Governance considerations during the coronavirus pandemic

Amid the significant operational challenges posed by the COVID-19 pandemic, the pressure on NHS resources, maintaining the safety of NHS staff and patients, responding to rapidly developing events to name just a few, it is understandable that the systems in place to support good governance and accountability will be put under intense pressure.

That said, both the government and NHS are being subjected to intense scrutiny at this difficult time and, no doubt, once this pandemic is eventually over, their decisions or omissions will be scrutinised and reviewed by regulators and supervisory authorities, media, public and, potentially, the courts.

Therefore, while dealing with the practical challenges of the pandemic is rightly the top priority, maintaining public confidence and upholding accountability will also require NHS bodies to adhere to the legislative framework and good corporate governance practice when carrying on their business.

We have set out below some of the considerations and options for NHS bodies who may look to alter and streamline their governance arrangements at this difficult time.

Meetings of boards, councils of governors and governing bodies

Meetings of NHS Trust and Foundation Trust boards and councils of governors of NHS Foundation Trusts must be open to the press and public (save in certain situations). The CCG model constitution for CCGs also envisages the holding of governing body meetings in public.

Holding meetings in public at this time could fall foul of the restrictions on assembly imposed by the government. Trusts should consider carefully their forthcoming meetings calendar and cancel any non-essential meetings. There is no statutory requirement on NHS Trusts or Foundation Trusts to hold a specified number of meetings each year (besides the annual meeting of the Trust board in the case of an NHS Trust, and the annual meeting of the members and governors in the case of Foundation Trusts). However, most trusts stipulate in standing orders that a minimum number of board/governing body and/or council of governor meetings will take place. In this case, we suggest that temporary amendments are proposed and made to standing orders to remove or reduce that minimum as required. Clear notices should be placed on websites and at trust premises to explain that specified meetings in public will not be taking place or, alternatively, will no longer be taking place in public. The agendas, supporting papers and minutes of any meetings that do take place should however still be made available to the public if the meeting would have ordinarily proceeded as a public meeting. Organisations might also want to consider a facility whereby members of the public can pose questions that they would have had the opportunity to ask during a public meeting so that responses can be given as if the meeting has taken place in public. Organisations may also want to consider streaming and/or making available a recording of any meeting that still proceeds.

Where decisions are reserved to meetings for collective decision-making, NHS bodies should look to their constitutions, standing orders and schemes of delegation to see if there are any provisions allowing the delegation of decision-making in urgent or emergency situations to individuals. The model standing orders for NHS trusts, for example, enable emergency and urgent decisions to be taken by the chief executive and chairman in consultation with two other non-executive directors; similar provisions can be found in the standing orders of many foundation trusts. Decisions taken this way should then be brought to the next meeting of the board for formal ratification. If there are no such provisions, temporary amendments to standing orders/schemes of delegation may be possible to enable such delegations. Whilst there will be a process to follow within standing orders for making amendments, such a process should be capable of being achieved through electronic communications with the board members. Organisations might also want to consider making changes to, for example, the quorum requirements for meetings to enable essential meetings to proceed and essential business to be conducted.

Where, due to social distancing and/or lock downs, individual members are unable to attend necessary meetings in person, ‘virtual’ attendance at meetings of boards and other forums may also be permitted depending on the provisions within individual standing orders, which may enable members to attend meetings remotely.

Indeed, other forms of virtual forums may be helpful to promote accountability and improve engagement at this time, e.g. by enabling board members, governors and members to be informed of the use of delegated powers for decision making, and to receive briefings on key issues. Foundation Trusts will want to consider with governors the best ways of communication being effected between the board and council if meetings are not taking place, and how governors can still seek to engage with members so as to represent their interests during this time.

Elections

NHS foundation trusts may be contemplating the holding of elections to councils of governors if terms of office are due to expire or positions fall vacant. Holding elections in the current environment may seem to be an unhelpful (and costly) diversion, and obtaining the highest levels of engagement at this time is likely to be a challenge. Foundation trusts should look to the elections provisions in their constitutions and consider whether provisions on filling vacancies could be utilised as a stopgap measure and/or whether the elections timetable could be put back.

Reporting requirements

NHS England and NHS Improvement have now issued details of amended arrangements for end of year accounts for 2019/20, which extends the time for submitting draft accounts, audited accounts and quality accounts and suspends the requirement to provide hard copy documents to NHS Improvement.

Public and patient engagement

NHS bodies may have embarked, or have plans to embark, on public and patient involvement. While the practical challenges posed by conducting such engagement and involvement exercises at this time are obvious, the duty to involve e.g. on service reconfiguration proposals, will continue to apply and will be susceptible to challenge if not properly discharged. As such, NHS bodies should be clear as to the extent of their legal duties and carefully consider how best to discharge them. Duties to ensure public and patient involvement may be lawfully discharged through the public and patients being provided with information or in other ways; a public consultation is not always necessary or appropriate. NHS bodies should take into account the current COVID-19 restrictions in deciding what public and patient involvement is appropriate and in what forms, including whether online methods are possible and/or whether plans for involvement can be legitimately delayed for the current time until greater public and patient involvement can be expected.

Information governance

NHS bodies concerned about sharing data about the spread of Covid-19; collecting data from individuals considered to be at risk; or using technologies and new methods of processing data should have regard to the specific ICO guidance published on the ICO website and seek legal advice as required. It is still important for organisations to ensure that they process data lawfully, fairly and transparently and in compliance with the other GDPR principles but the ICO has confirmed that ‘regarding compliance with data protection, we will take into account the compelling public interest in the current health emergency.’ Organisations should also take note of new developments, such as a new notice which has been issued by the Secretary of State under Regulation 3(4) of the Health Service (Control of Patient Information) Regulations 2002, to require all providers of healthcare including GP providers to process information related to COVID-19 for disease surveillance, research, to protect public health and provide healthcare services and to monitor and manage COVID-19. Subject to certain caveats, disclosures of such confidential patient information for these purposes to certain permitted persons/organisations will be considered lawful, despite any obligation of confidence that may be owed.

The ICO also acknowledges that at this difficult time resources may be diverted away from compliance and information governance work, and that as a reasonable regulator it will not penalise organisations that it knows need to prioritise other areas or adapt their usual approach.  Therefore, while it is not possible to alter statutory timescales for responding to for example,subject access requests and freedom of Information requests, the ICO has indicated that it will communicate to the public that they may experience understandable delays in receiving responses to these requests. NHS bodies may want to take their own steps to manage the expectations of the public also.

With an expected increase in home and different ways of working, as well as a likely increase in scams and exploitation as fraudsters seek to take advantage of the crisis, NHS bodies should also remain vigilant over their data security systems and methods.

If you have any corporate or information governance concerns arising out of COVID-19 or any other matter, please do not hesitate to contact a member of our team who will be happy to assist.

For further updates and other articles discussing the impact of the coronavirus please view our coronavirus hub.