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Birmingham Children’s Hospital
NHS Trust
Birmingham Children’s Hospital
NHS Foundation Trust
Core Constitution
Ref: CLS/063657 – BCH – Core Constitution
Capsticks amendments dated 17.12.12
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Definitions and Interpretation
Name
Principal Purpose
Not Used
Powers
Framework
Members
7.1 Membership Constituency
7.2 Public Constituency
7.3 Staff Constituency
7.4 Patients’ and Carers’ Constituency
7.5 Restriction on Membership
Council of Governors
8.1 Types of Governors
8.2 Numbers of Governors
8.3 Election of Governors
8.4 Council of Governors Tenure
8.5 Termination of Tenure
8.6 Disqualification
8.7 Vacancies
8.8 Roles and Responsibilities of Governors
8.9 Expenses
8.10 Remuneration
8.11 Meetings
8.12 Council of Governors – Standing Orders
8.13 Committees and Sub-Committees
Board of Directors
9.1 Board of Directors
9.2 Board of Directors – Composition
9.3 Vacancies
9.4 Eligibility to be a Non-Executive Director
9.5 Appointment Process for Directors
9.6 Terms of Office
9.7 Disqualification
9.8 Roles and Responsibilities
Meetings of Directors
Conflicts of Interests of Governors and Directors
Registers
Registers – Inspection and copies
Public Documents
Auditor
Accounts
Annual Report, Forward Plans and Non-NHS Work
Indemnity
Instruments
Dispute Resolution Procedures
Amendment of the Constitution
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Dissolution of the Trust
Transition Arrangements
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Annexes
Annex 1
Annex 2
Annex 3
Annex 4
Annex 5
Annex 6
Annex 7
Annex 8
The Public Constituency
The Staff Constituency
The Patients’ and Carers’ Constituency
Composition of the Board of Governors
The Model Rules for Elections
Standing Orders for the Practice and Procedure of the Council
of Governors
Standing Orders for the Practice and Procedure of the Board of
Directors
Further Provisions
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119
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1.
1.1
Definitions and Interpretation
1 In this Constitution:-
“the 2003 Act”
means the Health and Social Care (Community Health and
Standards) Act 2003;
“the 2006 Act”
means the National Health Service Act 2006;
“the 2012 Act”
means the Health and Social Care Act 2012;
“the 1977 Act”
means the National Health Service Act 1977;
“Annual General Meeting”
means the annual meeting of all the Members and referred to
in paragraph 8.11.5;
“Appointed Governors”
means the PCT Governors, the Local Authority Governor, and
Partnership Governors which consist of Higher Education
Governors, Extended Schools Governor and the Voluntary
Sector Governor;
“Area of the Trust”
means the area consisting of all the wards specified in Annex
1;
“Authorisation”
means the authorisation for the Trust to become an NHS
Foundation Trust given by Monitor;
“Board of Directors”
means the Board of Directors of the Trust (and “Board” shall
be construed accordingly) as constituted in accordance with
this Constitution and referred to in paragraph 9;
“Carer”
means subject as may otherwise be provided by the 2003 Act
an individual who wishes to become a Member of the Trust
and has attended any of the Trust’s hospitals or other premises
or facilities as the carer of a patient of the Trust within the
period of five years immediately before the date of that
individual’s application to become a Member of the Patients’
Constituency (other than an individual providing care in
pursuance of a contract (including a contract of employment),
or as a volunteer for a Voluntary Organisation);
“Carer Governor”
means a Member of the Council of Governors elected by the
Members of the Patients’ and Carers’ constituency;
3
“Chairman”
means the Chairman of the Trust appointed in accordance with
paragraph 8.8.1;
“Chief Executive”
means the Chief Executive (and Accounting Officer) of the
Trust appointed in accordance with paragraph 9.8.4;
“Constituencies”
means the Public constituencies, the Staff constituency and the
Patients’ and Carers constituency;
“Constitution”
means this Constitution of Birmingham Children’s Hospital
NHS Foundation Trust including any Annexes to this
Constitution;
“Council of Governors”
means the Council of Governors of the Trust (and “Council”
shall be construed accordingly) as constituted in accordance
with this Constitution and referred to in paragraph 8 and which
has the same meaning as the “Board of Governors” in the 2003
Act;
“Deputy Chairman”
means the Deputy Chairman of the Trust referred to in
paragraph 9.6.7;
"Director"
means a Director of the Board of Directors;
“Elected Governors”
means the Public Governors, the Staff Governors and the
Patient and Carers Governors;
“Election Scheme”
means the election scheme and rules set out in Annex 5; and
which are to be used in connection with the election of the
Elected Governors;
“Executive Director”
means an executive Chief Officer of the Trust as referred to in
paragraph 9.2.1(b);
“Extended Schools”
means a group of Schools that provide a range of services and
activities often beyond the school day to help meet the needs
of pupils, their families and wider community.
“Financial year”
means-
“Governor”
(a)
the period beginning with the date on which the Trust is
authorised and ending with the next 31st March; and
(b)
each successive period of twelve months beginning with
1st April;
means a Governor on the Council of Governors and being
either an Elected Governor or an Appointed Governor;
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“Joint Area Review”
means an inspection of all services for children and young
people and contributes to the corporate assessment of the City
Council,
“Local Authorities”
means Birmingham City Council and the Shadow Children’s
Trust for Birmingham;
“Local Authority
Governor”
means a Member of the Council of Governors appointed by a
Local Authority and referred to in paragraph 8;
"Member"
means a Member of the Trust as determined in accordance
with paragraph 7;
“Membership”
means membership of the Trust through being a Member of
one of the Constituencies;
“Members’ Meetings”
means a meeting of the Members and being either an Annual
General Meeting or a Special Members’ Meeting;
“Monitor”
means the body corporate known as Monitor, as provided by
Section 61 of the 2012 Act;
“Non-Executive Directors”
means a Non-Executive Director of the Trust as referred to in
paragraph 9.2.1(a);
“Partnership Governor”
means a Member of the Council of Governors appointed by
the respective Higher Education Institute, Extended Schools
and Voluntary Organisations and referred to in paragraph 8;
“Partnership
Organisations”
means Organisations designated as Partnership Organisations
for the purposes of this Constitution and referred to in
paragraph 8.2 and 8.4
“Patient”
means an individual who wishes to become a Member of the
Patients’ constituency in accordance with paragraph 7.4.4 and
who has attended any of the Trust’s hospitals or other
premises or facilities as a patient within the period of five
years immediately before the date of that person’s application
to become a Member of the Trust;
“Patient Governor”
means a Member of the Council of Governors elected by the
Members of the Patients’ and Carers’ constituency;
“Patients’ and Carers’
Constituency”
means that part of the Trust’s Membership which consists of
Patients and Carers and as described in paragraph 7.4;
“PCT Governor”
means a Member of the Council of Governors appointed by a
Primary Care Trust and referred to in paragraph 8.4 and Annex
4 to this Constitution;
5
“the Primary Care Trusts”
means those NHS Primary Care Trusts referred to in Annex 4
including successors to their business;
“Public Governor”
means a Member of the Council of Governors elected by the
Members of a Public Constituency and referred to in
paragraph 8.4;
“Public Constituencies”
means that part of the Trust’s Membership consisting of
Members from the Area of the Trust and which is made up of
three public constituencies as described in paragraph 7.2 and
Annex 1 (and Public Constituency shall be construed
accordingly);
“Secretary”
means the Secretary of the Trust or any other person appointed
to perform the duties of the Secretary of the Trust, including a
joint, Assistant or Deputy Secretary;
“Shadow Children’s Trust”
means the Local Authority arrangements in place to develop
Children’s Trust Under Section 10 of the Children Act 2004,
responsible for effective delivery of the ‘Change for Children’
agenda and delivering the outcomes of ‘Every Child Matters’
through greater inter-agency governance and collaboration.
“Special Members’
Meetings”
means meetings of the Members other than the Annual
General Meeting;
“Staff Classes”
means the classes of the Staff constituency as described in
paragraph 7.3.1 and “class” shall be construed accordingly;
“Staff Constituency”
means that part of the Trust’s Membership consisting of staff
of the Trust and other persons and which is divided into the
Staff classes as described in paragraph 7.3;
“Staff Governor”
means a Member of the Council of Governors elected by the
Staff class and referred to in paragraph 8.4;
“the Trust”
means the Birmingham Children’s Hospital NHS Foundation
Trust;
“Vice Chairman”
means the Vice Chair of the Council of Governors appointed
pursuant to paragraph 8.8.1(d).
“Voluntary Organisation”
means a body, other than a Public or Local Authority, the
activities of which are not carried out for profit.
“Voluntary Sector
Governor”
means a Member of the Council of Governors elected by the
Voluntary Organisation and referred to in paragraph 8;
1.2
1Unless the contrary intention appears or the context otherwise requires, words or
6
expressions
.
contained in this Constitution bear the same meaning as in the 2003 Act.
2
1.3
1References in this Constitution to legislation include all amendments, replacements,
or
. re-enactments made and references to paragraph numbers are references to
paragraphs
3
of this constitution unless the context provides otherwise.
1.4
. References to legislation include all regulations, statutory guidance or directions.
4
1Headings are for ease of reference only and are not to affect interpretation.
.
5
1Words importing the masculine gender only shall include the feminine gender; words
importing
.
the singular shall include the plural and vice-versa.
6
1If there is a conflict between the provisions of this Constitution and the provision of
any
. document referred to herein or the law then the provisions of this Constitution
shall
7 prevail unless the law requires otherwise.
1.5
1.6
1.7
7
Schedule 1
Paragraph 2
2.
Name
The name of the Foundation Trust is Birmingham Children’s Hospital NHS
Foundation Trust (the Trust).
Section 14(2)
Section 14(3)
Sections 17 and
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3.
Principal purpose
3.1
The principal purpose of the Trust is the provision of goods and services for the
purposes of the health service in England.
3.2
The Trust does not fulfil its principal purpose unless, in each financial year, its total
income from the provision of goods and services for the purposes of the health
service in England is greater than its total income from the provision of goods and
services for any other purposes.
3.3
The Trust may provide goods and services for any purposes related to:
(a)
the provision of services provided to individuals for or in connection with the
prevention, diagnosis or treatment of illness, and
(b)
the promotion and protection of public health.
3.4
The Trust may also carry on activities other than those mentioned in the above
paragraph for the purpose of making additional income available in order better to
carry on its principal purpose.
4.
Not used
5.
Powers
5.1
5
Without
prejudice to the generality of the foregoing and subject to the Act and to any
.
restrictions
in Monitor’s authorisation, the Trust may also:
1
(a)
take
( on exchange, hire or otherwise acquire, hold, manage and mortgage,
charge,
a
sell, exchange or let out any real and personal property of any kind;
)
(b)
purchase,
(
take licences of, protect, extend and renew any intellectual property
rights
b of any description and may exploit the same and sell or license the
same
) to others;
form,
(
acquire, invest in, assist and dispose of any companies or businesses
carrying
c
out any activity the Trust is authorised to carry out;
)
form,
(
acquire an interest in, invest in, participate in, and dispose of any
interest
d
in, joint ventures and partnerships, whether incorporated or not,
carrying
)
out any activity the Trust is authorised to carry out;
enter
(
into, carry on and participate in financial transactions, dealings and
operations
e
of all kinds and to take any steps which may be considered
expedient
)
for carrying into effect such transactions, dealings and operations
including, but not limited to, borrowing and lending money and entering into
(c)
(d)
(e)
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contracts and arrangements of all kinds and guaranteeing or otherwise
ordering or securing the liabilities and obligations or payment of monies by
any person, firm or company including, but not limited to, any company
which is for the time being a subsidiary (as defined by Section 736 of the
Companies Act 1985) of the Trust or is otherwise associated with the Trust in
its activities;
act
( and continue to act as Trustee of charitable and other Trusts and funds,
including
f
but not limited to those Trusts and funds of which the Trust is a
Trustee
)
at the date of adoption of this constitution;
appoint
(
any person or persons, firm or firms, company or companies to be the
agent
g of agents or attorneys of the Trust and to act as agents, managers,
secretaries,
)
contractors or in a similar capacity;
establish
(
and maintain for the benefit of current and former directors,
governors
h
and other officers of the Trust and employees of the Trust, and
their
) families (including former spouses) and dependents, insurance and
pension or superannuation funds and to grant pensions, emoluments,
allowances, donations, gratuities, loans and bonuses to such persons;
(f)
(g)
(h)
(i)
establish,
(
maintain and support institutions (including but not limited to
research
i
institutions), association, society, club or other establishment the
support
)
of which may, in the opinion of the Board of Directors be calculated
directly or indirectly to benefit the Trust, or may be connected with the area
of the Trust or any other place where the Trust carries on business or
otherwise connected in any way with any activities of the Trust;
(j)
join,
( participate in and to subsidise or assist any organisation of employers or
employees
j
or a trade association relevant to the activities of the Trust;
)
take,
(
make, execute, enter into, commence, carry on, prosecute and defend all
steps,
k claims, demands, contracts, agreements, negotiations, legal and other
proceedings,
)
compromises, arrangements and schemes, and to do all other
acts, matters and things which shall at any time appear conducive or
expedient for the advantage or protection of the Trust;
(k)
(l)
5.2
conduct,
(
or assist, by grants or otherwise, any persons to conduct, research
intol any matters relating to the causation, prevention, diagnosis or treatment
of illness
)
and into any such other matters connected with any service
provided by the Trust as it considers appropriate and publish the results of
such research;
(m)
educate
(
and train its own staff and students and those from other
organisations
m
or educational establishments in any trade, profession or other
occupation
)
relevant or related in any part of the Trust’s functions and
collaborate with other organisations in the provision of such education and
training;
(n)
undertake
(
any activities which promote or further the purposes set out at
paragraph
n
4 and the foregoing paragraphs of this paragraph 5.
)
5 powers of the Trust shall be exercised by the Board of Directors on behalf of the
The
.
Trust.
2
5.3
5 of these powers may be delegated to a committee of Directors or to an
Any
.
Executive
Director.
9
3
6.
Framework
6.1
6 Trust is a body corporate established under the 2003 Act as a public benefit
The
.
corporation
for the purposes referred to in paragraphs 3 and 4 above and the 2003
Act1 and the Trust is governed in accordance with this Constitution.
6.2
6 Trust’s governance arrangements which are set out in more detail in the
The
.
remaining
paragraphs of this Constitution are based on:
2
(a)
a( Membership, which is drawn from Members of the Public in the area of the
Trust;
a from the Trust’s Staff and others who are exercising functions for the
purposes
)
of the Trust; and Patients (including Carers) of the Trust all in
accordance with paragraph 7 of this Constitution; and
(b)
a( Council of Governors which consists of persons who are either elected by
thebMembers or appointed by the Primary Care Trusts, the Local Authorities,
Higher
)
Education; Extended Schools and the Voluntary Organisations of the
Trust in accordance with paragraph 8 of this Constitution; and
(c)
a( Board of Directors which consists of Executive Directors including the
Chief
c Executive and Non-Executive Directors including the Chairman in
accordance
)
with paragraph 9 of this Constitution.
7.
Members
7.1
7
Membership
constituencies
.
1
7.1.1
Schedule 1,
paragraph 3(1),
(3), 4(1)-(4)
7.1.2
7.1.3
7.2
The Trust shall have Members, each of whom shall be a Member of one of
the following constituencies:
(a)
a Public constituency;
(b)
a Staff constituency and;
(c)
a Patient and Carers’ constituency.
and Members of the Trust shall be those individuals who have their
application approved by the Secretary and who are registered as Members of
one of the above constituencies in accordance with the provisions of this
paragraph 7.
The Trust is not entitled to co-opt Members or appoint ‘associates’ or other
types of Members other than as set out in this Constitution and Members
cannot appoint another person to act in their place.
7
Public
Constituency
.
2
Schedule 1
Paragraph
3(1)(a) and (2),
4(2)
7.2.1
Members of the Trust who are Members of the Public constituencies listed in
Annex 1 are to be individuals:(a)
who live in the wards specified for that constituency (the wards of the
Public constituencies are specified in Annex 1); and
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Schedule 1
Paragraph 4(5)
and (6) and 3(7)
(b)
who are not eligible to become a Member of the Staff constituency and
are not Members of any other constituency or otherwise disqualified
for Membership under paragraph 7.5; and
Schedule 1
Paragraph 6(1),
(3) and (4)
(c)
who have each made an application for Membership to the Trust and
that application has been accepted by the Trust and who have been
entered in the Trust’s register of Members.
7.2.2
Schedule 1
Paragraph 5
7.2.3
Schedule 1
Paragraph 4(2)
7.2.4
Schedule 1
Paragraph
3(1)(b) and (3)
7.3
Should a dispute arise as to the eligibility of an individual to be a Member of
the Trust the Secretary shall determine the dispute in accordance with the Act
and the eligibility criteria set out in the Constitution. There will be a right of
appeal to the Council of Governors. In any event the Secretary’s decision
shall be considered and either approved or over-turned by the Council of
Governors at the next meeting of the Council of Governors immediately
following the Secretary’s decision. The Council of Governors decision shall
be final.
The minimum number of Members in each area for the Public constituency is
specified in Annex 1
Those individuals who live in a ward specified in an area for any Public
constituency are referred to collectively as the Public constituency
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Staff
Constituency
.
3
7.3.1
7.3.2
The Staff constituency shall be divided into four descriptions of individuals
who are eligible for Membership of the Staff constituency, each description
of individuals being specified within Annex 2 and being referred to as a class
within the Staff constituency
Members of the Trust who are Members of the Staff constituency are to be
individuals:
(a) who are employed by the Trust under a contract of employment with
the Trust may become or continue as a Member of the Trust provided:
(i) they are employed by the Trust under a contract of employment
which has no fixed term or has a fixed term of at least 12
months; or
(ii) they have been continuously employed by the Trust under a
contract of employment for at least 12 months.
(b) who exercise functions for the purposes of the Trust, otherwise than
under a contract of employment with the Trust, may become or
continue as Members of the Staff constituency provided such
individuals have exercised these functions continuously for a period of
at least 12 months
(c) who are not disqualified for Membership under paragraph 7.5 below;
(d)
7.3.3
who have been entered in the Trust’s register of Members.
Automatic Membership by default – staff
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Schedule 1
Paragraph 6(2)
7.3.3.1
Schedule 1
Paragraph
3(3)(b)
Schedule 1
Paragraph 4(3)
7.3.4
Schedule 1
Paragraph 5
7.3.5
7.4
7
Patients’
and Carers’ Constituency
.
4
7.4.1
7.5
Schedule 1
Paragraph 4(5)
Schedule 1
Paragraph 4(5)
and (6)
An individual who is eligible to become a Member of the Staff
constituency, and invited by the Trust to become a Member of the
Staff constituency and a Member of the appropriate class within
the Staff constituency, shall become a Member of the Trust as a
Member of the Staff constituency and appropriate class within the
Staff constituency without an application being made, unless he
informs the Trust that he does not wish to do so.
7.3.3.2
Should a dispute arise as to the eligibility of an individual to be a
Member of the Trust the Secretary shall determine the dispute in
accordance with the Act and the eligibility criteria set out in the
Constitution. There will be a right of appeal to the Council of
Governors. In any event the Secretary’s decision shall be
considered and either approved or over-turned by the Council of
Governors at the next meeting of the Council of Governors
immediately following the Secretary’s decision. The Council of
Governors decision shall be final.
Those individuals who are eligible for Membership of the Trust by reason of
the previous provisions are referred to collectively as the Staff constituency.
The minimum number of Members in each class of the Staff constituency is
specified in Annex 2.
An individual who is, within the period specified below, either a Patient or as
the Carer of a Patient may become or continue as a Member of the Trust.
7.4.2
The period referred to above shall be the period of 5 years immediately
preceding the date of an application by the Patient or Carer to become a
Member of the Trust.
