Constitution Amendment

(1)

Meeting and date JOINT MEETING OF THE BOARD OF DIRECTORS AND COUNCIL OF GOVERNORS 9 JUNE 2016

Title

_{Constitution Amendment}

Summary of paper This report invites the Board of Directors and the Council of Governors to formally approve changes to the Constitution following a review of the Constitution and relevant legislation by the Company Secretary.

The reason for the changes is to rectify contradictions in the Constitution, clarify provisions and make amendment to the staff sub-classes of the Staff Constituency to ensure that the sub-classes reflect the staff base of the Trust going forward.

Consultation / other committee views

Foundation Trust Network / Trust Solicitors. The majority of changes have already been supported in principle by the Council of Governors at a meeting held earlier in the year.

The Governance Committee at its meeting held in April 2016 recommended approval of the changes to the Constitution subject to clarification and amendment. The points mentioned have been clarified and included in this paper. In addition the Governance Committee noted that there would be a further change to the Staff Constituency Sub-Classes to reflect that staff in the community would be aligned to Wiltshire Community Health and therefore a new sub-class would be proposed. This is reflected in this report.

The Director of Human Resources advised that Allied Health Professionals would be a recommended staff group.

Assurances None

Recommendations/ decisions required

(a) that the proposed changes to the Constitution as set out in section 3 below be approved;

(b) that the Company Secretary be delegated authority to finalise the exact wording in the Constitutional documents and thereafter submit to Monitor within 28 days.

Link to Trust Priorities Link to Quality

This report does not specifically link to one of the strategic objectives of the Trust but it does ensure corporate governance requirements are met.

(1) Well led

Risk issues

The Trust is required to ensure that its Constitution remains fit for purpose and up to date. Failure to maintain the Constitution could result in the Trust breaching its licence condition in terms of failing to maintain sound system of governance and could expose the Trust to unnecessary risk as detailed in section 3 below.

Risk Register Ref No. xxx Risk Score xx Resource Implications

There is no resource implication regarding making the amendments but legal advice has been sought at a financial cost to verify the validity of the changes suggested.

Regulations and legal considerations

National Health Services Act 2006 / Health and Social Care Act 2012 Authorisation. Monitor’s Variation of Terms of Authorisation

Guidance for NHS Foundation Trusts

Any review of the Constitution requires the approval of the Board and the Council of Governors (plus Members if any changes relate to the role and duties of Governors - this shall be sought at

(2)

the Annual Members Meeting in September) and thereafter submitted to Monitor for

publication. This report satisfies that requirement.

Report Sign Off Financial n/a Operational n/a HR n/a Confidentiality

This report does not contain any confidential information. Equality Impact Assessment

Great Western Hospitals NHS Foundation wants its services and opportunities to be as accessible as possible, to as many people as possible, at the first attempt.

This report has been assessed against the Trust’s Equality Impact Assessment Tool and there are no proposals or matters which affect any persons with protected characteristics.

Name of Lead Executive Director

Nerissa Vaughan, Chief Executive

(3)

1. Introduction

This report invites the Board of Directors and the Council of Governors to formally approve changes to the Constitution following a review of the Constitution and relevant legislation by the Company Secretary.

The reason for the changes is to rectify contradictions in the Constitution, clarify provisions and make amendment to the staff sub-classes of the Staff Constituency to ensure that the sub-classes reflect the staff base of the Trust going forward.

2. Recommended changes to the Constitution The recommended changes to the Constitution are: Constitutional

Provision

Proposed Change Reason

13 Council of

Governors

disqualification and removal

Addition to paragraph 13.1 to include 13.1.4 ‘a person

who within the preceding five years has been removed from the governing body under paragraph 13 of the Constitution or has resigned or been removed from the governing body as detailed in paragraph 4.12.12 of Annex 6 Standing Orders For The Practice And Procedure Of The Council Of Governors’.

This addition agrees with paragraph 2 of Annex 5 – Additional Provisions – Council Of Governors. The addition will ensure clarity within the Constitution

13 Council of

Governors

Addition to paragraph 13.5 to include the following

‘The absent Governor shall be discounted during any agreed period of absence (absences agreed by the Council of Governors) and their seat shall be discounted from voting statistics; including where special voting requirements apply’

The Constitution currently allows for the Council of Governors to authorise a Governors absence from attending meetings etc. where there are extenuating circumstances. However, their ‘seat’ would still have to count in any voting matter even though they would be excused from attending the meeting where the vote would take place. The suggested addition would mean a fairer voting practice.

