Posted by Bruce Potter on
As the NHS reshapes services to meet the challenges set out in the 5 Year Forward View (FYFV) there will inevitably be further organisational changes, in particular, of NHS and Foundation Trusts into safe, sustainable units capable of delivering new models of care.

We have a track record in supporting major NHS reorganisations and mergers by helping you manage all aspects of these transactions. In particular, we offer specialist advice on:

  • Pre-merger engagement and consultation in the local health economy;
  • Due diligence – assessing risks, assets and liabilities to be managed during the merger;
  • New governance structures; and
  • Monitor or Competition and Markets Authority (CMA) approvals of any proposed transactions.

We also help negotiate the overall transaction terms on your behalf including commercial aspects, property, workforce, IT, new commissioning contracts and any approvals needed to complete the transaction.

Case Study: Mid Staffordshire NHS Foundation Trust (“MSFT”) 

We have been involved in arguably the most complex and high profile NHS transaction to have occurred in recent years; we advised Ernst and Young in their capacity as trust special administrator (TSA) in relation to the dissolution of Mid Staffordshire NHS Foundation Trust(“MSFT”) and the transfer of the assets and liabilities of MSFT to two NHS trusts in the local area.

This was very high profile given the widely reported clinical, financial and managerial failings at MSFT, and the resistance of local patient groups and politicians to any reduction in services at MSFT. The transaction was complicated by the fact that MSFT was the first instance where the new failure regime had been applied to a foundation trust; and the fact that the legislation did not envisage a process whereby the assets and liabilities of a foundation trust would be transferred directly to one or more NHS trusts. We therefore had to assist the TSAs, Monitor and the Department of Health to develop a solution that could operate within the restrictions created by that legislation.

Our work included two distinct phases of work

Phase 1 included:

  • Advising the TSAs on their statutory duties
  • Advising on the consultation process 
  • Advising on issues relating to the transfer of staff including TUPE arrangements
  • Structuring the dissolution of MSFT and the transfer of its assets and liabilities

Phase 2 involved implementing the structures described above and included:

  • Liaising with all stakeholders including the local commissioners on future service delivery
  • Advising the TSAs on the funding required to ensure that the transfers of assets and liabilities from MSFT were financially viable
  • Drafting all documentation relating to the Transfers including the main transfer documentation, the statutory orders and arrangements to deal with any legacy issues which arise after the transfer

We have also been shortlisted in The HealthInvestor Awards 2015 (Legal Advisor – Transactional Public) for our work on this transaction.

Added value offering

We demonstrated added value in our work with the MSFT transaction by providing:

  • A workshop at MSFT in advance of providing formal advice to test and explain the risks faced of Judicial Review challenges to governance and consultation processes.
  • ‘Clinics’ at MSFT to support the combined TSA and interim management team on the approach we were recommending.
  • A 24/7 lead contact available to handle urgent governance and review queries.
  • Responsibility for engaging on key governance issues with Monitor and DH.
  • Successfully defending three judicial review claims brought by patient groups and a prospective local candidate for parliament

About the Author

Bruce advises both private and public organisations on all aspects of commercial, corporate policy and governance advice.

Bruce Potter
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0118 955 3008

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