An FT director's duty to promote the success of their own organisation remains in place, as does their duty to avoid situations in which a director has (or can have) a direct or indirect interest that conflicts (or may possibly conflict) with the interests of their organisation. NHS trust directors have implied equivalent duties because of their fiduciary obligations. As noted above, the 2022 Act creates the duty for all trusts to cooperate and to have regard to the triple aim, including taking account of the impact of decisions on a wider population.
While it is possible for these duties to create tensions for directors to manage, it is unlikely that true conflicts of interest will arise in provider collaboration, due to the duty to cooperate and where partners' interests – and those of the populations they serve – are well aligned.
To ensure directors can fulfil their duties, providers (whether working collaboratively or not) ought to ensure their conflicts of interest policies and procedures are up to date post the 2022 Act, and ensure their directors and other employees are aware of the expectations of them.
Providers working collaboratively should have early discussions with their partner(s) about how to manage any conflicts or perceived conflicts that may arise and be clear about how and when the interests of participants will be recorded and shared, the mitigations that are available, and the approach that the collaborative wishes to take to managing any conflicts that arise. Doing so should mean that in practice, directors working across collaborative structures should not need to be excluded from undertaking their day-to-day activities.
