Health and Social Care Act: Implications for foundation trust governance and constitutional arrangements

On 27 March 2012, the Health and Social Care Bill received Royal Assent and became the Health and Social Care Act 2012. The provisions are being brought into force by commencement orders and the reforms mean that all Foundation Trusts (“FTs”) and Aspirant Trusts will need to revisit their Constitutions and to begin making preparations to revise these to ensure that they are consistent with the Act. We appreciate that you’ve already had to make amendments, but such changes won’t be enough for this year, you will need to do substantially more. Trusts will need to consider:

• representative membership drafting;
• Members’ meetings;
• the supply of documents to Members;
• duties and power of the Council of Governors;
• the PCT Governor;
• duties of Directors; and
• the role of administrative provisions.

When amending the Constitution, there is likely to be amendments needed to:

• Standing Orders for Governors and Directors;
• Standing Financial Institutions;
• Scheme of Reservation and Delegation of Powers; and
• Codes of Conduct for Governors and Directors

Areas where we can assist

1. Governance documentation

Developing your governance and accountability structure is an ongoing process. Our aim is to scan the horizon to ensure that you are meeting all of the compliance requirements of Monitor and the wider legislative framework governing FTs going forward. This includes advising on the implications of the Health and Social Care Act 2012 on the governance landscape for FTs, and drafting and/or updating your suite of governance documents to be “2012 Act ready.”

2. Compliance, training and Board development

As well as providing assistance in the development of appropriate and robust governance arrangements, we can provide training and development programmes for Governors and Directors. Where possible we will exploit skill transfer potential to help you develop the skills of your own staff. 

We also provide bespoke training courses to Directors of Applicant Trusts and established FTs on their roles and responsibilities and the implications of FT status, as well as a wide variety of development sessions and workshops targeted at ensuring a fit for purpose FT Board.

3. Board to Board Sessions for Aspirant Trusts

Our Board to Board support is tailored specifically to meet your individual circumstances, but is based on our knowledge of the approach used by Monitor. We can support your Board of Directors by providing rehearsals for the Board to Board meetings with the SHA/NHS Trust Development Authority and Monitor. 

Directors’ and Governors’ liabilities and insurance advice: we are able to provide you with a detailed paper outlining the legal position of the Directors and Governors, and the FT with respect to liabilities, indemnities and insurance.

Contract review: we can undertake full reviews of your current contracts and prepare detailed contract reports outlining key risk areas. As well as having ongoing practical benefits, the Contract Report will be tailored to link both to the Trust’s FT application (where applicable), and to contract management post-FT status.

Contract and Governance Tracker: our Contract and Governance Tracker is an internet portal which provides detailed information regarding the contracts which the Trust has in place, and is intended to provide you with a centralised and structured source of accurate information regarding each contract. The Tracker will be available to you 24 hours a day, 365 days a year. The Tracker is tailored to meet your specific needs, and we will work together with you to finalise a product which contains all of the information which you require.

Standard Contracts: We will work with you to produce a standard set of contractual documents if required.  This could include clinical and non-clinical services contracts (where the Trust is acting as purchaser or provider, terms and conditions for the sale of goods. We will also produce guidance booklets which can be read alongside the standard documents, to assist you with completing your contracts in the future.

Why us?

Bevan Brittan is focused on delivering legal solutions to the Public Services market. The NHS family is our biggest and most important customer and we are proud to have been chosen to act for over a third of all NHS bodies, the Department of Health and NHSLA. We pride ourselves on our reputation for cutting edge NHS work. We devote considerable resource to understanding the health marketplace and developing solutions to meet its changing requirements. We are ranked Band 1 for healthcare/clinical negligence in Chambers and Legal 500 legal directories.

Our experienced commercial team would be happy to assist you in ensuring that your Trust puts in place procedures, practices and a Constitution that reflects the provisions of and is compliant with the Health and Social Care Act 2012. We can advise you on how to make preparations for the future and what the main issues are.