Where we suspect a foundation trust has breached, or is at risk of breaching, its licence we may launch an investigation in accordance with our Enforcement Guidance. For example, if it consistently fails to meet national standards of care or is at financial risk, we will require it to explain why. We will then require an action plan setting out how it plans to resolve the problem.
Taking regulatory action
If an NHS foundation trust has failed to comply with the licence conditions, for example, if it consistently fails to meet required standards of care or is at significant financial risk – Monitor may decide to use its statutory powers of intervention. Where we do intervene formally, it is always with the aim of resolving issues as quickly as possible and in the most effective way.
Our Enforcement Guidance sets out the procedures we follow when we become aware of a potential breach of the licence. We have powers to impose the following:
In exceptional circumstances, we will begin an ordered process – the failure regime – during which we may appoint a Trust Special Administrator to take control of the provider's affairs and work with commissioners to ensure that patients continue to have access to the services they need.
Prior to appointing a Special Administrator, Monitor may appoint a Contingency Planning Team to work with local commissioners, providers, stakeholders and key local organisations to assess the financial, clinical and operational sustainability of the foundation trust in its current form and to work with commissioners to identify those services that should be protected in order to ensure that there is no significant adverse impact on local health or health inequalities.
You can find out more about how we work with NHS foundation trusts, particularly when they are not meeting certain targets and standards, in our reports on NHS foundation trusts.
Imposing special measures
Another regulatory tool which Monitor can use is to put foundation trusts into special measures. These are designed to offer trusts the support they need to improve at the same time as giving the public the ability to hold them to account.
Monitor has responsibility for putting foundation trusts into special measures, while the NHS Trust Development Authority has responsibility for NHS trusts. Both we and the NTDA will work closely with the Care Quality Commission, particularly if trusts receive an ‘inadequate’ rating from the Chief Inspector of Hospitals.
There are five elements which make up special measures:
There are currently six foundation trusts which were placed into special measures following the Keogh Review. These trusts (along with five NHS trusts) will be reassessed by the Keogh Review teams, and will be inspected by the Chief Inspector of Hospitals by July 2014.
Action taken under Monitor's previous regulatory regime
Up until 1 April 2013, where either quality or financial standards were not being met, we had powers to find foundation trusts in significant breach of their terms of authorisation.
If a trust was deemed to be in significant breach, we were also able to use statutory powers of intervention under Section 52 of the National Health Service Act 2006. You can find a list of trusts where Monitor has previously used its formal intervention powers here.