Health and Social Care Bill

Memorandum submitted by The Foundation Trust Governors’ Association (HS 81)

Introduction

1) The Foundation Trust Governors’ Association (FTGA) is the only national organisation representing Foundation Trust Governors. Currently we have 87 member Foundation Trusts (FT), representing approximately 3,000 governors across England. The FTGA was involved in drafting the legislation for the Health and Social Care Bill 2010-2011.

2) We have confined our comments to areas that directly affect governors. Items are listed in the order in which they appear in the Bill, except for the first two items, which are presented as additions to the current wording.

Comments

Board of Directors’ meetings

3) The FTGA believes that FTs should hold Board meetings in public. We understand that there are issues of confidentiality or commercial sensitivity that need to be discussed in closed session and so would accept a Part I and Part II arrangement. However, it is important for the probity and local accountability of the FT that the Part I of the meeting is clearly the discussion and decision-making forum for the Board of Directors. 

4) The contents of Part II should be carefully assessed to ensure their appropriateness. Each FT that operates a split Board meeting should establish a process for reassuring its governors that items in Part II really do need to be there, giving an outline of why they are in Part II and when they are expected in Part I for decision. This may be done through the Lead Governor.

5) If FTs are to fulfil their remit of being accountable to their communities rather than Whitehall, public scrutiny of the Board of Directors’ meeting is essential. There is clear precedent for this in the Local Government Act of 1972, clause 100, for example: 

6) "A meeting of a principal council shall be open to the public except to the extent that they are excluded (whether during the whole or part of the proceedings) under subsection (2) below or by resolution under subsection (4) below."

7) The majority of our c.3,000 governor members agree with this and feel that without access to their Directors' meetings, they cannot discharge their duties properly.

The Composition of Health and Wellbeing Boards

8) There are already some provisions in legislation for who should sit on Health and Wellbeing Boards, but their overall size and shape is for local discretion. At the moment, there is no prescribed provider presence, which we think is an oversight. We would like to propose that providers are given a place on all Health and Wellbeing Boards and that this be done through a governor. 

9) If it was felt inappropriate for providers themselves to sit on this Board, governors are in the position of having knowledge of the sector without being directly responsible for it and of having a wider responsibility to the community as a whole. The overall strategic co-ordination function of the Board sits well with the Governor remit. And as consortiums will be represented by one person, it seems reasonable to mirror that with some level of provider input.

10) The FTGA view expressed here is supported by the Foundation Trust Network.

11) Clause 136 Governors

(3) Appointed Governors

The FTGA welcomes the increased flexibility surrounding partnership organisations and appointed governors but is concerned that this flexibility must not be used as a way of introducing ‘expert’ governors by the back door. We think it is vital that governors remain either elected or appointed from organisations that have a clear interest in healthcare and the local community rather than for any particular professional expertise they may possess. Governors are not there to replicate the non-executive role.

12) Currently partner governors may sit on more than one Council of Governors, whereas elected governors may only sit on one. We think the position of partner governors is anomalous in this regard and should only be allowed to sit on one Council at a time.

13) Clause 136 Governors

(5) Equipping Governors with the skills required

The FTGA welcomes the inclusion of a requirement on FTs to train and adequately equip their governors to carry out their duties effectively. However, as it stands, this is as far as it goes. We think it is important that the legislation also specifies how this legal requirement be enforced and what sanctions are available if FTs fall short.

14) The key to enforcing this will be establishing how the effectiveness of governors might be assessed on an ongoing basis. The FTGA believes there is a role here for the Care Quality Commission (CQC). We feel that ensuring governors are inducted and trained by their FT to be effective is a mark of an FT’s overall approach to quality and governance and, as such, could be included in the assessment carried out by the CQC. This could be in the form of a submission set against a benchmarked set of criteria. This would be analogous to the assessment of the effectiveness of school governing bodies carried out by Ofsted as part of a school inspection.

15) Clause 137 Directors

(4) 18D (1) & (2) Agendas and Minutes of Board of Directors’ Meetings

The FTGA welcomes the openness and transparency this measure brings as it is a crucial part of governors being able to fulfil their role effectively. However, we are unclear how this information will be shared with governors if Board of Directors’ meetings are held in private as in many trusts this sort of information is not shared on the grounds of confidentiality. There would need to be a clear undertaking in the legislation that all agendas and minutes be shared with governors to make this work.

16) Clause 147 Panel for Advising Governors

The FTGA welcomes Monitor’s power to appoint a panel to advise governors on questions of dispute with their Trust. However, we would like the following points considered further:

1. Given that the dispute may well be with the Chair of the Trust, will the Council of Governors feel able to vote publicly to refer a question to the panel in front of their Chair (they must do this in order to act as a full Council, which is the only body with the power to take this decision)?

2. Staff governors should at least be allowed a secret ballot in this instance.

3. Who will take the lead in communicating with Monitor? The FTGA thinks this should fall to the Lead Governor unless the Council deems otherwise.

4. The advice of the panel is not binding on the Trust. However, we feel that Trusts should be required to record in their Annual Report any instances of their Governors referring to the panel, detailing the question, the response of the panel and the Trust’s actions as a result.

5. How will Monitor assure itself of the consistency of decision making from the panel when it will hopefully only be convened rarely? What provision will be made for retaining experienced members, evaluating performance and allowing for feedback from Trusts and their Governors?

6. Is the committee assured that this panel will be taken seriously by Trusts?

March 2011