FAQs from company secretaries

The current global circumstances and need for trust's to refocus their energy and strategy almost entirely towards tackling COVID-19 means that providers are facing an almost unprecedented time. 

To support members with questions around governance, elections and the day-to-day running of their trusts, we've set up the below FAQs section, based on questions and feedback from our members, largely company secretaries. 

To connect with our members, and to continue to allow networking opportunities and sharing of best practice, we are using our closed LinkedIn member groups even more frequently. If you would like to join one of these groups, please contact our networks team.

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What is NHS Providers’ advice for governor elections during COVID-19?
There has been much debate about whether governor elections can go ahead and if not whether terms of office can be extended or existing governors kept on in other ways. We would always want our advice to be pragmatic and to minimise disruption during the pandemic, but we would also advise that decisions need to be able to stand up to future scrutiny. NHS England and NHS Improvement guidance of 26 January 2021 confirms that trusts are “free to stop/delay governor elections where necessary”. Some trusts are able to run staff governor elections completely electronically including nominations, which will allow these elections to go ahead as normal. Trusts should satisfy themselves that a sufficient turnout will be achieved to make this a meaningful election at this difficult time. Some trusts have discussed amending their constitutions to extend outgoing elected governors terms of office. We advise caution here. Elected governor terms of office are set out in primary legislation as 3 years (Paragraph 10 (1) of Schedule 7, National Health Service Act 2006 as amended by the Health and Social Care Act 2012). Any elected governor will cease to be a governor after 3 years notwithstanding what constitutional provisions are made. While this might not present a problem if no one challenges it, it raises a risk of councils making decisions that could be vitiated because of voting by persons who are not council members. While most governor decisions are advisory some are not and trusts will wish to ensure that decisions will stand up to future scrutiny. Where trusts wish to keep outgoing governors involved particularly if they have expressed an intention to stand again for election, it would be possible to allow them to be present and participate, but not vote in meetings as members of the public. Otherwise it may be possible, depending on the balance of council membership for trusts to make constitutional changes to facilitate keeping outgoing governors on as appointed governors. We are happy to give detailed advice on how this might be approached. We are aware that for many trusts losing elected governors will make it difficult for them to achieve a quorum for council meetings. There is nothing in statute regarding quoracy of councils and trusts are free to make reasonable amendments to their constitutions, with the approval of both the board and the council, to reflect a temporary change in the balance of the council. We also recommend that council meetings are not held in person at the present time but instead that governor approval to the change is secured electronically or by phone where appropriate and confirmed at the next full meeting. Updated: 05/02/2021
Have deadlines for annual accounts and reports changed during this time?
NHSE/I published guidance on 28 March 2020 including information about annual accounts deadlines and annual reports. This guidance can be viewed on the NHSE/I website under Coronavirus - Reducing burden and releasing capacity at NHS providers and commissioners to manage the COVID-19 pandemic. Updated: 30/03/2020
How can boards seek assurance and appropriately manage risk in a time of crisis?
It will not be possible for boards to carry out their usual risk management and assurance activities during the crisis. At the same time, periods of crisis are when governance failures are more likely to occur. Furthermore, when the crisis eases any lapses are likely to come under intense scrutiny. So while this implies that board’s appetite for risk will need to increase with a commensurate increase in risks that are tolerated rather than actively managed it doesn’t not imply the end of rigorous risk management, but rather a change in emphasis. New risks associated with the management of Covid 19 will need to be added to the board assurance framework and reviewed by the board relatively frequently. This frequency will vary from trusts to trust depending on the scale of the demand they face, but should be at least monthly. NED triangulation activities will need to be scaled down in the short term and boards will need to rely far more than usual on what they are told by the executive for assurance, but this does not mean that directors should cease to look for evidence from more than one source where it is available. This places an onus on directors, with NEDs in the forefront to challenge concisely, but appropriately and to ensure that voices urging reflection or caution are not drowned out by those advocating immediate action. Prompt decisions are important, but it is vital to ensure that they are not flawed decisions’ The focus of boards should be on supporting the executive team and staff by verifying the key risks are identified and managed as appropriate. In times of extreme pressure the ability and willingness to escalate risk issues including escalation outside the trust becomes crucial, so boards will need to seek evidence that escalation processes are working effectively. Executive directors will need to broaden powers of delegation, so boards will need to accept that there may be situations where they will be informed after the event, rather than consulted more frequently which has been the usual practice. For the more challenging decisions, executive directors may need to ask board colleagues for a second opinion or for support. In this regard it is better to err on the side of caution and consult than to press ahead when in doubt. Executive directors will have little time for the preparation of reports, so boards will need to accept oral reports and be prepared to accept executives tabling items for discussion in the short term. However, it is important to ensure that there is a clear audit trail with minutes recording how decisions, especially the more challenging ones, are made. The board committee structure will need to be streamlined. There is no one size fits all solution, but some trusts are combining committees, while others are experimenting with the board acting as its own committees and dealing with essential matters only. Updated: 26/03/2020
What practical steps can boards take to maintain good governance during these challenging times?
