The Health and Social Care (Community Health and Standards) Act 2003 (Supplementary and Consequential Provision) (NHS Foundation Trusts) Order 2004

• Citation: S.I. 2004/696
• Sections: 58

Section 1 Citation and commencement

(1) This Order may be cited as the Health and Social Care (Community Health and Standards) Act 2003 (Supplementary and Consequential Provision) (NHS Foundation Trusts) Order 2004 and shall come into force —

(a) for the purposes of the provisions specified in paragraph (2) and article 3(16) and Schedule 16, on 5th July 2004; and

(b) for all other purposes on 1st April 2004.

(2) The provisions specified in this paragraph are the following paragraphs of Schedule 1 to the Order—

(a) paragraphs 2, 6(3), 7(3)(iii), 8, 14, 19(3)(c), 23(3)(b), 27, 29, 33(3)(b), 36, 37(b), 39, 44(3);

(b) paragraph 45(3) in so far as it adds sub-paragraph (j) to regulation 3(1) of the Counter Fraud and Security Management Service Regulations 2003 ( ); and

(c) paragraphs 47(3)(a)(iv), 50(3)(b), 52(3), 53(3) and 54(3)(a).

Section 2 Extent and application

The extent and application of any amendment made under article 3 is the same as that of the provision amended.

Section 3 Supplementary and Consequential amendments

(1) The enactments specified in Schedule 1 are amended as there specified.

(2) In the enactments specified in column 1 of Schedule 2, in the provisions specified in column 2, after “National Health Service Trust”, or as the case may be “National Health Service trust”, “NHS Trust” or “NHS trust”, in each place where it occurs unless otherwise specified in Schedule 2, there is inserted “or NHS foundation trust”.

(3) In the enactments specified in column 1 of Schedule 3, in the provisions specified in column 2, after “National Health Service Trust” or as the case may be “National Health Service trust”, or “NHS trust”, in each place where it occurs unless otherwise specified in column 2, there is inserted “, NHS foundation trust”.

(4) In the enactments specified in column 1 of Schedule 4, in the provisions specified in column 2, after “National Health Service Trust” or as the case may be “National Health Service trust” or “NHS Trust”, in each place where it occurs unless otherwise specified in column 2, there is inserted “, an NHS foundation trust”.

(5) In the enactments specified in column 1 of Schedule 5, in the provisions specified in column 2, for “or NHS trust” in each place where it occurs there is substituted “, NHS trust or NHS foundation trust”.

(6) In the enactments specified in column 1 of Schedule 6, in the provisions specified in column 2, in each place where it occurs for “or an NHS trust” there is substituted “, an NHS trust or an NHS foundation trust”.

(7) In the enactments specified in column 1 of Schedule 7, in the provisions specified in column 2, after the entry relating to a “National Health Service Trust” or as the case may be “national health service trust” there is inserted—

“NHS foundation trust” has the same meaning as in section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003,

(8) In the enactments specified in column 1 of Schedule 8, in the provisions specified in column 2, there is inserted in the appropriate alphabetical position—

“NHS foundation trust” has the same meaning as in section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003;

(9) In the enactments specified in column 1 of Schedule 9, in the provisions specified in column 2, after “1978” there is added—

(10) In the enactments specified in column 1 of Schedule 10, in the provisions specified in column 2, for the definition of “health service body” there is substituted—

“health service body” means—

a body listed in section 4 of the National Health Service and Community Care Act 1990;

an NHS foundation trust;

the Independent Regulator of NHS Foundation Trusts;

(11) In the enactments specified in column 1 of Schedule 11, in the provisions specified in column 2, for the definition of “health service body” there is substituted—

“health service body” means—

a body listed in section 4 of the National Health Service and Community Care Act 1990;

an NHS foundation trust;

(12) In the enactments specified in column 1 of Schedule 12, in the provisions specified in column 2, after “director” there is inserted “or governor,”.

(13) In the enactments specified in column 1 of Schedule 13, in the provisions specified in column 2, for “a health service body” there is substituted “or, in the case of an NHS foundation trust the chairman, a governor or a non-executive director of, the health service body in question”.

