New NHS guidance on good governance and collaboration

NHS England has published three sets of guidance documents on NHS provider governance following consultations it published earlier this year. The suite of guidance has been developed to support NHS trusts and NHS foundation trusts to work effectively within integrated care systems. They cover:

The final versions of the governance documents have had minimal changes made to them – and in line with feedback, the Code of governance will apply from April 2023 allowing trusts a transitionary period to review and implement any changes to their arrangements. The other two guidance documents have been in force since 27 October 2022 when the guidance documents were first published.

Code of governance

The new Code replaces the 2014 NHS Foundation trust code of governance and applies for the first time to NHS trusts, aligning with the proposed extension of the NHS provider licence to them. The Code supports trusts to deliver effective corporate governance and has been updated to reflect changes to the wider UK corporate governance code made in 2018 and the establishment of Integrated care systems under the Health and Care Act 2022.  The Code has been updated to reflect the latest NHSE policy in the appointment, appraisal and pay of trust directors, including specific points regarding recruitment to board positions. The final version of the Code embeds equality, diversity and inclusivity considerations in corporate governance processes.

The revised Code includes a number of other changes including:

  • Stressing the need to spread responsibilities across the whole board to ensure that individual chairs, non-executive directors and executive directors have enough capacity to carry out their roles effectively.
  • Referencing links between quality of care and operational governance where appropriate – though it should be noted that the code is concerned with setting effective corporate governance practices, rather than well-led criteria supporting day-to-day operations.
  • Clarifying that an individual who serves three years as a non-executive director can go on to spend up to six years as chair without requiring NHSE agreement.
  • In relation to the proposed role of NHSE and ICSs in foundation trust appointments, NHSE should be engaged in advance to agree the approach with the trust. NHSE will liaise with the ICB as part of this process.

Guidance on good governance and collaboration

This new guidance seeks to clarify the expectations around collaboration on all provider trusts and to set out the governance characteristics that trusts should have in place to facilitate effective collaboration. It sets the expectation that providers collaborative with system partners to agree shared objectives through Integrated Care Partnerships. The guidance does include changes that more explicitly link governance and collaboration to oversight of care quality and align the content with the powers in the Health and Care Act 2022.

The guidance sets out expectations of providers in terms of collaboration in respect of three key areas:

  • Engage consistently in shared planning and decision-making with partners in system and place-based partnerships and provider collaboratives
  • Take collective responsibility with partners for delivery of services across various footprints including system and place
  • Take responsibility for delivery of improvements and decisions agreed through system and place-based partnerships, provider collaboratives or any other relevant forums 

In each case an illustrative minimum set of behaviours are included. There is also a table describing the five characteristics of governance arrangements to support effective collaborations.

Addendum guide for foundation trust governors

NHS foundation trust governors have a formal role to hold the chair and non-executives to account for the overall performance of their trust’s board. However, with the move to system working, governors also need to assess how their trust’s board is supporting system working and collaboration. The addendum to the existing guidance for governors explains that governors’ statutory duties have not changed – there is no expectation that the governor role should increase materially in response to the establishment of ICBs.

The addendum explains that governors should work through their boards to assess how the trust is collaborating to support their system – eg by requesting information on this from the trust board rather than reaching out to other organisations or the ICB itself.

It further clarifies that where a trust sits near a system boundary and has material numbers of patients from multiple ICSs, governors should work with their board to consider how to represent patients in ICSs that the trust is not a partner of. The addendum now suggests governors – with support from their board – should be aware of how the trust’s services are used and accessed and be assured that the trust’s board has considered the impact of any changes or decisions on the public using its services, irrespective of what system they are from.

Bedding in

Providers, governors, and their boards will need to become familiar with the new system working that the Health and Care Act 2022 has introduced but NHSE’s suite of guidance is welcome support. If you’d like to discuss any of the issues raised in this blog do get in touch – we have a friendly and expert team who regularly support commissioners and providers on governance and collaboration matters.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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