For the period of the coronavirus emergency boards should strip their agenda back to the essentials. The chair and chief executive should agree substantive items to be brought to the board. Board meeting should be virtual and as concise as possible – boards may wish to set a time limit of 90 minutes to two hours. There is no one size fits all for meeting frequency, but once a month would seem reasonable. Board papers should be kept brief and deal with issues that require the board to make a decision. Information not requiring a decision can be sent electronically outside the meeting. Board reports should cover the purpose of the report and the decision required along with a summary of the issue. Key risks and how they will be managed should be identified together with mitigations and any residual risk that will need to be tolerated and information on escalation. All decisions should be allocated to an individual to implement together with a date on which the board will be updated. Large appendices should be avoided. The chair and chief executive will need to be in contact as frequently as circumstances dictate and the chair should brief NEDs by a virtual platform once a week. Meetings will not be taking place in person, so there will be no scope to open them to the public. It is possible to live-stream board meetings, but this would involve considerable effort that may be better expended elsewhere. To enable the public to be kept informed summary notes of the board should be posted on the trust website. Updated: 26/03/2020
What should we do about chair and NED appraisals?
In this environment it may not be possible to carry out full appraisals of chairs and NEDs. Many trusts will also have higher priorities. If there are pressing issues with a director these should be dealt with outside the appraisal process. Trusts may wish to progress chair and NED appraisals virtually if they are in a position to continue business as usual. However we expect this will be rare this year. Trusts can postpone appraisals and explain why to governors (for FTs) and to NHSE/I. Updated: 26/03/2020
Should chairs and NEDs feel the need to be onsite?
All meetings involving NEDs should be virtual, either by phone or using a video conferencing platform. While leadership visibility is important in times of crisis, so is the need to ensure that Chairs and NEDs remain fit to carry out their roles, therefore visibility should be confined to those directors who need to be on site as part of their role. Updated: 26/03/2020
How should we engage with our governors at this time ?
It is important for the long term Board/CoG relationship for trusts to find ways to keep in touch with governors at this time. Regular brief communication will prevent governors feeling out of the loop and relying on local media for their information, which may or may not be reliable. Three options to consider would be – 1. Short written briefings on the operational position of the trust to keep them updated. Material already produced for staff and/or NEDs may be able to be shared or adapted to minimise any additional burden. 2. Opportunity for governors to dial in via conference call or electronic means for a briefing and to ask any questions. 3. Chair updates by written or electronic means. Updated: 27/03/2020
What should the board ethics committee be doing at this time?
The purpose of board committees (as opposed to management) is to help the board obtain assurance. So similarly to other committees, such as the quality committee, which may be the closest comparator, a board ethics committee should check that the organisation has policies in place that are adequate to the task, that there are systems and processes in place to implement those policies, that the systems and processes are understood by those who need to use them and finally that they produce the required results. This task will of course be shaped at the current time by the context of the Coronavirus pandemic. Updated: 02/04/2020
What should trusts do about offers of gifts and hospitality during the pandemic?