7.4.3
Those individuals who are eligible for Membership of the Trust by reason of
the previous provisions are referred to collectively as the Patients’ and
Carers’ constituency
7.4.4
The Patients’ and Carers’ constituency shall be divided into two descriptions
of individuals who are eligible for Membership of the Patients’ and Carers’
constituency, each description of individuals being specified within Annex 3
and being referred to as a class within the Patients’ and Carers’ constituency.
7.4.5
An individual providing care in pursuance of a contract (including a contract
of employment) with a Voluntary Organisation, or as a volunteer for a
Voluntary Organisation, does not come within the category of those who
qualify for Membership of the Patient and Carers’ constituency.
7.4.6
The minimum number of Members in each class of the Patient’s and Carer’s
constituency is specified in Annex 3.
7
Restriction
on Membership
.
5
7.5.1
7.5.2
A person who is a Member of a constituency, or of a class within a
constituency, may not while Membership of that constituency or class
continues, be a Member of any other constituency or class.
A person eligible to become a Member of the Staff constituency under section
3(1)(b) of Schedule 1 to the 2003 Act may not become or continue as a
12
Member of any constituency other than the Staff constituency.
7.5.3
8.
Council of Governors
8.1
8
Types
of Governors
.
1
8.1.1
Schedule 1
Paragraph 7(1)
and 9
8.1.2
Schedule 1,
paragraph 7 (1)
and 9
8.2
The Trust is to have a Council of Governors, which shall comprise both
elected and appointed Governors. It is to consist of Public Governors, Patient
Governors, a Carer Governor, Staff Governors, PCT Governors, Local
Authority Governor, Higher Education Governors, an Extended Schools
Governor and a Voluntary Sector Governor.
In the event of changes to local authority boundaries, the public constituency
boundaries will automatically be altered to accord with these changes.
8
Numbers
of Governors
.
2
8.2.1
Schedule 1,
Paragraph 9 (2)
– (4)
The Council of Governors of the Trust is to include:
(a)
8.2.2
8.2.3
Schedule 1
Paragraph 8(1)
and 9 (2) – (6)
Further provisions as to the circumstances in which an individual may not
become or continue as a Member of the Trust are set out in Annex 8 – Further
Provisions.
8.2.4
8.2.5
8.2.6
10 Public Governors elected by the Public Constituencies in
accordance with paragraph 8.3 and 8.4.1;
(b) 3 Patient Governors and 1 Carer Governor elected in accordance with
paragraph 8.3, 8.4.2 and 8.4.3;
(c) 4 Staff Governors with one Governor elected by each of the Staff
Classes in accordance with paragraph 8.3 and 8.4.4;
(d) 4 PCT Governors to be appointed by the Primary Care Trusts listed in
Annex 4;
(e) 1 Local Authority Governor to be appointed by their respective
organisation in accordance with paragraph 8.4.6;
(f) 4 Partnership Governors consisting of:
(iii) 2 Higher Education Governors to be appointed by their
respective organisations in accordance with paragraph 8.4.7
(iv) 1 Extended Schools Governor to be appointed by their
respective school in accordance with paragraph 8.4.8
(v)
1 Voluntary Sector Governor appointed by the respective
voluntary organisations in accordance with paragraph 8.4.9
The aggregate number of Public, Patient and Carer Governors shall be more
than half the total Membership of the Council of Governors.
The composition of the Council of Governors is further specified in Annex 4.
The Members of the Council of Governors, other than the appointed
Members, shall be chosen by election by their constituency or, where there
are classes within a constituency, by their class within that constituency. The
number of Governors to be elected by each constituency, or, where
appropriate, by each class of each constituency, is specified in Annex 4.
The Trust is not entitled to co-opt Governors or appoint “associate” or other
types of Governors other than set out in this Constitution and Governors
cannot appoint another person to act in their place.
The validity of any act of the Trust is not affected by any vacancy among the
13
Governors or by any defect in the appointment of any Governor.
8.3
Section 35 and
36
8
Election
of governors
.
3
8.3.1 Elections for elected Members of the Council of Governors shall be
8.3.2
8.3.3
conducted in accordance with the Model Rules for Elections, as may be
varied from time to time.
The Model Rules for Elections, as may be varied from time to time, form part
of this constitution and are attached at Annex 5.
A variation of the Model Rules by the Department of Health shall not
constitute a variation of the terms of this constitution. For the avoidance of
doubt, the Trust cannot amend the Model Rules.
An election, if contested, shall be by secret ballot.
Section 35(5)
8.3.4
Clause 36(1) (4)
and (5)
8.3.5
A person may not vote at an election for a Staff, Public, Patient or Carer
Governor unless at the time of voting he has made a declaration in such form
as the Secretary of the Trust determines stating the particulars of his
qualification to vote as a Member of the constituency for which an election is
being held. It is an offence to knowingly or recklessly make such a
declaration which is false in a material particular.
Schedule 1,
paragraph 7(4)
8.3.6
Members of the classes within the Staff, Public, Patient and Carers’
constituency may elect any of their number to be a Governor provided that
the proposed Governor is 16 years of age or older, as at the final date that
nominations for election are to be accepted.
8.4
8
Council
of Governors - tenure
.
4
8.4.1
Public Governors:
Schedule 1,
paragraph 10(1)
(a)
Schedule 1,
paragraph 10(2)
(b)
Schedule 1,
Paragraph 14(2)
(c)
Schedule 1,
Paragraph 10(3).
(d)
8.4.2
Patient Governors:
Schedule 1,
paragraph 10(1)
(a)
Schedule 1,
Paragraph 10(3).
(b)
8.4.3
(a)
Schedule 1,
Paragraph 14(2)
(b)
Schedule 1,
subject to paragraph 8.2.1, 8.3 and 8.6 may hold office for a period of
three years;
cease to hold office if they cease to be a Member of the patient
constituency
Carer Governors:
Schedule 1,
paragraph 10(1)
and (2)
8.4.4
subject to paragraph 8.2.1, 8.3, 8.6 and 8.4.10 may hold office for a
period of three years;
subject to paragraph 8.2.1, 8.3 and 8.6 are eligible for re-election at the
end of their period of office;
may not hold office for longer than 9 years and therefore must stand
down from office after 9 years service;
cease to hold office if they cease to be a Member of the public
constituency
subject to paragraph 8.2.1, 8.3 and 8.6 may hold office for a period of
three years and are eligible for re-election at the end of their period of
office;
Carer Governors may not hold office for longer than 9 years and
therefore must stand down from office after 9 years service;
Staff Governors:
(a)
Subject to paragraph 8.4.11 may hold office for a period of three
14
paragraph 10(1)
years;
Schedule 1,
paragraph 10(2)
Schedule 1,
Paragraph 14(2)
Schedule 1,
Paragraph 10(3).
(b)
are eligible for re-election at the end of their period of office;
(c)
may not hold office for longer than 9 years and may not hold office for
longer than six consecutive years after which there must be a three
year gap before being eligible for re-election;
Cease to hold office if they cease to be a Member of the staff
constituency; or
Cease to hold office if they cease to be a Member of the Staff Class
which elected them to be a Staff Governor and a replacement Staff
Governor has been elected
(d)
(e)
8.4.5
Schedule 1,
paragraph 14(2)
PCT Governors:
(a)
may hold office for a period of three years;
(b)
Are eligible for re-appointment at the end of their period of office;
(c)
may not hold office for longer than 9 years and may not hold office for
longer than six consecutive years after which there must be a three
year gap before being eligible for re-appointment;
Cease to hold office if the sponsoring Primary Care Trust withdraws
its sponsorship of them
(d)
8.4.6
Schedule 1,
paragraph 14(2)
Local Authority Governors:
(a)
may hold office for a period of three years;
(b)
Are eligible for re-appointment at the end of their period of office;
(c)
may not hold office for longer than 9 years and may not hold office for
longer than six consecutive years after which there must be a three
year gap before being eligible for re-appointment;
cease to hold office if the sponsoring Local Authority withdraws its
sponsorship of them
(d)
8.4.7
Schedule 1,
paragraph 14(2)
Higher Education Governors:
(a)
may hold office for a period of three years;
(b)
Are eligible for re-appointment at the end of their period of office;
(c)
may not hold office for longer than 9 years and may not hold office for
longer than six consecutive years after which there must be a three
year gap before being eligible for re-appointment;
(d)
8.4.8
Extended Schools Governor:
(a)
(b)
(c)
(d)
8.4.9
cease to hold office if the sponsoring Universities withdraws its
sponsorship of them
subject to paragraph 8.2.1 and 8.6 may hold office for a period of three
years;
are eligible for re-appointment at the end of their period of office;
may not hold office for longer than 9 years and may not hold office for
longer than six consecutive years after which there must be a three
year gap before being eligible for re-appointment;
cease to hold office if the sponsoring Schools withdraw their
sponsorship of them.
Voluntary Sector Governor:
15
Schedule 1,
paragraph 14(2)
8.4.10
(a)
may hold office for a period of three years;
(b)
Are eligible for re-appointment at the end of their period of office;
(c)
may not hold office for longer than 9 years and may not hold office for
longer than six consecutive years after which there must be a three
year gap before being eligible for re-appointment;
(d)
cease to hold office if the sponsoring Voluntary Organisations
withdraw their sponsorship of them
The first Public Governors(a)
(b)
8.4.11
The seven candidates polling the most votes at the first election of
Public Governors shall hold office for a period of three years;
The remaining candidates elected at the first election of Public
Governors shall hold office for a period of two years.
The first Staff Governors(a)
8.4.12
8.5
Schedule 1,
paragraph 14(2)
(d)
The two candidates polling the most votes at the first election of Staff
Governors shall hold office for a period of three years;
(b)
The remaining two candidates elected at the first election of Staff
Governors shall hold office for a period of two years.
For the purposes of these provisions concerning terms of office for
Governors, ‘year’ means a period commencing immediately after the
conclusion of the Annual General Meeting, and ending at the conclusion of
the next Annual General Meeting.
Termination of Tenure
8.5.1
8.5.2
A Governor may resign from that office at any time during the term of that
office by giving notice in writing to the Secretary or the Chairman.
If a Governor fails to attend two meetings of the Council of Governors in any
financial year is to be immediately terminated unless the other Governors are
satisfied that:
(a)
the absence was due to a reasonable cause; and
(b)
8.6
they will be able to start attending meetings of the Trust again within
such a period as the Governors consider reasonable.
Disqualification
8.6.1
A person may not become or continue as a Member of the Council of
Governors of the Trust if:
(a) in the case of a Public Governor, or Patient Governor or Carer
Governor, or Staff Governor they cease to be a Member of the
constituency or class of constituency they represents;
(b) in the case of a PCT Governor, Local Authority Governor, Higher
Education Governor, Extended School Governor or Voluntary Sector
Governor, the sponsoring Primary Care Trust, Local Authority,
University, Extended Schools, or Voluntary Organisations withdraw
their sponsorship of them;
(c) they have been adjudged bankrupt or whose estate has been
sequestrated and (in either case) has not been discharged;
(d) they have made a composition or arrangement with, or granted a Trust
deed for, their creditors and have not been discharged in respect of it;
16
(e)
they have within the preceding five years has been convicted in the
British Isles of any offence if 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 them.
(f)
they are under 16 years of age at the date they are nominated for
election or appointment.
they have within the preceding two years been dismissed, otherwise
than by reason of redundancy, from any paid employment with a
health service body including an NHS Foundation Trust
they are a person whose tenure of office as the Chairman or as a
Member or Director of a health service body including an NHS
Foundation Trust has been terminated on the grounds that their
appointment is not in the interests of the health service, for non
attendance at meetings for breach of the relevant organisation’s
constitution including for non-disclosure of an interest which was
required to be disclosed.
they are an Executive (including the Chief Executive Officer) or, NonExecutive (including the Chairman) of the Trust, or a Governor, NonExecutive Director, (including the Chairman) or, Executive Director
(including the Chief Executive Officer) of another NHS Foundation
Trust;
they are incapable by reason of mental disorder, illness or injury of
managing and administering their property and affairs
they are under a warning from the Trust for verbal and/or physical
abuse towards Trust staff;
they, being a Member of staff, are subject to the Trust’s formal
disciplinary procedures;
they are required to notify the police of their name and address as a
result of being convicted or cautioned for relevant sex offences
pursuant to the Sex Offenders’ Act 1997 or other relevant legislation;
they are a vexatious or persistent litigant or complainant against the
Trust without reasonable cause as determined by the Council of
Governors;
if not less than three quarters of the Council of Governors agree at a
meeting that the person has acted or is likely to act in a manner
detrimental to the interests of the Trust and it is not in the best interests
of the Trust for that person to be or to continue as a Governor;
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
they fail to comply or complete any formalities that are required by the
Trust to be completed before the individual becomes a Governor or
during the course of being a Governor
8.6.2
Where a person has been elected or appointed to be a Governor and they
become disqualified for appointment under this paragraph 8.6, they shall
notify the Secretary or the Chairman of the Trust in writing of such
disqualification.
8.6.3
If it comes to the notice of the Secretary or the Chairman of the Trust at the
time of their appointment or later that the Governor is so disqualified, they
shall immediately declare that the person in question is disqualified and
notify them in writing to that effect.
8.6.4
Upon receipt of any such notification, that person’s tenure of office, if any,
shall be terminated and they shall cease to act as a Governor.
17
8.6.5
8.7
Schedule 1,
paragraph 14(2)
Vacancies
8.7.1
8.8
Where a person has been declared disqualified by the Secretary under clause
8.6.2 above, they may appeal the Secretary’s decision to the Chairman, whose
decision on the matter will be final.
Where membership of the Council of Governors ceases for one of the reasons
set out in paragraphs 7.5; or 8.5; or 8.6 above or Annex 8; the Council of
Governors shall be at liberty: (a) to call an election to fill the seat for the remainder of that term of
office, or
(b) or where possible to invite the next highest polling candidate for that
seat at the most recent election, who is willing to take office to fill the
seat until the next annual election at which time the seat will fall
vacant and subject to election for any unexpired period of the term of
office, or
(c) having regard to the number of Governors remaining in post to
represent that constituency, to defer the by-elections until the next
round of elections.
(d) In relation to appointed Governors they are to be replaced in
accordance with the processes agreed pursuant to paragraphs 8.4.5 to
8.4.9.
Roles and Responsibilities of Governors
8.8.1
The roles and responsibilities of the Governors are:
(a)
At a General Meeting:
Schedule 1,
paragraph 17(1)
and 19
(i)
Schedule 1,
paragraph 18(1)
(ii)
Schedule 1,
paragraph 23(2)
Schedule 1,
paragraph 28
(iii)
to appoint or remove the Trust’s Auditor ;
(iv)
(b)
(c)
Schedule 1
Paragraph 12
Subject to paragraph 9 to appoint, reappointor remove the
Chairman and the other Non-Executive Directors. The initial
Chairman appointed by the Council of Governors is to be the
Chairman of Birmingham Children’s Hospital NHS Foundation
Trust if he wishes to be appointed in accordance with paragraph
23. The other initial Non–Executive Directors appointed by the
Council of Governors are, so far as possible, to be NonExecutive Directors (other than the Chairman) of Birmingham
Children’s Hospital NHS Foundation Trust who wish to be
appointed in accordance with paragraph 23. The removal of a
Non-Executive Director requires the approval of the Council in
accordance with paragraph 9.6.
to decide, having regard to any guidance issued the
remuneration and allowances, and the other terms and
conditions of office, of the Chairman and Non-Executive
Directors;
(d)
to be presented with and consider the annual accounts, any
report of the Auditor on them and the annual report;
to consider disputes as to Membership referred to it pursuant to
paragraph 7.2.2, 7.3.3.2;
to consider and approve any guidance prepared by the Secretary
pursuant to paragraph 8.9;
to appoint one of the Governors to be the Vice Chairman of the
Council to act in place of the Chairman in relation to Council business
18
(e)
where the Chairman or the Deputy Chairman or other Non-Executive
Director is not available or cannot act as Chairman of the Meeting;
to respond as appropriate when consulted by the Directors;
Schedule 1
Paragraph 19(6)
(f)
to approve (by a majority of the Council of Governors voting) an
appointment (by the Non-Executive Directors) of the Chief Executive
other than the initial Chief Executive of the Trust appointed in
pursuance of paragraph 23 below;
Schedule 1
Paragraph 17(4)
and 19(1), (5)
and (6)
(g)
to give the views of the Council for the purposes of the preparation by
the Directors of the document containing information as to the Trust’s
forward planning in respect of each financial year to be given to
Monitor;
8.8.2
The Governors also have a specific role and function of:
(a)
(b)
(c)
(d)
(e)
8.9
Schedule 1
Paragraph 11
8.10
Schedule 1
Paragraph 12
Schedule 1
Paragraph 13(1)
and (2)
receive and consider the views of the Members on matters of
significance to the future plans of the Trust;
holding to account, the Board of Directors, in relation to the Trust
continuing to comply with the terms of authorisation;
notwithstanding the provisions of paragraph 8.8, the Governors may
exercise other functions at the request of the Board of Directors.
Expenses
8.9.1
The Trust may pay traveling and other expenses to Governors at such rates as
it decides. These are to be published in Annual Reports.
8.9.2
The remuneration and allowances for Non-Executive Directors set by the
Governors are also to be published in the annual report.
Remuneration
8.10.1
8.11
providing views to the Board of Directors on the strategic direction of
the Trust;
developing the membership of the Trust;
Governors are not to receive remuneration.
Meetings
8.11.1
The Chairman of the Trust or, in his absence, the Deputy Chairman of the
Board of Directors or in both of their absence a Non-Executive Director of
the Trust is to preside at meetings of the Council of Governors. The Vice
Chairman appointed in accordance with paragraph 8.8.1(d) shall preside if
none of the foregoing are present or if the Vice Chairman is absent, a
Governor appointed by the Governors present at the meeting shall preside.
8.11.2
The Vice Chairman and not the Chairman or Deputy Chairman is to
preside over issues relating to Non-Executive Directors and will have the
casting vote.
8.11.3
Meetings of the Council of Governors are to be open to Members of the
Public except where the Council decides otherwise in relation to the whole
or part of the meeting because:
(a)
issues concerning confidential details of a personal nature are to be
discussed – in which case such items will be discussed as closed
items at the end of the meeting from which Members of the Public
and Press will be excluded.
19
(b)
Schedule 1
Paragraph 28
Schedule 1
Paragraph 28
the Council of Governors resolves that the Public and
representatives of the Media be excluded from the meeting because
the business to be conducted is confidential and/or publicity would
be prejudicial to the public interest and/or the interests of the Trust.
8.11.4
The provisions of this paragraph shall be without prejudice to the
Council’s power, as exercised by the Chairman or other Governors, to
exclude, suppress or prevent disorderly conduct or other misbehaviour at a
meeting.
8.11.5
The Council of Governors is to meet at least three times per year,
excluding an Annual General Meeting which is to be held no later than the
30th September in each year, the first year being an exception to this rule.
8.11.6
To be quorate there must be at least fourteen Governors present and of that
fourteen at least nine must be Public or Patient/Carer Governors. For the
avoidance of doubt, the number of Public and Patient/Carer Governors
present at a meeting should be in the majority.
8.11.7
At the Annual General Meeting, the Council of Governors is to receive
and consider the annual accounts, any report of the Auditor on them, and
the annual report.
Save in the case of emergencies or the need to conduct urgent business, the
Secretary shall give at least fourteen days written notice of the date and
place of every meeting of the Council of Governors to all Governors.
Notice will also be published ion the Trust’s website and at the main
entrance to Birmingham Children’s Hospital.
All decisions taken in good faith at a meeting of the Council of Governors
or of any committee shall be valid even if it is discovered subsequently
that there was a defect in the calling of the meeting, or the appointment of
the Governors attending the meeting.
