Trusts are used to delegating authority to committees of the board and through executive directors, setting out their assurance and oversight requirements in a way that enables the board to hold its delegates to account appropriately.
For the boards and individual directors of trusts it is crucial for accountability to be tied to the ability to take decisions and to act. The legal responsibility to decide, act, and the consequent liability of boards and individual directors is set out in statute as well as in common law. Trusts as bodies corporate and directors, collectively and as individuals, have legally defined powers and powers of delegation. They are rightly answerable and held to account for the exercise of those powers.
This is important when formalising advisory or decision-making arrangements for collaboration. This clarity is important for the legal reasons set out above and can help create a firm foundation supporting well-governed partnership activities.
If organisations share decision-making in their collaborative, then they are jointly and severally accountable for those shared decisions i.e., accountability is not apportioned between two partners in the sense that each is accountable for 50% of a decision – rather, the partners are 'in it together'. Both are together and individually accountable for 100% of any adverse outcomes. Contracts can be used to specifically apportion liabilities, and may provide welcome clarity for providers.
In governance arrangements without shared decision-making, individuals or committees will be accountable only to their parent organisations.
It is worth noting here that when/if ICB to provider or provider collaborative delegation under the 2022 Act begins, the Act specifies that liabilities arising from undertaking delegated functions move to the body undertaking the function (i.e., ICB passes any liability with the delegation). Collaboratives accepting such delegations would be wise to seek a contractual basis describing the limits of their liabilities.
The scope and extent of delegated authority (freedom to act and use resources within clear boundaries) can be established through the use of terms of reference for a decision-making forum or may simply rely on the individual's authority by virtue of their role within the employing organisation. Partner organisations should ensure they have adequate assurance in place to satisfy themselves that authority isn't being exceeded.