13 Council of

Governors

An amendment to paragraph 13.6 ‘he is adjudged to have so acted by a majority of not less than 75% of the members of the Council of Governors then the Governor shall vacate his office immediately’

and the substitution thereof with

‘he is adjudged to have so acted by a majority of not less than 75% of the members of the Council of Governors present and voting at a Special Meeting

of the Council of Governors then the Governor shall

vacate his office immediately’

The current wording means that a positive vote must be received from 75% of the entire COG. It is challenging to arrange a time when 75% of the COG are able to attend a meeting to achieve this. It is therefore proposed that the percentage should apply to those present and voting.

13 Council of

Governors

An amendment to paragraph 13.7 ‘The Standing Orders for Governors shall provide for the process to be adopted in cases relating to the termination of a Governor's tenure.

(4)

Constitutional Provision

‘The Standing Orders for Governors shall provide for the process and voting requirements to be adopted in cases relating to the termination of a Governor's tenure’.

14 Council of

Governors – meetings of Governors

An amendment to paragraph 14.1 ‘The Chair of the Trust (i.e. the Chair of the Board of Directors, appointed in accordance with the provisions of paragraph 21.1 below) or, in his absence, the Deputy Chair (appointed in accordance with the provisions of paragraph 21.1 below), shall preside at meetings of the Council of Governors and the person chairing the meeting shall have a second or casting vote’.

‘The Chair of the Trust (i.e. the Chair of the Board of Directors, appointed in accordance with the provisions of paragraph 21.1 below) or, in his absence, the Deputy Chair (appointed in accordance with the provisions of paragraph 21.1 below) or as per

paragraph 4.7.3 of annex 6, a Non-Executive Director shall chair the meeting of the Council of

Governors and the person chairing the meeting shall have a second or casting vote’.

4.7.4 If the Chair or Deputy Chair of the Trust and a Non-Executive Director is absent or unavailable to chair the meeting, those present at the meeting shall nominate a Governor to preside at the meetings of the Council of Governors and the person chairing the meeting shall have a second or casting vote’

To allow for the Lead Governor to chair a meeting in the absence of the Chair or Deputy Chair. This ensures consistency within the constitution.

Annex 3 –

Composition of the Council of Governors

The removal of “1.1.2.2 1 being elected by the Community Nursing and Therapy Staff Class”

“1.1.2.2 1 being elected by the Allied Health Professionals Staff Class”

To ensure that the staff sub-classes reflect our staff base. Annex 5 Additional Provisions Council Of Governors (Paragraph 18) Appendix 1 Eligibility to be on the Council of Governors

An amendment to section 1.3 of paragraph 1 ‘he has within the preceding two years been dismissed, otherwise than by reason of redundancy or ill health, from any paid employment with a Health Service Body’ and the substitution thereof with

‘he has within the preceding five years been dismissed, otherwise than by reason of redundancy or ill health, from any paid employment with a Health Service Body’.

To provide assurance that the Trust is recruiting fit and proper people to represent them Annex 5 Additional Provisions Council Of Governors (Paragraph 18) Appendix 1 Eligibility to be on the Council of Governors

An amendment to section 2 ‘Where a person has been elected or appointed to be a Governor and he becomes disqualified or is removed from office under paragraph 13 of the Constitution or paragraph 1.1 of this Appendix 1 of Annex 5, he shall notify the Secretary in writing of such disqualification and/or (as

(5)

the case may be) removal. If it comes to the notice of the Secretary at the time of his taking office or later that the Governor is so disqualified, the Secretary shall immediately declare that the person in question is disqualified and notify him in writing to that effect. Upon despatch of any such notification’

‘Where a person has been elected or appointed to be a Governor and he becomes disqualified or is removed from office under paragraph 13 of the Constitution or paragraph 1.1 of this Appendix 1 of Annex 5 or

paragraph 4.12.12 of Annex 6 Standing Orders For The Practice And Procedure Of The Council Of Governors., he shall notify the Secretary in writing of

such disqualification and/or (as the case may be) removal. If it comes to the notice of the Secretary at the time of his taking office or later that the Governor is so disqualified, the Secretary shall immediately declare that the person in question is disqualified and notify him in writing to that effect. Upon despatch of any such notification’ Annex 5 Additional Provisions Council Of Governors (Paragraph 18) Appendix 1 Eligibility to be on the Council of Governors

An addition to section 2 to read ‘Where it is agreed

that a governor shall be removed from office that governor shall be immediately suspended during any appeal period at the end of which time should the governor’s appeal not be successful the governor’s tenure shall terminate immediately’.