8.11.8
8.11.9
8.11.10
8.11.11
8.11.12
8.11.13
8.11.14
Meetings of the Council of Governors may be called by the Secretary, or
by the Chairman, or by six Governors who give written notice to the
Secretary specifying the business to be carried out. The Secretary shall
send a written notice to all Governors as soon as possible after receipt of
such a request. The Secretary shall call a meeting on at least fourteen but
not more than twenty-eight days’ notice to discuss the specified business.
If the Secretary fails to call such a meeting then the Chairman or six
Governors, whichever is the case, shall call such a meeting.
The Chief Executive or any other Member or Members of the Board of
Directors or a representative of the Trust’s Auditors or other Advisors can
attend a meeting of the Council of Governors unless the Council of
Governors agrees otherwise.
Subject to the terms of this Constitution, questions arising at a meeting of
the Council of Governors shall be decided by a majority of votes.
In case of an equality of votes the Chairman of the Council of Governors
(or in their absence the person presiding in their place) shall have a casting
vote except when the Chairman (or the person presiding) has a conflict of
interest in which case a Governor appointed by the Governors present at
the meeting shall have a casting vote.
No resolution of the Council of Governors shall be passed if it is
unanimously opposed by all of the Public Governors present. This
20
8.11.15
Schedule 1
Paragraph 8.
Clause 36(3) and
(4)
8.11.16
Clause 36(5)
8.11.17
8.12
8.13.2
8.13.3
Schedule 1
Paragraph 15(1)
9.1
9.2
Schedule 1
Paragraph
16(1)(a)
Schedule 1
Paragraph 16(2)
The Council of Governors with the approval of the Chairman may appoint
committees consisting of its Members and other persons including
Directors to assist it in carrying out its functions. A Committee appointed
under this paragraph may with approval of the Chairman appoint a subcommittee.
These committees or sub-committees may call upon outside advisors to
help them in their tasks.
The Council of Governors may not delegate any of its powers to these
committees or sub-committees.
Board of Directors
The Trust is to have a Board of Directors, which shall comprise both Executive and
Non-Executive Directors.
Board of Directors – Composition
9.2.1
Schedule 1
Paragraph 16(1)
and (1)(b).
The Council of Governors is to adopt its own standing orders for its
practice and procedure, in particular for its procedure at meetings
(including the Annual General Meeting), but these shall be in accordance
with the provisions of this Constitution (Annex 6 refers).
Committees and sub-committees
8.13.1
9
A Governor elected to the Council by a Public constituency, the
Patients’/Carers’ constituency or the Staff constituency may not vote at a
meeting of the Council unless, within the last three years, he has made a
declaration (in the form specified at paragraph 8.11.17) stating which
Constituency or class he is a Member of and is not prevented from being a
Member of the Council.
The form referred to in paragraph 8.11.16 is any form as specified by the
Council of Governors.
Council of Governors – standing orders
8.12.1
8.13
provision only applies if there are nine or more Governors from the Public,
Patient and Carer Constituencies present.
The Council of Governors may, through the Secretary, make appropriate
arrangements to ensure that Governors are able to attend meetings of the
Council of Governors or any committees, and are able to communicate at
such meetings.
The Board of Directors is to comprise:
(a)
(b)
the following Non-Executive Directors(i)
a Non-Executive Chairman;
(ii)
A minimum of 3 and up to 6 other Non-Executive Directors;
the following Executive Directors (i)
a Chief Executive (and accounting officer),
(ii)
a Finance Director,
(iii)
up to 4 other Executive Directors, one of whom is to be a
registered medical practitioner (within the meaning of the
21
Medical Act 1983 who holds a licence to practice under
that Act) or a registered dentist (within the meaning of the
Dentists Act 1984) and another of whom is to be a
registered nurse or registered midwife.
9.3
Vacancies
9.3.1
9.3.2
9.4
Eligibility to be a Non-Executive Director
9.4.1
Schedule 1
Paragraph 19
9.4.2
9.5
The validity of any act of the Trust is not affected by any vacancy among the
Directors or by any defect in the appointment of any Director.
Where a vacancy arises as a result of the expiry of the term of office of a
Non-Executive Director then, notwithstanding the provisions of clause 9.5
below and having had regard to the matters set out at paragraphs 9.3.2 (a)-(c)
below, the Council of Governors may [by unanimous consent] re-appoint the
Non-Executive Director concerned for a further term of office as set out in
paragraph 8.8.1(a)(i)
(a)
relevant appraisal data in respect of the Non-Executive Director in
question;
(b)
the skills required by the Board of Directors; and
(c)
any other general requirements of the Board of Directors at that time
Subject to paragraph 9.4.2 below, an individual is eligible for appointment as
a Non-Executive Director if :
(a)
he is a Member of a Public constituency or the Patients’ and Carers’
constituency
(b)
he is not disqualified by virtue of paragraph 9.7 below.
Paragraph 9.4.1 above does not apply to the appointment of any initial NonExecutive Director.
Appointment Process for Directors
9.5.1
Subject to the provisions in paragraph 23 regarding initial appointments and
save in respect of the provisions of paragraph 9.3.2 regarding reappointment,’ Non-Executive Directors are to be appointed by the Council of
Governors as set out in paragraph 8.8.1(a)(i) in accordance with a process of
open competition outlined as follows:
the Board and the Council will identify the skills needed and any other
(a)
relevant issues or requirements in relation to the proposed appointment
and may take external advice and help in relation to such matters; and
(b)
the geographical location of any candidates and whether they are or
could be a Member of the Public or Patients/Carers’ constituencies
shall be considered; and
appropriate candidates will be identified by a committee of the
Governors including the Chairman, Chief Executive Officer and where
appropriate other Directors, provided that for the avoidance of doubt
this Committee shall not appoint Non-Executive Directors but will
simply advise the Council of Governors after having regard to any
skills and other requirements identified by the Board and the
Governors and following the placing of any adverts for the vacancies
and a review of the results of any interviews.
Executive Directors are to be appointed in accordance with paragraphs 9.8.4
(c)
9.5.2
22
and 9.8.5.
9.6
Schedule 1
Paragraph 17
Terms of Office
9.6.1
9.6.2
Schedule 1
Paragraph 17(1)
and 18(1)
9.6.3
Schedule 1
Paragraph 18(2)
9.6.5
Schedule 1
Paragraph 18(2)
9.6.6
9.6.7
9.7
The Council of Governors at a meeting may appoint or remove the Chairman
and other Non-Executive Directors.
Removal of the Chairman or another Non-Executive Director shall require the
approval of three-quarters of the Members of the Council of Governors.
Subject to paragraph 23, the Chairman and the Non-Executive Directors are
to be appointed for a period of office in accordance with the terms and
conditions of office decided by the Council of Governors at a Council of
Governors meeting.
The Chief Executive (and Accounting Officer) and the Chief Financial
Officer shall hold offices for a period in accordance with the terms and
conditions of office decided by the relevant committee of Non-Executive
Directors.
The Executive Directors, other than the Chief Executive and the Chief
Financial Officer, shall hold office for a period in accordance with the terms
and conditions decided by the relevant committee of Non-Executive
Directors.
The Chairman will elect one of the Non-Executive Directors to be the Deputy
Chairman of the Board of Directors and if the Chairman is unable to
discharge his duties the Deputy Chairman shall act in his place.
Disqualification
9.7.1
A person may not be a Director of the Trust or shall cease to be a Director of
the Trust if:
(a) he has been adjudged bankrupt or his estate has been sequestrated and
in either case he has not been discharged;
(b) he has made a composition or arrangement with, or granted a Trust
deed for, his creditors and has not been discharged in respect of it;
(c) he has within the preceding five years been convicted in the British
Islands of any offence, and a sentence of imprisonment (whether
suspended or not) for a period of three months or more (without the
option of a fine) was imposed on him;
(d)
he has had his name added to the register of sexual offenders; or
(e)
he is incapable by reason of mental disorder, illness or injury of
managing or administrating his property and affairs;
he has been involved in any act of violence against a member of staff
or other Members of the Trust;
he being a member of staff is subject to the Trust’s formal disciplinary
proceedings.
he is a Governor of the Trust, or a Governor, Non-Executive Director,
Chairman, Chief Executive Officer or other Executive Officer of
another NHS Foundation Trust.
in the case of a Non-Executive Director, he no longer satisfies
paragraph 9.4.
he is a person whose tenure of office as a Chairman or as a Member or
Director of a health service body including an NHS Foundation Trust
has been terminated on the grounds that his appointment is not in the
interests of public service, for non attendance at meetings, or for non-
(f)
(g)
(h)
(i)
(j)
23
(k)
(l)
9.8
Roles and Responsibilities
Schedule 1
Paragraph 15(2)
9.8.1
Schedule 1
Paragraph 15(3)
9.8.2
Schedule 1
Paragraph 23(6)
9.8.3
Schedule 1
Paragraph 17(2)
and 19(5)
9.8.4
Schedule 1
Paragraph 17(3)
9.8.5
Schedule 1
Paragraph 18(2)
9.8.6
Schedule 1
Paragraph
27(2)and(3)
9.8.7
Schedule 1
Paragraph 28
9.8.8
Schedule 1
Paragraph 25(5)
9.8.9
10
disclosure of an interest which was required to be disclosed;
he were eligible to be disqualified under the Company’s Directors
Disqualification Act 1986;
he has within the preceding two years been dismissed, otherwise than
by reason of redundancy, from any paid employment with a health
service body including an NHS Foundation Trust.
The powers of the Trust are to be exercisable by the Board of Directors on its
behalf.
Any of those powers may be delegated to a committee of Directors or to an
Executive Director.
A committee of Non-Executive Directors established as an audit committee is
to monitor, review and carry out such other functions as are appropriate. The
chair of any such audit committee shall have an appropriate financial
background as determined by the Board of Directors.
It is for the Non-Executive Directors (including the Chairman) to appoint or
remove (subject to the approval of the Council of Governors) the Chief
Executive (and accounting officer). The initial Chief Executive (and
Accounting Officer) is to be the Chief Executive Officer of Birmingham
Children’s Hospital NHS Foundation Trust if he wishes to be appointed in
accordance with paragraph 23.7.
It is for a committee consisting of the Chairman, the Chief Executive (and
accounting officer) and the other Non-Executive Directors to appoint or
remove the Executive Directors. The initial Executive Directors are to be the
Executive Directors of the applicant Trust.
The Trust is to establish a committee of Non-Executive Directors to decide
the remuneration and allowances, and the other terms and conditions of
office, of the Executive Directors. Pending the establishment of such a
committee the Executive Directors of the applicant NHS Trust will be
appointed on their current terms and conditions.
The Directors, having regard to the views of the Council of Governors, are to
prepare the information as to the Trust’s forward planning in respect of each
financial year to be given to Monitor.
The Directors are to present to the Council of Governors at an Annual
General Meeting the annual accounts, any report of the Auditor on them, and
the annual report.
The functions of the Trust under sub-paragraphs (a) and (b) of paragraph 16.4
below are delegated to the Chief Executive as Accounting Officer.
Meetings of Directors
10.1
Save in the case of emergencies or the need to conduct urgent business, the
Secretary shall give to all Directors at least fourteen days written notice of the
date and place of every meeting of the Board of Directors.
10.2
Meetings of the Board of Directors shall not generally be open to Members of
the Public unless the Board of Directors decides otherwise in relation to all or
part of a meeting. The Chairman may exclude any Member of the Public
from an open meeting of the Board of Directors if they are interfering with or
preventing the proper conduct of the meeting.
24
10.3
10.4
Meetings of the Board of Directors are called by the Secretary, or by the
Chairman, or by four Directors who give written notice to the Secretary
specifying the business to be carried out. The Secretary shall send a written
notice to all Directors as soon as possible after receipt of such a request. The
Secretary shall call a meeting on at least fourteen but not more than twentyeight days’ notice to discuss the specified business. If the Secretary fails to
call such a meeting then the Chairman or four Directors, whichever is the
case, shall call such a meeting. Six Directors including not less than three
Executive Directors (one of whom must be either the Chief Executive or the
Finance Director), and not less than three Non-Executive Directors shall form
a quorum.
The Chairman of the Trust or, in their absence, the Deputy-Chairman of the
Board of Directors appointed in accordance with paragraph 9.6.7, and in their
absence one of the other Non-Executive Directors in attendance is to chair
meetings of the Board of Directors.
10.4.1
10.5
Subject to the following provisions of this paragraph, questions arising at a
meeting of the Board of Directors shall be decided by a majority of votes but:
(a) in case of equality of votes the Chairman (or in his absence the Deputy
Chairman or in the Deputy Chairman’s absence a Non-Executive
Director who is appointed by the Directors at the Meeting to chair the
Meeting) shall have a second and casting vote.
(b)
10.6
11
Schedule 1
Paragraph 21
No resolution of the Board of Directors shall be passed if it is
unanimously opposed by all of the Executive Directors present or by
all of the Non-Executive Directors present.
The Board of Directors is to adopt Standing Orders covering the proceedings
and business of its meetings (Annex 7). The proceedings shall not however
be invalidated by any vacancy of its Membership, or defect in a Director’s
appointment.
Conflicts of Interest of Governors and Directors
11.1
If a Governor or Director (including Non-Executive Director, existing or
newly appointed) has a pecuniary, personal or family interest, whether that
interest is actual or potential and whether that interest is direct or indirect, in
any proposed contract or other matter which is under consideration or is to be
considered by the Council of Governors or Board of Directors, the Governor
or Director shall disclose that interest to the Members of the relevant
Board/Council upon being appointed or elected or as soon as he becomes
aware of it, and:
11.1.1 shall not be present except with permission of the Council of
Governors or Board of Directors in any discussion of the matter, and
shall not speak except at invitation of the Chair, and
11.1.2
Schedule 1
Paragraph 20
Schedule 1
Paragraph 21
The Board of Directors may agree that its Members can participate in
its meeting by telephone, video or computer link. Participation in a
meeting in this manner shall be deemed to constitute presence in
person at the meeting.
11.2
11.3
shall not vote on the matter.
The register of interests shall be maintained by the Trust secretary
Interests that should be regarded as "relevant and material" are:
25
(a)
(b)
(c)
(d)
(e)
(f)
11.4
11.5
11.6
11.7
11.8
11.9
11.10
a position of authority in a Charity or Voluntary Organisation in the
field of health and social care.
Directorships, including Non-Executive directorships held in private
companies or PLCs (with the exception of those of dormant
companies).
ownership or part-ownership of companies, businesses or
consultancies likely or possibly seeking to do business with the NHS
(excluding a holding of shares in a company whose shares are listed on
any public exchange where the holding is less than 2% of the total
share issue)
majority or controlling share holdings in organisations likely or
possibly seeking to do business with the NHS.
any connection with a Voluntary or other organisation contracting for
NHS services or commissioning NHS services.
any connection with an organisation, entity or company considering
entering into or having entered into a financial arrangement with the
Trust, including but not limited to lenders or banks.
If Governors or Directors have any doubt about the relevance of an interest, this
should be discussed with the Chairman.
At the time Governors'/Directors’ interests are declared, they should be
recorded in the Council/Board minutes. Any changes in interests should be
declared at the next Council/Board meeting following the change occurring.
It is the obligation of the Governor/Director to inform the Secretary in writing
within 7 days of becoming aware of the existence of a relevant and material
interest. The Secretary will amend the Register upon receipt within three
working days.
If during a discussion at a meeting a Governor/Director realises that they have
a relevant and material interest (including a pecuniary interest), whether
direct or indirect, in any contract, proposed contract or other matter which is
under consideration by the Council/Board, he shall disclose that to the rest of
the Council/Board as soon as he is aware of it and where there is a conflict of
interest he shall withdraw from the meeting and take no further part in it. If
there is a dispute as to whether a conflict of interest does exist the majority
will resolve the issue (with the Chairman having the casting vote).
This paragraph 11 applies to a committee or sub-committee as it applies to
the Council of Governors/Board of Directors and applies to a Member of any
such committee or sub-committee.
For the avoidance of doubt, if the Chairman and the Deputy Chairman cannot
preside at any meeting or part of a meeting of the Council of Governors,
because of a conflict of interest in relation to the business being discussed,
the Vice Chairman shall preside. In such circumstances, if the Vice
Chairman is absent another Governor, appointed by the Governors present at
the Meeting who is a Member of a Public constituency or the Patients’
constituency shall preside.
Directorships of companies likely or possibly seeking to do business with the
NHS should be published in the annual report. The information should be
kept up to date for inclusion in succeeding annual reports.
The Standing Orders for the Council of Governors and Board of Directors
shall make provision for the disclosure of interests and arrangements for the
26
exclusion of a governor declaring any interest from any discussion or
consideration of the matter in respect of which an interest has been disclosed.
The exceptions which shall not be treated as interests are as follows:
11.11
11.12
11.13
11.14
11.15
11.16
12
shares not exceeding 2% of the total shares in issue held in any company
whose shares are listed on any public exchange;
an employment contract held by Staff Governors;
a contract with their PCT held by the PCT Governor;
an employment contract with a Local Authority held by the Local Authority
Governor;
an employment contract with University of Central England and the
University of Birmingham held by Higher Education Governors;
an employment contract held with Voluntary Organisations.
Registers
12.1
The Trust is to have:
Schedule 1
Paragraph 20 (1)
(a)
(a)
a register of Members showing, in respect of each Member, the
constituency to which he belongs and, where there are sections/classes
within it, the section/class to which he belongs;
Para 20 (1) (b)
(b)
A register of Members of the Council of Governors;
Para 20 (1) (c)
(c)
A register of interests of Members of the Council of Governors
Para 20 (1) (d)
(d)
a register of Members of the Board of Directors;
Para 20 (1) (e)
(e)
A register of interests of Members of the Board of Directors.
Section 10(3)
The Trust is to send to Monitor a list of the persons who were first elected or
appointed:
(a) the Members of the Council of Governors;
(b)
the Directors.
The details of Directors and Governors interests recorded in the register will
be kept up to date by means of a monthly review of the register by the
Secretary during which any changes of interest declared during the preceding
month will be incorporated.
13
Registers – inspection and copies
Schedule 1
Paragraph 22
13.1
Schedule 1
Paragraph 22 (3)
13.2
The Trust shall make the registers specified in paragraph 12 above available
for inspection by Members of the Public, except in the circumstances set out
below or as otherwise prescribed by regulations.
The Trust must not, in accordance with the Public Benefit Corporation
(Register of Members) Regulations 2004, make any part of its registers
available for inspection by Members of the Public that show details of:
(a) any Member of the Patients’ and Carers’ constituency; or
(b)
13.3
any other Member of the Trust, if he so requests.
So far as the registers are required to be made available:
Schedule 1
Paragraph 22 (1)
(a)
Schedule 1
Paragraph 22 (2)
(b)
they are to be available for inspection free of charge at all reasonable
times; and
a person who requests a copy of or extract from the registers is to be
provided with a copy or extract.
27
Schedule 1
Paragraph 22 (4)
13.4
14
Schedule 1
Paragraph 22 (1)
Public Documents
14.1
Schedule 1
Paragraph 22 (2)
14.2
Schedule 1
Paragraph 22 (4)
14.3
15
If the person requesting a copy or extract is not a Member of the Trust, the
Trust may impose a reasonable charge for doing so.
The Trust shall make the following documents available for inspection by
Members of the Public free of charge at all reasonable times:
(a) a copy of the current Constitution;
(b)
a copy of the current authorisation;
(c)
(d)
a copy of the latest annual accounts and of any report of the Auditor
on them;
a copy of the latest annual report;
(e)
a copy of the latest information as to its forward planning; and
(f)
a copy of any notice given under section 23 of the 2003 Act.
Any person who requests a copy of or extract from any of the above
documents is to be provided with a copy.
If the person requesting a copy or extract is not a Member of the Trust, the
Trust may impose a reasonable charge for doing so.
Auditor
Schedule 1
Paragraph 23 (1)
and Schedule 5
Paragraph 2
15.1
The Trust is to have an Auditor and is to provide the Auditor with every
facility and all information which he may reasonably require for the purposes
of his functions under Part 1 of the 2003 Act.
