Committees

A principal feature of provider collaborative governance is the establishment of a forum in which the participating organisations can discuss how the collaborative will operate. This can be advisory or decision-making and may have many different names such as programme board, partnership board, committees in common etc.

In this resource we use the following terms to refer to different legal structures, but we note that in practice a wide variety of nomenclature is used:

• Advisory group – a group comprising individuals from the participating organisations which oversees the operation of the collaborative in an advisory capacity. It has no delegated functions or decision-making powers. Any decisions must be referred back to the boards of the participating organisations. It may be described by those establishing such groups as a 'committee' or 'committees in common' but it is not a statutory committee of any of the participating organisations.
• Group with individual decision-makers – a group comprising individuals from the participating organisations which oversees the operation of the collaborative and where delegated functions or decision-making powers are exercised by an individual on behalf of each participating organisation. Decisions do not need to be referred back to the boards of the participating organisations but are made by consensus through authority delegated to those individuals by virtue of their role in the organisation. It may be described as a 'committee', but it is not a statutory committee of any of the participating organisations.
• Committees in common – an arrangement where each participating organisation uses its statutory powers to establish a statutory committee which has delegated functions or decision-making powers in respect of the parent organisation only. Decisions delegated to the committees do not need to be referred back to the boards of the participating organisations. Decisions are made by the committees collectively and all committees need to be in agreement for decisions to be binding. Terms of reference for each committee will be shared or aligned. Further detail on committees in common is provided below.
• Joint committee – an arrangement where the participating organisations use their statutory powers to establish a statutory joint committee. The committee has delegated functions or decision-making powers in respect of all the parent organisations collectively. Decisions do not need to be referred back to the boards of the participating organisations. Decisions are made by the committee collectively and it has a single terms of reference. Further detail on joint committees is provided below.

 

What is the difference between joint committees and committees in common?

We go into detail about both types of arrangement below, but by way of brief introduction:

Joint committees are a statutory arrangement where the NHS organisations involved set up a single committee usually made up of representatives of all members, in accordance with their statutory powers and delegate functions and/or decision-making to that committee. They can be used by NHS organisations when they are exercising their joint working and delegation powers[1].

Committees in common are an arrangement for which there is no standard definition (NHS or otherwise). They are a joint working arrangement by NHS organisations where each appoints its own statutory committee which then operates 'in common' with the others. 'In common' means the committees have shared or aligned terms of reference and levels of delegated authority, and meet together (physically or virtually), with the same agenda and paperwork for each meeting. In this way, each committee makes its own decisions or recommendations but can deliberate with the members of the other committee(s). Each committee may have its own delegated authority but together the committees do not have shared delegated authority ie each committee comes to its decision independently, albeit through and following 'in common' discussion with the other committees. A decision is only made if all committees agree.

The terms of reference and scope of delegation to committees is open to almost infinite variation. This can range from limited scope and terms of reference for a specific project to responsibility for oversight of a wide range of projects with powers to make extensive and substantial decisions (including financial). In every case, parent boards will need to apply levels of oversight they consider prudent and proportionate to manage risk and the terms of reference should clearly set out when a decision is reserved to the boards of the organisations.

[1] For example under section 65Z5 of the NHSA.

What are the powers of NHS providers to form committees?

NHS trusts have powers[1] to appoint committees and delegate to them the exercise of any of their functions. NHS FTs can do likewise[2] but with restrictions on membership of the committee.

An NHS trust committee can consist of directors, people who are not directors, or a mixture, while an FT committee cannot include anyone who is not a director of the FT[3] (unless it is a joint committee under s.65Z6 of the NHSA). FTs cannot delegate to an individual who is not an executive director.

The 2022 Act introduced new flexibilities in the NHSA for FTs to make arrangements to carry out their functions jointly with other persons[4]. Both FTs and NHS trusts may also now arrange for functions that are exercisable jointly with a relevant body (as defined by the NHSA), a local authority or a combined authority to be exercised by a joint committee.[5] 

When establishing committees in common which include at least one FT, then, membership of the FT’s committees is restricted to voting directors of the FT only. Where a joint committee is established, membership can be more flexible.

 

[1] Under regulations 15 and 16 of the 1990 Regulations

[2] Paragraph 15 of schedule 7 of the NHSA

[3] Paragraph 15 of schedule 7 of the NHSA

[4] Section 47A of the NHSA

[5] Section 65Z6 of the NHSA

 

What are committees in common?

Committees in common are a means by which two or more organisations can come together to make quasi-shared decisions.

Each organisation must form a statutory committee of its board of directors. The committees should have shared or aligned terms of reference. Each board should agree the same level of delegated authority to its committee.

These separate statutory committees can then meet in one meeting room or virtual space as committees in common to work to the same agenda and to discuss and agree on matters addressed on the agenda.

A common misconception about committees in common is that each committee must have identical or equivalent membership. There is no such requirement for the committees. One organisation might, for example, create a statutory committee of its chair, chief executive, medical director and one further NED, while the other organisation appoints its chair, chief executive, director of nursing and director of finance to its committee.

Equally, in some committees in common membership is aligned (appointees to each committee are holders of the same posts). It can also be identical (appointees to each committee are the same individuals – ie they are holders of joint posts in each organisation[6]). Identical membership of committees in common is most likely within a group model with joint directors of each trust. These committees can be considered a virtual-joint committee.

