Section 17: Trust Special Administrators: Primary Care Trusts
217.Section 17 inserts a new Chapter 5B into the NHS Act (new sections 65P to 65Z3). The new sections provide the Secretary of State with powers to direct a PCT to appoint a TSA to exercise specified “provider” functions of the PCT. The new sections also set out the functions of the TSA during the period of appointment which will apply if the direction-making power is exercised. In particular, provision is made for consultation by the TSA, the preparation of a draft report making recommendations to the Secretary of State and a final decision by the Secretary of State.
Appointment
218.New section 65P gives the Secretary of State the power to give directions requiring a PCT to appoint a TSA to exercise certain “provider” functions of the PCT on its behalf (subsection (1)). A “provider” function is any function which (i) involves the provision of goods and services, but only where that function is exercised by the PCT by means of direct provision (for example not by the making of commissioning arrangements with other persons) and (ii) is not a function of providing goods and services but which may be exercised for that purpose (e.g. employing staff) (subsection (10)). Precisely which functions are to be exercised by the TSA will be specified in the directions; that may differ in each case. The Secretary of State may only exercise the direction-making power if the Secretary of State considers it appropriate in the interests of the health service to do so (subsection (2)) and only after consulting the PCT, any Strategic Health Authority whose area includes any part of the PCT’s area, and any other person which commissions services from the PCT, where the Secretary of State considers it appropriate (subsection (4)). The TSA holds and vacates office in accordance with the terms of his or her appointment (subsection (7)) and the Secretary of State can require in the directions that the terms of appointment contain specified terms, for example provision could be included to ensure that the Board of the PCT cannot interfere in the exercise of the TSA’s functions (subsection (8)). New section 65Q provides that when the TSA’s appointment takes effect, the relevant functions (meaning those exercisable by the TSA) will no longer be exercisable by any committee, subcommittee or officer of the PCT, but that provision will not affect the employment of any PCT employee (subsection (2)).
Consultation and report
219.New section 65R requires that, within 45 working days of appointment, the TSA must produce and publish a draft report, recommending the action that the Secretary of State should take in relation to the performance of the relevant functions. The Secretary of State must lay this report before Parliament (subsection (3)). The TSA must set out, in a published statement, how he or she plans to consult on the draft report (new section 65S(1)). The consultation period will last for 30 working days (new section 65S(2)).
220.New section 65T specifies the duties which apply during the consultation period. In particular, it specifies that the TSA must publish a notice stating that the TSA is seeking responses to the draft report and describing how people can give their response (subsection (2)). It provides that the TSA must hold meetings with the public and staff of the PCT and staff representatives (subsections (4) and (5)). Staff for these purposes only includes staff who are employed in connection with the relevant functions (i.e. the provider functions which are being exercised by the TSA) and it includes staff employed by contractors and volunteers working for the PCT (subsection (10)). The TSA is required to seek written responses from and meet any Strategic Health Authority in whose area any part of the PCT’s area falls, and any person to which the trust provides goods and services which the Secretary of State directs the TSA to consult (in practice likely to be persons who commission goods and services from the trust) (subsections (7)(a) and (b) and (8)). The TSA is also required to request a written response from such persons within section 65H(8) as the Secretary of State may direct (subsection (7)(c)). The Secretary of State may also direct the TSA to seek written responses from or hold meetings with additional persons specified in the directions (subsection (9)).
221.New section 65U provides that within 15 working days of the end of the consultation period, the TSA must give the Secretary of State a report containing his or her recommendations. The TSA must attach to the report a summary of all oral and written responses to the consultation received during the consultation process. The Secretary of State must publish the TSA’s report and lay it before Parliament (subsection (3)).
222.New section 65V enables the Secretary of State to make an order extending any of the time periods for preparing the draft report, conducting the consultation or providing the final report. The power will be exercisable only where it would not be reasonable to expect the administrator to complete the relevant activity in the specified period and the Government envisages that the power will only be used in exceptional circumstances; for example, where the TSA was seriously ill or if the organisation had to deal with a significant unplanned event, for example a SARS (severe acute respiratory syndrome) outbreak. Where the time is extended, the TSA must publish a notice stating the date when the revised period expires (subsections (2) and (3)).
Action by the Secretary of State
223.New section 65W requires the Secretary of State to decide what action to take in relation to the performance of the relevant provider functions within 20 working days of receiving the final report. The decision and the reasons for it must be laid before Parliament as well as published.
224.If the Secretary of State decides to take any action in relation to the relevant provider function (for example, the Secretary of State may decide that the PCT should stop providing services itself and commission them from elsewhere) he or she will exercise existing powers under the NHS Act to take that action.
225.New section 65X allows the Secretary of State to give directions to the PCT and the TSA, requiring that the TSA is removed with effect from a specified day.
Supplementary
226.New section 65Y provides that if the TSA ceases to hold office before the Secretary of State has published his or her decision, the Secretary of State must appoint a new TSA and publish his or her name. The new TSA takes over at the same stage in the process, unless the Secretary of State directs that the new TSA should start from a different point (for example to start at the beginning of the process) (subsection (3)).
227.New section 65Z allows the Secretary of State to give further directions to the TSA about the exercise of the TSA’s functions.
228.New section 65Z1 requires the Secretary of State to publish guidance for TSAs, which must include guidance in relation to the publication of notices relating to consultation and extensions of time and also the preparation of the draft report.
229.New section 65Z2 requires the following directions to be laid before Parliament: the initial directions requiring the appointment of a TSA and specifying which functions are to be exercised by the TSA on the PCT’s behalf; additional directions about the TSA’s exercise of functions; directions bringing the appointment of the TSA to an end.