Schedule 1
Paragraph 23 (4)
15.2
A person may only be appointed Auditor if he (or in the case of a firm each of
its Members) is a Member of one or more of the bodies referred to in
paragraph 23(4) of Schedule 1 to the 2003 Act.
Appointment of the Auditor by the Council of Governors is covered in
paragraph 8.8.1, and monitoring of the Auditor’s functions by a committee of
Non-Executive Directors is covered in paragraph 9.8.3.
An officer of the Audit Commission may be appointed with the agreement of
the Commission.
The Auditor is to carry out his duties in accordance with Schedule 5 to the
2003 Act and in accordance with any directions given by Monitor on
standards, procedures and techniques to be adopted.
15.3
Schedule 1
Paragraph 23 (3)
15.4
Schedule 5 and
Schedule 1
Paragraph 24 (5)
15.5
16
Schedule 1
Paragraph 24 (1)
Accounts
16.1
16.2
Schedule 1
Paragraph 24 (2)
Schedule 1
Paragraph 24 (3)
The Trust must keep proper accounts and proper records in relation to
accounts.
Monitor may, with the approval of the Secretary of State give directions to
the Trust as to the content and form of its accounts.
16.3
The accounts are to be audited by the Trust’s Auditor.
16.4
The following documents will be made available to the Comptroller and
Auditor General for examination at his request:
28
Schedule 1
Paragraph 25 (1)
the accounts;
(b)
any records relating to them; and
(c)
any report of the auditor on them.
16.5
The Trust shall (through its Chief Executive and Accounting Officer) prepare
in respect of each financial year annual accounts in such form as Monitor
may with the approval of the Secretary of State direct.
In preparing its annual accounts, the Trust is to comply with any directions
given by Monitor with the approval of the Secretary of State as to:
(a) the methods and principles according to which the accounts are to be
prepared;
(b) the information to be given in the accounts.
16.6
The Trust must:
Schedule 1
Paragraph 25 (2)
Schedule 1
Paragraph 25 (4)
(a)
(a)
(b)
17
lay a copy of the annual accounts, and any report of the Auditor on
them, before Parliament; and
once it has done so, send copies of those documents to Monitor
Annual report, forward plans and non-NHS work
Schedule 1
Paragraph 26 (1)
17.1
The Trust will prepare an annual report and send it to Monitor.
Schedule 1
Paragraph 26 (2)
17.2
The reports will give:
Schedule 1
Paragraph 26 (3)
Schedule 1
Paragraph 27 (1)
(2) (3)
17.3
(a)
information on any steps taken by the Trust to secure that (taken as a
whole) the actual Membership of any Public constituency and the
Patients and Carers’ constituency is representative of those eligible for
such Membership; and
(b)
any other information Monitor requires.
The Trust is to comply with any decision Monitor makes as to
(a)
the form of the reports;
(b)
when the reports are to be sent to it;
(c)
the periods to which the reports are to relate.
17.4
The Trust is to give information as to its forward planning in respect of each
financial year to Monitor. This information is to be prepared by the Directors,
who must have regard to the views of the Council of Governors (paragraph
9.8.7 above).
17.5
Each forward plan must include information about:
17.5.1 the activities other than the provision of goods and services for the
purposes of the health service in England that the Trust proposes to
carry on; and
17.5.2 the income it expects to receive from doing so.
17.6
Where a forward plan contains a proposal that the Trust carry on an activity
of a kind mentioned in sub-paragraph 17.5.1, the Council of Governors must:
29
17.6.1 determine whether it is satisfied that the carrying on of the activity
will not to any significant extent interfere with the fulfillment by the
Trust of its principal purpose or the performance of its other
functions; and
17.6.2 notify the directors of the Trust of its determination.
17.7
18
Indemnity
18.1
19
Members of the Council of Governors and Board of Directors who act
honestly and in good faith will not have to meet out of their personal
resources any personal civil liability which is incurred in the execution or
purported execution of their Council/Board functions, save where they have
acted recklessly. Any costs arising in this way will be met by the Trust.
Instruments etc.
19.1
19.2
20
Where the Trust proposes to increase by 5% or more the proportion or its
total income in any financial year attributable to activities other than the
provision of goods and services for the purposes of the health service in
England it may implement the proposal only if more than half of the members
of the Council of Governors of the Trust voting approve its implementation.
The Trust is to have a seal, but this is not to be affixed except under the
authority of the Board of Directors.
A document purporting to be duly executed under the Trust’s seal or to be
signed on its behalf is to be received in evidence and, unless the contrary is
proved, taken to be so executed or signed.
Dispute resolution procedures
20.1
20.2
20.3
20.4
20.5
The Trust is to establish appropriate dispute resolution procedures with its
employees, contractors and Members. These are to be approved by the
Council of Governors.
Except where otherwise specified in this constitution or the standing orders of
the Council of Governors, questions of eligibility, procedure and
administrative matters in relation to governorship or meetings of Members or
governors shall be determined by the Secretary. There will be a right of
appeal to the Chairman, subject to paragraph 20.5, whose decision shall be
final and binding except in the case of manifest error.
Except where otherwise specified in this Constitution, matters in relation to
Directorship or meetings of Directors shall be determined by the Secretary,
with a right of appeal to the Chairman, subject to paragraph 20.5, whose
decision shall be final and binding except in the case of manifest error.
In the event of a dispute between the Council of Governors and the Board of
Directors, the Council of Governors and the Board of Directors shall meet
and attempt to resolve the dispute by negotiation. If agreement cannot be
reached then, subject to paragraph 20.5, the dispute shall be referred to the
Chairman, whose decision shall be final.
In the event that a dispute is referred to the Chairman under paragraphs 20.2
to 20.4 (inclusive) and the Chairman considers that he has a perceived or real
interest in the outcome of that dispute and that the dispute would be better
resolved externally, then the Chairman may refer the dispute for resolution by
30
arbitration under the Rules of the Chartered Institute of Arbitrators (as
amended or re-issued from time to time) and these rules are deemed to be
incorporated by reference to this paragraph 20.5, save that the arbitrators
costs are to be borne by the corporation in all cases.
21
Amendment of the Constitution
21.1
Section 8
21.2
22
Section 25, 27
and 28(2)
Dissolution of the Trust
22.1
23
The Trust may make amendments to this Constitution with the approval of
Monitor.
No proposals for amendment of this Constitution will be put to Monitor
unless it has been approved by a two thirds majority of those present and
voting at a meeting of the Council of Governors.
The Trust may not be dissolved except by order of the Secretary of State for
Health, in accordance with the 2003 Act.
Transition Arrangements
23.1
In respect of the Council of Governors:
(a)
(b)
Not less than one half of the initial Public Governors and Patient
Governors who polled the highest votes will serve a term of office
ending at the conclusion of the Annual General Meeting in 2010. The
remaining Public Governors and Patient/Carer Governors will serve a
term of office ending at the conclusion of the Annual General Meeting
in 2009.
The initial Staff Governors will serve a term of office ending
(i)
(ii)
in respect of the two candidates polling the most votes at the first
election, at the conclusion of the Annual General Meeting in
20010;
in respect of remaining candidates elected at the first election of
staff governors, at the conclusion of the Annual General Meeting
in 2009.
23.2
The power to appoint the initial Chairman of the Trust is to be exercised by
appointing the Chairman of Birmingham Children’s Hospital NHS Trust, if
that person wishes to be appointed.
23.3
The power to appoint the other initial Non-Executive Directors of the Trust is
to be exercised, so far as possible, by appointing the Non-Executive Directors
of Birmingham Children’s Hospital NHS Trust if such persons wish to be
appointed.
23.4
An initial Non-Executive Director of the Trust appointed in accordance with
this paragraph 23 does not have to be a Member of a Public constituency or
the Patients’ and Carers’ constituency.
23.5
The Chairman or Non-Executive Director appointed in accordance with this
paragraph 23 is to be appointed for the unexpired period of their term of
office with Birmingham Children’s Hospital NHS Trust; but if on any such
appointment, that period is less than 12 months, they are to be appointed for
12 months.
The initial remuneration and allowances of the initial Executive Directors of
23.6
31
the Trust are to be determined by a committee of the Non-Executive Directors
of Birmingham Children’s Hospital NHS Trust.
23.7
The power to appoint the initial Chief Executive of the Trust is to be
exercised by appointing the Chief Executive of Birmingham Children’s
Hospital NHS Trust, if that person wishes to be appointed. Such appointment
does not require the approval of the Council of Governors.
23.8
The Board of Directors of Birmingham Children’s Hospital NHS Trust shall
appoint the first Secretary of the Trust.
32
ANNEX 1 – THE PUBLIC CONSTITUENCY
(Paragraphs 7.2.1 and 7.2.3)
The Trust’s governance arrangements which are set out in more detail in the Constitution are based on
a Membership, which is drawn from Members of the Public. Members of the Trust who are Members
of the Public constituencies listed are to be individuals: who live in the wards specified for that constituency (as detailed below); and
 and who have each made an application for Membership to the Trust and that application has
been accepted by the Trust and who have been entered in the Trust’s register of Members.
Public Constituency 1 - Birmingham, The Black Country and Solihull
Public Constituency 1 - Birmingham, The Black Country and Solihull consists of the
following wards:
Birmingham City Council
Solihull Metropolitan Borough Council
Sandwell Metropolitan Borough Council
Walsall Metropolitan Borough Council
Wolverhampton City Council
Dudley Metropolitan Borough Council
33
Public Constituency 2 – Staffordshire & Shropshire
Public Constituency 2 – Staffordshire & Shropshire consists of the following wards:
Bridgnorth District Council
North Shropshire District Council
Oswestry Borough Council
Shrewsbury & Atcham Borough Council
South Shropshire District Council
Staffordshire Moorlands District Council
Tamworth Borough Council
Cannock Chase District Council
Lichfield City Council
Lichfield District Council
Newcastle Under Lyme Borough Council
Stafford Borough Council
South Staffordshire County Council
Stoke On Trent City Council
Shropshire County Council
Telford and Wrekin Borough Council
Staffordshire County Council
34
Public Constituency 3 – West Midlands South
Public Constituency 3 – West Midlands South consists of the following wards:
North Warwickshire District Council
Bedworth District Council
Stratford Upon Avon District Council
Warwick District Council
Rugby District Council
Malvern Hills District Council
Worcester District Council
Wychavon District Council
Wyre Forest District Council
Redditch District Council
Bromsgrove District Council
Coventry City Council
Herefordshire County Council
Worcestershire County Council
Warwickshire County Council
The minimum numbers of members in each of the Constituencies are defined below:
Name of Constituency
Birmingham
Sandwell
Solihull
Dudley/Walsall/Wolverhampton
Staffordshire &Shropshire
Minimum No.
of Members
300
100
100
100
200
Number of
Governors
3
1
1
1
2
35
Herefordshire &Worcester
100
1
Coventry &Warwickshire
100
1
ANNEX 2 – THE STAFF CONSTITUENCY
(Paragraphs 7.3.1 and 7.3.5)
The Staff constituency shall be divided into four descriptions of individuals who are eligible for
Membership of the Staff constituency; each description of individuals being specified below will be
referred to as a class within the Staff constituency.
Members of the Trust who are Members of the Staff constituency are to be individuals who are
employed by the Trust under a contract of employment provided:
 they are employed by the Trust under a contract of employment which has no fixed term or
has a fixed term of at least 12 months; or
 they have been continuously employed by the Trust under a contract of employment for at
least 12 months.
In addition, those individuals who exercise functions for the purposes of the Trust, otherwise than
under a contract of employment with the Trust, may become or continue as Members of the Staff
constituency provided such individuals have exercised these functions continuously for a period of at
least 12 months
An individual who is eligible to become a Member of the Staff constituency, and invited by the Trust
to become a Member of the Staff constituency and a Member of the appropriate class within the Staff
constituency, shall become a Member of the Trust as a Member of the Staff constituency and
appropriate class within the Staff constituency without an application being made, unless he informs
the Trust that he does not wish to do so.
The Council of Governors of the Trust is to include 4 Staff Governors with one Governor elected by
each of the Staff classes as defined below and in accordance with paragraph 8.
The minimum numbers of Members in each class of the Staff constituency are:
Name of Class
Nursing
Medical
Other Clinical
Non- Clinical
Minimum
Number of
Members
100
100
100
100
Number of
Governors
1
1
1
1
36
ANNEX 3 – THE PATIENTS’ AND CARERS’ CONSTITUENCY
(Paragraphs 7.4)
An individual who within a period of 5 years immediately preceding the date of an application, is
either a Patient or as the Carer of a Patient may become or continue as a Member of the Trust
Those individuals who are eligible for Membership of the Trust as a Patient or Carer shall be referred
to collectively as belonging to the Patients’ and Carers’ constituency
The Patients’ and Carers’ constituency shall be divided into two classes of individuals who are
eligible for Membership of the Patients’ and Carers’ constituency, each description of individuals is
specified below.
The minimum numbers of Members in each class of the Patient’s and Carer’s constituency are:
Name of Class
Patient
Carer
Minimum No.
of Members
300
100
Number of
Governors
3
1
37
ANNEX 4 – COMPOSITION OF BOARD OF GOVERNORS
(Paragraph 8.2)
The Trust is to have a Council of Governors, which shall comprise both elected and appointed
Governors. It is to consist of Public Governors, Patient Governors, a Carer Governor, Staff
Governors, PCT Governors, Local Authority Governor, Higher Education Governors, an Extended
Schools Governor and a Voluntary Sector Governor.
The Council of Governors of will consist of 27 Governors (excluding the chair) as defined
below :
CHAIR
10 Public Governors
3 Birmingham
1 Solihull
1 Sandwell
1 Dudley/Walsall/Wolverhampton
STAFF
1 Nursing
1 Medical
1 Other Clinical
1 Non Clinical
PRIMARY CARE TRUSTS
2 Staffordshire & Shropshire
1 Herefordshire & Worcestershire
1 Coventry & Warwickshire
1 South Birmingham PCT
1 Heart of Birmingham (Teaching) PCT
1 Birmingham and The Black Country
1 Staffordshire/Shropshire/West Midlands
South
1LA
1 Birmingham City Council – Shadow
Children’s Trust
PATIENT/CARER
3 Patients
1 Carer
EDUCATION
1 University of Birmingham
1 University of Central England
OTHER PARTNERS
Total 14
1 Voluntary Sector
1 Extended School
Total 13
38
The Members of the Council of Governors, within the Staff, Public, Patient and Carers’ constituency,
shall be chosen by election by their constituency or, where there are classes within a constituency, by
their class within that constituency. Members of the classes may elect any of their number to be a
Governor provided that the proposed Governor is 16 years of age or older, as at the final date that
nominations for election are to be accepted.
The number of Governors to be elected by each constituency, or, where appropriate, by each class of
each constituency, is 10 Public Governors, 3 Patient Governors, 1 Carer Governor and 4 Staff
Governors.
The, Primary Care Trust Governors, Local Authority Governor and Partnership Governors of the
Council of Governors, shall be appointed by their respective organisations and will represent Primary
Care Trusts, Higher Education Universities, the Local Authority, Extended Schools, and Voluntary
Organisations.
The number of Governors to be appointed will be 4 Primary Care Trust Governors, 1 Local Authority
Governor 2 Higher Education Governors, 1 Voluntary Sector Governor and 1 Extended Schools
Governor.
39
ANNEX 5 –THE MODEL RULES FOR ELECTIONS
(Paragraph 8.3)
Part 1 – Interpretation
1. Interpretation
Part 2 – Timetable for election
2. Timetable
3. Computation of time
Part 3 – Returning officer
4. Returning officer
5. Staff
6. Expenditure
7. Duty of co-operation
Part 4 - Stages Common to Contested and Uncontested Elections
8. Notice of election
9. Nomination of candidates
10. Candidate’s consent and particulars
11. Declaration of interests
12. Declaration of eligibility
13. Signature of candidate
14. Decisions as to validity of nomination papers
15. Publication of statement of nominated candidates
16. Inspection of statement of nominated candidates and nomination papers
17. Withdrawal of candidates
18. Method of election
Part 5 – Contested elections
19. Poll to be taken by ballot
20. The ballot paper
21. The declaration of identity
Action to be taken before the poll
22. List of eligible voters
23. Notice of poll
24. Issue of voting documents
25. Ballot paper envelope and covering envelope
The poll
26. Eligibility to vote
27. Voting by persons who require assistance
28. Spoilt ballot papers
40
29. Lost ballot papers
30. Issue of replacement ballot paper
31. Declaration of identity for replacement ballot papers
Procedure for receipt of envelopes
32. Receipt of voting documents
33. Validity of ballot paper
34. Declaration of identity but no ballot paper
35. Sealing of packets
Part 6 - Counting the votes
36. Interpretation of Part 6
37. Arrangements for counting of the votes
38. The count
39. Rejected ballot papers
39. Rejected ballot papers
40. First stage
41. The quota
42. Transfer of votes
43. Supplementary provisions on transfer
44. Exclusion of candidates
45. Filling of last vacancies
46. Order of election of candidates
47. Equality of votes
Part 7 – Final proceedings in contested and uncontested elections
48. Declaration of result for contested elections
49. Declaration of result for contested elections
50. Declaration of result for uncontested elections
Part 8 – Disposal of documents
51. Sealing up of documents relating to the poll
52. Delivery of documents
53. Forwarding of documents received after close of the poll
54. Retention and public inspection of documents
55. Application for inspection of certain documents relating to election
Part 9 – Death of a candidate during a contested election
56. Countermand or abandonment of poll on death of candidate
57. Countermand or abandonment of poll on death of candidate
Part 10 – Election expenses and publicity Expenses
58. Expenses incurred by candidates
59. Expenses incurred by other persons
60. Personal, travelling, and administrative expenses
41
Publicity
61. Publicity about election by the corporation
62. Information about candidates for inclusion with voting documents
63. Meaning of “for the purposes of an election”
Part 11 – Questioning elections and irregularities
64. Application to question an election
Part 12 – Miscellaneous
65. Secrecy
66. Prohibition of disclosure of vote
67. Disqualification
68. Delay in postal service through industrial action or unforeseen event
42
Part 1 – Interpretation
1.
Interpretation –
(1)
In these rules, unless the context otherwise requires -
“corporation” means the public benefit corporation subject to this constitution;
“election” means an election by a constituency, or by a class within a constituency, to fill a vacancy
among one or more posts on the board of governors;
“the regulator” means the body corporate known as Monitor, as provided by Section 61 of the Health
and Social Care Act 2012; and
“the 2003 Act” means the Health and Social Care (Community Health and Standards) Act 2003.
(2)
Other expressions used in these rules and in Schedule 1 to the Health and Social Care (Community
Health and Standards) Act 2003 have the same meaning in these rules as in that Schedule.
Part 2 – Timetable for election
2.
Timetable -
The proceedings at an election shall be conducted in accordance with the following timetable.
Proceeding
Time
Publication of notice of election
Not later than the fortieth day before the day of the close
of the poll.
Final day for delivery of nomination
papers to returning officer
Not later than the twenty eighth day before the day of
the close of the poll.
Publication of statement of nominated
candidates
Not later than the twenty seventh day before the day of
the close of the poll.
Final day for delivery of notices of
withdrawals by candidates from election
Not later than twenty fifth day before the day of the
close of the poll.
Notice of the poll
Not later than the fifteenth day before the day of the
close of the poll.
Close of the poll
By 5.00pm on the final day of the election.
3.
Computation of time –
(1) In computing any period of time for the purposes of the timetable –
(a)
a Saturday or Sunday;
(b)
Christmas day, Good Friday, or a bank holiday, or
43
(c)
a day appointed for public thanksgiving or mourning,
shall be disregarded, and any such day shall not be treated as a day for the purpose of any proceedings
up to the completion of the poll, nor shall the returning officer be obliged to proceed with the counting
of votes on such a day.
