What is the council's role in provider collaboration?
The councils' general duties remain unchanged by the 2022 Act, however the context in which they undertake their duties has clearly changed. The Addendum to your statutory duties clearly articulates the change of context and explores its implications for councils of governors.
Holding to account
In relation to provider collaboration, as part of their general duty to hold the NEDs individually and collectively to account for the performance of the board, councils will expect to receive assurance around:
- The benefits of collaboration and its contribution to the organisation's strategic objectives and priorities.
- Their board's effective oversight and control of the collaborative(s).
- Board members' capacity and bandwidth to engage in collaboration while maintaining control of their own FT.
Councils should do this conscious of their duty to represent the interests of the wider public beyond the footprint of their own FT, which has clear bearing on their understanding of the rationale for provider collaboration.
The Addendum to your statutory duties from NHSE emphasises the role of the council of governors in representing the wider public and the need to make decisions in the context of system working. This may require a shift in mindset from governors, which should be supported by your interactions with them, who may tend to seek to represent the view of the specific constituency of which they are a member and have been elected. Councils should be reminded that while they have a legitimate interest in the activities of any collaborative their FT is part of or proposing to be part of, they have no powers to hold to account the board members of partner organisations and should not seek to do so.
Approving transactions
Also pertinent, depending on how collaborative working evolves, is that councils retain their role in approving applications for statutory transactions and significant transactions. Where trusts are seeking to put in place group models involving structural integration ie mergers or acquisitions such approvals will be relevant.
The Addendum to your statutory duties is particularly helpful in highlighting the requirement for governors to consider the transaction in the context of the system as a whole:
Councils of governors may well be expected to consent to decisions that benefit the broader public interest while not being of immediate advantage to or creating some level of risk for their NHS foundation trust. Consent should not be given for decisions that benefit the NHS foundation trust without regard to the effect on other NHS organisations, or the overall position of a wider footprint such as an ICS.
The Addendum to your statutory duties also helpfully reminds Councils that their approval role only requires them to assure themselves that the FT has undertaken due diligence when making the recommendation to NHSE to undertake such a transaction. They should not be revisiting the decision itself:
Councils of governors are responsible for assuring themselves that the board of directors has been thorough and comprehensive in reaching its decision to undertake a transaction (that is, has undertaken due diligence), and that it has appropriately considered the interests of members and the public as part of the decision-making process. As long as they are appropriately assured of this, governors should not unreasonably withhold their consent for a proposal to go ahead. They should consider the implications of withholding consent in terms of the key risks the transaction was designed to address.
As such, it is important to ensure councils understand and are engaged early and on an ongoing basis around collaborations the board is either planning or is part of, and again engaged early and fully in relation to any potential transactions under discussion. This understanding and involvement will at a minimum help smooth the path through to approval and gives governors the chance to contribute useful insight and challenge to the board as plans are considered.