Monitor is still unclear about how it can justify its additional powers over foundation trusts once it becomes healthcare sectorregulator, its executive chair has told HSJ.

David Bennett said that “because there were some last-minute changes” to the Health Bill, “we’re still trying to work out how it will all play out”.

The bill gained royal assent on Tuesday.

Originally, the bill defined Monitor’s foundation trust regulator role as a separate and temporary set of duties, which it would lose after all remaining trusts had attained foundation status.

But Mr Bennett said that in the final stages of the bill’s passage “the government wanted to satisfy Parliament that our ability to deal with FTs in the way we do today” would be “available on an enduring basis”.

To do this, Monitor’s powers over foundation trusts were made “more of a subset” of the standard licence conditions it will place on all providers, he explained. “They are asking us to use our standard licence conditions to enact those powers.”

Asked if that would leave the regulator open to legal challenge from foundation trusts arguing that they did not have a level playing field, Mr Bennett replied: “That’s what we have to work through.

“We now have to demonstrate why we’re treating an FT differently, if we do.” He added: “It’s not just the [providers] who are subject to the [FT compliance] regime, it’s also the ones who aren’t [subject to it] – either of them could challenge it.”

Monitor needed to think of the compliance regime in terms of “doing something differently with a subset of providers in order to establish a level playing field”, he said. “If we get that right we shouldn’t be subject to challenge.”