NHS Trusts were originally established in England and Wales by section 5 of the National Health Service and Community Care Act 1990 (NHSCCA 1990). As enacted, section 5(1) provided that the Secretary of State could, through subordinate legislation, establish NHS Trusts to assume responsibility for the ownership and management of hospitals or other establishments or facilities which were previously managed, in relation to Wales, by District or Special Health Authorities, or to provide and manage hospitals or other establishments or facilities. From their inception, NHS Trusts were effectively responsible for the provision of medical services, and, as such, were responsible for employing the medical staff working in Welsh hospitals.
Every NHS Trust was to be a body corporate, having a board of directors and such functions as were conferred on it by an establishment order made by the Secretary of State and by Schedule 2 to the 1990 Act. Paragraphs 6 and 7 of Schedule 2 to that Act set out the general duties and general and specific powers of the NHS Trusts, and the establishment orders provided further detail on specific duties of each NHS Trust. Typically, each establishment orders set out that the NHS Trust in question was to own and manage hospital accommodation and services at specified hospital sites, and to manage community health services provided from specific sites.
The Secretary of State could also make regulations in relation to the board of directors, method of appointment, number of directors, length of tenure etc.
In relation to Wales, the Secretary of State for Wales exercised the section 5 power to establish a number of NHS Trusts and, by 1998, there were 26 NHS Trusts operating in Wales. The majority of these were subsequently dissolved by the Secretary of State/National Assembly/Welsh Ministers’ using powers under paragraph 29 of Schedule 2 to the 1990 Act.
Significant changes were made in 2009 to the number and functions of Welsh NHS Trusts. The changes were made as a result of the commitment made by the Welsh Government in its ‘One Wales’ Programme for Government in 2007. Prior to the changes, which came into force on 1 October 2009, the Welsh NHS Trusts had the function of providing ‘front-line’ medical services in Wales, with the Welsh Local Health Boards (LHBs) effectively acting as commissioning bodies. However, the 2009 changes introduced an integrated healthcare system in Wales, under which LHBs were effectively responsible for both commissioning medical services and providing front-line medical services in Welsh hospitals. As such, the role of the NHS Trusts changed significantly, and the seven ‘regional’ NHS Trusts were dissolved with effect from 1 October 2009, when their employees, property, rights and liabilities transferred to the new LHBs.
Section 5 of the 1990 Act was repealed by the National Health Service (Consequential Provisions) Act 2006 and its provisions were substantively re-enacted in section 18 of the National Health Service (Wales) Act 2006 (the 2006 Act).
Of the 45 NHS Trusts established prior to the repeal of section 5, only two remain in operation, The Velindre National Health Service Trust (Establishment) Order 1993 and The Welsh Ambulance Services National Health Service Trust (Establishment) Order 1998. The establishing orders for these Trusts have been subsequently amended by the Secretary of State, National Assembly, and/or the Welsh Ministers. Care should be taken when reading and applying the establishing orders to ensure that the correct version is consulted.
Section 4 of, and paragraph 1(2) of Schedule 2 to, the National Health Service (Consequential Provisions) Act 2006 provide that the establishing orders, although originally made under section 5 of the 1990 Act, have effect as if they had been made under the equivalent provision in the 2006 Act. A third NHS Trust, the Public Health Wales National Health Service Trust, has been established by the exercise of the Welsh Ministers’ powers under the 2006 Act.
National Health Service (Wales) Act 2006
Sections 18 to 21 of the 2006 Act make provision about NHS Trusts. Amongst other things, they re-enact the relevant provisions of the National Health Service and Community Care Act 1990. The paragraphs below provide a brief summary of the provisions relevant to the composition and functions of NHS Trusts.
