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Publication date: 17 September 2024
Last reviewed: 17 September 2024

In this chapter:

• Introduction
• Overview
• Definitions
• Shared leadership at a glance
• Considerations

Introduction

Based on interviews with leaders of trusts working in partnership using various shared leadership and/or shared decision-making arrangements (including groups and board in common approaches), this chapter aims to support leaders either considering or reviewing such arrangements.

Overview

Both joint appointments and shared decision-making arrangements will impact on trust governance – we set out risk-based considerations for board members in this chapter.

Provider collaboration has accelerated since the enactment of the Health and Social Care Act 2022. Trust leaders tell us that collaboration between trusts is essential to making real change and delivering on the ambitions of system working. Provider collaboration offers an opportunity for trusts to work together at scale to tackle some of the complex challenges they face, such as long waiting lists, demand for diagnostic tests and workforce shortages.

As collaboration between providers progresses, we are also seeing increased use of consolidated leadership models across the provider sector – the ambition to collaborate is changing the NHS provider landscape.

In July 2024, approximately a third of trusts shared their chief executive or chair with another trust (in some cases both posts were shared). Joint roles are no longer uncommon and may apply to any board role, including chair or CEO, as well as to more junior roles.

At the same time – and because the two are linked – multi-trust arrangements involving joint or shared decision-making forums with extensive delegated powers, including but not limited to those calling themselves groups, are being adopted between two or more trusts[1].

Other collaborative options are available, and involvement in one or more is 'expected[2]' of each provider by NHSE. Therefore both joint appointments and shared decision-making models raise questions: for example, what is the evidence that this will achieve the desired outcome, when other options will not, or what do these arrangements enable providers to achieve for patients and communities that would not be possible with other forms of collaboration?

With shared leadership, there are potential risks around the capacity of those leaders, their ability to oversee and control organisations effectively, and about leadership style, as well as challenges and opportunities related to succession planning.

Shared decision-making models where more than one trust is effectively governed by a single decision-making forum (such as 'boards in common' or group boards) raise their own risks, including where the buck stops when jointly-taken decisions affect trusts. There are also potential challenges for non-executive directors (NEDs) in terms of seeking and receiving adequate assurance, and ensuring that each trust is fulfilling their statutory obligations.

Definitions

Shared leadership roles are simply defined as leadership roles shared across two or more organisations, undertaken by the same postholder.

A shared decision-making arrangement with extensive delegated powers can involve a variety of arrangements, including group-style arrangements, boards in common or joint committees. We do not seek here to include shared decision-making arrangements where individual boards reserve the majority of decisions to themselves and the collaborative forum controls only specific programmes, projects or discreet efforts at integration.

Some trusts working in strategic partnership delegate broad powers over each organisation to a single shared decision-making forum and may call themselves groups. These trusts remain legally independent while collaborating on a range of corporate and/or clinical programmes, with a central leadership body (often with one or more shared leadership roles). However there is no tightly drawn definition of an NHS group model[3]: there is no legal definition and groups can take various organisational forms. Some large individual trusts take a group-style approach to leading and managing across multiple sites since legislation does not allow them to establish subsidiary boards within their organisations.

This is why here we prefer to use 'shared decision-making arrangements' rather than the terminology of groups.

Shared leadership at a glance

Considerations

Making the strategic case

Where collaborative arrangements are in use or being sought the benefits of the approach should be able to be articulated:

• Are you clear why you are doing this, and have other options have been carefully considered?
• Is there a realistic, evidence-based expectation that the proposed changes to arrangements will realise your objectives?
• Are there defined realisable patient benefits that can be measured over time?

There are several models for collaboration and no one size fits all. Our Practical guide to lawful, well-governed collaboratives sets out the options.

Meeting required governance standards

Good governance is about leadership and direction and is therefore necessary if organisations are to provide effective patient care, including through partnership working and collaboration. Good governance is also vital when seeking to integrate functions and/or services.

Where NHS organisations use arrangements that conform less to well-established board governance, risk is heightened, and this should be recognised and managed. Partners would be well-advised to seek the early support of governance professionals when considering integrated governance and/or shared leadership across organisations.