The current provision means that a Governor will remain in post for 14 days after the decision to remove has been made to allow the individual the option to appeal. It is suggested that this is impractical and an appeal could be made within the 14 days regardless. Annex 5 Additional Provisions Council Of Governors (Paragraph 18) Appendix 1 Eligibility to be on the Council of Governors

An addition to section 3 ‘Any offer of appointment shall be conditional subject to a Disclosure and Barring Service check and should there be any undeclared disclosure found the governors shall be removed from office at the discretion of the Company Secretary’

This allows for full assurance checks to be made as opposed to simply accepting an individual’s word that they have no past criminal convictions; assuring the Trust of their compliance with the fit and proper person test.

Annex 5 Additional Provisions Council Of Governors (Paragraph 18) Appendix 3 Roles and Responsibilities of Governors

The amendment of Appendix 3 so that section 1.1.6 of paragraph 1 ‘to consider resolutions to remove a Governor pursuant to paragraph 13 of this Constitution’.

Is moved and becomes an addition to paragraph 1.2 at section 1.2.4 but reads ‘to consider resolutions to remove a Governor’.

This would allow for modern voting practices; such as electronic or written voting; rather than the matter being specifically discussed at a meeting.

Annex 5 Additional Provisions Council Of Governors (Paragraph 18) Appendix 3 Roles

The amendment of section 1.5 ‘The Governors are expected to bring their individual skills and knowledge to bear on the exercise of their functions, but are expected to act collectively and not in pursuit of

(6)

and Responsibilities of Governors

sectional interests’.

‘The Governors are expected to bring their individual skills and knowledge to bear on the exercise of their functions, but must act collectively and not in pursuit of sectional interests or matters already reviewed and

considered by the Council of Governors in the view of the Chairman’

made collectively by the Council of Governors.

Appendix 4 Council of Governors: further provisions

An addition to section 5.1 of paragraph 5 Council of Governors: declarations

(f) An unfit and improper person and I provided at least 2 references of god character from non-family members or close acquaintances

(g)

I have no criminal convictions to declare and

note that a Disclosure and Barring Service check will be completed

To ensure compliance with the fit and proper person criteria.

Annex 6 Standing Orders For The

Practice And

Procedure Of The Council Of Governors

An amendment to section 4.2.3 of paragraph 4.2 Calling meetings ‘The Council of Governors may invite the Chief Executive, a member of the Board of Directors or a representative of the Auditor or other advisors to attend a meeting of the Council of Governors’

‘The Council of Governors may invite the Chief Executive, a member of the Board of Directors or a representative of the Auditor or other advisors to attend a meeting of the Council of Governors provided

that the majority of the Governors present and voting at a meeting of the Council of Governors agree’

To ensure that decisions of the COG are made collectively.

Practice And

An amendment to section 4.2.4 of paragraph 4.2 Calling meetings ‘The Council of Governors may agree that its Governors can participate in its meetings by telephone or video link. Participation in a meeting in this manner shall be deemed to be exceptional but shall constitute presence in person at the meeting for the purposes of SO 4.17 (Quorum)’

‘The Council of Governors may agree that its Governors can participate in its meetings by telephone or video link. Participation in a meeting in this manner shall constitute presence in person at the meeting for the purposes of SO 4.17 (Quorum) and eligible to

vote in matters raised’

(7)

Practice And

An amendment to section 4.7.3 of paragraph 4.7 ‘If the Deputy Chair is absent from the meeting or is absent temporarily on the grounds of a declared conflict of interest, another Non-Executive Director as shall be appointed by the Council of Governors for that meeting shall preside’.

‘If the Deputy Chair is absent from the meeting or is absent temporarily on the grounds of a declared conflict of interest, another Non-Executive Director shall be appointed by the Council of Governors for that meeting shall preside. If a Non-Executive Director is

unavailable, the meeting shall appoint from amongst those present a member to preside’

To ensure consistency within the Constitution.

Practice And

An amendment to section 4.11.9 of paragraph 4.11 Voting ‘In certain circumstances the Chair may specify in a notice of a meeting any matter which requires approval by a written resolution and such a matter may be approved in writing provided that at least three-quarters of the Governors, and a majority of Governors who are members of the Public Constituency of the Trust, approve the resolution in writing within the timescale imposed in such a notice’.

‘The Chair may specify in a notice of a meeting any matter which requires approval by a written resolution and such a matter may be approved in writing provided that at least three-quarters of the Governors and a majority of Governors who are members of the Public Constituency, approve the resolution in writing within the timescale imposed in such a notice having regard

to paragraph 13.5 above. For the avoidance of doubt, governors who are absent due to an agreed absence (as defined in paragraph xxx) and governors not eligible to vote because of a declared interest do not count towards the voting calculation’

To ensure consistency within the Constitution

Practice And

An amendment to section 4.11.10 of paragraph 4.11 Voting ‘All decisions taken in good faith at the meeting of the Council of Governors or at any meeting of a committee shall be valid, even if it is subsequently discovered that there was a defect in the calling of the meeting or the appointment of the Governors attending the meeting’.

