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NHS Trusts – the consequences of failure

26/06/12

The announcement that the Secretary of State has commenced the process which is likely to lead to the appointment of a Trust Special Administrator at South London Healthcare NHS Trust makes it clear that the DH’s approach towards NHS Trust deficits is coming to an end.

As well as sending a clear signal to struggling NHS trusts to get their act together or face the consequences, the use of the process is also significant in a number of other ways. For this purpose it is useful to understand the way in which the process for an NHS Trust Special Administrator will work.

Timetable

The procedure is set out in Chapter 5A of the National Health Service Act 2006. This gives the Health Secretary power to appoint a special administrator to review an NHS trust if he considers it appropriate in the interests of the health service. The Trust Special Administrator must be appointed by a statutory instrument, following consultation with the Trust, the local Strategic Health Authority and anyone to whom the Trust provides services that the Secretary of State thinks appropriate.

Once appointed the Administrator supersedes the board.

There is then a strict timetable that must be followed:

  • The Administrator must produce a draft report within 45 working days (nine weeks) stating the action which they recommend the Secretary of State should take in relation to the NHS trust, following consultation with the SHA and anyone else the Secretary of State requires them  to consult
  • The draft report is then published for a 30 working day period of consultation.
  • The Administrator then has a further 15 working days to finalise the report to the Secretary of State
  • The Secretary of State then has a further 20 days to decide what to do - which is likely to involve the dissolution of the trust

Consultation

The key issue here is that the provisions for consultation under the special administration process exclude the normal obligations to involve and consult under s.242 of the 2006 Act.  Whilst there is scope for the Administrator to be required to consult overview and scrutiny committees, again the normal provisions under s.244 do not apply.
 
Councils will need to be on the alert to be involved in the limited consultation process and all consultees will need to be aware of the more limited timeframe within which matters will move ahead.

Reconfiguration of services

The use of the special administration process is potentially a route to a much quicker decision about a reconfiguration of services as part of the reconstruction of the local health economy and provider structure and one which, while not avoiding consultation, puts it into a much tighter timeframe. It may also metaphorically put a gun to the head of the local stakeholders.
 
Assuming none of the timescales are formally extended by the Secretary of State and also that the full time is taken for each step, the Secretary of State could be taking a decision 22 weeks from appointing the Administrator. How long have trust service reconfigurations in London been taking so far?

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Disclaimer

This update is intended to give general information about legal topics and is not intended to apply to specific circumstances. Its contents should not, therefore, be regarded as constituting legal advice and should not be relied on as such. In relation to any particular problem that you may have you are advised to seek specific legal advice.

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