I keep trying to write a short description of what governors of foundation trusts do, or should do. Every time I try, it gets longer and longer and then I give up. But the role isn’t really that complicated. Here’s my latest attempt at a short description.
This description of the governors’ role mostly applies to all foundation trusts, but some of it might only apply to 2gether, the mental health trust in Gloucestershire and Herefordshire.
Why is this important?
Understanding what governors do is far more important than it seems at first glance, because the system of governance was designed to work in a certain way in order to protect patients and the public and ensure the delivery of high-quality healthcare by the NHS. When the system fails, patients, the public and the NHS can all suffer. The system often fails.
Examples of system failure are everywhere, and some of them are well known. Going back several years to the infamous catastrophe at Mid Staffordshire NHS Foundation Trust, governors there did nothing.
Soon afterwards, at Morecambe Bay NHS Foundation Trust, governors there likewise did nothing.
Most recently, at the time of writing, Southern Health NHS Foundation Trust is in the news. Governors did almost nothing there either. (They asked for more detail in the trust’s annual report, and that was it.)
One of the key reasons why governors do nothing in these circumstances is that governors don’t understand their role.
Why does this happen?
Governors are meant to receive training so that they understand the system and their role in it, but the training is rarely rigorous. Many governors only receive information about their role from the trusts themselves, or through the GovernWell programme, which is run by the trusts’ trade association.
For an easier life, trusts tend to play down those parts of the governors’ role that would allow governors to take effective action when things go wrong. There may be some governors, too, who are quite happy not to have to face up to their trust’s difficulties or take any action.
The result can be that inaction becomes the norm. Council meetings can decline into talking shops. Individual governors can be sidelined into other volunteer roles, such as inspections or public relations work for the trust.
My outline of what governors do is based on the law and on on the guidance from Monitor, with references to the relevant publications. Monitor’s guidance, however, is not always clear, and is in any case not mandatory. Monitor, for example, omits to mention that Council meetings must be public by law, but makes its own requirement that governors should communicate with the public. Whether this means every individual governor should communicate with the public is ambiguous.
Governors can’t be effective unless they first understand what the law permits them to do, as a Council, and second actually do it. This may mean rejecting inadequate, ambiguous or conflicting advice from trusts, training courses and sometimes even Monitor, and asking whether the system of governance as set out for foundation trusts is genuinely being implemented in their trust.
What do governors do?
The governors of a trust are elected or appointed to be members of the trust’s Council of Governors. According to law the Council does the four things listed below (references in square brackets are explained at the end):
- It meets in public. [¶13(1)]
- It appoints non-executive directors, including the Chair, it holds them to account for the performance of the trust’s Board of Directors, and it can sack them. [¶17(1), ¶10A(a)]
- It votes on the performance of the trust and of individual directors, including executive directors, whom it can require to attend meetings and to answer questions. [¶10C]
- It represents the interests of members of the trust as a whole, including staff, and the interests of the public. [¶10A(b)]
Some of the things that come under item 4 are individually specified by law, but the law doesn’t limit the Council to those things. For example, one of the things specified by law is that the Council can block certain significant business deals that the trust’s Board wants to enter into [s51A]. But that’s just one example.
Monitor suggests a fifth thing. It isn’t the law, but if governors don’t comply with this they have to be able to explain to Monitor why not:
- Communicate regularly with the trust’s members, partner organisations and the public about the trust’s vision, performance and strategy [A.5.c, E.1.g].
The governors of a trust are not individually required by law to do anything other than participate effectively in the work of the Council. Individual governors can interpret this in different ways, depending on their interests and the time they have available. Monitor, however, is ambiguous on this point.
If a governor doesn’t participate effectively at all, there’s usually a way for the Council to sack the governor. For example, this could happen if a governor doesn’t turn up to any meetings for months and months.
Governors only have authority collectively as a Council, not as individuals. Therefore there are some things that a governor cannot be expected to do. Here are some examples:
- A governor cannot be expected to act on the instructions of the trust’s management or directors—for example, to be an ambassador for the trust.
- A governor cannot be expected to represent the opinions of individuals or sections of the community—for example, to represent constituents.
- A governor cannot be expected to inspect or scrutinise the trust’s operations or management.
- A governor cannot be expected to provide advocacy or other support to people who have complaints about the trust.
Any governor, however, can volunteer to do any of those things additionally to their governor role, as long as there’s no conflict of interest between the additional volunteer role and the governor role. Being a governor doesn’t limit anyone’s freedom of action or freedom of expression as a citizen.
The trust has to support the work of the Council in various ways, some of which are legal requirements and some of which aren’t. They generally include:
- Advertising and hosting Council meetings [A.5.1].
- Providing adequate training for governors [¶10B].
- Providing governors with the information they need [¶10B].
- Supporting governors to communicate with the public [A.5.c, E.1.g].
- Paying governors’ expenses [¶11].
Where the Act uses the term “public benefit corporation” or “corporation” it means what we now call a “foundation trust”. Where the Act uses the term “board of governors” it means what we now call “council of governors”.
¶ means “paragraph”. Page numbers refer to the PDF or print version:
¶11 Paragraph 11 of Schedule 7 to the Act (page 216).
¶13(1) Paragraph 13(1) of Schedule 7 to the Act (page 216).
¶17(1) Paragraph 17(1) of Schedule 7 to the Act (page 217).
The Act was later amended by the Health and Social Care Act 2012 (“the 2012 Act”), but I don’t know where to find an updated version with the amendments in place. Therefore to read the amendments you have to look in the 2012 Act.
s means “section”:
¶10A(a) and ¶10A(b) Paragraph 10A of Schedule 7 to the Act (amendment by s151 of the 2012 Act, page 151).
¶10B Paragraph 10B of Schedule 7 to the Act (amendment by s151 of the 2012 Act, page 151).
¶10C Paragraph 10C of Schedule 7 to the Act (amendment by s151 of the 2012 Act, page 151).
s51A Section 51A of the Act (amendment by s167 of the the 2012 Act, page 163).
Monitor’s guidance is contained in its Code of Governance July 2014 (“the Code”):
A.5.c Paragraph A.5.c of the Code (page 21).
A.5.1 Paragraph A.5.1 of the Code (page 22).
E.1.g Paragraph E.1.g of the Code (page 44).