(14) In the enactments specified in column 1 of Schedule 14, in the provisions specified in column 2, for “a health service body” there is substituted, “or, in the case of an NHS foundation trust his chairmanship, governorship, or non-executive directorship of, the health service body in question”.

(15) In the enactments specified in column 1 of Schedule 15, in the provisions specified in column 2, after “directors of,” there is inserted, “or in the case of an NHS foundation trust, the chairman, a governor or a non-executive director of ” .

(16) In the enactments specified in column 1 of Schedule 16, in the provisions specified in column 2, there is inserted in the appropriate alphabetical position—

“Independent Regulator of NHS Foundation Trusts” means the body corporate established by section 2 of the Health and Social Care (Community Health and Standards) Act 2003;

(17) In the enactments specified in column 1 of Schedule 17, in the provisions specified in column 2, there is inserted—

(5) In these Regulations, a reference to “NHS trust” shall be construed to include a reference to an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003 where the application for authorisation to become an NHS foundation trust was made by an NHS trust.

Section 1 Medicines (Pharmacy and General Sale – Exemption) Order 1980

In article 4A of the Medicines (Pharmacy and General Sale – Exemption) Order 1980 ( ) (exemption for the supply of medicinal products by national health service bodies), after paragraph (1)(c), there is inserted—

(cc) an NHS foundation trust;

Section 2 Mental Health Act Commission Regulations 1983

In regulation 9 of the Mental Health Act Commission Regulations 1983 (application of regulations relating to membership), after “10(1)(a) to (e)” there is inserted “and (m)”.

Section 3 Community Drivers' Hours and Recording Equipment (Exemptions and Supplementary Provisions) Regulations 1986

In paragraph 2(3) of the Schedule to the Community Drivers' Hours and Recording Equipment (Exemptions and Supplementary Provisions) Regulations 1986 (exempted vehicles), in sub-paragraph (a) of the definition of “health service body”, after “National Health Service Act 1977)” there is added “or an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003”.

Section 4 Housing (Right to Buy) (Prescribed Forms) Regulations 1986

In the list of public sector landlords at the end of the form set out in Schedule 1 to the Housing (Right to Buy) (Prescribed Forms) Regulations 1986 (form RTB1), after “National Health Service trusts” there is inserted “NHS foundation trusts”.

Section 5 National Health Service (Charges to Overseas Visitors) Regulations 1989

In regulation 1(2) of the National Health Service (Charges to Overseas Visitors) Regulations 1989 (citation, commencement and interpretation), at the end of the definition of “services forming part of the health service”, after “private patients of NHS trusts)”, there is added “or made available or provided by an NHS foundation trust to a patient other than for the purposes of the health service”.

Section 6 Regional and District Health Authorities (Membership and Procedure) Regulations 1990

(1) The Regional and District Health Authorities (Membership and Procedure) Regulations 1990 are amended as follows.

(2) In regulation 1(2) (citation, commencement and interpretation), in the definition of “health service body”, after sub-paragraph (f), there is added—

and

the Independent Regulator of NHS Foundation Trusts;

(3) In regulation 13(1) (disqualification for appointment), after sub-paragraph (i) there is added—

;or

(j) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

Section 7 National Health Service Trusts (Membership and Procedure) Regulations 1990

(1) The National Health Service Trusts (Membership and Procedure) Regulations 1990 are amended as follows.

(2) In regulation 1(2) (citation, commencement and interpretation), in the definition of “health service body”, after paragraph (g) there is added—

(h) the Independent Regulator of NHS Foundation Trusts;

(3) In regulation 11 (disqualification for appointment of chairman and non-executive directors)—

(a) in paragraph (1)—

(i) at the end of sub-paragraph (e) after “body” there is added “other than an NHS foundation trust” ;

(ii) after sub-paragraph (e), there is inserted—

(ee) he is a chairman, director or employee of an NHS foundation trust; or

(iii) after sub-paragraph (h) there is added—

;or

(i) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

(b) in paragraph (3) for “the health service body”, there is substituted “or, in the case of an NHS foundation trust his chairmanship, governorship, or non-executive directorship of, the health service body in question”; and

(c) in paragraph (4) after “(1)(e)” there is inserted “or (1)(ee)”.

