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.