directors—

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

(a) to take steps to obtain a moratorium, or (b) to make a proposal for a voluntary arrangement.

(2) An order may provide for Part 1 of the Insolvency Act 1986 (c. 45) (company voluntary arrangements), including any related provision of that Act, to apply with modifications in relation to NHS foundation trusts; and the references in this Part to a moratorium or voluntary arrangement are to a moratorium under section 1A, or a voluntary arrangement under Part 1, of that Act as modified by the order.

25 Dissolution etc.

(1) The powers conferred by this section are exercisable where— (a) an NHS foundation trust contravenes or fails to comply with a notice

under section 23 or 24 or the trust’s compliance with a notice under section 24 does not result in the implementation of a voluntary arrangement, and

(b) the regulator considers that further exercise of any of the powers conferred by those sections would not be likely to secure the provision of the goods and services which the authorisation requires the trust to provide.

(2) Before the powers conferred by this section are exercised, the regulator must consult prescribed persons about prescribed matters.

“Prescribed” means prescribed by an order.

(3) An order may transfer, or provide for the transfer of, any property or liabilities of the trust to—

(a) another NHS foundation trust, (b) a Primary Care Trust, (c) an NHS trust, (d) the Secretary of State.

(4) Schedule 3 (which provides for the transfer of employees) has effect.

(5) An order may provide for the dissolution of the trust.

(6) An order may apply any provision of Part 4 of the Insolvency Act 1986 (winding up of companies), including any related provision of that Act, with modifications.

(7) Where the regulator refuses to give an authorisation to a public benefit corporation—

(a) the powers conferred by this section are also exercisable, (b) references in this section and Schedule 3 to an NHS foundation trust are

to be read as references to the corporation.

26 Sections 24 and 25: supplementary

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

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

(a) provision for securing that the goods and services which the trust is required by the authorisation to provide continue to be provided (whether by the trust or another),

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

(b) provision for securing the protection of property needed for the purposes of those goods and services.

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

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

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

Mergers

27 Mergers

(1) An application may be made jointly by— (a) an NHS foundation trust, and (b) another NHS foundation trust or an NHS trust,

to the regulator for authorisation of the dissolution of the trusts and the transfer of some or all of their property and liabilities to a new NHS foundation trust established under this section.

(2) The application must— (a) be supported by the Secretary of State if one of the parties to it is an

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

new NHS foundation trust, (c) describe the goods and services which it is proposed should be

provided by the new trust, and (d) be accompanied by a copy of the proposed constitution of the new

trust; and must give any further information which the regulator requires the applicants to give.

(3) The applicants may modify the application with the agreement of the regulator at any time before authorisation is given under this section.

(4) The regulator may— (a) issue a certificate incorporating the directors of the applicants as a

public benefit corporation, and (b) give an authorisation under this section to the corporation to become an

NHS foundation trust, if the regulator is satisfied as to the following matters.

(5) The matters are that— (a) the constitution of the new trust will be in accordance with Schedule 1

and will otherwise be appropriate, (b) the applicant has taken steps to secure that (taken as a whole) the actual

membership of any public constituency, and (if there is one) of the

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

patients’ constituency, will be representative of those eligible for such membership,

(c) the new trust will be able to provide the goods and services which the authorisation is to require it to provide, and

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

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

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

(b) the financial position of the applicants.

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

(8) In the course of the consultation the applicants must seek the views of — (a) any Patients’ Forum for an applicant, (b) the staff employed by the applicants, (c) individuals who live in any area specified in the proposed constitution

as the area for a public constituency, (d) any local authority that would be authorised by the proposed

constitution to appoint a member of the board of governors, (e) if the proposed constitution provides for a patients’ constituency,

individuals who would be able apply to become members of that constituency,

(f) any persons prescribed by regulations.

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

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

(11) On an authorisation being given under this section, the proposed constitution of the NHS foundation trust has effect, but the directors of the applicants may exercise the functions of the trust on its behalf until a board of directors is appointed in accordance with the constitution.

28 Section 27: supplementary

(1) Where an authorisation is given under section 27, the regulator is to specify the property and liabilities to be transferred to the new NHS foundation trust.

(2) Where such an authorisation is given, the Secretary of State is to make an order—

(a) dissolving the trusts in question, and (b) transferring, or providing for the transfer of, the property and liabilities

specified by the regulator to the new NHS foundation trust.