‘All decisions taken in good faith at the meeting of the Council of Governors or at any meeting of a committee shall be valid, even if it is subsequently discovered that there was a defect in the calling of the meeting or the appointment of the Governors attending the meeting or

any other matter’

(8)

Practice And

An amendment to section 4.12.1 of paragraph 4.12 Special Provisions relating to termination of Governor’s tenure Where a person has been elected or appointed to be a Governor and he becomes disqualified from office under paragraph 13 or the provisions of Appendix 1 of Annex 5 of the Constitution, he shall notify the Secretary in writing of such disqualification as soon as practicable and in any event within 14 days of the first becoming aware of those matters which render him disqualified. The Secretary shall forthwith remove him from the Register of members of the Council of Governors

Where a person has been elected or appointed to be a Governor and he becomes disqualified from office

under this SO or paragraph 13 or the provisions of

Appendix 1 of Annex 5 of the Constitution, he shall notify the Secretary in writing of such disqualification as soon as practicable and in any event within 14 days of the first becoming aware of those matters which render him disqualified. The Secretary shall forthwith remove him from the Register of members of the Council of Governors with immediate effect subject

to any other provisions’

To ensure that the Trust complies with the fit and proper person criteria at all times. Should an appeal be made and it is successful, the Governor can be reinstated to the register.

Practice And

An amendment to section 4.12.2 of paragraph 4.12 Special Provisions relating to termination of Governor’s tenure ‘If it comes to the notice of the Secretary that the Governor is disqualified pursuant to SO 4.12.1, whether at the time of the Governor’s appointment or (as the case may be) election, or later, the Secretary shall immediately declare that the individual in question is disqualified and give him notice in writing to that effect as soon as practicable and in any event within 14 days of the date of the said declaration. In the event that the Governor shall dispute that he is disqualified the Governor may refer the matter to the dispute resolution procedure set out in paragraph 2.2 of Appendix 4 of Annex 8 of the Constitution within 28 days of the date upon which the notice was given to the Governor’.

‘If it comes to the notice of the Secretary that the Governor is disqualified pursuant to SO 4.12.1, whether at the time of the Governor’s appointment or (as the case may be) election, or later, the Secretary shall immediately declare that the individual in question is disqualified and give him notice in writing to that effect as soon as practicable. In the event that the Governor shall dispute that he is disqualified the Governor may refer the matter to the dispute resolution procedure set out in paragraph 2.2 of Appendix 4 of Annex 8 of the Constitution within 14 days of the date upon which the notice was given to the Governor’.

(9)

Practice And

An amendment to section 4.12.5 of paragraph 4.12 Special Provisions relating to termination of Governor’s tenure ‘The Governor in question will be notified in writing of the allegations and grounds upon which the charges referred to in SO 4.12.3 are made inviting his response within a defined appropriate and reasonable timescale’.

The Governor in question will be notified in writing of the allegations and grounds upon which the charges referred to in SO 4.12.3 are made inviting his response within 14 calendar days. Any response the

Governor in question makes should be submitted to the Chairman or the Company Secretary and not individual Governors

To ensure clarity of process

Practice And

An amendment to section 4.12.8 of paragraph 4.12 Special Provisions relating to termination of Governor’s tenure ‘Should the Governors uphold the charge in accordance with SO 4.12.7, the Governors can impose such sanctions as shall be deemed appropriate. Such sanctions may range from the issuing of a written warning as to the Governor’s future conduct and consequences, to non-payment of expenses and removal of the Governor from office’.

‘Should the Governors uphold the charge in accordance with SO 4.12.7, the Governors can impose such sanctions as shall be deemed appropriate. Such sanctions may include but are not limited to the issuing of a written warning as to the Governor’s future conduct and consequences, to non-payment of expenses and suspension or removal of the Governor from office’.

To clarify potential sanctions.

Practice And

An amendment to paragraph 8 Standards Of Business Conduct ‘Members of the Council of Governors shall comply with the Governors' Code of Conduct and any best practice advice and/or guidance issued by Monitor’.

‘Members of the Council of Governors shall comply with the Governors' Code of Conduct and any best practice advice and/or guidance issued by Monitor.

Failure to do so may result in action as defined by section 4.12.3 above’

To ensure Consistency within the Constitution.