Section 8 United Kingdom Transplant Support Service Authority Regulations 1991

In the opening words of regulation 8 of the United Kingdom Transplant Support Service Authority Regulations 1991 (application of regulations relating to membership and procedure), for “regulation 13(1)(a), (b), (c) and (e)”, there is substituted “regulation 13(1)(a) to (c), (e) and (j)”.

Section 9 Children (Secure Accommodation) Regulations 1991

In regulation 7 of the Children (Secure Accommodation) Regulations 1991 (children to whom section 25 of the Act shall apply and have effect subject to modifications)—

(a) in paragraph (1)(a) after “1990” there is inserted “, NHS foundation trusts”;

(b) in paragraph (2)(a) after “1990” there is inserted “, an NHS foundation trust”; and

(c) in paragraph (2)(b) after “National Health Service trusts” there is inserted “, NHS foundation trusts”.

Section 10 Children (Secure Accommodation) ( No. 2) Regulations 1991

In regulation 2(1) of the Children (Secure Accommodation) (No. 2) Regulations 1991 (applications to court-special cases), after “1990” there is inserted “, an NHS foundation trust”.

Section 11 National Health Service (Pharmaceutical Services) Regulations 1992

In regulation 2(1) of the National Health Service (Pharmaceutical Services) Regulations 1992 (interpretation), in the definition of “prescription form” for “or an NHS trust” there is substituted “an NHS trust or NHS foundation trust”.

Section 12 Housing (Right to Buy) (Prescribed Persons) Order 1992

In the Schedule to the Housing (Right to Buy) (Prescribed Persons) Order 1992 after “a National Health Service trust constituted under section 5 of the National Health Service and Community Care Act 1990”, there is inserted “an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003,”.

Section 13 Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992

After regulation 7A(2)(a) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 (prescription for the purposes of jurisdiction), there is inserted—

(aa) an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003;

Section 14 National Blood Authority Regulations 1993

In regulation 6(1)(b) of the National Blood Authority Regulations 1993 (application of regulations relating to membership and procedure), after “13(1)(a) to (e)”, there is inserted “and (j)”.

Section 15 Redundancy Payments (National Health Service) (Modification) Order 1993

In Schedule 1 to the Redundancy Payments (National Health Service) (Modification) Order 1993 (employment to which this order applies: employers immediately before the relevant event), after paragraph 2 there is inserted—

(2ZA) an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003;

Section 16 National Health Service Pension Scheme Regulations 1995

(1) The National Health Service Pension Scheme Regulations 1995 are amended as follows.

(2) In regulation A2 (interpretation)—

(a) in the definition of “employing authority” after paragraph (c) there is inserted—

(cc) an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003,

(b) in the definition of “NHS dental employee” before paragraph (aa) there is inserted—

(zaa) an NHS foundation trust;

Section 17 Family Health Services Appeal Authority Regulations 1995

In regulation 7(1)(e) of the Family Health Appeal Authority Regulations 1995 (disqualification for appointment), after “member” there is inserted “or governor”.

Section 18 National Health Service (Injury Benefits) Regulations 1995

In regulation 2 of the National Health Service (Injury Benefits) Regulations 1995 (interpretation), in paragraph (1)—

(a) in the definition of “employing authority”, after paragraph (c) there is inserted—

(cc) an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003,

(b) in the definition of “NHS dental employee”, before paragraph (aa), there is inserted—

(zaa) an NHS foundation trust;

Section 19 National Health Service Litigation Authority Regulations 1995

(1) The National Health Service Litigation Authority Regulations 1995 are amended as follows.

(2) In regulation 1(2) (citation, commencement and interpretation), in the definition of “health service body” after “Health and Social Care Act 2001” there is added “or the Independent Regulator of NHS Foundation Trusts”.

