PUBLIC
CG 16/2015
Report to the Meeting of the
Oxford Health NHS Foundation Trust
Council of Governors
16 September 2015
Trust Constitution – Board of Directors
For: Approval
As the Trust enters into more partnership and joint working arrangements within
the wider health service economy, it may become expedient for members of the
Board to take on formal roles such as that of a governor in another NHS
foundation trust.
The Trust Constitution, however, states at clause 10.8.1(h) (on page C28 of the
Constitution) that a person may not be a Director of the Trust if they are a
member of the Council of Governors, or a governor or director of a health service
body. The Trust’s solicitors have confirmed that the current wording of clause
10.8.1(h) exceeds the statutory requirements of Schedule 7 of the National
Health Service Act 2006 (as amended) and may be removed, should the Board
and the Council of Governors so approve.
However, Board members/Directors have statutory duties, and corresponding
duties under the Trust Constitution, to: (i) promote the success of the Trust so as
to maximise the benefits for the members and the public; and (ii) avoid a situation
in which they have, or can have, a direct or indirect interest that conflicts, or
possibly may conflict, with the interests of the Trust (this duty is not infringed if
the situation cannot reasonably be regarded as likely to give rise to a conflict of
interest or the matter has been authorised in accordance with the Constitution).1
A potential issue with the Trust and its Board members/Directors entering into
more partnership and joint working arrangements within the health service
economy is that this may involve a vested interest for or against particular
solutions or decisions and lead to a conflict of loyalties; for instance, where each
organisation requires and expects the individuals to act in their interest.
1
Paragraphs 18A and 18B, Schedule 7 of the National Health Service Act 2006 (as amended by the Health
and Social Care Act 2012, section 152). Clause 2.11.2 of Annex 7 (Standing Orders for the practice and
procedure of the Board of Directors) of the Trust Constitution at page C126 and clause 13 of the Trust
Constitution at pages C30-32.
PUBLIC
From a corporate governance perspective, the Monitor/NHS Foundation Trust
Code of Governance states at provision B.1.3 that no individual should hold, at
the same time, positions of director and governor of any NHS foundation trust
although departure from this can be permitted with an explanation of the reasons
for departure and how the alternative arrangements continue to reflect the
relevant principle(s) of the Monitor Code.2 If the Trust Constitution is amended at
clause 10.8.1(h) then in its future annual reporting the Trust would need to
explain any departure from provision B.1.3 and how the principle of the
effectiveness of the Board, including the independence of its Non-Executive
Directors, is being maintained.3
The effectiveness of the Board may be enhanced and the success of the Trust
promoted if the Trust collaborates more widely and formally within the wider
health service economy, evidenced already where the Trust has collaborated
with local stakeholders such as the University of Oxford through the Warneford
Hospital Buildings and Estates Working Group. The Trust already identifies in its
Annual Report: (i) each Non-Executive Director it considers to be independent
and the existence of relationships/circumstances which are relevant to the
assessment of independence; and (ii) any other significant commitments of the
Trust Chair. Conflicts of interest can also be authorised in accordance with
clause 13 of the Trust Constitution and appropriate declarations to the Board of
interests in proposed transactions or arrangements, with a record on the register
of Directors’ interests. Any Director who declares an interest shall, where
appropriate, withdraw from the meeting and not vote on the issue.
It is proposed to amend clause 10.8.1(h) of the Trust Constitution as follows
(proposed deletion shown in strike-through): A person may not be a Director of
the Trust if they are a member of the Council of Governors, or a governor or
director of a health service body.
No other changes to the Trust Constitution are proposed at this time but a wider
review of the Constitution will be undertaken and any amendments proposed to
the Board and the Council.
A copy of the Trust’s Constitution has been provided previously to all Governors
and may also be found here:
http://www.oxfordhealth.nhs.uk/about-us/governance/constitution/
2
Monitor/NHS Foundation Trust Code of Governance B.1.3 and Schedule A, paragraph 5
The main principle in relation to “effectiveness” under the Monitor Code is at B.1.a: The board of
directors and its committees should have the appropriate balance of skills, experience, independence and
knowledge of the NHS foundation trust to enable them to discharge their respective duties and
responsibilities effectively.
3
PUBLIC
The Board considered the proposed amendment to the Trust Constitution at its
meeting on 29 July 2015, approving the change and recommending it to the
Council of Governors for final approval.
The Trust may amend its constitution in accordance with clause 23 if more than
half of the members of the Board voting approve the amendments and if more
than half of the members of the Council of Governors voting approve the
amendments. Amendments can then be notified to Monitor.
Recommendation
The Council of Governors is asked to approve the proposed amendment to
clause 10.8.1(h) of the Constitution (proposed deletion shown in strike-through):
A person may not be a Director of the Trust if they are a member of the Council
of Governors, or a governor or director of a health service body.
Author and Title:
Lead Directors:
Hannah Smith, Assistant Trust Secretary
Kerry Rogers, Director of Corporate Affairs and
Trust Secretary and Martin Howell, Trust Chair
1. A risk assessment has been undertaken around the legal issues that this paper presents
and there are no issues that need to be referred to the Trust Solicitors.
2. This paper (including all appendices) has been assessed against the Freedom of
Information Act and the following applies: [delete as appropriate]
 THIS PAPER MAY BE PUBLISHED UNDER FOI