Practice And

An amendment to section 10.3 of paragraph 10 Miscellaneous ‘If for any reason these SOs are not complied with, full details of the non-compliance and any justification for non-compliance and the circumstances around the non-compliance, shall be

(10)

reported to the next formal meeting of the Council of Governors for action or ratification. All Governors have a duty to disclose any non-compliance with these SOs to the Chair as soon as possible’

‘If for any reason these SOs are not complied with, full details of the non-compliance and any justification for non-compliance and the circumstances around the non-compliance, shall be reported to the Chair and /

or the Company Secretary. Once reported, provisions within paragraph 4.12 above will apply.

All Governors have a duty to disclose any non-compliance with these SOs to the Chair as soon as possible’

Practice And

Procedure Of The Board Of Directors

An amendment to section 3.14.1 of paragraph 3.14 Minutes ‘The minutes of the proceedings of a meeting of the Board of Directors shall be drawn up by the Secretary and submitted for agreement at the at it’. and the substitution thereof with

‘The minutes of the proceedings of a meeting of the Board of Directors shall be drawn up by the Secretary and submitted for agreement at the next scheduled

meeting of the Board of Directors’

To correct an error within the Constitution.

3. Recommended changes to recruitment checks Assurance checks

When an individual accepts the post of Governor for the Trust, they must sign a declaration confirming that they are a fit and proper person. A fit and proper person is classed as someone who has not

i. been adjudged bankrupt or whose estate has been sequestrated and (in either case) has not been discharged; or

ii. made a composition or arrangement with, or granted a trust deed for, his creditors and has not been discharged in respect of it; or

iii. who within the preceding five years has been convicted in the British Islands of any offence and a sentence of imprisonment (whether suspended or not) for a period of not less than three months (without the option of a fine) was imposed on him; or

iv. who is subject to an unexpired disqualification order made under the Company Directors’ Disqualification Act 1986

However, checks are not completed by the Trust to ensure that the candidate has made a truthful declaration.

It is recommended that the following checks are completed:

1. A search of the Individual Insolvency Register is completed. This register is free to search and details:

(11)

c. current individual voluntary arrangements and Fast-Track voluntary arrangements, including those that have ended in the last 3 months

d. current bankruptcy restrictions orders or undertakings and interim bankruptcy restrictions orders

e. current debt relief restrictions orders or undertakings and interim debt relief restrictions orders.

2. A Disclosure and Barring Service Background check (DBS) is completed. A DBS has replaced the previous criminal record bureau check and covers the following:

a. spent and unspent convictions, cautions, reprimands and final warnings

b. any additional information held by local police that’s reasonably considered relevant to the role being applied for.

The cost of a DBS check ranges between £26 and £44 for each check. Based on the 22 Governor posts for a three year term, this would be a maximum cost of £968 every three years. However the Legal Team have liaised with the DBS service and they have agreed that Governors would be exempt from paying the application fee as they do not receive payment for their services to the Trust.

Changes to the fit and proper person criteria

There is nothing in the Constitution or the current fit and proper person criteria that would prevent a Governor who has had a charge of misconduct upheld against them from standing for re-election; unless they have been removed from the Governing body. There is also nothing preventing an individual who has been dismissed from employment or struck off from their regulating body (e.g. the GMC / NMC) for misconduct from standing to be a Public Governor.

To ensure the integrity of our Trust Governors the Legal Team would suggest that the fit and proper person criteria is amended to include exclusion of any individual who has had a charge of misconduct upheld against them. This would bring the fit and proper person criteria in line with the ‘Declaration Form - Standard Disclosure Confidential’ which potential candidates must complete at election stage. We have clarified with our external solicitors that these amendments would be allowed. Sub section (2) of Schedule 7 ‘Constitution Of Public Benefit Corporations’ of the NHS Act 2006 also states that a ‘constitution may make further provision as to the circumstances in which a person may not become or continue as a member of the board’.

Review of skills audit questionnaires

Periodically, the Governance & Membership Officer sends out a ‘Council of Governor Skills Audit’ to all Governors to ensure that they have a full understanding of their Governor role. This is the ideal opportunity to address misunderstandings at an early stage and help prevent a similar occurrence of a case escalating such as this one.

It is suggested that the responses to the Skills Audit are scrutinised and any issues are addressed with the individual by the Company Secretary without delay.

These actions will also comply with section 151 (5) of Part 4 ‘NHS Foundation Trusts & NHS Trusts Governance and management’ which reads the ‘A public benefit corporation must take steps to secure that the governors are equipped with the skills and knowledge they require in their capacity as such’

4. Approval Process

(12)

5. Recommendation