National Health Service, England Citation, commencement and interpretation 1 1 This Order may be cited as the National Health Service Trusts (Trust Funds: Appointment of Trustees) (Amendment) Order 2010 and shall come into force on 17th March 2010. 2 In this Order, “the Appointment Order ” means the National Health Service Trusts (Trust Funds: Appointment of Trustees) Order 2000 . Amendment of article 1 of the Appointment Order 2 In article 1 of the Appointment Order (citation, commencement and interpretation), in paragraph (2)— a for the definition of “ the Act ” substitute— “the Act” means the National Health Service Act 2006; and b after the definition of “the Act”, insert— “company” means a company as defined in section 1(1) of the Companies Act 2006 ; “executive director” means a director who is an employee of the company; “non-executive director” means a director who is not an employee of the company; . Amendment of article 2 of the Appointment Order 3 In article 2(1) of the Appointment Order (appointment of trustees), for “section 11(1) of the Act (trust funds and trustees of NHS trusts)” substitute “paragraph 10(1) of Schedule 4 to the Act (trust funds and trustees)”. Amendment of article 3 of the Appointment Order 4 For article 3 of the Appointment Order (termination and suspension of appointment) substitute— 3 1 The Secretary of State may terminate a trustee’s tenure of office where the Secretary of State is of the opinion that— a it is not in the interests of the Trust or of the health service or of the administration of any trust funds that the trustee should continue to hold office; or b in the case of a trustee that is a company, there has been a breach of any of the conditions in article 4(2). 2 Where the Secretary of State is of the opinion referred to in paragraph (1), the Secretary of State may suspend the trustee from office, pending a decision on whether to terminate the trustee’s tenure of office. Insertion of article 4 to the Appointment Order 5 After article 3 of the Appointment Order add the following article— Appointment of company subject to conditions 4 1 The Secretary of State must not appoint a company as a trustee for the Trust, other than in relation to the Barts and the London National Health Service Trust. 2 Where the Secretary of State appoints a company as a trustee any such appointment shall be subject to the following conditions, which must be included in the company’s constitution— a the company must be incorporated as a company limited by guarantee, established for exclusively charitable purposes and registered with the Charities Commission under the Charities Act 1993 ; b the objects of the company must include holding property as set out in paragraph 10(1) of Schedule 4 to the Act; c the number of non-executive directors must exceed the number of executive directors; d the non-executive directors of the company must be appointed by the Secretary of State; e when appointing executive directors, the company must have regard to the guidance entitled “Trustees for NHS Charities – Guidance on recruitment and selection” published by the Appointments Commission on 1st March 2010 , as if that guidance applied to the appointment of executive directors; f the company must have systems in place for the annual appraisal and performance management of its directors; g the board of directors of the company must ratify any Secretary of State request to terminate the tenure of office of a non-executive director on the grounds that the Secretary of State considers it is not in the interests of the Trust or of the health service or of the administration of any trust funds that a non-executive director should continue to hold office. . Signed by authority of the Secretary of State for Health Mike O’Brien Minister of State, Department of Health 3rd March 2010