(2) In this rule, “bank holiday” means a day which is a bank holiday under the Banking and Financial
Dealings Act 1971 in England and Wales.
Part 3 – Returning officer
4.
Returning officer –
(1) Subject to rule 65, the returning officer for an election is to be appointed by the corporation.
(2) Where two or more elections are to be held concurrently, the same returning officer may be
appointed for all those elections.
5.
Staff –
Subject to rule 65, the returning officer may appoint and pay such staff, including such technical
advisers, as he or she considers necessary for the purposes of the election.
6.
Expenditure –
The corporation is to pay the returning officer:
7.
(a)
any expenses incurred by that officer in the exercise of his or her functions under
these rules,
(b)
such remuneration and other expenses as the corporation may determine.
Duty of co-operation –
The corporation is to co-operate with the returning officer in the exercise of his or her functions under
these rules.
Part 4 - Stages Common to Contested and Uncontested Elections
8. Notice of election – The returning officer is to publish a notice of the election stating –
(a)
the constituency, or class within a constituency, for which the election is being held,
(b)
the number of members of the board of governors to be elected from that
constituency, or class within that constituency,
(c)
the details of any nomination committee that has been established by the corporation,
(d)
the address and times at which nomination papers may be obtained;
(e)
the address for return of nomination papers and the date and time by which they must
be received by the returning officer,
44
9.
(f)
the date and time by which any notice of withdrawal must be received by the
returning officer
(g)
the contact details of the returning officer, and
(h)
the date and time of the close of the poll in the event of a contest.
Nomination of candidates –
(1) Each candidate must nominate themselves on a single nomination paper.
(2) The returning officer(a)
is to supply any member of the corporation with a nomination paper, and
(b)
is to prepare a nomination paper for signature at the request of any member of the
corporation,
but it is not necessary for a nomination to be on a form supplied by the returning officer.
10.
Candidate’s particulars –
(1) The nomination paper must state the candidate’s -
11.
(a)
full name,
(b)
contact address in full, and
(c)
constituency, or class within a constituency, of which the candidate is a member.
Declaration of interests –
(1) The nomination paper must state –
(a)
any financial interest that the candidate has in the corporation, and
(b)
whether the candidate is a member of a political party,
and if so, which party, and if the candidate has no such interests, the paper must include a statement to
that effect.
12.
Declaration of eligibility –
(1) The nomination paper must include a declaration made by the candidate–
(a)
that he or she is not prevented from being a member of the board of governors by
paragraph 8 of Schedule 1 of the 2003 Act or by any provision of the constitution;
and,
45
(b)
13.
for a member of the public or patient constituency, of the particulars of his or her
qualification to vote as a member of that constituency, or class within that
constituency, for which the election is being held.
Signature of candidate –
(1) The nomination paper must be signed and dated by the candidate, indicating that –
14.
(a)
they wish to stand as a candidate,
(b)
their declaration of interests as required under rule 11, is true and correct, and
(c)
their declaration of eligibility, as required under rule 12, is true and correct.
Decisions as to the validity of nomination –
(1) Where a nomination paper is received by the returning officer in accordance with these rules, the
candidate is deemed to stand for election unless and until the returning officer(a)
decides that the candidate is not eligible to stand,
(b)
decides that the nomination paper is invalid,
(c)
receives satisfactory proof that the candidate has died, or
(d)
receives a written request by the candidate of their withdrawal from candidacy.
(2) The returning officer is entitled to decide that a nomination paper is invalid only on one of the
following grounds (a)
that the paper is not received on or before the final time and date for return of
nomination papers, as specified in the notice of the election,
(b)
that the paper does not contain the candidate’s particulars, as required by rule 10;
(c)
that the paper does not contain a declaration of the interests of the candidate, as
required by rule 11,
(d)
that the paper does not include a declaration of eligibility as required by rule12, or
(e)
that the paper is not signed and dated by the candidate, as required by rule 13.
(3) The returning officer is to examine each nomination paper as soon as is practicable after he or she
has received it, and decide whether the candidate has been validly nominated.
(4) Where the returning officer decides that a nomination is invalid, the returning officer must endorse
this on the nomination paper, stating the reasons for their decision.
(5) The returning officer is to send notice of the decision as to whether a nomination is valid or invalid
to the candidate at the contact address given in the candidate’s nomination paper.
15.
Publication of statement of candidates –
46
(1) The returning officer is to prepare and publish a statement showing the candidates who are
standing for election.
(2) The statement must show –
(a)
the name, contact address, and constituency or class within a constituency of each
candidate standing, and
(b)
the declared interests of each candidate standing, as given in their nomination paper.
(3) The statement must list the candidates standing for election in alphabetical order by surname.
(4) The returning officer must send a copy of the statement of candidates and copies of the nomination
papers to the corporation as soon as is practicable after publishing the statement.
16.
Inspection of statement of nominated candidates and nomination papers –
(1) The corporation is to make the statements of the candidates and the nomination papers supplied by
the returning officer under rule 15(4) available for inspection by members of the public free of charge
at all reasonable times.
(2) If a person requests a copy or extract of the statements of candidates or their nomination papers,
the corporation is to provide that person with the copy or extract free of charge.
17.
Withdrawal of candidates –
(1) A candidate may withdraw from election on or before the date and time for withdrawal by
candidates, by providing to the returning officer a written notice of withdrawal which is signed by the
candidate and attested by a witness.
18.
Method of election –
(1) If the number of candidates remaining validly nominated for an election after any withdrawals
under these rules is greater than the number of members to be elected to the board of governors, a poll
is to be taken in accordance with Parts 5 and 6 of these rules.
(2) If the number of candidates remaining validly nominated for an election after any withdrawals
under these rules is equal to the number of members to be elected to the board of governors, those
candidates are to be declared elected in accordance with Part 7 of these rules.
(3) If the number of candidates remaining validly nominated for an election after any withdrawals
under these rules is less than the number of members to be elected to be board of governors, then –
(a)
the candidates who remain validly nominated are to be declared elected in accordance
with Part 7 of these rules, and
(b)
the returning officer is to order a new election to fill any vacancy which remains
unfilled, on a day appointed by him or her in consultation with the corporation.
Part 5 – Contested elections
47
19.
Poll to be taken by ballot –
(1) The votes at the poll must be given by secret ballot.
(2) The votes are to be counted and the result of the poll determined in accordance with Part 6 of these
rules.
20.
The ballot paper –
(1) The ballot of each voter is to consist of a ballot paper with the persons remaining validly
nominated for an election after any withdrawals under these rules, and no others, inserted in the paper.
(2) Every ballot paper must specify –
(a)
the name of the corporation,
(b)
the constituency, or class within a constituency, for which the election is being held,
(c)
the number of members of the board of governors to be elected from that
constituency, or class within that constituency,
(d)
the names and other particulars of the candidates standing for election, with the
details and order being the same as in the statement of nominated candidates,
(e)
instructions on how to vote,
(f)
if the ballot paper is to be returned by post, the address for its return and the date and
time of the close of the poll, and
(g)
the contact details of the returning officer.
(3) Each ballot paper must have a unique identifier.
(4) Each ballot paper must have features incorporated into it to prevent it from being reproduced.
21.
The declaration of identity (public and patient constituencies) –
(1) In respect of an election for a public or patient constituency a declaration of identity must be
issued with each ballot paper.
(2) The declaration of identity is to include a declaration –
(a)
that the voter is the person to whom the ballot paper was addressed,
(b)
that the voter has not marked or returned any other voting paper in the election, and;
(c)
for a member of the public or patient constituency, of the particulars of that member’s
qualification to vote as a member of the constituency or class within a constituency
for which the election is being held.
(3) The declaration of identity is to include space for –
48
(a)
the name of the voter,
(b)
the address of the voter,
(c)
the voter’s signature, and
(d)
the date that the declaration was made by the voter.
(4) The voter must be required to return the declaration of identity together with the ballot paper.
(5) The declaration of identity must caution the voter that, if it is not returned with the ballot paper, or
if it is returned without being correctly completed, the voter’s ballot paper may be declared invalid.
Action to be taken before the poll
22.
List of eligible voters –
(1) The corporation is to provide the returning officer with a list of the members of the constituency or
class within a constituency for which the election is being held who are eligible to vote by virtue of
rule 26 as soon as is reasonably practicable after the final date for the delivery of notices of
withdrawals by candidates from an election.
(2) The list is to include, for each member, a mailing address where his or her ballot paper is to be
sent.
23.
Notice of poll –
(1) The returning officer is to publish a notice of the poll stating–
24.
(a)
the name of the corporation,
(b)
the constituency, or class within a constituency, for which the election is being held,
(c)
the number of members of the board of governors to be elected from that
constituency, or class with that constituency,
(d)
the names, contact addresses, and other particulars of the candidates standing for
election, with the details and order being the same as in the statement of nominated
candidates,
(e)
that the ballot papers for the election are to be issued and returned, if appropriate, by
post,
(f)
the address for return of the ballot papers, and the date and time of the close of the
poll,
(g)
the address and final dates for applications for replacement ballot papers, and
(h)
the contact details of the returning officer.
Issue of voting documents by returning officer –
49
(1) As soon as is reasonably practicable on or after the publication of the notice of the poll, the
returning officer is to send the following documents to each member of the corporation named in the
list of eligible voters–
(a)
a ballot paper and ballot paper envelope,
(b)
a declaration of identity (if required),
(c)
information about each candidate standing for election, pursuant to rule 59 of these
rules, and
(d)
a covering envelope.
(2) The documents are to be sent to the mailing address for each member, as specified in the list of
eligible voters.
25.
Ballot paper envelope and covering envelope –
(1) The ballot paper envelope must have clear instructions to the voter printed on it, instructing the
voter to seal the ballot paper inside the envelope once the ballot paper has been marked.
(2) The covering envelope is to have –
(a)
the address for return of the ballot paper printed on it, and
(b)
pre-paid postage for return to that address.
(3) There should be clear instructions, either printed on the covering envelope or elsewhere,
instructing the voter to seal the following documents inside the covering envelope and return it to the
returning officer –
(a)
the completed declaration of identity if required, and
(b)
the ballot paper envelope, with the ballot paper sealed inside it.
The poll
26.
Eligibility to vote –
(1) An individual who becomes a member of the corporation on or before the closing date for the
receipt of nominations by candidates for the election, is eligible to vote in that election.
27.
Voting by persons who require assistance –
(1) The returning officer is to put in place arrangements to enable requests for assistance to vote to be
made.
(2) Where the returning officer receives a request from a voter who requires assistance to vote, the
returning officer is to make such arrangements as he or she considers necessary to enable that voter to
vote.
28.
Spoilt ballot papers
50
(1) If a voter has dealt with his or her ballot paper in such a manner that it cannot be accepted as a
ballot paper (referred to a “spoilt ballot paper”), that voter may apply to the returning officer for a
replacement ballot paper.
(2) On receiving an application, the returning officer is to obtain the details of the unique identifier on
the spoilt ballot paper, if he or she can obtain it.
(3) The returning officer may not issue a replacement ballot paper for a spoilt ballot
paper unless he or she –
(a)
is satisfied as to the voter’s identity, and
(b)
has ensured that the declaration of identity, if required, has not been returned.
(4) After issuing a replacement ballot paper for a spoilt ballot paper, the returning officer shall enter in
a list (“the list of spoilt ballot papers”) –
29.
(a)
the name of the voter, and
(b)
the details of the unique identifier of the spoilt ballot paper (if that officer was able to
obtain it), and
(c)
the details of the unique identifier of the replacement ballot paper.
Lost ballot papers –
(1) Where a voter has not received his or her ballot paper by the fourth day before the close of the
poll, that voter may apply to the returning officer for a replacement ballot paper.
(2) The returning officer may not issue a replacement ballot paper for a lost ballot paper unless he or
she–
(a)
is satisfied as to the voter’s identity,
(b)
has no reason to doubt that the voter did not receive the original ballot paper, and
(c)
has ensured that the declaration of identity if required has not been returned.
(3) After issuing a replacement ballot paper for a lost ballot paper, the returning officer shall enter in a
list (“the list of lost ballot papers”) –
30.
(a)
the name of the voter, and
(b)
the details of the unique identifier of the replacement ballot paper.
Issue of replacement ballot paper–
(1) If a person applies for a replacement ballot paper under rule 28 or 29 and a declaration of identity
has already been received by the returning officer in the name of that voter, the returning officer may
not issue a replacement ballot paper unless, in addition to the requirements imposed rule 28(3) or
29(2), he or she is also satisfied that that person has not already voted in the election, notwithstanding
51
the fact that a declaration of identity if required has already been received by the returning officer in
the name of that voter.
(2) After issuing a replacement ballot paper under this rule, the returning officer shall enter in a list
(“the list of tendered ballot papers”) –
(a)
the name of the voter, and
(b)
the details of the unique identifier of the replacement ballot paper issued under this
rule.
31.
Declaration of identity for replacement ballot papers (public and patient
constituencies) –
(1) In respect of an election for a public or patient constituency a declaration of identity must be
issued with each replacement ballot paper.
(2) The declaration of identity is to include a declaration –
(a)
that the voter has not voted in the election with any ballot paper other than the ballot
paper being returned with the declaration, and
(b)
of the particulars of that member’s qualification to vote as a member of the public or
patient constituency, or class within a constituency, for which the election is being
held.
(3) The declaration of identity is to include space for –
(a)
the name of the voter,
(b)
he address of the voter,
(c)
the voter’s signature, and
(d)
the date that the declaration was made by the voter.
(4) The voter must be required to return the declaration of identity together with the ballot paper.
(5) The declaration of identity must caution the voter that if it is not returned with the ballot paper, or
if it is returned without being correctly completed, the replacement ballot paper may be declared
invalid.
Procedure for receipt of envelopes
32.
Receipt of voting documents –
(1) Where the returning officer receives a –
(a)
covering envelope, or
(b)
any other envelope containing a declaration of identity if required, a ballot paper
envelope, or a ballot paper,
52
before the close of the poll, that officer is to open it as soon as is practicable; and rules 33 and 34 are
to apply.
(2) The returning officer may open any ballot paper envelope for the purposes of rules 33 and 34, but
must make arrangements to ensure that no person obtains or communicates information as to –
(a)
the candidate for whom a voter has voted, or
(b)
the unique identifier on a ballot paper.
(3) The returning officer must make arrangements to ensure the safety and security of the ballot
papers and other documents.
33.
Validity of ballot paper –
(1) A ballot paper shall not be taken to be duly returned unless the returning officer is satisfied that it
has been received by the returning officer before the close of the poll, with a declaration of identity if
required that has been correctly completed, signed, and dated.
(2) Where the returning officer is satisfied that paragraph (1) has been fulfilled, he or she is to –
(a)
put the declaration of identity if required in a separate packet, and
(b)
put the ballot paper aside for counting after the close of the poll.
(3) Where the returning officer is not satisfied that paragraph (1) has been fulfilled, he or she is to –
34.
(a)
mark the ballot paper “disqualified”,
(b)
if there is a declaration of identity accompanying the ballot paper, mark it as
“disqualified” and attach it the ballot paper,
(c)
record the unique identifier on the ballot paper in a list (the “list of disqualified
documents”); and
(d)
place the document or documents in a separate packet.
Declaration of identity but no ballot paper (public and patient constituency) –
(1) Where the returning officer receives a declaration of identity if required but no
ballot paper, the returning officer is to –
35.
(a)
mark the declaration of identity “disqualified”,
(b)
record the name of the voter in the list of disqualified documents, indicating that a
declaration of identity was received from the voter without a ballot paper; and
(c)
place the declaration of identity in a separate packet.
Sealing of packets –
53
(1) As soon as is possible after the close of the poll and after the completion of the procedure under
rules 33 and 34, the returning officer is to seal the packets containing–
(a)
the disqualified documents, together with the list of disqualified documents inside it,
(b)
the declarations of identity if required,
(c)
the list of spoilt ballot papers,
(d)
the list of lost ballot papers,
(e)
the list of eligible voters, and
(f)
the list of tendered ballot papers.
Part 6 - Counting the votes
36.
Interpretation of Part 6 –
In Part 6 of these rules –
“continuing candidate” means any candidate not deemed to be elected, and not excluded,
“count” means all the operations involved in counting of the first preferences recorded for candidates,
the transfer of the surpluses of elected candidates, and the transfer of the votes of the excluded
candidates,
“deemed to be elected” means deemed to be elected for the purposes of counting of votes but without
prejudice to the declaration of the result of the poll,
“mark” means a figure, an identifiable written word, or a mark such as “X”,
“non-transferable vote” means a ballot paper –
(a)
on which no second or subsequent preference is recorded for a continuing candidate,
or
(b)
which is excluded by the returning officer under rule 44(4) below,
“preference” as used in the following contexts has the meaning assigned below–
(i)
“first preference” means the figure “1” or any mark or word which clearly
indicates a first (or only) preference,
(ii)
“next available preference” means a preference which is the second, or as the
case may be, subsequent preference recorded in consecutive order for a
continuing candidate (any candidate who is deemed to be elected or is
excluded thereby being ignored); and
(iii)
in this context, a “second preference” is shown by the figure “2” or any mark
or word which clearly indicates a second preference, and a third preference
54
by the figure “3” or any mark or word which clearly indicates a third
preference, and so on,
37.
(iv)
“quota” means the number calculated in accordance with rule 41 below,
(v)
“surplus” means the number of votes by which the total number of votes for
any candidate (whether first preference or transferred votes, or a combination
of both) exceeds the quota; but references in these rules to the transfer of the
surplus means the transfer (at a transfer value) of all transferable papers from
the candidate who has the surplus,
(vi)
“stage of the count” means –
(1)
the determination of the first preference vote of each candidate,
(2)
the transfer of a surplus of a candidate deemed to be elected, or
(3)
the exclusion of one or more candidates at any given time,
(vii)
“transferable paper” means a ballot paper on which, following a first
preference, a second or subsequent preference is recorded in consecutive
numerical order for a continuing candidate,
(viii)
“transferred vote” means a vote derived from a ballot paper on which a
second or subsequent preference is recorded for the candidate to whom that
paper has been transferred, and
(ix)
“transfer value” means the value of a transferred vote calculated in
accordance with paragraph (4) or (7) of rule 42 below.
Arrangements for counting of the votes –
(1) The returning officer is to make arrangements for counting the votes as soon as is practicable after
the close of the poll.
38.
The count –
(1) The returning officer is to –
(a)
count and record the number of ballot papers that have been returned, and
(b)
count the votes according to the provisions in this Part of the rules.
(2) The returning officer, while counting and recording the number of ballot papers and counting the
votes, must make arrangements to ensure that no person obtains or communicates information as to
the unique identifier on a ballot paper.
(3) The returning officer is to proceed continuously with counting the votes as far as
is practicable.
55
39.
Rejected ballot papers –
(1) Any ballot paper –
(a)
which does not bear the features that have been incorporated into the other ballot
papers to prevent them from being reproduced,
(b)
on which the figure “1” standing alone is not placed so as to indicate a first
preference for any candidate,
(c)
on which anything is written or marked by which the voter can be identified except
the unique identifier, or
(d)
which is unmarked or rejected because of uncertainty
shall be rejected and not counted, but the ballot paper shall not be rejected by reason only of carrying
the words “one”, “two”, “three” and so on, or any other mark instead of a figure if, in the opinion of
the returning officer, the word or mark clearly indicates a preference or preferences.
(2) The returning officer is to endorse the word “rejected” on any ballot paper which under this rule is
not to be counted.
(3) The returning officer is to draw up a statement showing the number of ballot papers rejected by
him or her under each of the subparagraphs (a) to (d) of paragraph (1).
39(b). Rejected ballot papers –
(1) Any ballot paper –
(a)
which does not bear the features that have been incorporated into the other ballot
papers to prevent them from being reproduced,
(b)
on which votes are given for more candidates than the voter is entitled to vote,
(c)
on which anything is written or marked by which the voter can be identified except
the unique identifier, or
(d)
which is unmarked or rejected because of uncertainty,
shall, subject to paragraphs (2) and (3) below, be rejected and not counted.
