This clause would clarify and make small changes to the trust special administrator’s regime in the light of our experience following its use at South London Healthcare NHS Trust and Mid Staffordshire NHS Foundation Trust.
Your Lordships will know that the regime for trust special administration was introduced by the previous Government under the Health Act 2009. The aim of the regime has always been to provide, with a tight timescale, a sustainable future for the services provided by a failed trust. The regime is only ever used as a last resort, when all other efforts by a trust and its commissioners to develop a viable model of care have been unsuccessful. There comes a point when time has to be called on local efforts to resolve the situation. Problems should not be allowed to fester, and it is not right that taxpayer resources could be diverted away from patient care to bail out failing organisations.
The regime enables a failed trust to be put into administration. The role of the trust special administrator is to take charge of the trust while the board is legally suspended and to develop and consult on recommendations in a draft report, before making recommendations in a final report that secure a sustainable future for services. The unsustainable provider regime for NHS foundation trusts was amended in 2012 to make it compatible with the extended regulatory role given to Monitor to operate the new licensing regime. The regime is used only on an exceptional basis at the most seriously challenged NHS providers, where other solutions or interventions have failed. It is time-limited, to focus efforts on delivering a sustainable solution with statutory deadlines for each stage of the process.
Use of the regime at South London and Mid Staffordshire suggests that two stages of the administration process need to be extended. The administrator would benefit from having more time to produce its draft report, and it would be better to have a longer consultation. The clause would therefore extend the time that the administrator has to complete these two key stages by giving 65, rather than 45, working days to produce the draft report and allowing 40, rather than 30, working days to undertake consultation on that report. The existing powers to extend the various stages of an administration beyond these statutory time limits will remain, as there will always be cases where an extension is appropriate.
Secondly, the clause would put beyond doubt the Government’s existing position that the remit of a trust special administrator is to make recommendations that may apply to services beyond the confines of the trust in administration and that the Secretary of State, for NHS trusts, and Monitor, for foundation trusts, have the power to take decisions based on those wider recommendations.
Where severe and prolonged problems exist, the administrator appointed must be able to propose a viable solution. It was always the Government’s intention that the interpretation of the words “in relation to” could include wider actions where necessary and consequential on primary recommendations about the trust in administration. This clarification of the scope of the administrator does not constitute a change of
policy, is not retrospective, and is intended only to remove any uncertainty for the future.
NHS trusts, foundation trusts and other providers do not exist in isolation from each other. They are part of a complex, interdependent, local healthcare economy. Issues of clinical and financial sustainability nearly always cross organisational boundaries. Parliament must surely have intended originally that the legislation would enable an administrator to fix the problems that it was appointed to fix. If the only way to do this is to look beyond the confines of the failing trust then that is what it must do.
Thirdly, the clause would strengthen requirements for a trust special administrator appointed to an NHS foundation trust to seek the support of commissioners affected by their recommendations. A trust special administrator appointed to an NHS foundation trust is already required by statute to seek support for its draft and final recommendations from all commissioners of the trust in administration. This clause would extend that requirement so that the administrator would also be required to seek the support of commissioners of services affected by the administrator’s recommendations that are provided by other trust providers, with NHS England’s support being sought in the event that all commissioners did not agree.
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Fourthly, this clause would require the Secretary of State to produce guidance for trust special administrators appointed to an NHS trust about seeking commissioner support for their proposals and to involve NHS England. It is intended that the guidance would set out arrangements for a trust special administrator to seek support from NHS England for its recommendations if the trust special administrator was unable to secure the support of the commissioners affected by the recommendations.
Fifthly, this clause would clarify that the statutory obligations of commissioners to involve and consult patients and the public in planning and making service changes do not apply in respect of the trust special administration regime. It would also clarify that the disapplication provisions apply whether the trust special administrator process relates to a failing NHS foundation trust or an NHS trust.
As I have already set out, one of the principal benefits of the unsustainable provider regime is the speed with which it delivers recommendations for clinically and financially sustainable services. This accelerated process includes a specific consultation period, with no provision for referral for local authority scrutiny. We want to clarify that there is no potential conflict between the statutory obligation placed on commissioners and the requirements of the trust special administration regime.
Ultimately, NHS patients and the public suffer if we do not have a workable failure regime that can secure high-quality, financially sustainable health services that are in their best interests. In addressing a systemic crisis, a trust special administrator should not be compelled to consider only some solutions, but, rather, the best solutions in the interests of patients. Only then can we resolve the situation. I beg to move.
Amendment 168B (to Amendment 168A)