(3) In regulation 7 (disqualification for appointment), in paragraph (1)—

(a) in sub-paragraph (e) “or” is omitted; and

(b) after sub-paragraph (e) there is inserted—

(ee) he is a chairman, chief executive or non-executive director of an NHS foundation trust; or

(c) after sub-paragraph (f) there is added—

; or

(g) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

Section 20 National Health Service (Clinical Negligence Scheme) Regulations 1996

In regulation 3(1) of the National Health Service (Clinical Negligence Scheme) Regulations 1996 (eligible bodies), after paragraph (a) there is inserted—

(aa) an NHS foundation trust,

Section 21 National Health Service (Existing Liabilities Scheme) Regulations 1996

In regulation 3 of the National Health Service (Existing Liabilities Scheme) Regulations 1996 (eligible bodies)—

(a) in paragraph (a)(iii) “or” is omitted; and

(b) after paragraph (a)(iii) there is inserted—

(iiia) an NHS foundation trust, or

Section 22 National Health Service (Appointment of Consultants) Regulations 1996

In regulation 2(1) of the National Health Service (Appointment of Consultants) Regulations 1996 (interpretation), in paragraph (a) of the definition of “lay member” for “or any NHS trust,” there is substituted “, NHS trust or NHS foundation trust,”.

Section 23 Health Authorities (Membership and Procedure) Regulations 1996

(1) The Health Authorities (Membership and Procedure) Regulations 1996 are amended as follows.

(2) In regulation 1(2) (citation, commencement and interpretation), in the definition of “health service body” after paragraph (e) there is added—

and

(f) the Independent Regulator of NHS Foundation Trusts;

(3) In regulation 10 (disqualification for appointment) in paragraph (1)—

(a) after sub-paragraph (h), there is inserted—

(hh) he is a chairman or non-executive director of an NHS foundation trust;

(b) after sub-paragraph (l), there is added—

(m) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

Section 24 Employment Protection (Continuity of Employment of National Health Service Employees) (Modification) Order 1996

In article 1(2)(b) of the Employment Protection (Continuity of Employment of National Health Service Employees) (Modification) Order 1996 (citation, commencement and interpretation), after sub-paragraph (vii) there is inserted—

(viia) an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003;

Section 25 Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996

In regulation 6(2) of the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 (consultation), at the end of the definition of “appropriate NHS trust” there is added “and NHS foundation trust has the meaning given by section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003”.

Section 26 Construction Contracts (England and Wales) Exclusion Order 1998

After article 3 of the Construction Contracts (England and Wales) Exclusion Order 1998 (agreements under statute), there is inserted—

Other Agreements

(3A)

(1) A construction contract is excluded from the operation of Part II if it is an externally financed development agreement entered into by an NHS foundation trust.

(2) In this article “externally financed development agreement” has the same meaning as in section 1 of the National Health Service (Private Finance) Act 1997 reading references in subsections (3) and (5) of that section to the trust as references to an NHS foundation trust.

Section 27 National Institute for Clinical Excellence Regulations 1999

In regulation 5(1) of the National Institute for Clinical Excellence Regulations 1999 (disqualification for appointment), after sub-paragraph (e), there is added—

; or

(f) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

Section 28 National Health Service Estate Management and Health Building Agency Trading Fund Order 1999

In Schedule 1 to the National Health Service Estate Management and Health Building Agency Trading Fund Order 1999 (funded operations), in paragraph (1)(ii) after “1990” there is inserted “or an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003”.

Section 29 National Health Service Information Authority Regulations 1999

In regulation 3(1) of the National Health Service Information Authority Regulations 1999 (disqualification for appointment), after sub-paragraph (e), there is added—

; or

(f) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

Section 30 National Health Service (Liabilities to Third Parties Scheme) Regulations 1999

In regulation 3 of the National Health Service (Liabilities to Third Parties Scheme) Regulations 1999 (eligible bodies) after paragraph (a) there is inserted—

(aa) an NHS foundation trust,

Section 31 National Health Service (Property Expenses Scheme) Regulations 1999

In regulation 3 of the National Health Service (Property Expenses Scheme) Regulations 1999 (eligible bodies) after paragraph (a) there is inserted—

(aa) an NHS foundation trust,

Section 32 Motor Vehicles (Driving Licences) Regulations 1999

In regulation 9(6) of the Motor Vehicles (Driving Licences) Regulations 1999 (minimum ages for holding or obtaining licences), after sub-paragraph (b) there is inserted—

(bb) an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care Act 2003, or

Section 33 Primary Care Trusts (Membership, Procedure and Administration Arrangements) Regulations 2000

(1) The Primary Care Trusts (Membership, Procedure and Administration Arrangements) Regulations 2000 are amended as follows.

