Councils of governors: Your role in a crisis

28 April 2016

What is the council of governor’s role when things go badly wrong? What should councils expect to know and when should they expect to know it? These are important questions, and ones that even well run foundation trusts need to consider. No one likes to envisage their trust featuring on the front page of the local paper, or even in the national press, for all of the wrong reasons. But unfortunately things can go badly wrong, even in organisations that hitherto have had a strong record of delivering high quality healthcare. So what should governors do? What if the first they hear of a problem is on the local radio station or in the press?

In an ideal world your foundation trust will have contingency plans in place about how governors will be kept informed and involved that you will have discussed as a council. So you will know how your council will be kept up to date and when it will have the opportunity to discuss the events in question. If you don’t know of such a plan in your trust, do ask your trust secretary. But let us assume a crisis arises and there is no ‘council of governors’ plan’ in place. What happens next?

No one likes to envisage their trust featuring on the front page of the local paper, or even in the national press, for all of the wrong reasons, but unfortunately things can go badly wrong

The first thing to consider is that senior management will be expending a great deal of energy trying to establish the circumstances around what went wrong and why it went wrong. They will be particularly concerned with whether the problem is a one off or whether it is systemic and will be ensuring that the service is ‘safe today’. They will be dealing with the concerns of families and patients, enquires from the press, keeping the board in the loop and keeping the regulators informed as well as ensuring that the day job is done effectively. So the first thing governors need to understand is that it might take some time before an opportunity is found for them to be brought up to speed. Advising governors to wait is probably not the most welcome advice, but it is absolutely necessary: taking action to establish the facts and prevent repetition has to be management’s first priority and this will also mean that senior managers come to you with a full grasp of the evidence and the facts.

The second thing for governors to take account of is the overall role of the council; specifically their duties to hold the NEDs to account for the performance of the board and to represent the interests of members and of the public. The council will wish to be kept in the loop on what actions the board is taking and what investigations are underway, but any consideration by the council needs to focus on the broader issues cannot take place until the management actions and investigations are completed and the board has had time to act. In short, acknowledging that the wait will probably be frustrating, it is likely to be some time after the event that the role of the governor comes into play.

Taking action to establish the facts and prevent repetition has to be management’s first priority and this will also mean that senior managers come to you with a full grasp of the evidence and the facts

The next thing to consider is their part in the chain of accountability. It is the job of the top management to run the organisation, to manage risk to minimise the chances of things going wrong and to take decisive action should something serious go wrong. It is the job of the board to oversee the work of the top managers, to hold them to account for their performance to take action if necessary to ensure that any gaps in controls to risks are put in place. The council’s role is one step removed from that of the board. The council needs to hold the board to account not just for the incident in question, but for what actions it has taken following an incident. So the council needs to determine whether the board has taken all steps that a reasonable board would take to deal with the incident in question; whether, following investigation it, has reached conclusions that are reasonable and whether it has obtained proper assurances that the measure it has put in place to deal with the incident will be sufficient and effective. What the council must resist is the temptation to substitute its own judgement for that of the board. It is right and proper that the council challenges the board and if the council is dissatisfied asks the board to consider a matter further, but the council can not attempt to do the board’s job for it.

In the aftermath of a very serious crisis it is natural for people to ask themselves whether heads should roll. That someone should be punished when something goes wrong is a very natural reaction. But once again governors should resist the temptation to involve themselves in this. The discipline, or potential discipline, of members of staff is a matter for the management of the trust and is not a matter that governors could or should be involved in. It is for the chief executive (if the chief executive is not the executive in question), the chair and the non-executive directors to decide whether action needs to be taken in respect of executive directors. The council will need to form a view about whether the actions taken by the board were reasonable, but once again governors should not substitute their own judgement for a reasonable decision made by the board. If the matter under consideration is serious and strong feelings have been raised it is natural for council of governors to wish to intervene and it would be good practice for there to be an agreed way in which these issues can be discussed. But as a council the primary question is whether the actions the board has taken are reasonable? If the council feels that the actions taken by the board are insufficient it has the power to ask the board to reconsider, but the council should not seek to substitute its own judgement.

Governors should be aware that removal of directors, is, and should be the very last resort
 
In the unlikely event that following a serious event, an intransigent board refuses to take reasonable steps to deal with the incident and its aftermath, if reasoned debate is insufficient to move the board the council should seek external advice. The panel for advising governors, hosted by NHS Improvement, can consider any resolution passed by a council where there is intractable disagreement between the council and the board. Governors should be aware that removal of directors, is, and should be the very last resort.

To conclude, in the event of a crisis councils will need to be patient and understand that it will take time before their role comes into play. Councils should base their judgements on whether the actions the board has taken are reasonable and sufficient. If the council is not satisfied the first step should be to ask the board to reconsider. Most issues will be resolved at that stage, but outside advice and help is available and should be used as a next step.

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