Both shared/joint appointments and shared leadership arrangements should therefore enable trust(s) to comply with the recognised governance standards, and specifically the requirements of well-led, the provider licence and the provider code of governance. The following sections of the provider licence apply and are not set out here because they are mirrored in the provisions of the code: G5 Systems for compliance with licence conditions and related obligations, NHS2 Governance arrangements and CoS3 Standards of corporate governance, financial management and quality governance.

Additional considerations about joint appointments

Making the right appointment

Many leaders undertaking the most senior joint leadership roles are long-standing and well-respected NHS leaders. This is only natural given the scope and scale of some of these roles.  However, each improvement challenge should be considered on its merits and so it is important to recognise that appointing a well known leader to a shared leadership position is not a panacea for improvement. This applies not only to providers making their own appointments but also to NHSE when appointing to NHS trusts.

Capacity

Leaders in joint positions will need to carefully manage their time and focus their attention: capacity is an issue that many leaders have raised with us. Some trusts have supported shared CEOs by creating additional deputy posts, or roles responsible for running hospitals or sites – sometimes called site managing directors or 'site CEOs'[4]. In some cases, these appointments have helped support board members, but this can change the nature of both the director and deputy roles and responsibilities. This should be acknowledged and regularly discussed to ensure arrangements are working, and that directors have the capacity and remain able to fulfil their duties. Remember that those acting in the capacity of directors – whether called directors or not – can assume director’s liabilities[5].

In foundation trusts (FTs), adequate time for engagement with the council of governors must be factored in, particularly for chairs and other NEDs in joint positions.

Succession planning

Creating additional or new deputy positions can provide a good grounding for aspirant directors and may support succession planning. Trusts will want to ensure there are effective opportunities for talent management with the proliferation of below-board level directors and site leaders.

Equally, creating joint roles can create succession challenges. Organisations need to be able to withstand a change in leadership, be mindful of their succession needs, and plan accordingly – while being mindful of the need for open and fair competition for roles, with appointments made on merit.

The benefits of board diversity are articulated in the NHS EDI improvement plan, which links diverse leadership with better performance: more diverse boards (in terms of representation of people with diverse protected characteristics but also of thought and experience) are likely to make better decisions and avoid biases such a groupthink. Opportunities to improve diversity at the board and at very senior level should be considered when succession planning.

Influence and division of powers

The greater influence one individual has over multiple organisations, the higher the risk of adverse impacts if they make mistakes (and everyone makes mistakes). This makes effective challenge and scrutiny, by the whole board but perhaps especially by independent NEDs, even more vital.

It is also important that there is due balance and distinction between executive and non-executive roles and responsibilities. Where there is a joint chair working with several CEOs for example, or vice versa, any risk of power imbalance should be carefully monitored. NHSE's expectation (set out in Our Leadership Way) that all leaders in the NHS demonstrate compassionate, inclusive and collaborative behaviours, may go some way to mitigating the risk of power imbalances.

For joint chairs and NEDs, it will also be important to avoid stepping into an executive role – something to pay careful attention to not only internally but also if representing the organisations at partner, system, regional and/or national forums. Joint executive directors should remain mindful of their delegated authority in such circumstances: it may well suit partners to speak to an individual to make a decision, but if the trust board(s) or a shared decision-making forum has responsibility for that decision, the individual must go through the necessary steps to secure agreement.

Conflicts of interest

Considerations related to managing conflicts of interest in collaboration are explored in our Guide to lawful, well-governed collaboratives and our advice for directors sitting on ICBs (kindly provided by law firm McDermott, Will & Emery) may also be useful.

Additional considerations about shared decision-making arrangements with extensive delegated powers

Reserving to the board

The board of each organisation must ensure that the organisation's statutory corporate governance functions are maintained, with adequate meeting frequency and time allotted at their board to undertake them effectively. Boards may wish to delegate some of the functions usually reserved to the board to a shared decision-making body in order to lead a group-style or 'board in common' arrangement: NHSE guidance[6] sets out those corporate governance and regulatory functions which cannot be delegated.

Organisations should also be mindful of directors' duties[7] and ensure arrangements enable them to fulfil their duties to the organisation as well as their duty to cooperate to achieve system objectives.