Section 18 of the 2006 Act provides that the Welsh Ministers may make subordinate legislation to establish NHS Trusts to provide goods and services for the purposes of the health services (NHS Trusts Orders). The section also introduces Schedule 3 to the Act, which makes further provision about NHS Trusts. In particular, Schedule 3 provides that:
- paragraphs 1 and 2 – NHS Trusts are bodies corporate and are not Crown servants or agents. NHS Trust property is not to be regarded as being Crown property;
- paragraph 3 – each NHS Trust has a board of directors consisting of a chairman and executive and non-executive directors;
- Paragraph 4 - the Welsh Ministers may make regulations about, amongst other things, the qualifications required and tenure of office (including suspension or removal from office), appointment, number of directors, the proceedings of the NHS Trust and of any NHS Trust committees. The Welsh Ministers have exercised this power to make specific provision about the membership, constitution and proceedings of the Public Health Wales NHS Trust (The Public Health Wales National Health Service Trust (Membership and Procedure) Regulations 2009) and for the establishment, functions, constitution and membership of the Velindre National Health Service Trust Shared Services Committee including its procedures and administrative arrangements (The Velindre National Health Service Trust Shared Services Committee (Wales) Regulations 2012);
- paragraph 5 – any orders made under section 18 to establish NHS Trusts must, amongst other things, specify the name of the NHS Trust, its functions, the number of executive and non-executive directors, and the date from which the NHS Trust may undertake its functions;
- paragraph 6 – an NHS Trust Order may require a Special Health Authority or LHB to make staff, premises and other facilities available to the NHS Trust pending the transfer or appointment of staff to the NHS Trust and the transfer of premises or other facilities to the NHS Trust (for example under paragraph 9);
- paragraph 9 – the Welsh Ministers may, by order, transfer, or provide for the transfer of, any of the property and liabilities of a Special Health Authority, a LHB, or the Welsh Ministers to an NHS Trust;
- paragraph 10 – the Welsh Ministers may, by order, provide for the appointment of trustees for an NHS Trust to hold property on trust;
- paragraph 11 – an NHS Trust must pay the chairman and any non-executive director remuneration etc. of an amount determined by the Welsh Ministers;
- paragraph 25 – an NHS Trust may employ such staff as it considers appropriate and may pay its staff such remuneration and allowances, and employ them on such other terms and conditions as it considers appropriate. In exercising its powers to determine pay, allowances, terms and conditions, an NHS Trust must act in accordance with regulations and any directions given by the Welsh Ministers. Before making such regulations or directions, the Welsh Ministers must consult bodies representing persons who, in their opinion, are likely to be affected by the regulations;
- paragraph 28 – the Welsh Ministers may, by order, dissolve an NHS Trust. An order may be made on the application of the NHS Trust concerned or if the Welsh Ministers consider it appropriate in the interests of the health service. Paragraph 29 provides that if an NHS Trust is dissolved, the Welsh Ministers may, by order transfer, or provide for the transfer, to themselves or any NHS body of such of the NHS Trust’s property and liabilities as are appropriate in the opinion of the Welsh Ministers.
Sections 19 and 20 of the 2006 Act make provision about the functions of NHS Trusts. Section 19 provides that the Welsh Ministers may give directions to an NHS Trust about its exercise of any functions. Section 20 provides that an NHS Trust must exercise its functions effectively, efficiently and economically. Paragraph 5 provides that an NHS Trust’s establishment order must specify its functions.
Schedule 3 to the 2006 Act also makes provision relevant to NHS Trusts’ functions. Paragraph 14 provides that an NHS Trust may do anything which appears to it to be necessary or expedient for the purposes of or in connection with its functions, and may, with the consent of the Welsh Ministers, acquire and dispose of property, enter into contracts, and accept gifts of property. Paragraph 16 provides that NHS Trusts may conduct, commission or assist the conduct of research. Paragraph 18 provides that an NHS Trust may enter into arrangements for the carrying out of any of its functions jointly with any Special Health Authority, LHB or other NHS Trust, or any other body or individual. Under paragraph 19 NHS Trusts have power, in limited circumstances, to require patients to pay for their hospital accommodation.
Section 21 of the 2006 Act makes provision about NHS Trust finance.
NHS Trusts currently in operation in Wales
Three NHS Trusts currently operate in Wales. They are:
- Velindre National Health Service Trust (established by The Velindre National Health Service Trust (Establishment) Order 1993);
- Welsh Ambulance Services National Health Service Trust (established by The Welsh Ambulance Services National Health Service Trust (Establishment) Order 1998);
- Public Health Wales National Health Service Trust (established by The Public Health Wales National Health Service Trust (Establishment) Order 2009).
The establishment orders for these NHS Trusts have been subsequently amended by further orders made by the Secretary of State, National Assembly and/or the Welsh Ministers. Care should therefore be taken to ensure that it is the amended version of each order which is consulted for details of the membership and functions of each of these NHS Trusts. A broad summary of membership and principal functions is provided below.
Velindre NHS Trust
The Velindre NHS Trust Board consists of a chairman, six non-executive directors and five executive directors. The non-executive directors are appointed to the Trust Board by the Welsh Minister for Health and Social Services.
Velindre NHS Trust carries out the following functions:
- it owns and manages Velindre Hospital and associated hospitals and premises, and provides and manages hospital accommodation and services;
- it owns and manages the Welsh Blood Service Headquarters and associated premises, and provides and manages services relating to the collection, screening and processing of blood and its constituents and to the preparation and supply of blood, plasma and other blood products;
- it manages and provides a range of information technology systems and associated support and consultancy services, desktop services, web development, telecommunications services, healthcare information services and services relating to prescribing and dispensing;
- it manages and provides shared services to the health service in Wales; and
- it owns or leases the premises associated with the provision of the shared services.
Velindre NHS Trust also ‘hosts’ a number of external organisations. ‘Host’ status is defined by an organisation having its own ‘Board’ where more detailed discussions take place or for which there is direct sponsorship by another statutory body for example the Welsh Government. By having these additional arrangements the organisation is outside the usual Trust management arrangements. Velindre NHS Trust hosts the following organisations:
- National Specialist Advisory Group for Cancer;
- NHS Wales Informatics Services;
- National Collaborating Centre for Cancer;
- NHS Shared Services Partnership; and
- National Institute for Social Care and Health Research – Clinical Research Centre.
