Yes, the chair of the NHS foundation trust board of directors is also the chair of the NHS foundation trust council of governors.
No; some NHS foundation trusts have chosen not to use the term "council of governors" and various alternatives are used instead, including:
Meetings of the council of governors must be open to the public but a trust's constitution can allow for members of the public to be excluded for special reasons. This is required by schedule 7 of the NHS Act 2006.
However, there is currently no legal requirement for NHS foundation trusts to hold meetings of their board of directors in public; it is at the discretion of the individual foundation trust to decide whether to allow public access to meetings.
The two key requirements of NHS foundation trust boards are that they are effective – to ensure that their organisations operate efficiently and manage resources well - and that they are publically accountable. It is crucial that they fulfil both of these requirements, but legislation and Monitor’s regulatory regime leave it to each foundation trust to determine locally how they best achieve this.
The NHS Foundation Trust Code of Governance, which sets out a framework for what Monitor believes is good governance, encourages openness from the board "unless this conflicts with a need to protect the wider interests of the public or the NHS foundation trust (including commercial-in-confidence matters)". The code has been incorporated into Monitor’s Compliance Framework on a comply-or-explain basis.
The key means by which the public can hold NHS foundation trusts to account is through their membership and the council of governors. Governors have considerable powers at their disposal, including the power to appoint or remove the chairman and non-executive directors - Your Statutory Duties: A Reference Guide for NHS Foundation Trust Governors sets out these powers and duties. Monitor emphasises the need for strong governors who can challenge boards of directors on behalf of NHS foundation trust members.
The draft Health and Social Care Bill 2011 proposes that NHS foundation trusts must hold their board of director meetings in public (with the constitution allowing for members of the public to be excluded from a meeting for special reasons). For more information on the Bill’s progress through Parliament, please see www.parliament.uk.
The Health and Social Care Bill proposes that govenors will have a greater role in monitoring effective governance at NHS foundation trusts, as Monitor takes up the role of sector regulator. It is proposed that Monitor will continue to have transitional powers over all foundation trusts until 2016 to maintain high standards of governance during the transition. This will give foundation trusts time to develop their governance arrangements, and will give governors time to learn how to use their powers effectively, which is in the best interest of patients.
Additional powers proposed for governors in the Bill include the power to require one or more directors to attend a meeting and the right to receive agendas and minutes of the meetings of directors. Approval of more than half of the members of the council of governors will also be needed for any amendment to the trust constitution or entry by the trust into a significant transaction, merger, acquisition, separation or dissolution.
Boards must be transparent on performance and plans – they need to engage patients and the public in evaluating performance and determining plans. Monitor requires NHS foundation trusts to report on the quality of care their organisations deliver ‐ and how they plan to improve it ‐ as part of their annual reports. Quality reports help to develop more transparent and accountable public reporting and ensure that boards have clear priorities and achievable plans in place for driving improvement. Patients and the public can use this information to hold boards to account on the commitments they make.
NHS foundation trusts are autonomous organisations, and appointments and remuneration is one of the areas where they are able to make their own decisions. The governance structure has been designed to make sure that directors (both executive and non-executive) are held to account for their performance and are prevented from deciding their own remuneration.
The council of governors is responsible for deciding the remuneration and allowances, and the other terms and conditions of office, of the chair and the other non-executive directors.
Any remuneration matters are therefore contractual issues between the trust and its staff. The NHS Foundation Trust Code of Governance states: "Levels of remuneration should be sufficient to attract, retain and motivate directors of the quality required to run the NHS foundation trust successfully, but an NHS foundation trust should avoid paying more than is necessary for this purpose."
Monitor is responsible for authorising, monitoring and regulating NHS foundation trusts. The Care Quality Commission (CQC) is responsible for regulating the quality of health and adult social care services. Monitor looks to the CQC to provide us with assurance that essential standards of quality and safety are being met, and we don’t seek to duplicate that role. Assessing and regulating governance – the ability of an NHS foundation trust board to do their job properly and ensure their hospitals provide high quality care – is Monitor’s role.
Monitor and CQC are fully committed to working together to ensure that there are neither gaps nor duplication in the regulatory system, and to ensuring that this co-ordinated approach delivers real benefits for patients. We have published a memorandum of understanding which provides more detail on our distinct roles and how we work together.
Monitor is required, by law, to maintain a register of NHS foundation trusts. This is called the NHS foundation trust directory, available on this website. The directory includes the terms of authorisation for each NHS foundation trust, which sets out the obligations under which that trust must operate. The terms of authorisation include a constitution, and where the standing orders form part of the constitution of an NHS foundation trust, they will be available in the directory. However, not all constitutions include the standing orders; for example, the earlier NHS foundation trusts that were authorised by NHS foundation trusts that were authorised by Monitor tend not to include the standing orders in their constitutions.
Where an NHS foundation trust proposes to amend its constitution, any amendment must be approved by Monitor. Such approval is required for any amendment to the standing orders where the standing orders form part of the constitution.
If governors feel that a foundation trust is in breach of its authorisation, or that a breach is imminent, it is very probably in the trust’s wider interests for governors to contact Monitor to share their concerns, via the lead governor. Details of Monitor’s relationship manager for each NHS foundation trust are available in the NHS foundation trust directory. For more information on communication between governors and Monitor, please see the Guide to Monitor For NHS Foundation Trust Governors.
If you are unable to resolve the issue, you can talk to the senior independent director (SID). The SID is one of the independent non-executive directors and is appointed by the board of directors in consultation with council of governors. He or she should be available to members and governors if they have concerns which contact through the normal channels of chairman, chief executive or finance director has failed to resolve, or for which such contact is inappropriate. Alternatively, you could speak to another non-executive director.
The council of governors of an NHS foundation trust is established by the National Health Service Act 2006. The Act sets out how the council of governors is to be comprised; it must include elected representatives of the members of the NHS foundation trust, and also individuals who have been appointed by the trust to represent certain interests (such as a primary care trust and local authority governor).
Elected governors are elected to the council of governors by the members of an NHS foundation trust. Appointed governors are representatives from certain key stakeholders, such as a primary care trust that commissions services from the NHS foundation trust, and a local authority – they are appointed to the council of governors to represent those stakeholder groups. The National Health Service Act 2006 requires that more than half of the board must be elected from the public and (if there is one) patients' constituencies. Therefore, although appointed governors have equal rights (i.e. one vote), elected governors form the majority of members on the council of governors.
The Model Rules for Elections can be found on the Department of Health website. The rules make provision for both first-past-the-post and single transferable voting but not electronic voting.
The requirement to declare membership of a political party is a requirement of the Model Election Rules, which NHS foundation trusts are required to adopt as part of their constitution.
The NHS Foundation Trust Code of Governance states the specified terms that non-executive directors should serve. The time a non-executive director has been appointed is taken from when that trust became an NHS foundation trust.