Constitution Amendment

Meeting and date Title Summary of paper JOINT MEETING OF THE BOARD OF DIRECTORS AND COUNCIL OF GOVERNORS 9 JUNE 2016 Constitution Amendment 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 Recommendations/ decisions required None (a) that the proposed changes to the Constitution as set out in section 3 below be approved; Link to Trust Priorities This report does not specifically link to one of the strategic objectives of the Trust but it does ensure corporate governance requirements are met. (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 Quality (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. 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 Risk Register Ref No. xxx Risk Score xx Quality consideration and impact on patient and carers None

Report Sign Off Financial n/a the Annual Members Meeting in September) and thereafter submitted to Monitor for publication. This report satisfies that requirement. 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 Report Author Nerissa Vaughan, Chief Executive Carole Nicholl, Company Secretary & Head of Corporate Governance

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 13 Council of Governors disqualification and removal 13 Council of Governors disqualification and removal 13 Council of Governors disqualification and removal 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 Orders For The 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 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 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 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. This addition agrees with paragraph 2 of Annex 5 Additional s. The addition will ensure clarity within the Constitution 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. 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. To ensure consistency within the Constitution

14 Council of Governors meetings of Governors Annex 3 Composition of the Council of Governors Annex 5 Additional s Council Of Governors (Paragraph 18) Appendix 1 Eligibility to be on the Council of Governors Annex 5 Additional s Council Of Governors (Paragraph 18) Appendix 1 Eligibility to be on the Council of Governors 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. 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 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 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 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. 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 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. To ensure that the staff sub-classes reflect our staff base. To provide assurance that the Trust is recruiting fit and proper people to represent them To ensure consistency within the Constitution

Annex 5 Additional s Council Of Governors (Paragraph 18) Appendix 1 Eligibility to be on the Council of Governors Annex 5 Additional s Council Of Governors (Paragraph 18) Appendix 1 Eligibility to be on the Council of Governors Annex 5 Additional s Council Of Governors (Paragraph 18) Appendix 3 Roles and Responsibilities of Governors Annex 5 Additional s Council Of Governors (Paragraph 18) Appendix 3 Roles 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 Orders For 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 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. 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 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. 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 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. 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. This would allow for modern voting practices; such as electronic or written voting; rather than the matter being specifically discussed at a meeting. This ensures that an individual Governor would follow proper process and comply with a decision

and Responsibilities of Governors Appendix 4 Council of Governors: further provisions 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 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 nonfamily members or close acquaintances (g) I have no criminal convictions to declare and note that a Disclosure and Barring Service check will be completed 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 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 made collectively by the Council of Governors. To ensure compliance with the fit and proper person criteria. To ensure that decisions of the COG are made collectively. This would allow for modern voting practices; such as electronic or written voting.

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 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 threequarters 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 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 To ensure consistency within the Constitution. To ensure consistency within the Constitution To ensure a fair process

An amendment to section 4.12.1 of paragraph 4.12 Special s 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 An amendment to section 4.12.2 of paragraph 4.12 Special s 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. 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. To ensure consistency within the Constitution.

An amendment to section 4.12.5 of paragraph 4.12 Special s 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 An amendment to section 4.12.8 of paragraph 4.12 Special s 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. 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 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 To ensure clarity of process To clarify potential sanctions. To ensure Consistency within the Constitution. To ensure that noncompliance is reported to Senior Team Members at an early stage.

Annex 7 Standing Board Of Directors 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 noncompliance with these SOs to the Chair as soon as possible 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. 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: a. bankruptcies that are current or have ended in the last 3 months b. debt relief orders that are current or have ended in the last 3 months

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 Any changes to the Constitution must be approved by the Board of Directors with approval from the Council of Governors and thereafter within 28 days, Monitor is to be informed of those changes, which it publishes. Any changes relating to the role and duties of the Governors must also be approved by the Members.

5. Recommendation That the changes to the Constitution and the reasons for them as set out above be approved and authority for formal drafting be delegated to the Company Secretary and thereafter submission to Monitor.