Welsh Ambulance Services Trust
The Welsh Ambulance Services Trust consists of a chairman, seven non-executive directors and five executive directors.
The Trust provides two types of service – unscheduled care and planned patient care services, and telephone and web advice services through its NHS Wales Direct Service.
The Welsh Ambulance Service Trust carries out the following functions:
- it manages ambulance and associated transport services;
- it manages other services (including communications and training) relating to the provision of care which can reasonably be carried out in conjunction with the management of ambulance and associated transport services from Ambulance Headquarters;
- it owns the premises associated with the provision of the ambulance and associated transport services; and
- it performs the functions of the National Contact Point in Wales for the purpose of Directive 2011/24/EU (on Cross-Border Care).
Public Health Wales
The Public Health Wales Trust Board consists of a chairman, six non-executive directors and five executive directors. The Board functions as a corporate decision-making body, with non-executive and executive directors being full and equal members, sharing corporate responsibility for the decisions that it makes.
Public Health Wales carries out the following functions:
- it provides and manages a range of public health, health protection, healthcare improvement, health advisory, child protection and microbiological laboratory services and services relating to the surveillance, prevention and control of communicable diseases;
- it develops and maintains arrangements for making information about matters related to the protection and improvement of health in Wales available to the public in Wales; undertakes and commissions research into such matters and contributes to the provision and development of training in such matters;
- it undertakes the systematic collection, analysis and dissemination of information about the health of the people of Wales in particular including cancer incidence, mortality and survival, and prevalence of congenital anomalies; and
- it provides, manages, monitors, evaluates and conducts research into screening of health conditions and screening of health related matters.
Other relevant functions of Local Health Boards and NHS Trusts
The Social Services and Well-being (Wales) Act 2014 (the 2014 Act) establishes the legal framework for transforming the way people’s needs for care and support and carers needs for support are met. The 2014 Act imposes general and strategic duties on local authorities and LHBs to gain a better understanding of the characteristics and needs of their local populations, in order to effectively plan and provide a sufficient range and level of care and support services.
Section 14 requires local authorities and LHBs to jointly assess the extent to which there are people who need care and support, or carers who need support in their area. They should also assess the extent to which these needs are not being met, and the range and level of services required to meet identified needs.
Section 14 also seeks to ensure that this population assessment is taken into account as part of broader integrated planning frameworks, for example, within Local Well-being Plans (required under the Well-being of Future Generations (Wales) Act 2015 and NHS Integrated Medium Term Plans required by section 175 of the 2006 Act). Local authorities and LHBs must jointly produce and publish a report of the outcome of their population assessments.
Section 14A requires LHBs and local authorities to each produce an area plan based on the results of the population needs assessment.
Section 17(5) requires LHBs and NHS trust to provide the local authority with information about the care and support it provides in the respective local authority’s area.
Sections 128 and 130 require LHBs and NHS Trusts to inform local authorities if they have reasonable cause to suspect that an adult or child within their area is at risk. Section 134 provides for the establishment of Safeguarding Children Boards and Safeguarding Adults Boards which respective LHBs and NHS Trusts are required to provide representation at.
Part 9 of the 2014 Act (sections 162 to 169) relates to co-operation and partnership, and provides the Welsh Ministers with several regulation making powers. Regulations provide for the establishment of Regional Partnership Boards (RPBs) at a LHB area level, which brings together each LHB, social services, third sector and other partners. These boards must jointly assess, plan and provide efficient and effective services. Their purpose is to improve the outcomes and well-being of people with care and support needs, and carers who need support.
The Well-being of Future Generations (Wales) Act 2015 (WFGA) is about improving the social, economic, environmental and cultural well-being of Wales. It sets a common purpose – the seven well-being goals – for national government, local government, health boards and other specified public bodies. It details the ways in which these public bodies must work, and work together, to improve the well-being of Wales.
Section 3 of the Act places specific duties on public bodies (including LHBs and NHS Trusts) to act in accordance with the “Sustainable Development Principle”, ensuring that decisions demonstrate how they have applied long term, preventative, integrated, collaborative approaches involving people that reflect the diversity of the population.
In addition section 13(1) and Schedule 1 para 2(1) requires LHBs or NHS trusts to publish, in respect of each accounting year, a report of the progress it has made in meeting its well-being objectives.
Section 29 also places an additional duty on specified public bodies, including health boards, to act jointly via public services boards to improve the well-being of their area by contributing to the achievement of the well-being goals.
Section 30(3) requires the public service board assessment of well-being to consider the assessment undertaken by LHBs and NHS Trusts under their duties set out in section 14 of the Social Services Well-being (Wales) Act 2014.