(3) The order may— (a) transfer, or provide for the transfer of, any of the remaining property or

liabilities to the persons mentioned in section 25(3), (b) include provisions corresponding to those of Schedule 3.

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

(4) Where one of the parties to an application under section 27 is an NHS trust, the powers conferred on the Secretary of State by Part 4 of Schedule 2 to the 1990 Act are not exercisable in relation to the trust.

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

Co-operation

29 Co-operation between NHS bodies

In section 26 of the Health Act 1999 (c. 8) (co-operation between NHS bodies), for “and NHS trusts” there is substituted “, NHS trusts and NHS foundation trusts”.

Patient and public involvement

30 Public involvement and consultation

In section 11(2) of the Health and Social Care Act 2001 (c. 15) (public involvement and consultation), at the end there is inserted—

“(d) NHS foundation trusts”.

31 Patients’ Forums

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

(2) In section 15 (establishment of patients’ forums)— (a) in subsection (1), after paragraph (b) there is inserted “and

committee”, for “or NHS trust” there is substituted “, NHS trust or NHS foundation trust”.

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

“(fa) NHS foundation trusts,”.

(4) In section 18 (annual reports) in subsection (2)— (a) in paragraph (c)(ii), after “NHS trust” there is inserted “or NHS

foundation trust”, (b) after paragraph (d) there is inserted—

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

(5) In section 19 (supplementary) in subsection (2)— (a) in paragraph (k), after “an NHS trust,” there is inserted “an NHS

foundation trust,”, (b) in paragraph (p), after “NHS trusts,” there is inserted “NHS foundation

trusts,”;

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

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

32 Commission for Patient and Public Involvement in Health

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

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

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

Miscellaneous

33 Taxation

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

“(bb) an NHS foundation trust”.

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

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

34 Other amendments relating to NHS foundation trusts

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

35 Conduct of elections

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

(2) The regulations may in particular provide for— (a) nomination of candidates and obligations to declare their interests, (b) systems and methods of voting, and the allocation of places on the

board of governors, at contested elections, (c) filling of vacancies, (d) supervision of elections, (e) election expenses and publicity, (f) questioning of elections and the consequences of irregularities.

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

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

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

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

36 Offence

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

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

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

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

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

(6) A person is guilty of an offence if he— (a) makes a declaration under this section which he knows to be false in a

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

particular.

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

37 Representative membership

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

38 Audit

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

39 General duty of NHS foundation trusts

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

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 1 — NHS foundation trusts

Supplementary

40 Interpretation of Part 1

(1) In this Part— “the 1990 Act” means the National Health Service and Community Care

Act 1990 (c. 19), “authorisation” means an authorisation under section 6 or 27, “health service body” means a Strategic Health Authority, a Special

Health Authority, an NHS trust, an NHS foundation trust or a Primary Care Trust,

“regulations” means regulations made by the Secretary of State.

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

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

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

PART 2

STANDARDS

CHAPTER 1

REGULATORY BODIES

41 The Commission for Healthcare Audit and Inspection

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

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

42 The Commission for Social Care Inspection

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

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

43 Transfer of property etc to CHAI and CSCI

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

44 Abolition of former regulatory bodies

(1) The Commission for Health Improvement is abolished.

(2) The National Care Standards Commission is abolished.

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 2 — Standards

Chapter 2 — NHS health care: introductory

CHAPTER 2

NHS HEALTH CARE: INTRODUCTORY

45 Quality in health care

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

(2) In this Part “health care” means— (a) services provided to individuals for or in connection with the

prevention, diagnosis or treatment of illness; and (b) the promotion and protection of public health.

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

46 Standards set by Secretary of State

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

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

(3) The Secretary of State must consult such persons as he considers appropriate— (a) before publishing a statement under this section; (b) before publishing an amended statement under this section which in

the opinion of the Secretary of State effects a substantial change in the standards.

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

47 Standards set by Assembly

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

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

(3) The Assembly must consult such persons as it considers appropriate— (a) before publishing a statement under this section; (b) before publishing an amended statement under this section which in

the opinion of the Assembly effects a substantial change in the standards.

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

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CHAPTER 3

NHS HEALTH CARE: FUNCTIONS OF CHAI

Healthcare provided by and for NHS bodies

48 Introductory

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

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

(a) the availability of, and access to, the health care; (b) the quality and effectiveness of the health care; (c) the economy and efficiency of the provision of the health care; (d) the availability and quality of information provided to the public about

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

and (f) the effectiveness of measures taken for the purpose of paragraph (e) by

the body in question and any person who provides, or is to provide, health care for that body.