NED challenge

Large decision-making bodies such as boards in common and joint committees may increase the risk that NED challenge will be diluted and less effective. The size of such forums can mitigate against probing questioning, as can the size and scope of some agendas. The code of governance for provider trusts expects boards to have independent NEDs in the majority, to provide crucial independent challenge and scrutiny at the point of decision-making[8]. In our view, where significant decisions are made in shared forums without recourse to individual provider boards, NEDs should remain in the majority. Their voice and challenge should be supported when making decisions for which provider boards remain responsible and liable. Of course, recourse to individual boards holds the least risk. 

Public accountability

Public accountability and scrutiny are part and parcel of good NHS governance. As set out in the Health and Care Act 2006 (as amended), meeting in public is compulsory for provider boards for this reason. Collaborative models should seek to maintain public accountability and scrutiny in line with the expectations on individual organisations. Group boards and multi-trust boards in common should aspire to the same standard.

The council of governors

For foundation trusts, appropriate and early consideration should be given to the needs and expectations of the council of governors of any FT that is proposing to establish a multi-trust collaborative arrangement using a forum with significant shared decision-making powers. One of the council’s statutory duties is to hold the board to account for its performance, via the NEDs, and so governors will continue to need appropriate access to the board and NEDs to fulfil their responsibilities. They will also want to take an appropriate interest in the performance of the partnership, and therefore its decision-making forum. NHS trusts sharing a leadership forum with one or more FTs should be aware that governors will need to understand and have the chance to scrutinise the performance of the shared forum, since that is where the FT's board is making many decisions and receiving assurance about matters affecting the FT.

Accountabilities

Participation in shared-decision making can blur accountabilities and make it hard to identify where the buck stops. The extent of directors' and shared decision-making forums' delegated powers should be clearly established, articulated and communicated through each organisation's scheme of delegation and the forum’s terms of reference. Where directors in shared leadership positions participate in shared decision-making this may compound the challenge.

What happens next?

A number of those we have spoken to have described a snowball effect where shared leadership precipitates a move to board in common arrangements. As the number of shared roles across partner organisations increases, or ambitions for the collaboration grows, a logic emerges for reducing the meeting burden and potential duplication of reporting and scrutiny. Providers should carefully weigh up the potential advantages and disadvantages of effectively reducing the time allocated to board activity, mindful of the requirements of the code of governance and well-led. We hope the considerations set out above will support them in this. It will also be important to enter into arrangements mindful that partners may change their mind – and to have regular touch points where partners assess how the arrangements are working, as well as acknowledging there may be a need to unpick the arrangements in the future.

Mergers and acquisitions

Finally, when we spoke to members about group-style arrangements the subject of mergers or acquisitions was naturally discussed. In some cases, this had been explicitly considered as an option and discarded as it was believed too complex or it did not suit the partners, for example because of the strong identity of each partner organisation. In other cases, the possibility of merger remained under review. For partners entering into boards in common arrangements and working increasingly closely strategically, clinically and corporately, a merger may prove a less complex and more transparent option in the longer term when compared with establishing and sustaining good governance as two or more sovereign organisations.

[1] It is hard to put exact numbers on the increase in group-style models, because those partnerships calling themselves groups do not conform to a single set of arrangements, and because some partnerships have adopted group-style models but do not call themselves groups.

[2] See NHSE’s Guidance on good governance and collaboration

[3] In the corporate sector, a group structure is reasonably well defined: a central parent board with overall strategic control of subsidiary companies, each led by its own board which has significant autonomy.

[4] As set out in Schedule 7 of the NHS Act 2006 (as amended) for foundation trusts and Group Accounting Manual for NHS trusts, the chief executive of a provider board is its accounting officer (AO). Providers may wish to ensure terminology does not lead to confusion about who is the AO.

[5] If a person's acts in relation to the organisation are directorial in nature, that person may be a deemed a de facto director, and the duties and liabilities of the Companies Act 2006 have been established in case law to potentially apply.

[6] Arrangements for delegation and the joint exercise of statutory functions, Annex F sets out those functions which can, and cannot, be delegated and gives the statutory reference and reason why.

[7] Directors of NHS providers have legal duties under the Companies Act 2006 including: act within their powers; exercise independent judgement; exercise reasonable care, skill and diligence; avoid conflicts of interest.

[8] More on the rationale for NED involvement is set out in our Guide to lawful, well-governed provider collaboratives.