(2) Where the voter is entitled to vote for more than one candidate, a ballot paper is not to be rejected
because of uncertainty in respect of any vote where no uncertainty arises, and that vote is to be
counted.
(3) A ballot paper on which a vote is marked –
(a)
elsewhere than in the proper place,
(b)
otherwise than by means of a clear mark,
56
(c)
by more than one mark, is not to be rejected for such reason (either wholly or in
respect of that vote) if an intention that the vote shall be for one or other of the
candidates clearly appears, and the way the paper is marked does not itself identify
the voter and it is not shown that he or she can be identified by it.
(4) The returning officer is to –
(a)
endorse the word “rejected” on any ballot paper which under this rule is not to be
counted, and
(b)
in the case of a ballot paper on which any vote is counted under paragraph (2) or (3)
above, endorse the words “rejected in part” on the ballot paper and indicate which
vote or votes have been counted.
(5) The returning officer is to draw up a statement showing the number of rejected ballot papers under
the following headings –
40.
(a)
does not bear proper features that have been incorporated into the ballot paper,
(b)
voting for more candidates than the voter is entitled to,
(c)
writing or mark by which voter could be identified, and
(d)
unmarked or rejected because of uncertainty, and, where applicable, each heading
must record the number of ballot papers rejected in part.
First stage –
(1) The returning officer is to sort the ballot papers into parcels according to the candidates for whom
the first preference votes are given.
(2) The returning officer is to then count the number of first preference votes given on ballot papers
for each candidate, and is to record those numbers.
(3) The returning officer is to also ascertain and record the number of valid ballot papers.
57
41.
The quota –
(1) The returning officer is to divide the number of valid ballot papers by a number exceeding by one
the number of members to be elected.
(2) The result, increased by one, of the division under paragraph (1) above (any fraction being
disregarded) shall be the number of votes sufficient to secure the election of a candidate (in these rules
referred to as “the quota”).
(3) At any stage of the count a candidate whose total votes equals or exceeds the quota shall be
deemed to be elected, except that any election where there is only one vacancy a candidate shall not
be deemed to be elected until the procedure set out in paragraphs (1) to (3) of rule 44 has been
complied with.
42.
Transfer of votes –
(1) Where the number of first preference votes for any candidate exceeds the quota, the returning
officer is to sort all the ballot papers on which first preference votes are given for that candidate into
sub-parcels so that they are grouped –
(a)
according to next available preference given on those papers for any continuing
candidate, or
(b)
where no such preference is given, as the sub-parcel of non-transferable votes.
(2) The returning officer is to count the number of ballot papers in each parcel referred to in paragraph
(1) above.
(3) The returning officer is, in accordance with this rule and rule 44 below, to transfer each sub-parcel
of ballot papers referred to in paragraph (1)(a) to the candidate for whom the next available preference
is given on those papers.
(4) The vote on each ballot paper transferred under paragraph (3) above shall be at a value (“the
transfer value”) which –
(a)
reduces the value of each vote transferred so that the total value of all such votes does
not exceed the surplus, and
(b)
is calculated by dividing the surplus of the candidate from whom the votes are being
transferred by the total number of the ballot papers on which those votes are given,
the calculation being made to two decimal places (ignoring the remainder if any).
(5) Where at the end of any stage of the count involving the transfer of ballot papers, the number of
votes for any candidate exceeds the quota, the returning officer is to sort the ballot papers in the subparcel of transferred votes which was last received by that candidate into separate sub-parcels so that
they are grouped –
(a)
according to the next available preference given on those papers for any continuing
candidate, or
(b)
where no such preference is given, as the sub-parcel of non-transferable votes.
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(6) The returning officer is, in accordance with this rule and rule 44 below, to transfer each sub-parcel
of ballot papers referred to in paragraph (5)(a) to the candidate for whom the next available preference
is given on those papers.
(7) The vote on each ballot paper transferred under paragraph (6) shall be at –
(a)
a transfer value calculated as set out in paragraph (4)(b) above, or
(b)
at the value at which that vote was received by the candidate from whom it is now
being transferred, whichever is the less.
(8) Each transfer of a surplus constitutes a stage in the count.
(9) Subject to paragraph (10), the returning officer shall proceed to transfer transferable papers until
no candidate who is deemed to be elected has a surplus or all the vacancies have been filled.
(10) Transferable papers shall not be liable to be transferred where any surplus or surpluses which, at
a particular stage of the count, have not already been transferred, are –
(a)
less than the difference between the total vote then credited to the continuing
candidate with the lowest recorded vote and the vote of the candidate with the next
lowest recorded vote, or
(b)
less than the difference between the total votes of the two or more continuing
candidates, credited at that stage of the count with the lowest recorded total numbers
of votes and the candidate next above such candidates.
(11) This rule does not apply at an election where there is only one vacancy.
43.
Supplementary provisions on transfer –
(1) If, at any stage of the count, two or more candidates have surpluses, the transferable papers of the
candidate with the highest surplus shall be transferred first, and if –
(a)
The surpluses determined in respect of two or more candidates are equal, the
transferable papers of the candidate who had the highest recorded vote at the earliest
preceding stage at which they had unequal votes shall be transferred first, and
(b)
the votes credited to two or more candidates were equal at all stages of the count, the
returning officer shall decide between those candidates by lot, and the transferable
papers of the candidate on whom the lot falls shall be transferred first.
(2) The returning officer shall, on each transfer of transferable papers under rule 42 above –
(a)
record the total value of the votes transferred to each candidate,
(b)
add that value to the previous total of votes recorded for each candidate and record
the new total,
(c)
record as non-transferable votes the difference between the surplus and the total
transfer value of the transferred votes and add that difference to the previously
recorded total of non-transferable votes, and
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(d)
compare—
(i)
the total number of votes then recorded for all of the candidates, together
with the total number of non-transferable votes, with
(ii)
the recorded total of valid first preference votes.
(3) All ballot papers transferred under rule 42 or 44 shall be clearly marked, either individually or as a
sub-parcel, so as to indicate the transfer value recorded at that time to each vote on that paper or, as
the case may be, all the papers in that sub-parcel.
(4) Where a ballot paper is so marked that it is unclear to the returning officer at any stage of the
count under rule 42 or 44 for which candidate the next preference is recorded, the returning officer
shall treat any vote on that ballot paper as a non-transferable vote; and votes on a ballot paper shall be
so treated where, for example, the names of two or more candidates (whether continuing candidates or
not) are so marked that, in the opinion of the returning officer, the same order of preference is
indicated or the numerical sequence is broken.
44. Exclusion of candidates –
(1) If—
(a)
all transferable papers which under the provisions of rule 42 above (including that
rule as applied by paragraph (11) below) and this rule are required to be transferred,
have been transferred, and
(b)
subject to rule 47 below, one or more vacancies remain to be filled, the returning
officer shall exclude from the election at that stage the candidate with the then lowest
vote (or, where paragraph (12) below applies, the candidates with the then lowest
votes).
(2) The returning officer shall sort all the ballot papers on which first preference votes are given for
the candidate or candidates excluded under paragraph (1) above into two sub-parcels so that they are
grouped as—
(a)
ballot papers on which a next available preference is given, and
(b)
ballot papers on which no such preference is given (thereby including ballot papers
on which preferences are given only for candidates who are deemed to be elected or
are excluded).
(3) The returning officer shall, in accordance with this rule and rule 44 above, transfer each sub-parcel
of ballot papers referred to in paragraph (2)(a) above to the candidate for whom the next available
preference is given on those papers.
(4) The exclusion of a candidate, or of two or more candidates together, constitutes a further stage of
the count.
(5) If, subject to rule 45 below, one or more vacancies still remain to be filled, the returning officer
shall then sort the transferable papers, if any, which had been transferred to any candidate excluded
under paragraph (1) above into sub-parcels according to their transfer value.
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(6) The returning officer shall transfer those papers in the sub-parcel of transferable papers with the
highest transfer value to the continuing candidates in accordance with the next available preferences
given on those papers (thereby passing over candidates who are deemed to be elected or are
excluded).
(7) The vote on each transferable paper transferred under paragraph (6) above shall be at the value at
which that vote was received by the candidate excluded under paragraph (1) above.
(8) Any papers on which no next available preferences have been expressed shall be set aside as nontransferable votes.
(9) After the returning officer has completed the transfer of the ballot papers in the sub-parcel of
ballot papers with the highest transfer value he or she shall proceed to transfer in the same way the
sub-parcel of ballot papers with the next highest value and so on until he has dealt with each subparcel of a candidate excluded under paragraph (1) above.
(10) The returning officer shall after each stage of the count completed under this rule—
(a)
record –
(i)
the total value of votes, or
(ii)
the total transfer value of votes transferred to each candidate,
(b)
add that total to the previous total of votes recorded for each candidate and record the
new total,
(c)
record the value of non-transferable votes and add that value to the previous nontransferable votes total, and
(d)
compare—
(i)
the total number of votes then recorded for each candidate together with the
total number of non-transferable votes, with
(ii)
the recorded total of valid first preference votes.
(11) If after a transfer of votes under any provision of this rule, a candidate has a surplus, that surplus
shall be dealt with in accordance with paragraphs (5) to (10) of rule 43 and rule 44.
(12) Where the total of the votes of the two or more lowest candidates, together with any surpluses not
transferred, is less than the number of votes credited to the next lowest candidate, the returning officer
shall in one operation exclude such two or more candidates.
(13) If when a candidate has to be excluded under this rule, two or more candidates each have the
same number of votes and are lowest—
(a)
regard shall be had to the total number of votes credited to those candidates at the
earliest stage of the count at which they had an unequal number of votes and the
candidate with the lowest number of votes at that stage shall be excluded, and
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(b)
45.
where the number of votes credited to those candidates was equal at all stages, the
returning officer shall decide between the candidates by lot and the candidate on
whom the lot falls shall be excluded.
Filling of last vacancies –
(1) Where the number of continuing candidates is equal to the number of vacancies remaining unfilled
the continuing candidates shall thereupon be deemed to be elected.
(2) Where only one vacancy remains unfilled and the votes of any one continuing candidate are equal
to or greater than the total of votes credited to other continuing candidates together with any surplus
not transferred, the candidate shall thereupon be deemed to be elected.
(3) Where the last vacancies can be filled under this rule, no further transfer of votes shall be made.
46.
Order of election of candidates –
(1) The order in which candidates whose votes equal or exceed the quota are deemed to be elected
shall be the order in which their respective surpluses were transferred, or would have been transferred
but for
rule 42(10) above.
(2) A candidate credited with a number of votes equal to, and not greater than, the quota shall, for the
purposes of this rule, be regarded as having had the smallest surplus at the stage of the count at which
he obtained the quota.
(3) Where the surpluses of two or more candidates are equal and are not required to be transferred,
regard shall be had to the total number of votes credited to such candidates at the earliest stage of the
count at which they had an unequal number of votes and the surplus of the candidate who had the
greatest number of votes at that stage shall be deemed to be the largest.
(4) Where the number of votes credited to two or more candidates were equal at all stages of the
count, the returning officer shall decide between them by lot and the candidate on whom the lot falls
shall be deemed to have been elected first.
47.
Equality of votes –
(1) Where, after the counting of votes is completed, an equality of votes is found to exist between any
candidates and the addition of a vote would entitle any of those candidates to be declared elected, the
returning officer is to decide between those candidates by a lot, and proceed as if the candidate on
whom the lot falls had received an additional vote.
Part 7 – Final proceedings in contested and uncontested elections
48.
Declaration of result for contested elections –
(1) In a contested election, when the result of the poll has been ascertained, the returning officer is to
–
(a)
declare the candidate or candidates whom more votes have been given than for the
other candidates, up to the number of vacancies to be filled on the board of governors
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from the constituency, or class within a constituency, for which the election is being
held to be elected,
(b)
(c)
give notice of the name of each candidate who he or she has declared elected–
(i)
where the election is held under a proposed constitution pursuant to powers
conferred on Birmingham Children’s Hospital NHS Trust by section 4(4) of
the 2003 Act, to the chairman of the NHS Trust, or
(ii)
in any other case, to the chairman of the corporation; and
give public notice of the name of each candidate whom he or she has declared
elected.
(2) The returning officer is to make –
(a)
the total number of votes given for each candidate (whether elected or not), and
(b)
the number of rejected ballot papers under each of the headings in rule 39(b) (5),
available on request.
49. Declaration of result for contested elections –
(1) In a contested election, when the result of the poll has been ascertained, the returning officer is to
—
(a)
declare the candidates who are deemed to be elected under Part 6 of these rules as
elected,
(b)
give notice of the name of each candidate who he or she has declared elected –
(c)
(i)
where the election is held under a proposed constitution pursuant to powers
conferred on the Birmingham Children’s Hospital NHS Trust by section 4(4)
of the 2003 Act, to the chairman of the NHS Trust, or
(ii)
in any other case, to the chairman of the corporation, and
give public notice of the name of each candidate who he or she has declared elected.
(2) The returning officer is to make –
(a)
the number of first preference votes for each candidate whether elected or not,
(b)
any transfer of votes,
(c)
the total number of votes for each candidate at each stage of the count at which such
transfer took place,
(d)
the order in which the successful candidates were elected, and
(e)
the number of rejected ballot papers under each of the headings in rule 39(1),
available on request.
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50. Declaration of result for uncontested elections –
(1) In an uncontested election, the returning officer is to as soon as is practicable after final day for the
delivery of notices of withdrawals by candidates from the election –
(a)
declare the candidate or candidates remaining validly nominated to be elected,
(b)
give notice of the name of each candidate who he or she has declared elected to the
chairman of the corporation, and
(c)
give public notice of the name of each candidate who he or she has declared elected.
Part 8 – Disposal of documents
51. Sealing up of documents relating to the poll –
(1) On completion of the counting at a contested election, the returning officer is to seal up the
following documents in separate packets –
(a)
the counted ballot papers,
(b)
the ballot papers endorsed with “rejected in part”,
(c)
the rejected ballot papers, and
(d)
the statement of rejected ballot papers.
(2) The returning officer must not open the sealed packets of –
(a)
the disqualified documents, with the list of disqualified documents inside it,
(b)
the declarations of identity,
(c)
the list of spoilt ballot papers,
(d)
the list of lost ballot papers,
(e)
the list of eligible voters, and
(f)
the list of tendered ballot papers.
(3) The returning officer must endorse on each packet a description of –
(a)
its contents,
(b)
the date of the publication of notice of the election,
(c)
the name of the corporation to which the election relates, and
(d)
the constituency, or class within a constituency, to which the election relates.
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52.
Delivery of documents –
(1) Once the documents relating to the poll have been sealed up and endorsed pursuant to rule 49, the
returning officer is to forward them to the chair of the corporation.
53.
Forwarding of documents received after close of the poll –
(1) Where –
54.
(a)
any voting documents are received by the returning officer after the close of the poll,
or
(b)
any envelopes addressed to eligible voters are returned as undelivered too late to be
resent, or
(c)
any applications for replacement ballot papers are made too late to enable new ballot
papers to be issued, the returning officer is to put them in a separate packet, seal it up,
and endorse and forward it to the chairman of the corporation.
Retention and public inspection of documents –
(1) The corporation is to retain the documents relating to an election that are forwarded to the chair by
the returning officer under these rules for one year, and then, unless otherwise directed by the
regulator, cause them to be destroyed.
(2) With the exception of the documents listed in rule 55(1), the documents relating to an election that
are held by the corporation shall be available for inspection by members of the public at all reasonable
times.
(3) A person may request a copy or extract from the documents relating to an election that are held by
the corporation, and the corporation is to provide it, and may impose a reasonable charge for doing so.
55.
Application for inspection of certain documents relating to an election –
(1) The corporation may not allow the inspection of, or the opening of any sealed packet containing –
(a)
any rejected ballot papers, including ballot papers rejected in part,
(b)
any disqualified documents, or the list of disqualified documents,
(c)
any counted ballot papers,
(d)
any declarations of identity, or
(e)
the list of eligible voters,
by any person without the consent of the Regulator.
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(2) A person may apply to the Regulator to inspect any of the documents listed in (1), and the
Regulator may only consent to such inspection if it is satisfied that it is necessary for the purpose of
questioning an election pursuant to Part 11.
(3) The Regulator’s consent may be on any terms or conditions that it thinks necessary, including
conditions as to –
(a)
persons,
(b)
time,
(c)
place and mode of inspection,
(d)
production or opening,
and the corporation must only make the documents available for inspection in accordance with those
terms and conditions.
(4) On an application to inspect any of the documents listed in paragraph (1), –
(a)
in giving its consent, the regulator, and
(b)
and making the documents available for inspection, the corporation, must ensure that
the way in which the vote of any particular member has been given shall not be
disclosed, until it has been established –
(i)
that his or her vote was given, and
(ii)
that the regulator has declared that the vote was invalid.
Part 9 – Death of a candidate during a contested election
56.
Countermand or abandonment of poll on death of candidate –
(1) If, at a contested election, proof is given to the returning officer’s satisfaction before the
result of the election is declared that one of the persons named or to be named as a candidate has died,
then the returning officer is to
(a)
countermand notice of the poll, or, if ballot papers have been issued, direct that the
poll be abandoned within that constituency or class, and
(b)
order a new election, on a date to be appointed by him or her in consultation with the
corporation, within the period of 40 days, computed in accordance with rule 3 of
these rules, beginning with the day that the poll was countermanded or abandoned.
(2) Where a new election is ordered under paragraph (1), no fresh nomination is necessary for any
candidate who was validly nominated for the election where the poll was countermanded or
abandoned but further candidates shall be invited for that constituency or class.
(3) Where a poll is abandoned under paragraph (1)(a), paragraphs (4) to (7) are to apply.
66
(4) The returning officer shall not take any step or further step to open envelopes or deal with their
contents in accordance with rules 33 and 34, and is to make up separate sealed packets in accordance
with rule 35.
(5) The returning officer is to –
(a)
(b)
count and record the number of ballot papers that have been received, and
seal up the ballot papers into packets, along with the records of the number of ballot
papers.
(6) The returning officer is to endorse on each packet a description of –
(a)
its contents,
(b)
the date of the publication of notice of the election,
(c)
the name of the corporation to which the election relates, and
(d)
the constituency, or class within a constituency, to which the election relates.
(7) Once the documents relating to the poll have been sealed up and endorsed pursuant to paragraphs
(4) to (6), the returning officer is to deliver them to the chairman of the corporation, and rules 54 and
55 are to apply.
57.
Countermand or abandonment of poll on death of candidate –
(1) If, at a contested election, proof is given to the returning officer’s satisfaction before the result of
the election is declared that one of the persons named or to be named as a candidate has died, then the
returning officer is to –
(a)
publish a notice stating that the candidate has died, and
(b)
proceed with the counting of the votes as if that candidate had been excluded from the
count so that –
(i)
ballot papers which only have a first preference recorded for the candidate
that has died, and no preferences for any other candidates, are not to be
counted, and
(ii)
ballot papers which have preferences recorded for other candidates are to be
counted according to the consecutive order of those preferences, passing over
preferences marked for the candidate who has died.
(2) The ballot papers which have preferences recorded for the candidate who has died are to be sealed
with the other counted ballot papers pursuant to rule 51(1)(a).
Part 10 – Election expenses and publicity
Election expenses
Election expenses –
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(1) Any expenses incurred, or payments made, for the purposes of an election which contravene this
Part are an electoral irregularity, which may only be questioned in an application to the regulator
under Part 11 of these rules.
58
Expenses and payments by candidates –
(1)
A candidate may not incur any expenses or make a payment (of whatever nature) for the
purposes of an election, other than expenses or payments that relate to –
59.
