All NHS Foundation Trusts (FTs) are required by schedule 7 of the NHS Act 2006 to have a Constitution. But how many FTs have amended their Constitutions recently to reflect the shift from competition to collaboration and joint working that crystallised with the Health and Care Act 2022?

At Capsticks we have been working with FTs throughout England as they review their Constitutions and make the changes needed to reflect their position in collaborative systems. In the below insight we set out some of the key points to consider in any constitutional review.

Delegation, joint working and collaboration

The Health and Care Act 2022 introduced new powers for FTs to delegate or to exercise functions jointly with other NHS bodies and local authorities. At the same time, all NHS providers have been encouraged to participate in at least one provider collaborative. Additionally, NHS bodies are now required to have regard to the wider effect of their decisions on the systems within which they are operating. We recommend that FT Constitutions are updated to reflect these new powers and duties. In addition, where FTs are participating in collaboratives, it may be necessary to update their Schemes of Delegation and Reservation to reflect this.

The FT’s relationship with its Governors

A special feature of NHS FTs, as public benefit corporations, is the requirement to have a Council of Governors that plays an important part in the governance of the Trust. Since FTs were first established there have been a number of cases where the relationship between governors and the Board has become challenging. Experience suggests that some FT Constitutions are not well suited to dealing with these challenges. The relationship with Governors is subject to particular scrutiny where the Trust is part of an NHS Group or Provider Collaborative. We recommend that the provisions of the Constitution relating to the Council of Governors including the relevant Standing Orders should be reviewed to ensure they remain fit for purpose.

General “housekeeping”

When amending FT Constitution to address some of the wider changes in the NHS, it is a good opportunity to carry out a general review of the Constitution since some FTs have not done this for a number of years. As amendments to the Constitution will require the support of both the Board and the Council of Governors, and ultimately the approval of the FT’s membership, it makes sense to include all necessary changes in one amended document. This presents an opportunity to consider whether changes are needed to such matters as the FT’s constituencies; the makeup or terms of office of the board of directors and the definition of a “significant transaction”.

How Capsticks can help

We are currently working with Foundation Trusts throughout the country as they review and amend their Constitutions.

We are offering a fixed price of £1500 plus VAT to carry out a review of your FT Constitution and to produce a marked up version of the document with suggested amendments.*  If you would like to find out more please contact Peter Edwards who leads our governance work with NHS Foundation Trusts.

* The fixed price covers 1 initial consultation with our team of up to 60 minutes to identify your objectives for the review and the production of a first draft amended Constitution. We will not include any amendments to the Model Election Rules. Further discussions with you and additional drafts of the amended Constitution will be charged on an hourly rate.