NHS England (NHSE) has released its response to the three provider governance consultations it released earlier this year:
- Code of Governance for NHS provider trusts
- Good governance and collaboration guidance
- Addendum to guide for foundation trust governors
The response includes final versions of the three new documents to which fairly minimal changes have been made. In line with feedback, the Code of Governance will not ‘go live’ until 1 April 2023. The other two documents are in force with immediate effect.
Code of Governance
The revised Code has been updated to:
- Extend its application to NHS Trusts as well as NHS Foundation Trusts;
- Reflect changes in wider corporate governance practice since the last version was published;
- Position corporate governance in the context of system working;
- Reflect NHS England policy in relation to appointment / appraisal / pay of trust directors; and,
- Embed equality, diversity and inclusion principles.
In response to the consultation, the final version made amendments including:
- In relation to the appointments process, NHSE will engage with trusts and ICBs in advance to agree an approach. This was in response to concerns by respondents about how the NHSE role would operate in practice.
- Clarified that principles in the Code are intended to be high level, with provisions translating these into governance processes.
- Stressing the need to spread responsibilities across the whole board to ensure capacity to carry these out roles effectively.
- Clarifying that an individual serving three years as a non-executive director can go in to spend six years as chair without NHSE approval.
Good governance and collaboration guidance
This guidance, applying to both trusts and foundation trusts is intended to help providers work collaboratively and effectively in systems to deliver system objectives. It is framed around behaviours:
- Consistent engagement in shared planning / decision-making;
- Collective responsibility with partners for service delivery across footprints including system and place; and,
- Responsibility for delivery of improvements / decisions agreed through system bodies including place-based partnerships and provider collaboratives.
These behaviours are supported by characteristics:
- Developing / sustaining strong working relationships with partners
- Ensuring decisions are made at the right level
- Setting out clear and system-minded rationale for decisions
- Establishing clear lines of accountability for decisions
- Ensuring delivery of improvements and decisions
Once again, limited amendments were made in the final draft, including:
- To more explicitly link governance and collaboration to oversight of care quality, cross-referencing relevant publications
- Align content with Health and Care Act 2022 powers not finalised when the consultation was published, for example in relation to financial obligations.
As well as publishing the final guidance, NHSE has also now published a consultation relating to the provider licence which proposes incorporating system working expectations into the new provider licence itself, with this guidance supporting transition until the new provider licence comes into effect in 2023.
Addendum to guide for foundation trust governors
This guide is intended to explain how governors’ can support system working and collaboration, including considering the effect of decisions on the public at large (in and outside of the trust’s ICS footprint). Of all the consultations issued, it appears that this received the most broad-ranging responses, including in terms of some matters outside the scope of the consultation in relation to governors’ statutory duties (which the guide is not intended to change). NHSE has confirmed in its response that it will consider further work on this point.
In terms of amendments which were made following the consultation, these include:
- Making clear that the guidance applies to all types of foundation trust governor
- Adding clarity in terms of the scope and intentions for system working / implications for providers
- Confirming that the governor role is not intended to increase materially as a result of this guidance / in response to the establishment of Integrated Care Boards (ICB) including that governors do not have a formal role regarding other providers or the ICB.
- Confirming the situation where a trust is near a system boundary / has a material number of patients from multiple ICSs, in that governors should work with their board to consider how to represent patients in the ICSs which the trust is not part of.
The consultation response confirms that, going forward, NHSE will consider how to support governors to represent the interests of different patients across different systems and will share best practice in director / governor relationships.
Conclusions
There are no major surprises in the NHSE consultation response in terms of updates of the documents previously consulted on. The response does however note ongoing work in relation to provider governance for trusts to be aware of, and the delay before the updated Code comes into effect, from April 2023, will no doubt be welcomed as a transition opportunity for trusts.
For further information, please contact:
Emma Stockwell, Partner, Hill Dickinson
emma.stockwell@hilldickinson.com