(a)
personal expenses,
(b)
travelling expenses, and expenses incurred while living away from home, and
(c)
expenses for stationery, postage, telephone, internet (or any similar means of
communication) and other petty expenses, to a limit of £100.
Election expenses incurred by other persons –
(1) No person may (a)
incur any expenses or make a payment (of whatever nature) for the purposes of a
candidate’s election, whether on that candidate’s behalf or otherwise, or
(b)
give a candidate or his or her family any money or property (whether as a gift,
donation, loan, or otherwise) to meet or contribute to expenses incurred by or on
behalf of the candidate for the purposes of an election.
(2) Nothing in this rule is to prevent the corporation from incurring such expenses, and making such
payments, as it considers necessary pursuant to rules 61 and 62.
Publicity
60.
Publicity about election by the corporation –
(1) The corporation may –
(a)
compile and distribute such information about the candidates, and
(b)
organise and hold such meetings to enable the candidates to speak and respond to
questions, as it considers necessary.
(2) Any information provided by the corporation about the candidates, including information
compiled by the corporation under rule 61, must be –
(a)
objective, balanced and fair,
(b)
equivalent in size and content for all candidates,
(c)
compiled and distributed in consultation with all of the candidates standing for
election, and
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(d)
must not seek to promote or procure the election of a specific candidate or
candidates, at the expense of the electoral prospects of one or more other candidates.
(3) Where the corporation proposes to hold a meeting to enable the candidates to speak, the
corporation must ensure that all of the candidates are invited to attend, and in organising and holding
such a meeting, the corporation must not seek to promote or procure the election of a specific
candidate or candidates at the expense of the electoral prospects of one or more other candidates.
61.
Information about candidates for inclusion with voting documents –
(1) The corporation must compile information about the candidates standing for election,
to be distributed by the returning officer pursuant to rule 24 of these rules.
(2) The information must consist of –
(a)
a statement submitted by the candidate of no more than 250 words, and
(b)
a photograph of the candidate.
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62.
Meaning of “for the purposes of an election” –
(1) In this Part, the phrase “for the purposes of an election” means with a view to, or otherwise in
connection with, promoting or procuring a candidate’s election, including the prejudicing of another
candidate’s electoral prospects; and the phrase “for the purposes of a candidate’s election” is to be
construed accordingly.
(2) The provision by any individual of his or her own services voluntarily, on his or her own time, and
free of charge is not to be considered an expense for the purposes of this Part.
Part 11 – Questioning elections and the consequence of irregularities
63.
Application to question an election –
(1) An application alleging a breach of these rules, including an electoral irregularity under Part 10,
may be made to the regulator.
(2) An application may only be made once the outcome of the election has been declared by the
returning officer.
(3) An application may only be made to the Regulator by (a)
a person who voted at the election or who claimed to have had the right to vote, or
(b)
a candidate, or a person claiming to have had a right to be elected at the election.
(4) The application must –
(a)
describe the alleged breach of the rules or electoral irregularity, and
(b)
be in such a form as the Regulator may require.
(5) The application must be presented in writing within 21 days of the declaration of the result of the
election.
(6) If the Regulator requests further information from the applicant, then that person must provide it
as soon as is reasonably practicable:
(a).
The Regulator shall delegate the determination of an application to a person or
persons to be nominated for the purpose of the Regulator.
(b).
The determination by the person or persons nominated in accordance with Rule 63
shall be binding on and shall be given effect by the corporation, the applicant and the
members of the constituency (or class within a constituency) including all the
candidates for the election to which the application relates.
(c).
The Regulator may prescribe rules of procedure for the determination of an
application including costs.
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Part 12 – Miscellaneous
64. Secrecy –
(1) The following persons –
(a)
the returning officer,
(b)
the returning officer’s staff, must maintain and aid in maintaining the secrecy of the
voting and the counting of the votes, and must not, except for some purpose
authorised by law, communicate to any person any information as to –
(i)
the name of any member of the corporation who has or has not been given a
ballot paper or who has or has not voted,
(ii)
the unique identifier on any ballot paper,
(iii)
the candidate(s) for whom any member has voted.
(2) No person may obtain or attempt to obtain information as to the candidate(s) for whom a voter is
about to vote or has voted, or communicate such information to any person at any time, including the
unique identifier on a ballot paper given to a voter.
(3) The returning officer is to make such arrangements as he or she thinks fit to ensure that the
individuals who are affected by this provision are aware of the duties it imposes.
65.
Prohibition of disclosure of vote –
(1) No person who has voted at an election shall, in any legal or other proceedings to question the
election, be required to state for whom he or she has voted.
66.
Disqualification –
(1) A person may not be appointed as a returning officer, or as staff of the returning officer pursuant
to these rules, if that person is –
(a)
a member of the corporation,
(b)
an employee of the corporation,
(c)
a director of the corporation, or
(d)
employed by or on behalf of a person who has been nominated for election.
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67.
Delay in postal service through industrial action or unforeseen event –
(1) If industrial action, or some other unforeseen event, results in a delay in –
(a)
the delivery of the documents in rule 24, or
(b)
the return of the ballot papers and declarations of identity,
the returning officer may extend the time between the publication of the notice of the
poll and the close of the poll, with the agreement of the Regulator.
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ANNEX 6 – STANDING ORDERS FOR THE PRACTICE AND PROCEDURE OF
THE COUNCIL OF GOVERNORS
(Paragraph 8.12)
STANDING ORDERS
OF THE
COUNCIL OF GOVERNORS
2007
Date ratified by Council of Governors:
Date of Review:
Prepared By:
TBA (February 2007)
TBC (February 2008)
Garrett Taylor - Director of Health Care Governance
Issue Number
1
73
CONTENTS
INTRODUCTION
Regulatory Framework
Standing Financial Instructions
1.
INTERPRETATION
2.
THE COUNCIL OF GOVERNORS
Composition of the Council of Governors
Role of Chairman
Appointment of Vice Chairman
3.
MEETINGS OF THE COUNCIL
Admission of Public
Calling Meetings
Notice of Meetings
Setting the Agenda
Annual Members Meeting
Notices of Motion
Withdrawal of Motion or Amendments
Motion to Rescind a Resolution
Motions
Chairman's Ruling
Voting
Minutes
Suspension of Standing Orders
Variation and Amendment of Standing Orders
Record of Attendance
Quorum
4.
ARRANGEMENTS FOR THE EXERCISE OF FUNCTIONS BY
DELEGATION
Delegation to Committee
Over Riding Standing Orders
5.
COMMITTEES
Appointment of Committees
Confidentiality
6.
DECLARATIONS OF INTEREST AND REGISTER OF INTEREST
Declaration of Interest
Register of Interests
74
7.
DISABILITY OF CHAIRMANAND GOVERNORS IN PROCEEDINGS ON
ACCOUNT OF PECUNIARY INTEREST
8.
STANDARDS OF BUSINESS CONDUCT POLICY
Interest of Governors in Contracts
Canvassing of, and Recommendations by, Governors in Relation to Appointments
Relatives of Directors or Officers
9.
MISCELLANEOUS
Standing Orders to be given to Members of the Council and Officers
Documents having the Standing of Standing Orders
Review of Standing Orders
Dispute Resolution
APPENDICES [to be ratified by the Council of Governors and then attached]:
Appendix 1 Nominations Committee for the appointment of Non-Executives
Appendix 2 Non-Executive Director Remuneration Committee
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INTRODUCTION
Regulatory Framework
The Birmingham Children’s Hospital NHS Foundation Trust (the Corporation) is a
statutory body which became a public benefit corporation on 1 February 2007 following
its approval as an NHS Foundation Trust by the Independent Regulator (Monitor) of
NHS Foundation Trusts pursuant to the Health and Social Care (Community Health and
Standards) Act 2003.
The principal place of business of the Trust is Birmingham Children’s Hospital NHS
Trust, Steelhouse Lane, Birmingham, B4 6NH and other sites in South Birmingham.
NHS Foundation Trusts are governed by Act of Parliament, mainly the 2003 Act, by
their constitutions and by the terms of their authorisation granted by Monitor
(Regulatory Framework).
The functions of the Corporation are conferred by the Regulatory Framework.
The Regulatory Framework requires the Council of Governors of the Corporation to
adopt Standing Orders for the regulation of its proceedings and business.
Standing Financial Instructions
The "Directions on Financial Management in England" issued under HSG(96)12 in 1996,
require Health Authorities to adopt Standing Financial Instructions (SFIs) setting out the
responsibilities of individuals. These directions are not mandatory on NHS trusts but
trusts are asked to observe them and as a matter of good practice and ensure they meet
the standards they lay down. The Corporations SFIs document has effect as if
incorporated into the Standing Orders.
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1
INTERPRETATION
1.1
Save as otherwise permitted by law and subject to the Constitution at any meeting the
Chairman of the Corporation shall be the final authority on the interpretation of Standing
Orders (on which he/she should be advised by the Chief Executive or Trust Secretary).
1.2
Any expression to which a meaning is given in the Health Service Acts or in the
Regulations or Orders made under the Acts shall have the same meaning in this
interpretation and in addition:
"ACCOUNTING OFFICER" shall be the Officer responsible and accountable for
funds entrusted to the Corporation. He shall be responsible for ensuring the
proper stewardship of public funds and assets. For this Corporation it shall be the
Chief Executive.
"BOARD OF DIRECTORS” means the Chairman and Non-Executive Directors and
the Executive Directors of the Corporation collectively as a body.
"BUDGET" means a resource, expressed in financial terms, proposed by the
Board of Directors for the purpose of carrying out, for a specific period, any or
all of the functions of the Corporation.
"CHAIRMAN" is the person appointed by the Council of Governors to lead the
Board of Directors and Council of Governors, and to ensure that it successfully
discharges its overall responsibility for the Corporation as a whole. The
expression “the Chairman of the Trust” shall be deemed to include the Deputy
Chairman of the Trust if the Chairman is absent from the meeting or is otherwise
unavailable.
"CHIEF EXECUTIVE" means the chief officer of the Corporation.
"CONSTITUTION" means the constitution of the Corporation.
"COMMITTEE" means a committee appointed with the approval of the Chairman
and/or Chief Executive.
"COMMITTEE MEMBERS" shall be persons formally appointed by the Chairman
and/or Chief Executive to sit on or to chair specific committees.
"COUNCIL OF GOVERNORS” shall mean the council of governors of the
Corporation as constituted by the Constitution, which has the same meaning as
the Board of Governors in the 2003 Act.
"DEPUTY CHAIRMAN" means the Non-Executive Director appointed from among
the Non-Executives to take on the Chairman’s duties if the Chairman is absent
for any reason.
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"CHIEF FINANCIAL
Corporation.
OFFICER
" means the Chief Finance Officer of the
"EXECUTIVE DIRECTOR" means a Member of the Board of Directors who holds
an executive office within the Corporation.
"MEMBER OF THE BOARD" means an Executive Director or Non Executive
Director of the Board (Member in relation to the Board does not include its
Chairman.).
"MEMBER OF THE COUNCIL" means a Governor of the Corporation (Member in
relation to the Council does not include its Chairman.).
"MOTION" means a formal proposition to be discussed and voted on during the
course of a meeting.
"NOMINATED OFFICER" means an officer charged with the responsibility for
discharging specific tasks within SOs and SFIs.
"NON-EXECUTIVE DIRECTORS" means a Member of the Board of Directors who
does not hold an executive office of the Corporation.
"OFFICER" means employee of the Corporation or any other person holding a
paid appointment or office with the Corporation.
"SFIS" means Standing Financial Instructions.
"SOS" means these Standing Orders.
"TRUST" means the Birmingham Children’s Hospital NHS Foundation Trust.
"TRUST SECRETARY" means a person appointed to act independently of the
Board to provide advice on corporate governance issues to the Board and the
Chairman and monitor the Corporations Compliance with the regulatory
framework and monitor the Trust's compliance with the law, SOs, and
observance of NHS Executive guidance.
"VICE - CHAIRMAN" means the Governor appointed from the Public Governors
to take on the Chairman’s duties if the Chairman, Deputy Chairman or any other
Non-Executive is absent or unable to chair the Council of Governors for any
reason.
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2.
THE COUNCIL OF GOVERNORS
2.1
Composition of the Council - In accordance with the Constitution the
composition of the Council of Governors of the Trust shall be:
2.2
10
3
1
4
4
1
Public Governors
Patient Governors
Carer Governor
Staff Governors
PCT Governors
Local Authority Governor
4
Partnership Governors including:
 2 Higher Education Governors,
 1 Voluntary Sector Governor
 1 Extended Schools Governor
The Chief Executive or any other member or members of the Board of Directors, or a
representative of the Trust’s auditors or other advisors can attend a meeting of the
Council of Governors unless the Council of Governors agrees otherwise.
2.3
Role of the Chairman – The Chairman is not a member of the Council of Governors.
However under the Regulatory Framework, she/he presides at meetings of the Council of
Governors and has a casting vote.
2.4
Where the Chairman of the Corporation is unable to perform their duties the Deputy
Chairman from the Board of Directors shall perform his/her duties until a new Chairman
is appointed or the existing Chairman resumes their duties.
2.5
Appointment of a Vice Chairman - For the purpose of enabling the proceedings of the
Council to be conducted in the absence of the Chairman or Deputy Chairman or due to a
conflict of interest, the Public Governors of the Trust may appoint a Governor from
amongst them to be Vice Chairman for such a period, not exceeding the remainder of
his/her term as Governor of the Trust, as they may specify on appointing him/her.
3.
MEETINGS OF THE COUNCIL OF GOVERNORS
3.1
Admission to the Public – The meetings of the Council of Governor shall generally be
open to members of the public except when the Council resolves:
a) That members of the public be excluded from the remainder of the meeting having
regard to the confidential nature of the business to be transacted, publicity on which
would be prejudicial to the public; and/or
b) That in the interests of public order the meeting adjourn for a period to be specified
in such resolution to enable the Council to complete business without the presence
of the public
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3.2
Nothing in these Standing Orders shall require the Council to allow members of the
public or representatives of the press to record proceedings in any manner whatsoever,
other than in writing, or to make any oral report of proceedings as they take place
without the prior agreement of the Council.
3.3
Calling Meetings - Meetings of the Council of Governors shall be held at such times
and places as the Council may determine and there will be no fewer than three meetings
(in addition to the Annual General Meeting) per year. The Trust Secretary will publish
times and locations of the meetings for the year six months in advance.
3.4
Meetings of the Council of Governors may be called by the Trust Secretary, or by the
Chairman, or by six Governors who give written notice to the Secretary specifying the
business to be carried out. The Trust Secretary shall send a written notice to all
Governors as soon as possible after receipt of such a request. The Secretary shall call
a meeting on at least fourteen but not more than twenty-eight days’ notice to discuss
the specified business. If the Secretary fails to call such a meeting then the Chairman
or six Governors, whichever is the case, shall call such a meeting.
3.5
Notice of Meetings – Save in the case of emergencies or the need to conduct urgent
business, the Trust Secretary shall give at least fourteen days written notice of the date
and place of every meeting of the Council of Governors to all Governors. Notice will
also be published on the Trust’s website and at the main entrance to Birmingham
Children’s Hospital.
3.6
Lack of service of the notice of the date and place on any Governor shall not affect the
validity of a meeting.
3.7
Before each meeting of the Council, a notice of the meeting specifying the business to
be proposed to be transacted at it shall be delivered to each Member of the Council of
Governors, or sent by post to the usual place of residence of the Member, so as to be
available to him/her at least three clear days before the meeting.
3.8.1 Lack of service of the notice of the business of the meeting on any Member of the
Council shall not affect the validity of a meeting.
3.9
Failure to serve such a notice specifying the business on more than 4 Governors will
invalidate the meeting. A notice will be presumed to have been served at the time at
which the notice would be delivered in the ordinary course of the post.
3.10
In the case of a meeting being called by Members of the Council in default of the
Chairman, the notice shall be signed by those members of the Council and no business
shall be transacted at the meeting other than that specified in the notice.
3.11
Setting the Agenda - The Council of Governors may determine that certain matters
shall appear on every agenda for a meeting of the Council and shall be addressed prior to
any other business being conducted.
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3.12
Member of the Council desiring a matter to be included on an agenda shall make his/her
request in writing to the Chairman at least 10 clear days before the meeting. The request
should state whether the item of business is proposed to be transacted in the presence of
the public and should include appropriate supporting information. Requests made less
than 10 days before a meeting may be included on the agenda at the discretion of the
Chairman.
3.13
Subject to rule 3.12 and at the approval of the Chairman, only urgent motions rule 3.20
will be considered under the agenda item entitled ‘Any Other Business’.
3.14
Annual General Meeting (AGM) - The Corporation will publicise and hold an Annual
General Meeting in accordance with the Constitution within eight months of the end of
the financial year.
3.15
Notices of Motion - A Member of the Council desiring to move or amend a motion shall
send a written notice of at least 10 clear days before the meeting to the Chairman, who
shall insert in the agenda for the meeting all notices so received subject to the notice
being permissible under the appropriate regulations. This paragraph shall not prevent any
motion being moved during the meeting, without notice on any business mentioned on
the agenda.
3.16
Withdrawal of Motion or Amendments - A motion or amendment once moved and
seconded may be withdrawn by the proposer with the concurrence of the seconder and
the consent of the Chairman.
3.17
Motion to Rescind a Resolution - Notice of motion to amend or rescind any resolution
(or the general substance of any resolution) which has been passed within the preceding
6 calendar months shall bear the signature of the Member of the Council who gives it
and also the signature of 4 other Governors. When any such motion has been disposed
of by the Trust, it shall not be competent for any Governors other than the Chairman to
propose a motion to the same effect within 6 months, however the Chairman may do so
if he/she considers it appropriate.
3.18
Motions - The mover of a motion shall have a right of reply at the close of any
discussion on the motion or any amendment thereto.
3.19
When a motion is under discussion or immediately prior to discussion it shall be open to
a Member of the Council to move:
•
An amendment to the motion.
•
The adjournment of the discussion or the meeting.
•
That the meeting proceed to the next business. (*)
•
The appointment of an ad hoc committee to deal with a specific item of
business.
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•
That the motion be now put. (*)
*
In the case of sub-paragraphs denoted by (*) above to ensure objectivity
motions may only be put by a member of the council who has not
previously taken part in the debate.
No amendment to the motion shall be admitted if, in the opinion of the Chairman of the
meeting, the amendment negates the substance of the motion.
3.20 Urgent Motions – Urgent motions may only be submitted by a Governor and must be
received by the Secretary in writing before the commencement of the meeting.
Acceptance of such a motion for inclusion on the Agenda will be at the discretion of the
Chair. Urgent is defined as a matter which will adversely affect the Trust in the next 7
days.
3.21
Chairman’s Ruling - Statements of Members of the Council made at meetings of the
Trust shall be relevant to the matter under discussion at the material time and the
decision of the Chairman of the meeting on questions of order, relevancy, regularity and
any other matters shall be final.
3.22
Voting - Subject to the following provisions of this paragraph, questions arising at a
meeting of the Council of Governors shall be decided by a majority of votes but in
case of an equality of votes the Chairman (or in his/her absence the Deputy Chairman
or; in the Deputy Chairman’s absence a Non-Executive Director who is appointed by
the Directors at the Meeting to chair the Meeting or; in the absence of a NonExecutive Director the Vice Chairman) shall have a second and casting vote.
3.23
All questions put to the vote shall, at the discretion of the Chairman of the meeting, be
determined by oral expression or by a show of hands. A paper ballot may also be used if
a majority of the governors present so request.
3.24
If at least one-third of the Governors present so request, the voting (other than by paper
ballot) on any question may be recorded to show how each Member of the Council
present voted or abstained.
3.25
If a Member of the Council so requests, his/her vote shall be recorded by name upon any
vote (other than by paper ballot).
3.26
In no circumstances may an absent Governor vote by proxy. Absence is defined as being
absent at the time of the vote.
3.27
Minutes - The Minutes of the proceedings of a meeting shall be drawn up and submitted
for agreement at the next ensuing meeting where they will be signed by the person
presiding at it.