49 National performance data

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

50 Annual reviews

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

(a) each English NHS body, and (b) each cross-border SHA,

and must award a performance rating to each such body.

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

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

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

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

(a) the body being reviewed; and (b) any person who provides, or is to provide, health care for that body

(wherever the health care is or is to be provided).

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Chapter 3 — NHS health care: functions of CHAI

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

51 Reviews: England and Wales

(1) The CHAI has the function of conducting reviews of— (a) the overall provision of health care by and for NHS bodies; (b) the overall provision of particular kinds of health care by and for NHS

bodies; (c) the provision of health care, or a particular kind of health care, by and

for NHS bodies of a particular description.

(2) If the Secretary of State so requests, the CHAI must conduct— (a) a review under subsection (1)(a); (b) a review under subsection (1)(b) of the overall provision of a kind of

health care specified in the request; or (c) a review under subsection (1)(c) of the provision of health care, or

health care of a kind specified in the request, by or for NHS bodies of a description so specified.

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

(4) In conducting a review under this section in relation to any health care the CHAI must take into account—

(a) the standards set out in statements published under section 46, where the health care is provided by or for an English NHS body or cross- border SHA;

(b) the standards set out in statements published under section 47, where the health care is provided by or for a Welsh NHS body.

(5) For the purposes of this section the CHAI may carry out an inspection of— (a) any NHS body; and (b) any person who provides, or is to provide, health care for an NHS body

(wherever the health care is or is to be provided).

(6) Where the CHAI conducts a review under this section it must publish a report.

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

52 Reviews and investigations: England

(1) The CHAI has the function of conducting other reviews of, and investigations into, the provision of health care by and for English NHS bodies and cross- border SHAs.

(2) The CHAI may in particular under this section conduct— (a) a review of the overall provision of health care by and for English NHS

bodies and cross-border SHAs;

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 2 — Standards Chapter 3 — NHS health care: functions of CHAI

(b) a review of the overall provision of a particular kind of health care by and for English NHS bodies and cross-border SHAs;

(c) a review of, or investigation into, the provision of any health care by or for a particular English NHS body or cross-border SHA.

(3) The CHAI has the function of conducting reviews of the arrangements made by English NHS bodies and cross-border SHAs for the purpose of discharging their duty under section 45.

(4) If the Secretary of State so requests, the CHAI must conduct— (a) a review under subsection (2)(a); (b) a review under subsection (2)(b) of the overall provision of a kind of

health care specified in the request; (c) a review or investigation under subsection (2)(c), or a review under

subsection (3), in relation to the provision of such health care by or for such body as may be specified in the request.

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

(6) For the purposes of this section the CHAI may carry out an inspection of— (a) any English NHS body or cross-border SHA; and (b) any person who provides, or is to provide, health care for such a body

(wherever the health care is or is to be provided).

(7) Where the CHAI conducts a review or investigation under this section it must publish a report.

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

(9) The Secretary of State may by regulations require an NHS body to publish a statement as to the action it proposes to take as a result of any review or investigation conducted under this section in relation to it.

(10) Regulations under subsection (9) may make provision— (a) as to the matters with which a statement under the regulations must

deal; (b) as to the time by which any such statement must be published; (c) requiring an NHS body, before publishing any such statement, to

obtain the consent of any person specified in the regulations; (d) requiring the NHS body publishing any such statement to send a copy

of it to any person so specified.

53 Failings

(1) This section applies where the CHAI conducts— (a) a review under section 50 or 51; or (b) a review or investigation under section 52.

(2) The CHAI must make a report to the Secretary of State if it is of the view that— (a) there are significant failings in relation to the provision of health care

by or for an English NHS body or cross-border SHA;

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Chapter 3 — NHS health care: functions of CHAI

(b) there are significant failings in the running of an English NHS body or cross-border SHA; or

(c) there are significant failings in the running of any body, or the practice of any individual, providing health care for an English NHS body or cross-border SHA.

(3) A report made to the Secretary of State under subsection (2) may include a recommendation that, with a view to remedying the failings in question, the Secretary of State take special measures in relation to—

(a) in a case falling within paragraph (a) or (b) of subsection (2), the English NHS body or cross-border SHA in question;

(b) in a case falling within paragraph (c) of that subsection, any person, other than a Welsh NHS body, referred to in that paragraph.