(2) In regulation 1(2) (citation, commencement and interpretation), in the definition of “health service body”, after paragraph (f) there is added—

(g) the Independent Regulator of NHS Foundation Trusts;

(3) In regulation 5(1) (disqualification for appointment: chairman and non-officer members)—

(a) after sub-paragraph (f) there is inserted—

(ff) he is a chairman or non-executive director of an NHS foundation trust; and

(b) after sub-paragraph (j) there is added—

;

(k) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

Section 34 Data Protection (Subject Access Modification) (Social Work) Order 2000

In the Schedule to the Data Protection (Subject Access Modification) (Social Work) Order 2000 (personal data to which this order applies), in paragraph 1—

(a) after sub-paragraph (l)(ii) there is inserted—

(iiza) an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003;

(b) after sub-paragraph (m) there is inserted—

(mm) data processed by an NHS foundation trust as referred to in sub-paragraph (l) (iiza) above in the exercise of any functions similar to any social services functions of a local authority;

Section 35 NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000

In regulation 3 of the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000 (prescribed NHS bodies and local authorities), in paragraph (1)—

(a) in sub-paragraph (b) “and” is omitted; and

(b) in sub-paragraph (c) after “trust” there is inserted—

and

(d) an NHS foundation trust

Section 36 National Treatment Agency Regulations 2001

In regulation 3(1) of the National Treatment Agency Regulations 2001 (disqualification for appointment), after sub-paragraph (f), there is added—

;

(g) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

Section 37 National Health Service Appointments Commission Regulations 2001

In regulation 3(1) of the National Health Service Appointments Commission Regulations 2001 (disqualification for appointment)—

(a) after sub-paragraph (f), there is inserted—

(ff) he is a chairman or a non-executive director of an NHS foundation trust;

(b) after sub-paragraph (j) there is added—

; or

(k) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

Section 38 Immigration and Asylum Act 1999 (Part V Exemption: Educational Institutions and Health Sector Bodies) Order 2001

In Schedule 3 to the Immigration and Asylum Act 1999 (Part V Exemption: Educational Institutions and Health Sector Bodies) Order 2001 (health sector bodies), in paragraph 1, after sub-paragraph (b), there is inserted—

(bb) an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003;

Section 39 National Patient Safety Agency Regulations 2001

In regulation 3(1) of the National Patient Safety Agency Regulations 2001 (disqualification for appointment), after sub-paragraph (e) there is added—

;

(f) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

Section 40 Care Homes Regulations 2001

In regulation 3(1) of the Care Homes Regulations 2001 (excepted establishments), after sub-paragraph (b)(ii) there is inserted—

or

(iii) in an NHS foundation trust;

Section 41 National Health Service (Compensation for Premature Retirement) Regulations 2002

In regulation 2(1) of the National Health Service (Compensation for Premature Retirement) Regulations 2002 (interpretation), in the definition of “employing authority”, after paragraph (b), there is inserted—

(bb) an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003;

Section 42 Statutory Paternity Pay and Statutory Adoption Pay (National Health Service Employees) Regulations 2002

In regulation 1(2) of the Statutory Paternity Pay and Statutory Adoption Pay (National Health Service Employees) Regulations 2002 (citation, commencement and interpretation), there is inserted in the appropriate alphabetical position—

“NHS trust” shall be construed to include a reference to an NHS foundation trust within the meaning of section 1(1) of the Health and Social Care (Community Health and Standards) Act 2003 where the application for authorisation to become an NHS foundation trust was made by an NHS trust.

Section 43 Commission for Patient and Public Involvement in Health (Functions) Regulations 2002

In regulation 8(2) of the Commission for Patient and Public Involvement in Health (Functions) Regulations 2002 (obtaining information) after sub-paragraph (c), there is inserted—

(cc) an NHS foundation trust;

Section 44 Commission for Patient and Public Involvement in Health (Membership and Procedure) Regulations 2002

(1) The Commission for Patient and Public Involvement in Health (Membership and Procedure) Regulations 2002 are amended as follows.

