Legal background Trustee appointment powers
Currently, the Secretary of State can, by order, appoint trustees to hold trust property in respect of the following NHS bodies under the corresponding provisions of the National Health Service Act 2006 –
Foundation trusts – section 51
NHS Commissioning Board – Schedule A1, paragraph 11
Clinical commissioning groups – Schedule 1A, paragraph 15
NHS trusts – Schedule 4, paragraph 10
Special Health Authorities – Schedule 6, paragraph 9
	Orders have been made in relation to NHS trusts and Foundation Trusts as follows –
The National Health Service Trusts (Trust Funds: Appointment of Trustees) Order 2000 (SI 2000/212) (as amended)
The NHS Foundation Trusts (Trust Funds: Appointment of Trustees) Order 2007 (SI 2007/1766) (as amended)
	Provisions relating to special trustees are set out in section 212 of the National Health Service Act 2006. According to that section, special trustees are trustees appointed by the Secretary of State in relation to England under section 29 of the National Health Reorganisation Act 1973 (now repealed), section 95 of the National Health Service Act 1977 (repealed subject to savings) and section 212 for certain specified hospitals.
	The appointments themselves are made by the National Health Service Trust Development Authority on behalf of the Secretary of State in accordance with the National Health Service Trust Development Authority (Establishment and Constitution) Order 2012 S.I. 2012/901 (as amended by S.I. 2013/235 and 2013/260) and the National Health Service Trust Development Authority Directions 2013 (as amended).
	As well as providing the Secretary of State with the power to appoint trustees, the National Health Service Act 2006 enables the Secretary of State to transfer property to those trustees from the NHS body for which they are appointed. Additionally, section 213 of the National Health Service Act 2006 enables the Secretary of State to transfer trust property, by order, between relevant health service bodies (including NHS bodies and trustees appointed for those NHS bodies) where there is a change in the arrangements for the administration of a hospital (or other establishment or facility) or in the area or functions of any NHS body other than a foundation trust.
	The Act will remove the powers of the Secretary of State to appoint special trustees and other trustees appointed for NHS bodies in England and to transfer trust property between such trustees and NHS bodies (and vice versa).