(4) The CHAI must also report to the Assembly where it is of the view that— (a) there are significant failings in relation to the provision of health care

by or for a Welsh NHS body; (b) there are significant failings in the running of a Welsh NHS body; or (c) there are significant failings in the running of any body, or the practice

of any individual, providing health care for a Welsh NHS body.

(5) A report made to the Assembly under subsection (4) may include a recommendation that, with a view to remedying the failings in question, the Assembly take special measures in relation to—

(a) in a case falling within paragraph (a) or (b) of subsection (4), the Welsh NHS body in question; and

(b) in a case falling within paragraph (c) of that subsection, any person, other than an English NHS body or cross-border SHA, referred to in that paragraph.

(6) The CHAI must also make a report to the regulator where it is of the view that—

(a) there are significant failings in relation to the provision of health care by or for an NHS foundation trust;

(b) there are significant failings in the running of an NHS foundation trust; or

(c) there are significant failings in the running of any body, or the practice of any individual, providing health care for an NHS foundation trust.

(7) A report made to the regulator under subsection (6) may include a recommendation that, with a view to remedying the failings in question, the regulator take special measures in relation to the NHS foundation trust in question.

(8) A report under this section must give the CHAI’s reasons for its view and for any recommendation made.

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

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 2 — Standards Chapter 3 — NHS health care: functions of CHAI

54 Functions relating to Secretary of State and Assembly

(1) The CHAI is to keep the appropriate authority informed about the provision of health care by and for any NHS body.

(2) The CHAI may at any time give advice to the appropriate authority on any matter connected with the provision of such health care (including, in particular, advice on any changes which it thinks should be made to the standards under section 46 or 47 for the purpose of securing improvement in the quality of the health care).

(3) When requested to do so by the appropriate authority, the CHAI must give the authority advice or information on such matters connected with the provision of health care by or for any NHS body as may be specified in the request.

(4) The CHAI may give advice to the appropriate authority or any NHS body about the establishment or conduct of any inquiry held, or to be held, by the authority or the body in relation to the provision of health care by or for that body.

(5) In this section, the “appropriate authority” means— (a) the Secretary of State, in relation to the provision of health care by or for

an English NHS body or cross-border SHA; or (b) the Assembly, in relation to the provision of health care by or for a

Welsh NHS body.

55 Reviews of data

(1) The CHAI may review— (a) the quality of data obtained by others in relation to the provision of

health care by and for NHS bodies; (b) the methods used in the collection and analysis of such data; and (c) the validity of conclusions drawn from such data.

(2) Where the CHAI conducts a review under this section it must publish a report.

56 Co-ordination of reviews

The CHAI has the function of promoting the effective co-ordination of reviews or assessments carried out by public bodies or other persons in relation to the provision of health care by or for English NHS bodies and cross-border SHAs.

Other functions

57 Studies as to economy, efficiency etc

(1) The CHAI has the function of promoting or undertaking comparative or other studies designed to enable it to make recommendations for improving economy, efficiency and effectiveness in the exercise of any of the functions of an English NHS body, other than a Special Health Authority (whether the functions are exercised by the English NHS body or by another person).

(2) The CHAI may exercise its function under subsection (1) in relation to a body on the CHAI’s own initiative or at the request of the body concerned.

(3) For the purposes of this section the CHAI may carry out an inspection of—

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Chapter 3 — NHS health care: functions of CHAI

(a) any English NHS body other than a Special Health Authority; (b) any person exercising the functions of such a body.

(4) The CHAI must publish its recommendations and the result of any studies under this section.

(5) The Secretary of State may, after consulting the CHAI, by regulations make provision as to the procedure to be followed in respect of the making of representations to the CHAI before the publication of any recommendations or the result of any studies under this section.

(6) The CHAI’s functions under this section may be exercised on its behalf by the Audit Commission, if the Audit Commission and the CHAI so agree.

(7) Where the Audit Commission exercises functions under subsection (6), it shall do so on such terms, including terms as to payment, as the CHAI and the Audit Commission may agree.

