The NHS provider sector has a mix of arrangements for representatives of the public to represent the interests of the public to boards of directors. NHS foundation trusts have councils of governors; some NHS trusts have shadow councils or members’ councils while others have no formal body set up to carry out the representative role. The evolution of system working has led to differing approaches to involving governors and other representative groups in work at system level. Although there is a plethora of local variation, there are two broad approaches: ‘business as usual’ and bringing councils together to bring a quasi council role to system working across a larger geography.
The National Health Service Act 2006, as amended, requires foundation trusts to have councils of governors made up of different constituencies of members drawn from the public, staff, partner organisations, with the option of patients/service user and constituencies. There is a duty on trusts to develop the memberships from which governors are elected that are broadly representative of the communities they serve.
There is a duty on trusts to develop the memberships from which governors are elected that are broadly representative of the communities they serve.Policy Advisor - Governance
Individual governors have no standing in law, but councils of governors have a number of statutory powers. These include appointing and, if necessary, removing the chair and the non-executive directors; confirming the appointment of the chief executive; representing the interests of foundation trust members and the public and holding the non-executive directors (NEDs) to account for the performance of the board of directors. A full guide to council of governors’ legal responsibilities ‘Your statutory duties: A reference guide for NHS foundation trust governors’ can be found here.
Unlike their foundation trust colleagues, shadow councils, members’ councils and other groups set up by NHS trusts have no legal powers or standing but can provide valuable feedback and insight to boards of directors.
Just ‘business as usual’ or working at system level as well?
System working does not change the duties councils have to their organisations and to the public in their area. In some areas governors are being encouraged to meet together to participate in the work of the system and offer feedback on proposals. In other areas, this is being regarded as a conflict of interest with the governor duty to hold the NEDs to account for the performance of the board.
In some areas governors are being encouraged to meet together to participate in the work of the system and offer feedback on proposals. In other area this is being regarded as a conflict of interest with the governor duty to hold the NEDs to account for the performance of the board.Policy Advisor - Governance
System level partnerships do not exist as corporate bodies in law; they are collaborations between organisations that make decisions through delegations from the parent organisations. Trusts have the power to delegate decisions to executive directors. So, at system level executives use delegations to lead the system in partnership with colleagues from other trusts. Foundation trusts can’t delegate to NEDs, only to executives and committees, but NEDs work with other directors from their trust as a committee and meet with committees from other trusts to make decisions or to oversee decision making.
In some areas, councils of governors are also coming together as informal reference groups to comment on system level proposals as representatives of a much broader community and seek to inform the work of the system as it evolves. The advantage of this is that lay and public input is received as decisions are being formulated. Governors feel involved and don’t feel that they are being frozen out of the decision making process.
In some areas, councils of governors are also coming together as informal reference groups to comment on system level proposals as representatives of a much broader community and seek to inform the work of the system as it evolves. The advantage of this is that lay and public input is received as decisions are being formulated.Policy Advisor - Governance
However this doesn’t affect the statutory duties they perform back at their own foundation trust. One of the ways in which conflicts of interests can arise is when decision makers have the power to ‘mark their own homework.’ So there is a contention that, if governors have been party to decisions at system level, they will have a conflict of interest when they are holding their own board to account for those decisions. Serious conflicts of interest are those where a reasonable person equipped with the relevant facts would believe that the person’s judgment of the public interest has been compromised. It is possible to avoid such conflicts with governors at system level by ensuring that they are not part of the process by which decisions are made. Governors can still receive information and discuss issues of importance, but when they form a view as a council it should be back at their trust. They should declare what they know and how they have been involved in system level work so the chair can advise on conflicts, but in most cases they should still be able to participate in the process of holding to account.
Each system is taking its own approach to involving governors and there is no right or wrong way. Each council will need to negotiate with its board on how it is involved and chairs will need to steer their councils so that serious conflicts of interest are avoided.