NHS trusts and foundation trusts have established policies and processes for dealing with offers of gifts and hospitality. However widespread appreciation of the NHS has led to a substantial increase in the number and type of gifts offered and some organisations have said that they don’t think their current policies are adequate to the task. No one size fits all and if your current policy and processes still work for you there is no reason for change for the sake of it. However if the volume of gifts or their nature makes current polices unworkable and change is necessary it is important to take account of some key principles behind all gift and hospitality policies. Gifts to the trust: Many donations are being made directly to trusts rather than to individuals or groups of staff. However staff may end up being the main beneficiaries of such donations, so it is important that a record is kept at trust level and it is clear that donations are being accepted as a gift and acknowledged appropriately. Clarity, fairness and transparency: Whatever policy the trust has in place should be well known and seen to be followed. The policy should be seen to be fair and to be fairly applied so that there is no suggestion that one group or class of staff is being unduly favoured over another. It is also important to avoid waste: gifts need to be either used or donated onwards if they cannot be used. Gifts that can be accepted: Most policies allow staff to accept gifts of nominal value or up to a set value. However some donations such as food and accommodation may exceed this value, but still be immensely helpful to both the trust and its staff while they are working under pressure. Trusts may wish to alter the threshold of what can be accepted where there is an obvious benefit to the trust: staff being able to avoid long commutes for example. Probity: The overwhelming majority of gifts offered at this time are likely to be expressions of gratitude or support. However under normal circumstances the offer of gifts, in some cases may be intended, or perceived to be intended to influence the behaviour of the trust or its staff. While it is unlikely that trusts will be asked for quid pro quo at this time, that does not mean that gifts made now will not be leveraged at some stage in the future. It is important therefore that significant or on-going gifts are recorded, acknowledged for what they are and reported so that senior staff and boards can take account of their existence in any future interactions with the donor. Recording: Some trusts are saying that the volume and nature of some gifts makes recording difficult, while resources to collate what is recorded are stretched. However it remains important to record where possible so that there can be proper oversight and that probity is seen to be observed. Trusts will clearly have their own processes for ensuring that offers and acceptances get from the ward to the boardroom. What are trusts doing: Some trusts are handing over all gifts above nominal amount to their charity to be dealt with. Others have periodic probity reports to their boards to guarantee oversight. Updated: 01/05/2020
Our chair/NEDs are nearing the end of their terms of office. What should our approach to replacement be?
Foundation trusts and NHS trusts have taken a variety of different approaches. Some trusts have managed to go through the entire appointment process virtually, even including the full approval of their council of governors. Many trusts will be able to make appointments in this way. NHSE/I hold a database of diverse candidates, many of them previously deemed appointable by selection panels. They can also promote your vacancies on their website and the cabinet office website so may be able to help inform a suitable shortlist that is acceptable to your council. Please contact Helen Barlow at helen.barlow2@nhs.net for more information. If you are not able to carry out a virtual process there are a number of other measures that that foundation trusts and NHS trusts may wish to consider: For chair vacancies consider asking the Council (or NHSEI for NHS trusts) to: • Ask your current chair to remain in post and for the council to agree this • Appoint one of the existing NEDs as acting chair where there is a suitable candidate • Appoint an experienced interim chair for a fixed period depending on circumstances • Streamline informal elements of the process for example, meet the candidate sessions are dispensed with for the lockdown period. For NED vacancies consider asking the Council (or NHSEI for NHS trusts) to: • Ask your current NEDs to remain in post for a further term or for a fixed period depending on circumstances • Promote associate NEDs to full NED roles, or appoint interim NEDs with relevant experience for a fixed period • Streamline informal elements of the process for example, meet the candidate sessions are dispensed with for the lockdown period • Invite former NEDs or former executive directors to apply for vacancies to increase the candidate pool, as well as using considering recruitment companies • Contact NHSE/I to ask the team to notify people in their existing talent pool who may meet the criteria and live in the area. NHS trust chair and NED appointments are made by NHSE/I in collaboration with trusts. If your chair or one or more of your NEDs is nearing the end of their term please contact Helen Barlow for further advice: helen.barlow2@nhs.net. The Non-Executive Appointments Team will normally contact you at least 4 – 6 weeks in advance of these terms ending. The team is also available to offer advice and support across the service on governance arrangements relating to chair and NED appointments and recruiting with diversity in mind. Updated: 06/05/2020
Can I access any support for new governors at the present time?
Since Summer 2020 we have transferred all of our GovernWell training modules to delivery on a virtual basis. We can also offer: 1. Telephone or email advice available via governors@nhsproviders.org 2. For newly appointed governors we updated our induction toolkit in March 2020 This is a free resource which we hope will provide an efficient and effective basis for a comprehensive induction for new governors. The link is https://nhsproviders.org/training-events/governor-support/support-and-guidance/resources/induction-toolkit
What is the latest guidance on Quality Accounts?
The latest guidance can be viewed on the website below and was published on 30/04/2020 http://www.legislation.gov.uk/id/uksi/2020/466 Updated: 01/05/20