58 Additional functions

(1) The Secretary of State may by regulations provide that the CHAI is to have such additional functions as may be prescribed in relation to—

(a) the provision of health care by or for NHS bodies; (b) the improvement of—

(i) economy, efficiency and effectiveness in the exercise of the functions of English NHS bodies; and

(ii) the financial or other management, or operations, of English NHS bodies.

(2) The Secretary of State must consult the regulator before making provision under subsection (1) in relation to NHS foundation trusts.

(3) The Secretary of State must obtain the consent of the Assembly before making provision under subsection (1)(a) in relation to health care provided by or for a Welsh NHS body other than health care provided by or for an English NHS body or cross-border SHA.

Supplementary

59 Criteria

(1) The Secretary of State may, after consulting the CHAI, make regulations requiring the CHAI to devise and publish statements of criteria to be used in—

(a) the exercise of any of its functions under section 48(1), 49, 51 or 53 in relation to the provision of health care by or for an English NHS body or cross-border SHA;

(b) the exercise of any of its functions under section 52, 56, 57 or 58(1)(b).

(2) The Assembly may, after consulting the CHAI, make regulations requiring the CHAI to devise and publish statements of criteria to be used in the exercise of its functions under section 48(1), 49, 51 or 53 in relation to the provision of health care by or for a Welsh NHS body.

(3) In relation to any function conferred on the CHAI under subsection (1)(a) of section 58, regulations under that section may provide that any one or more of

Health and Social Care (Community Health and Standards) Act 2003 (c. 43) Part 2 — Standards Chapter 3 — NHS health care: functions of CHAI

the following provisions of this section shall have effect as if it included a reference to the exercise of that function—

(a) subsection (1)(a); (b) subsection (1)(b); (c) subsection (2).

(4) Regulations under this section may require the CHAI— (a) to consult any person specified in the regulations before publishing a

statement under subsection (1) or (2); (b) to obtain the consent of the Secretary of State before publishing a

statement under subsection (1); (c) to obtain the consent of the Assembly before publishing a statement

under subsection (2).

60 Provision of material

(1) The CHAI must, on request, provide the Comptroller and Auditor General with any material relevant to a review or investigation under sections 50 to 52 or a study under section 57.

(2) The CHAI must, on request, provide the regulator with— (a) any material which is relevant to a review or investigation under

sections 50 to 52 and relates to the provision of health care by or for an NHS foundation trust;

(b) any material which is relevant to a study under section 57 and relates to an NHS foundation trust.

61 Co-operation between CHAI and the regulator

(1) The CHAI and the regulator must co-operate with each other in the exercise of their respective functions under Part 1 and this Chapter.

(2) In particular, for the purposes of subsection (1)— (a) the CHAI must keep the regulator informed about the provision of

health care by and for NHS foundation trusts; (b) the regulator must give to the CHAI any information it has about the

provision of health care by or for an NHS foundation trust which it considers would assist the CHAI in the discharge of its functions.

62 Fees

(1) The CHAI may from time to time make and publish provision— (a) requiring an English NHS body or cross-border SHA to pay a fee in

respect of the exercise by the CHAI, in relation to that body or to health care provided by or for that body, of such of its functions under this Chapter as may be prescribed;

(b) requiring a person of a prescribed description who provides health care for an English NHS body or cross-border SHA to pay a fee in respect of the exercise by the CHAI, in relation to the health care so provided by that person, of such of its functions under this Chapter as may be prescribed.

(2) The CHAI may not under subsection (1)(b) require a Welsh NHS body to pay a fee.

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(3) The amount of a fee payable under provision under subsection (1) shall be such as may be specified in, or calculated or determined under, the provision.

(4) Provision under subsection (1) may include provision— (a) for different fees to be paid in different cases, or classes of case; (b) for different fees to be paid by persons of different descriptions; (c) for the amount of a fee to be determined by the CHAI in accordance

with specified factors; (d) for the time by which a fee must be paid.

(5) Before making any provision under subsection (1) the CHAI must consult such persons as appear to it appropriate.

(6) The Secretary of State may by regulations make provision as to— (a) the manner in which provision under subsection (1) is to be made and

published; (b) the matters to be taken into account by the CHAI before making the

provision.

(7) The Secretary of State may by regulations make provision for an independent person or panel to review the amount charged under subsection (1) in any particular case and, if that person or panel thinks fit, to substitute a lesser amount for that amount.

(8) For the purpose of determining the fee payable by a person or body under subsection (1), the person or body must provide the CHAI with such information, in such form, as the CHAI may require.

