Top 10 legal considerations for NHS subsidiaries

This two-part guide offers an in-depth analysis of wholly owned subsidiaries within the NHS, focusing on their strategic importance, legal frameworks and recent developments. This article focuses on the key considerations for NHS subsidiaries.

1. Compliance with statutory powers

Ensuring all actions are within the legal frameworks provided by the NHS Act 2006 and recent guidance. Approvals will be required for NHS trusts from the Secretary of State. For NHS foundation trusts consideration of whether any significant transaction thresholds in the trust’s constitution are triggered requiring Council of Governor approvals.

2. Tax implications

Navigating VAT benefits and other tax considerations to maximise financial efficiency while remaining compliant with tax laws.

3. Employment law compliance

Adhering to employment laws, particularly regarding the transfer of employees under TUPE regulations, ensuring that staff rights are protected during transitions.

4. Governance and control

Establishing robust governance structures that ensure operational independence of the SubCo while maintaining oversight and control by the parent NHS provider trust(s).

5. Contractual obligations

Managing contracts between the Subco and the parent NHS provider trust(s) meticulously to prevent conflicts of interest and ensure compliance with procurement regulations.

6. Financial management

Implementing transparent and effective financial management practices to safeguard the financial health of both the subsidiary and the parent NHS provider trust.

7. Regulatory compliance

Ensuring that the subsidiary adheres to all relevant healthcare regulations and standards to maintain service quality and patient safety.

8. Stakeholder engagement

Developing comprehensive strategies for engaging with stakeholders, including staff, unions, and the public, to manage perceptions and maintain trust.

9. Risk management

Identifying and mitigating potential risks associated with the subsidiary’s operations, including financial, operational, and reputational risks.

10. Ethical considerations

Balancing commercial objectives with ethical considerations, particularly in terms of employment conditions and service delivery standards, to uphold the values of the NHS.

Browne Jacobson offers a full spectrum of legal services to support the establishment and operation of NHS subsidiaries. Please get in touch with our Health and care teams to discuss further.