Benefits
There should be good and compelling reasons for an individual to chair two organisations with benefits being identified in advance. The identification of benefits is clearly of no use unless they are realised, so planning to realise benefits should be part of the process from the outset.
Trusts which have a shared chair, or are pursuing this model, commonly identified the following benefits:
- facilitates a cross fertilisation of cultures, learning and practice
- assists in integration for organisations working towards merger/acquisition of trusts with common strategic interests
- helps to facilitate mutual support
- helps to facilitate collaboration in service provision, particularly specialised services
- assists in building relationships across trusts and can help in stabilising leadership teams
- facilitates more joined up care and a decrease in trust competition
- aids system working and the creation of an integrated healthcare system – working with partners and sharing services.
Risks to be managed
There is risk involved in one person chairing more than one trust, so caution in identifying and managing those risks should be built into the process, and there should be a periodic review of how effectively the risks are being managed. If an arrangement is not working, organisations should not be afraid to say this and boards should engage in a frank dialogue on the way forward. Chairs rightly exercise significant influence over the board agenda and discussions. Moving to a joint chair model will also have a major impact on a chair’s role., However strong their personal views, chairs need to ensure there is full board, foundation trust governor and wider stakeholder support for any move to a dual chair model. They also need to ensure that boards are able to have the rigorous and honest periodic review of how the arrangement is working outlined above.
All of the risks that arise from joint chair roles can be managed effectively with diligence and the commitment of the parties concerned. However, it is important that there is a rigorous assessment of risk and agreement on how they will be managed.
Below we set out the most common areas of risk identified by people in joint chair roles.
Conflicts of interest
It is by no means certain that the public interest in one local area will coincide with the public interest in another. Where the interests do coincide there will be no conflict of interest and therefore no obstacle to an individual chairing two trust boards.
The test for a significant conflict of interest is whether a reasonable person equipped with the relevant facts would be more likely than not to believe the person’s judgment of the public interest might be affected. Avoiding such conflicts is a legal requirement and the effect of ignoring any conflicts that come to light can be serious for both the individual and the organisations. The fact that there may be considerable external pressure on the individual will not offer any protection. Given that the test sets quite a low threshold, individuals would be prudent to exercise caution. Chairs of trusts are not exempt from the requirement to avoid conflicts of interest given that the statute was developed from common law, which applies to all directors.
It is likely that all conflicts of interest can be managed, but it would be advisable for all parties agree an explicit written statement on how conflicts will be identified and managed from the outset and to make the statement public, so that there is clarity and transparency about issues of probity and conduct.
Time commitment
The latest iteration of the UK governance code continues to stress the need for directors and chairs in particular to ensure that they have sufficient time to carry out their duties. This is likely to continue to be replicated in the new NHS code which is currently being revised. Time remains a major obstacle to chairing more than one organisation. Many chairs spend upwards of three days a week on trust business. For this reason, the foundation trust code states that no one should be substantive chair of two foundation trusts. The new UK code takes a softer line that the prior approval of the board should be sought before taking other significant appointments, with the reasons for permitting significant appointments explained in the annual report. Delegation to other board members may assist chairs in devoting enough time to each organisation that they chair, while the formation of committees in common, where appropriate, may mitigate some time pressures. Chairs will also want to keep under review the degree to which chairing more than one organisation is sustainable.
Appointments and removal from office
If the person is already the chair of a foundation trust or NHS trust and the board (and council of governors for foundation trusts) agree that the chair can also be chair of another trust the appointment process is relatively simple in that the second trust can choose to appoint or not. If two trusts are seeking to make a joint appointment at the same time it is more complex. If both organisations are foundation trusts, both councils must make the appointment separately and the outcome that they both appoint the same person is by no means guaranteed, and it must be stressed that there is no lawful way for that possibility to be avoided. If one of the trusts is a foundation trust and the other an NHS trust it makes sense that the foundation trust appoints the desired candidate first, assuming that their governors will do so, and then the NHS trust makes the appointment, thus guaranteeing a joint appointment. If both are NHS trusts there is no obstacle to the secretary of state appointing the same individual.
Finally, it should be remembered that councils of governors have the right to remove non-executive directors including chairs. While this rarely happens, it cannot be excluded from possible outcomes if a council decides that there are insurmountable issues with sharing a chair.