(9) A fee payable by virtue of this section may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.

63 Fees: Wales

(1) The CHAI may from time to time make and publish provision— (a) requiring a Welsh NHS body to pay a fee in respect of the exercise by

the CHAI, in relation to that body or to health care provided by or for that body, of such of its functions under this Chapter as may be prescribed;

(b) requiring a person of a prescribed description who provides health care for a Welsh NHS body to pay a fee in respect of the exercise by the CHAI, in relation to the health care so provided by that person, of such of its functions under this Chapter as may be prescribed.

(2) The CHAI may not under subsection (1)(b) require an English NHS body or cross-border SHA to pay a fee.

(3) The amount of a fee payable under provision under subsection (1) shall be such as may be specified in, or calculated or determined under, the provision.

with specified factors; (d) for the time by which a fee must be paid.

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(5) Before making any provision under subsection (1) the CHAI must consult such persons as appear to it appropriate.

(6) The Assembly may by regulations make provision as to— (a) the manner in which provision under subsection (1) is to be made and

published; (b) the matters to be taken into account by the CHAI before making the

provision.

(7) The Assembly may by regulations make provision for an independent person or panel to review the amount charged under subsection (1) in any particular case and, if that person or panel thinks fit, to substitute a lesser amount for that amount.

(8) For the purpose of determining the fee payable by a person or body under subsection (1), the person or body must provide the CHAI with such information, in such form, as the CHAI may require.

(9) A fee payable by virtue of this section may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.

64 Reports and information

(1) The CHAI must make copies of any report published by it under this Chapter available for inspection at its offices by any person at any reasonable time.

(2) Any person who requests a copy of such a report is entitled to have one on payment of such reasonable fee (if any) as the CHAI considers appropriate.

(3) The CHAI may charge a person such reasonable fee as it considers appropriate where it provides him, at his request, with any other information relevant to the discharge of the CHAI’s functions under this Chapter.

65 Co-operation between CHAI and the Audit Commission

The CHAI and the Audit Commission must co-operate with each other in relation to matters in respect of which both have functions.

66 Right of entry

(1) A person authorised to do so by the CHAI may, if the CHAI considers it necessary or expedient for the purposes of this Chapter, at any reasonable time enter and inspect—

(a) any premises owned or controlled by an NHS body; (b) any other premises used, or proposed to be used, for any purpose

connected with— (i) the provision of health care by or for an NHS body, or

(ii) the discharge of any of the functions of an NHS body.

(2) A person who proposes to exercise any power of entry or inspection conferred by this section must if so required produce some duly authenticated document showing his authority to exercise the power.

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67 Right of entry: supplementary

(1) A person authorised by virtue of section 66 to enter and inspect premises may, if he considers it necessary or expedient for the purposes of this Chapter—

(a) inspect, take copies of and remove from the premises any documents or records (including personal records);

(b) inspect any other item and remove it from the premises; (c) interview in private—

(i) any person working at the premises; (ii) any person receiving health care there who consents to be

interviewed; and (d) make any other examination into the state and management of the

premises and treatment of persons receiving health care there.

(2) The power in subsection (1)(a) includes— (a) power to require any person holding or accountable for documents or

records kept on the premises to produce them; and (b) in relation to records which are kept by means of a computer, power to

require the records to be produced in a form in which they are legible and can be taken away.

(3) A person authorised by virtue of subsection (1)(a) to inspect any records is entitled to have access to, and to check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the records in question.

(4) A person authorised by virtue of section 66 to enter and inspect any premises may—

(a) require any person to afford him such facilities and assistance with respect to matters within the person’s control as are necessary to enable him to exercise his powers under section 66 or this section; and

(b) take such measurements and photographs and make such recordings as he considers necessary to enable him to exercise those powers.

(5) Any person who without reasonable excuse— (a) obstructs the exercise of any power conferred by section 66 or this

section, or (b) fails to comply with any requirement of section 66 or this section,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

68 Power to require documents and information etc

(1) The CHAI may at any time require any person specified in subsection (2) to provide it with any information, documents, records (including personal records) or other items—

(a) which relates or relate to— (i) the provision of health care by or for an NHS body, or

(ii) the discharge of any of the functions of an NHS body; and (b) which the CHAI considers it necessary or expedient to have for the

purposes of this Chapter.