(2) In regulation 1(3) (citation, commencement, application and interpretation) in the definition of “health service body” after paragraph (c) there is added—

(d) the Independent Regulator of NHS Foundation Trusts;

(3) In regulation 5(1) (disqualification for appointment), after sub-paragraph (j) there is added—

; or

(k) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

Section 45 Counter Fraud and Security Management Service Regulations 2002

(1) The Counter Fraud and Security Management Service Regulations 2002 are amended as follows.

(2) In regulation 1(3) (citation, commencement, application and interpretation), in the definition of “health service body” after paragraph (c) there is added—

and

(d) the Independent Regulator of NHS Foundation Trusts;

(3) In regulation 3(1) (disqualification for appointment) after sub-paragraph (h) there is added—

;

(i) he is the chairman, chief executive or a non-executive director of an NHS foundation trust;

(j) he is the chairman or another member of the Independent Regulator of NHS Foundation Trusts.

Section 46 Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002

(1) The Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002 are amended as follows.

(2) In regulation 1(3) (citation, commencement, application and interpretation), there is inserted in the appropriate alphabetical and numerical position—

(a) “the 2003 Act ” means the Health and Social Care (Community Health and Standards) Act 2003

(b) “authorisation” means an authorisation given by the Independent Regulator of NHS Foundation Trusts under section 6 of the 2003 Act

(c) “protected goods or services” means in relation to an NHS foundation trust, goods or services which that trust is required by virtue of section 14(4) of the 2003 Act to provide under the terms of its authorisation.

(3) In regulation 4 (consultation of committees by local NHS bodies)—

(a) at the end of the heading there is added “other than NHS foundation trusts”; and

(b) in paragraph (1) after “local NHS body” there is inserted “other than an NHS foundation trust,”.

(4) After regulation 4 there is inserted—

(4A) Consultation of Committees by NHS foundation trusts

(1) This regulation applies where—

(a) an NHS foundation trust proposes to make an application to the Independent Regulator of NHS Foundation Trusts (“the regulator”), to vary the terms of its authorisation; and

(b) that application if successful would result in a substantial variation of the provision by an NHS foundation trust of protected goods or services in the area of a local authority.

(2) Where this regulation applies the NHS foundation trust shall consult the overview and scrutiny committee of the local authority referred to in paragraph (1)(b).

(3) Subject to any directions issued under regulation 10, an overview and scrutiny committee which has been consulted by an NHS foundation trust pursuant to paragraph (1), may make comments on the proposed application by such date as may be specified by the NHS foundation trust.

(4) In any case where an overview and scrutiny committee is not satisfied that consultation on any application referred to in paragraph (1) has been adequate in relation to content or time allowed it may report to the regulator in writing and the regulator may require the NHS foundation trust to carry out such consultation, or such further consultation with the overview and scrutiny committee as it considers appropriate.

(5) In any case where an overview and scrutiny committee considers that the proposed application would not be in the interests of the health service in the area of the committee’s local authority, it may report to the regulator in writing and the regulator shall have regard to the report in accordance with section 9(2) of the 2003 Act.

Section 47 Health Protection Agency ( Yr Asiantaeth Diogelu Iechyd) Regulations 2003

(1) The Health Protection Agency (Yr Asiantaeth Diogelu Iechyd) Regulations 2003 are amended as follows.

(2) In regulation 1(2) (citation, commencement and interpretation), in the definition of “health service body”, after paragraph (h) there is added—

(hh) an NHS foundation trust,

(hhh) the Independent Regulator of NHS Foundation Trusts,

(3) In regulation 3 (disqualification for appointment)—

(a) in paragraph (1)—

(i) in sub-paragraph (d) after “ NRPB ”, in the first place that it occurs, there is inserted “and in the case of an NHS foundation trust as a governor of a trust,”;

(ii) in sub-paragraph (h)(iii) “or” is omitted; and

(iii) after sub-paragraph (h)(iii) there is inserted—

(iiia) an NHS foundation trust;

(iv) after sub-paragraph (h) there is added—

or;

(i) he is the chairman or other member of the Independent Regulator of NHS Foundation Trusts.

(b) for paragraph (3) there is substituted—

(3) For the purposes of paragraph (1)(c) a person shall not be treated as having been in paid employment by reason only of his having been—

(a) the chairman or member or director of the NRPB or a health service body other than an NHS foundation trust; or

(b) the chairman, a governor or non-executive director of an NHS foundation trust.