In FTs, such committees must consist of statutory voting board members, but NHS trusts have greater latitude and may appoint non-board members to their committees.

In provider collaboratives it may be that the members of each trust’s committee include the chief executive and the chair. This provides senior executive and non-executive input and balances non-executive and executive representation. In some provider collaboratives membership is far more extensive and may include other executive and non-executive directors.

In short, committees in common can operate on a scale from having limited decision-making authority, perhaps to manage and oversee board-agreed priorities or programmes of work, through to quasi-boards with a large degree of latitude on managing budgets and the projects or services on which they are spent.

Historically, committees in common were a workaround arrangement for NHS organisations that did not have powers to form joint committees. Where NHS organisations can now use their powers to establish a joint committee, then they may prefer to do so. However, committees in common may still be useful, including in circumstances where joint committees are not possible, for example remuneration committees of trusts operating together in a multi-trust group model.

A note about language

Committees in common is terminology that is not always used to mean the same thing by those using it. In our view, committees in common are two or more separate committees that operate alongside each other with shared terms of reference, agendas, paperwork, and the same levels of delegated authority to make decisions. We know the term is sometimes used for advisory groups but here we reserve it for committees with some degree of decision-making authority, so as to set out relevant legal considerations.

When the committees in common come together to work through their shared agendas, they are often described as a committee in common (singular), which is simply shorthand for the multiple committees operating in concert.

[6] An example: two boards each appoint to its statutory committee its joint chair, joint CEO, joint director of finance and joint strategy director. The committee in common is therefore four individuals strong but is made up of two committees, themselves each four strong. 

 

Considerations

• As when setting up any committee, the committees’ remit (mirroring the scope of the collaborative) and purview should be clearly established through the terms of reference. The assurance requirements of provider boards should be agreed and defined. Equally, any delegated powers should be clearly agreed and well-defined to avoid any misunderstanding or mission-creep.
• Provider boards will usually retain organisational autonomy and the freedom to form other collaboratives and partnerships outside the scope of the terms of reference. An exception to this is where a group model uses a combination of joint leadership and committees in common to operate as if a single entity with significant harmonisation across organisations. In this case it would be more difficult for a trust to exit the arrangement or form separate collaborations.
• The value of NED challenge, input, and scrutiny at the point of decision-making should be considered.
• Whatever the delegated authority of the committees in common, time spent building mutual trust and effective relationships between the members of the committees and/or between each of the provider boards will likely pay dividends. Each provider board must have trust in the judgement of the committee members to whom authority is delegated, and each committee will likely want to gauge their board’s appetite in relation to significant decisions. They must also trust that decisions reached by all committees in common will be sound.
• Providers may need to amend their schemes of delegation.

 

What is an example of a committee in common arrangement?

West Yorkshire Association of Acute Trusts

Leicestershire Partnership and Northamptonshire Healthcare Group

 

 

What is a joint committee?

A joint committee is a statutory, reciprocal arrangement between two or more bodies, usually established for the purpose of joint decision-making. Under this arrangement, the participating organisations set up a formal committee which is a joint committee of all of them, to take responsibility for one or more of their statutory functions.

The new flexibilities introduced by the 2022 Act[7] allow FTs to participate in joint committees that include people who are not directors of the FT. The bodies which can form joint committees are NHS trusts, FTs, NHSE, ICBs, local authorities and combined authorities. Only the NHS bodies (ie not the local authorities or combined authorities) may delegate functions to the joint committee.

The constituent organisations are bound by the decisions made by the committee, which is established by agreement between the participating organisations. Collaborating organisations decide who should be appointed to the joint committee and this is not restricted to employees of the participating organisations. The committee's terms of reference should clearly specify who the members of the committee are, but other persons may be permitted to attend meetings of the joint committee in a non-voting capacity.

While ICB and NHSE approval is not required under the NHSA for provider joint committees, ICB support can be useful in demonstrating their backing for such arrangements.

[7]Sections 65Z5 and s.65Z6 of the NHSA

 

Considerations

• Joint committees can make decisions that are binding on the organisations involved without the need for delegation to individuals or groups of individuals on the committee. As when setting up any committee, the scope, responsibilities, and powers of the joint committee will need to be carefully agreed by the participating organisations, as will the provider boards' assurance requirements in relation to the activities of the committee.
• Not all functions of an NHS trust or FT can or should be delegated to a joint committee. The delegation guidance gives examples of the types of functions that cannot or should not be delegated. Most relevant are "functions central to the corporate governance of individual organisations"[8]. This includes the requirements to prepare consolidated annual accounts and to have an audit committee.
• Membership of joint committees with significant delegated functions and/or decision-making powers should be carefully considered. Appointing organisations should be confident that the committee has sufficient senior (likely board member) representation and adequate NED involvement to provide scrutiny and challenge. The ability to appoint individuals from outside participating organisations allows, for example, the appointment of specialist clinicians, patient representatives or independent NEDs from other organisations or sectors.
• Time spent building mutual trust and effective relationships between the members of the committee and each of the provider boards will likely pay dividends. Each provider must have trust in the judgement of the committee members as functions and decision-making authority is delegated, and those on the committee will likely want to gauge their board's appetite in relation to significant decisions.
• The participating organisations will need to amend their schemes of delegation to reflect the joint committee arrangements.

[8] Page 36 of the delegation guidance

 

What is an example of a joint committee?

Lancashire and South Cumbria Provider Collaboration Board