(2) The persons referred to in subsection (1) are— (a) the NHS body;

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(b) any person providing health care for, or exercising functions of, the NHS body;

(3) The power in subsection (1) to require the provision of records includes, in relation to records kept by means of a computer, power to require the provision of the records in legible form.

(4) Any person who without reasonable excuse fails to comply with any requirement imposed by virtue of this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

69 Power to require explanation

(1) The Secretary of State may by regulations make provision requiring prescribed persons to provide to the CHAI, or to persons authorised by it, an explanation of—

(a) any documents, records or items inspected, copied or provided under sections 66 to 68,

(b) any information provided under those sections, or (c) any matters which are the subject of the exercise of any functions of the

CHAI under this Chapter, in circumstances where the CHAI considers the explanation necessary or expedient for the purposes of this Chapter.

(2) Regulations under subsection (1) may require explanations to be provided at such times and places as may be specified by the CHAI.

(3) Any person who without reasonable excuse fails to comply with any requirement imposed by virtue of this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

CHAPTER 4

NHS HEALTH CARE: FUNCTIONS OF NATIONAL ASSEMBLY FOR WALES

Reviews and investigations

70 Reviews and investigations relating to Wales

(1) The Assembly has the function of conducting reviews of, and investigations into, the provision of health care by and for Welsh NHS bodies.

(2) The Assembly may in particular under this section conduct— (a) a review of the overall provision of health care by and for Welsh NHS

bodies; (b) a review of the overall provision of a particular kind of health care by

and for Welsh NHS bodies; (c) a review of, or investigation into, the provision of any health care by or

for a particular Welsh NHS body.

(3) The Assembly has the function of conducting reviews of the arrangements made by Welsh NHS bodies for the purpose of discharging their duty under section 45.

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(4) In exercising its functions under this section in relation to any health care the Assembly shall be concerned in particular with—

(a) the availability of, and access to, the health care; (b) the quality and effectiveness of the health care; (c) the financial or other management of the health care and the economy

and efficiency of its provision; (d) the availability and quality of information provided to the public about

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

and (f) the effectiveness of measures taken for the purpose specified in

paragraph (e) by the body in question and any person who provides, or is to provide, health care for that body,

and must take into account the standards set out in statements published under section 47.

(5) For the purposes of this section the Assembly may carry out an inspection of— (a) any Welsh NHS body; (b) any other person who provides, or is to provide, health care for a Welsh

NHS body (in Wales or elsewhere).

(6) Where the Assembly conducts a review under this section it must publish a report.

71 Reporting to Secretary of State and regulator

(1) The Assembly must report to the Secretary of State where, after conducting a review or investigation under section 70, it is of the view that—

(a) there are significant failings in relation to the provision of health care by or for an English NHS body or cross-border SHA;

(b) there are significant failings in the running of an English NHS body or cross-border SHA; or

(c) there are significant failings in the running of any body, or the practice of any individual, providing health care for an English NHS body or cross-border SHA.

(2) A report under subsection (1) may include a recommendation that, with a view to remedying the failings, the Secretary of State take special measures in relation to—

(a) the English NHS body or cross-border SHA; and (b) in a case falling within paragraph (c) of subsection (1), any person,

other than a Welsh NHS body, referred to in that paragraph.

(3) The Assembly must report to the regulator where, after conducting a review or investigation under section 70, it is of the view that—

(a) there are significant failings in relation to the provision of health care by or for an NHS foundation trust;

(b) there are significant failings in the running of an NHS foundation trust; or

(c) there are significant failings in the running of any body, or the practice of any individual, providing health care for an NHS foundation trust.

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(4) A report under subsection (3) may include a recommendation that, with a view to remedying the failings, the regulator take special measures in relation to the NHS foundation trust.

(5) A report under this section must give the Assembly’s reasons for its view and for any recommendation made.

Ancillary powers

72 Right of entry

(1) A person authorised to do so by the Assembly may, if the Assembly considers it necessary or expedient for the purposes of this Chapter, at any reasonable time enter and inspect—

(a) any premises owned or controlled by a Welsh NHS body; (b) any other premises used, or proposed to be used, for any purpose

connected with— (i) the provision of health care by or for a Welsh NHS body; or

(ii) the discharge of any of the functions of a Welsh NHS body.

73 Right of entry: supplementary

(1) A person authorised by virtue of section 72 to enter and inspect premises may, if he considers it necessary or expedient for the purposes of this Chapter—