Corporate governance and constitutional issues

Adrian Parker

partner & LEAD CONTACT

• Harrogate
• procurement, corporate, commercial
• a.parker@hempsons.co.uk
• 01423 724029

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Extensive experience advising public sector clients on governance and constitutional issues

The drive for greater integration between NHS organisations and between NHS, social care and other partners creates new challenges from a corporate governance perspective.  When organisations work in partnership to deliver more joined up care, individual organisations need to operate within their own statutory powers and in accordance with their own governance documents.  The process for any “joint decision-making” needs to be carefully considered to ensure that it is lawful and that the decisions that are taken are robust and can withstand challenge.

Our reputation and long-standing experience in advising all parts of the NHS means that we have an in-depth understanding of NHS structures and powers and the NHS legislative and regulatory framework.  We can advise Sustainability and Transformation Partnerships (STPs) and Integrated Care Systems (ICS) about processes for decision-making and the accountability of individual organisations.

We advise on:

• The legal powers of NHS and other public sector bodies and their officers;
• The development of corporate governance and clinical governance structures;
• Procedural and legal requirements: the drafting, and interpretation, of constitutions, standing orders, standing financial instructions and schemes of reservation and delegation;
• The development of robust policies and procedures;
• The delegation of powers, Section 75 agreements and terms of reference for committees;
• Conflicts of interest – developing policies and managing potential conflicts of interest;
• Service transformation processes including consultation, joint decision-making and advising on Judicial Review claims;
• Working with the regulators including NHS England, NHS Improvement and the CQC – including advising providers about breaches of their provider licence and challenging feedback from CQC inspections/ draft reports.
• Information governance – the disclosure of information of a political and/or commercially sensitive nature, including advice on GDPR and Data Protection Act 2018 compliance and the Freedom of Information Act 2000;
• Research governance.

Key services:

• NHS structures, powers, law and guidance
• Foundation and Trust Constitutions
• CCG Constitutions
• Corporate governance policies and procedures:
  • Standing orders
  • Standing financial instructions
  • Schemes of delegation
• Hosting arrangements
• Income generation
• Clinical governance
• Information governance
• Research governance
• Private patients
• Policies and procedures

Our work:

Corporate Governance and hosting arrangements

We supported the North West Collaborative Procurement Hub in its evolution into the next generation North West Collaborative Commercial Agency, including involving a change in its host organisation.

Foundation Trust advice

We have supported a number of NHS Trusts and Mental Health Trusts in their applications to become Foundation Trusts.  We have also supported Foundation Trusts with their acquisition of NHS Trusts and other Foundation Trusts.

Integration

We have advised on a number of alliances, collaborations and other integration arrangements.  We continue to advise on such arrangements as these develop under the NHS Long Term Plan.

Service Transformation

We have advised on some of the largest and most high profile service transformations nationally, including advising all of the PCTs in Greater Manchester on the ‘Making It Better’ and ‘Healthy Futures’ service transformations and advising all of the CCGs in Greater Manchester on the “Healthier Together” acute service reconfiguration. All of these consultation processes have successfully withstood legal challenge. Elsewhere we have advised on consultations such as the Calderdale and Huddersfield maternity services review and the Dover Project in Kent.  We are experienced in advising clients on defending Judicial Review challenges.

Collaborative working and CCG Mergers

We have advised CCGs on collaborative working arrangements and joint decision-making including committees in common, joint committees and joint appointments.

We advised on the first CCG merger, which was approved in 2015, involving NHS Gateshead CCG, NHS Newcastle North and East CCG and NHS Newcastle West CCG merging to form NHS Newcastle Gateshead CCG. 

We are well placed to support CCGs with mergers, having experience of the statutory approval process, advising on the transfer of assets and contracts and the development of corporate governance arrangements for the new, merged CCG.  We are experienced in drafting CCG Constitutions and other governance documents.  We understand the need for CCG mergers to support wider integration arrangements including the development of Integrated Care Systems.  Our employment and estates colleagues are familiar with the staffing and estates issues that may arise.