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3.28
No discussion shall take place upon the minutes except upon their accuracy or where the
Chairman considers discussion appropriate. Any amendment to the minutes shall be
agreed and recorded at the next meeting.
3.29
Minutes shall be circulated in accordance with Members’ wishes.
3.30
Suspension of Standing Orders - Except where this would contravene any statutory
provision or any direction made by Monitor, any one or more of the Standing Orders
may be suspended at any meeting, provided that at least two thirds of the Council of
Governors are present, and that a majority of those present vote in favour of suspension.
3.31
A decision to suspend Standing Orders shall be recorded in the minutes of the meeting.
3.32
A separate record of matters discussed during the suspension of Standing Orders shall be
made and shall be available to the Chairman and the Members of the Council.
3.33
No formal business may be transacted while Standing Orders are suspended.
3.34
The Audit Committee shall review every decision to suspend Standing Orders.
3.35
Variation and Amendment of Standing Orders - These Standing Orders shall be
amended only if:
•
a notice of motion under Standing Order 3.14 has been given; and
•
no fewer than half the total of the Corporation’s Governors vote in favour of
amendment; and
•
provided that at least two-thirds of the Governors are present and
•
the variation proposed does not contravene a statutory provision or direction
made by Monitor.
3.36
Record of Attendance - The names of the Chairman and Members of the Council
present at the meeting shall be recorded in the minutes. Governors who are unable to
attend the Council of Governors meeting should advise the Trust Secretary in advance of
the meeting so that their apologies may be submitted.
3.37
Quorum - The Council of Governors is to meet at least three times per year. To be
quorate there must be at least fourteen Governors present and of that fourteen at least
nine must be Public or Patient Governors. For the avoidance of doubt, the number of
Public and Patient Governors present at a meeting should be in the majority.
3.38
If the Chairman or Member of the Council has been disqualified from participating in
the discussion on any matter and/or from voting on any resolution by reason of the
declaration of a conflict of interest (see SO 6 or 7) he/she shall no longer count towards
the quorum. If a quorum is then not available for the discussion and/or the passing of a
resolution on any matter, that matter may not be discussed further or voted upon at that
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meeting. Such a position shall be recorded in the minutes of the meeting. The meeting
must then proceed to the next business.
4. 0
ARRANGEMENTS FOR THE EXERCISE OF FUNCTIONS BY
DELEGATION
4.1
No delegation of functions or powers to committees – the Council may not delegate
its functions or powers to any committee, or sub-committee of the Council
4.2
Overriding Standing Orders – If for any reason these Standing Orders are not
complied with, full details of the non-compliance and any justification for noncompliance and the circumstances around the non-compliance, shall be reported to the
next formal meeting of the Council for action or ratification. All Members of the
Council and staff have a duty to disclose any non-compliance with these Standing
Orders to the Trust Secretary as soon as possible.
5.
COMMITTEES
5.1
Appointment of Committees - Subject to such directions and guidance as may be given
by Monitor, the Council may and, if directed or approved by the Chairman appoint
committees of the Council.
5.2
A committee appointed under this regulation may subject to such directions as may be
given by Monitor or the Council may, subject to the approval from the Chairman,
appoint sub-committees consisting wholly or partly of members of the committee.
5.3
The Standing Orders of the Council, as far as they are applicable, shall apply with
appropriate alteration to meetings of any committees or sub-committee established by
the Council. In which case the term ‘Chairman’ is to be read as a reference to the
Chairman of the Committee as the context permits, and the term ‘Member of the
Council’ is to be read as a reference to a member of the committee also as the context
permits.
5.4
Each such committee or sub-committee shall have such terms of reference and powers
and be subject to such conditions (as to reporting back to the Council), as the Council
shall decide and shall be in accordance with the Regulatory Framework and any
direction or guidance issued by Monitor. Such terms of reference shall have effect as if
incorporated into the Standing Orders.
5.5
Committees may not delegate their executive powers to a sub-committee unless
expressly authorised by the Council.
5.6
The Council shall approve the appointments to each of the committees which it has
formally constituted at the next meeting following any elections. This will not nullify
any business properly carried out under the committee’s terms of reference by the
elected committee members before such approval.
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5.7
Where the Trust is required to appoint persons to a committee and/or to undertake
statutory functions and where such appointments are to operate independently of the
Council such appointment shall be made in accordance with applicable statute and
regulations and with guidance issued by Monitor.
5.8
The committees and sub-committees established by the Council shall be such
committees as are required to assist the Council in discharging its responsibilities.
5.9
Confidentiality - A member of a committee shall not disclose a matter dealt with by, or
brought before, the committee without its permission until the committee shall have
reported to the Council or shall otherwise have concluded on that matter.
5.10
A Governor of the Trust or a member of a committee shall not disclose any matter
reported to the Council or otherwise dealt with by the committee, notwithstanding that
the matter has been reported or action has been concluded, if the Council or committee
shall resolve that it is confidential.
6.
DECLARATIONS OF INTERESTS AND REGISTER OF INTERESTS
6.1
Declaration of Interests - The Regulatory Framework requires Governors to declare
interests which are relevant and material to the council of which they are a Member. All
existing council members should declare such interests. Any Council Members
appointed subsequently should do so on appointment.
6.2
Interests which should be regarded as "relevant and material" are to be interpreted in
accordance with guidance issued by Monitor and in the Constitution paragraph 11:
a)
A position of authority in a charity or voluntary organisation in the field
of health and social care.
b)
Directorships, including Non-Executive directorships held in private
companies or PLCs (with the exception of those of dormant companies).
c)
Ownership or part-ownership of private companies, businesses or
consultancies likely or possibly seeking to do business with the NHS
(excluding a holding of shares in accompany whose shares are listed on
any public exchange where the holding is less than 2% of the total share
issue).
d)
Majority or controlling share holdings in organisations likely or possibly
seeking to do business with the NHS.
e)
Any connection with a Voluntary Organisation or other organisation
contracting for NHS services.
f)
Any connection with an organisation, entity or company considering
entering into or having entered into a financial arrangement with the
Trust including but not limited to lender or banks
6.3 No Council Member shall be treated as having a relevant and material interest in any
contract, proposed contract or other matter by reason only:
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a)
shares not exceeding 2% of the total shares in issue held in any company
whose shares are listed on any public exchange;
b)
an employment contract held by Staff Governors;
c)
an employment contract with their PCT held by the PCT Governor;
d)
an employment contract with a local authority held by the Local Authority
Governor;
e)
an employment contract with University of Central England and the
University of Birmingham held by University Governors;
6.4
If Governors have any doubt about the relevance of an interest, this should be discussed
with the Chairman.
6.5
At the time Governors' interests are declared, they should be recorded in the council
minutes. Any changes in interests should be declared at the next council meeting
following the change occurring. It is the obligation of the Governor to inform the Trust
Secretary in writing within 7 days of becoming aware of the existence of a relevant and
material interest. The Trust Secretary will amend the Register upon receipt within 3
working days.
6.6
If a Governor has a relevant and material interest (including a pecuniary interest),
whether direct or indirect, in any contract, proposed contract or other matter which is
under consideration by the Council of Governors, he shall disclose that to the rest of
the Council as soon as he is aware of it and where there is a conflict of interest he
shall withdraw from the meeting and take no further part in it. If there is a dispute as
to whether a conflict of interest does exist the majority will resolve the issue with the
Chairman having the casting vote.
6.7
Interests of Governor’s spouses or partners, in contracts need not be declared.
6.8
This paragraph 6 applies to a committee or sub-committee as it applies to the Council of
Governors and applies to a member of any such committee or sub-committee.
6.9
Directorships of companies likely or possibly seeking to do business with the NHS
should be published in the Trust's annual report. The information should be kept up to
date for inclusion in succeeding annual reports.
6.10
Register of Interests - The Trust Secretary will ensure that a Register of Interests is
established to record formally declarations of interests of Council Members. In particular
the Register will include details of all Directorships and other relevant and material
interests which have been declared by the Governors, as defined in SO 6.2.
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6.11
These details will be kept up to date by means of a monthly review of the Register in
which any changes to interests declared during the preceding month will be
incorporated.
6.12
The Register will be available to the public and the Chairman will take reasonable steps
to bring the existence of the Register to the attention of the local population and to
publicise arrangements for viewing it.
6.13
In establishing, maintaining, updating and publicising the Register, the Corporation shall
comply with all guidance issued from time to time by Monitor.
7.
DISABILITY OF THE CHAIRMAN AND GOVERNORS IN PROCEEDINGS
ON ACCOUNT OF PECUNIARY INTEREST
The entire text of this section is based on the Membership and Procedure regulations.
7.1
Subject to the following provisions of this Standing Order, if the Chairman or another
Member of the Council has any pecuniary interest, direct or indirect, in any contract,
proposed contract or other matter and is present at a meeting of the Trust at which the
contract or other matter is the subject of consideration, he shall at the meeting and as
soon as practicable after its commencement disclose the fact and shall not take part in the
consideration or discussion of the contract or other matter or vote on any question with
respect to it.
7.2
The Council may exclude the Chairman (or another Member of the Council) from a
meeting of the Council while any contract, proposed contract or other matter in which
he/she has a pecuniary interest, is under consideration.
7.3
Any remuneration, compensation or allowances payable a to the Chairman or a Member
by virtue of paragraph 9 of Schedule 2 to the NHS & CC Act 1990 shall not be treated as
a pecuniary interest for the purpose of this Standing Order.
7.4
For the purpose of this Standing Order the Chairman or other Member of the Council
shall be treated, subject to SO 7.5, as having indirectly a pecuniary interest in a contract,
proposed contract or other matter, if he, or a nominee of his, is a director of a company
or other body, not being a public body, with which the contract was made or is proposed
to be made or which has a direct pecuniary interest in the other matter under
consideration;
7.5
The Chairman or a Member of the Council shall not be treated as having a
pecuniary interest in any contract, proposed contract or other matter by reason
only:
(a)
of his membership of a company or other body, if he/she has no beneficial
interest in any securities of that company or other body;
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(b)
7.6
of an interest in any company, body or person with which he is connected as
mentioned in SO 7.4 above which is so remote or insignificant that it cannot
reasonably be regarded as likely to influence a director in the consideration or
discussion of or in voting on, any question with respect to that contract or matter.
Where the Chairman or Member of the Council:
(a)
has an indirect pecuniary interest in a contract, proposed contract or other matter
by reason only of a beneficial interest in securities of a company or other body,
and
(b)
the total nominal value of those securities does not exceed £5,000 or onehundredth of the total nominal value of the issued share capital of the company
or body, whichever is the less, and
(c)
if the share capital is of more than one class, the total nominal value of shares of
any one class in which he has a beneficial interest does not exceed onehundredth of the total issued share capital of that class,
this Standing Order shall not prohibit him/her from taking part in the consideration or
discussion of the contract or other matter or from voting on any question with respect to
it without prejudice however to his/her duty to disclose his/her interest.
7.7
Standing Order 7 applies to a committee or sub-committee of the Council as it applies to
the Council and applies to any member of any such committee or sub-committee as it
applies to a Member of the Council.
8.
STANDARDS OF BUSINESS CONDUCT
8.1
Policy - Staff must comply with national guidance ‘Standards of Business Conduct for
NHS Staff’ and any guidance and directions issued by Monitor.
8.2
Interest of Governors in Contracts - If it comes to the knowledge of a Governor that a
contract in which he/she has any pecuniary interest not being a contract to which he is
himself a party, has been, or is proposed to be, entered into by the Trust he/she shall, at
once, give notice in writing to the Trust Secretary of the fact that he/she is interested
therein.
8.3
A Governor must also declare to the Trust Secretary any other employment or business
or other relationship of his that conflicts, or might reasonably be predicted could conflict
with the interests of the Corporation.
The Corporation may require interests, employment or relationships so declared by staff
to be entered in a register of interests of governors.
8.4
Canvassing of, and Recommendations by, Governors in Relation to Appointments Canvassing of Directors or Governors of the Corporation or of any members of any
Committee of the Corporation directly or indirectly for any appointment under the
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Corporation shall disqualify the candidate for such appointment. The contents of this
paragraph of the Standing Order shall be included in application forms or otherwise
brought to the attention of candidates.
8.5
A Member of the Council shall not solicit for any person any appointment under the
Corporation or recommend any person for such appointment: but this paragraph of this
Standing Order shall not preclude a Member of the Council from giving written
testimonial of a candidate's ability, experience or character for submission to the
Corporation.
8.6
Informal discussions outside appointments panels or committees, whether solicited or
unsolicited, should be declared to the panel or committee.
8.7
Relatives of Members of the Council or Officers - Candidates for any staff
appointment under the Corporation shall when making application disclose in writing
whether they are related to any Member of the Council or the holder of any office under
the Corporation. Failure to disclose such a relationship shall disqualify a candidate and,
if appointed, render him/her liable to instant dismissal.
8.8
The Chairman and every Member of the Council and every officer of the Corporation
shall disclose to the Chief Executive any relationship with a candidate of whose
candidature that Member of the Council or officer is aware. It shall be the duty of the
Chief Executive to report to the Corporation any such disclosure made.
8.9
On appointment, Members of the Council (and prior to acceptance of an appointment in
the case of an officer) should disclose to the Corporation whether they are related to any
other Member of the Council or holder of any office under the Corporation. This
disclosure will be asked for when the Governor signs their declaration of eligibility to
vote prior to their first Council of Governor meeting.
8.10
Where the relationship to a Member of the Council of the Corporation is disclosed, the
Standing Order headed ‘Disability of directors in proceedings on account of pecuniary
interest' (SO 7) shall apply.
9.
MISCELLANEOUS
9.1
Standing Orders to be given to Members of the Council and Officers - It is the duty
of the Trust Secretary to ensure that existing Members of the Council and all new
appointees are notified of and understand their responsibilities within these Standing
Orders. Updated copies shall be issued to individual designated by the Chief Executive.
New designated officers shall be informed in writing and shall receive copies where
appropriate of SOs.
9.2
Review of Standing Orders - Standing Orders shall be reviewed annually by the
Corporation. The requirement for review extends to all documents having the effect as if
incorporated in SOs.
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9.3
Dispute Resolution – Questions and disputes regarding the interpretation of these
Standing Orders and the procedure to be followed at meetings of the Council of
Governors shall be resolved in accordance with the procedure set out in the Constitution
(paragraph 20).
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ANNEX 7 – STANDING ORDERS FOR THE PRACTICE AND PROCEDURE OF
THE BOARD OF DIRECTORS
(Paragraph 10.6)
STANDING ORDERS
OF THE
BOARD OF DIRECTORS
2007
Date Ratified by Board
Date of Review
Prepared By:
TBA (February 2007)
TBC (February 2008)
Garrett Taylor - Director of Health Care Governance
Issue Number
1
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CONTENTS
INTRODUCTION
Regulatory Framework
Standing Financial Instructions
1.
INTERPRETATION
2.
THE Board of Directors
Composition of the Board of Directors
Appointment of the Chairman, Executive Directors and Non-Executive Directors
Terms of Office of the Chairman and Directors
Appointment of Deputy Chairman
Powers of Deputy Chairman
3.
MEETINGS OF THE BOARD
Admission of Public and the Press
Calling Meetings
Notice of Meetings
Setting the Agenda
Chairman of Meeting
Annual Public Meeting
Notices of Motion
Withdrawal of Motion or Amendments
Motion to Rescind a Resolution
Motions
Chairman's Ruling
Voting
Minutes
Suspension of Standing Orders
Variation and Amendment of Standing Orders
Record of Attendance
Quorum
4.
ARRANGEMENTS FOR THE EXERCISE OF FUNCTIONS BY
DELEGATION
Emergency Powers
Delegation to Committee
Delegation to Officers
Over Riding Standing Orders
5.
COMMITTEES
Appointment of Committees
Confidentiality
6.
DECLARATIONS OF INTEREST AND REGISTER OF INTEREST
Declaration of Interest
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Register of Interests
7.
DISABILITY OF DIRECTORS IN PROCEEDINGS ON ACCOUNT OF
PECUNIARY INTEREST
8.
STANDARDS OF BUSINESS CONDUCT POLICY
Interest of Officers in Contracts
Canvassing of, and Recommendations by, Directors in Relation to
Appointments
Relatives of Directors or Officers
9.
TENDERING AND CONTRACT PROCEDURE
Duty to comply with Standing Orders
Contracts
Personnel and Agency or Temporary Staff Contracts
Contracts Involving Funds Held on Trust
10.
CUSTODY OF SEAL AND SEALING OF DOCUMENTS
Custody of Seal
Sealing of Documents
Register of Sealing
11.
SIGNATURE OF DOCUMENTS
12.
MISCELLANEOUS
Standing Orders to be given to Members of the Board and Officers
Documents having the Standing of Standing Orders
Review of Standing Orders
Dispute Resolution
Appendices
Appendix 1 Scheme of decisions reserved for the Board
Decisions/Duties delegated by the Board to Committees
Authorities/Duties Delegated
Appendix 2 The Audit Committee: Terms of Reference [to be ratified by the Board of Directors
and then attached]
Appendix 3 The Remuneration Committee: Terms of Reference[to be ratified by the Board of
Directors and then attached]
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INTRODUCTION
Regulatory Framework
The Birmingham Children’s Hospital NHS Foundation Trust (the Corporation) is a
statutory body which became a public benefit corporation on 1 February 2007 following
its approval as an NHS Foundation Trust by the Independent Regulator (Monitor) of
NHS Foundation Trusts pursuant to the Health and Social Care (Community Health and
Standards) Act 2003.
The principal place of business of the Trust is Birmingham Children’s Hospital NHS
Trust, Steelhouse Lane, Birmingham, B4 6NH and other sites in South Birmingham.
NHS Foundation Trusts are governed by Act of Parliament, mainly the 2003 Act, by
their constitutions and by the terms of their authorisation granted by Monitor
(Regulatory Framework).
The functions of the Corporation are conferred by the Regulatory Framework.
The Regulatory Framework requires the Board of Directors of the Corporation to
adopt Standing Orders for the regulation of its proceedings and business.
Standing Financial Instructions
The "Directions on Financial Management in England" issued under HSG(96)12 in 1996,
require Health Authorities to adopt Standing Financial Instructions (SFIs) setting out the
responsibilities of individuals. These directions are not mandatory on NHS trusts but
trusts are asked to observe them and as a matter of good practice and ensure they meet
the standards they lay down. The Corporations SFIs document has effect as if
incorporated into the Standing Orders.
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1
INTERPRETATION
1.1
Save as otherwise permitted by law and subject to the Constitution at any meeting the
Chairman of the Corporation shall be the final authority on the interpretation of Standing
Orders (on which he/she should be advised by the Chief Executive or Trust Secretary).
1.2
Any expression to which a meaning is given in the Health Service Acts or in the
Regulations or Orders made under the Acts shall have the same meaning in this
interpretation and in addition:
"ACCOUNTING OFFICER" shall be the Officer responsible and accountable for
funds entrusted to the Corporation. He shall be responsible for ensuring the
proper stewardship of public funds and assets. For this Corporation it shall be the
Chief Executive.
"BOARD OF DIRECTORS” means the Chairman and Non-Executive Directors and
the Executive Directors of the Corporation collectively as a body.
"BUDGET" means a resource, expressed in financial terms, proposed by the
Board of Directors for the purpose of carrying out, for a specific period, any or
all of the functions of the Corporation.
"CHAIRMAN" is the person appointed by the Council of Governors to lead the
Board of Directors and Council of Governors, and to ensure that it successfully
discharges its overall responsibility for the Corporation as a whole. The
expression “the Chairman of the Trust” shall be deemed to include the Deputy
Chairman of the Trust if the Chairman is absent from the meeting or is otherwise
unavailable.
"CHIEF EXECUTIVE" means the chief officer of the Corporation.
"CONSTITUTION" means the constitution of the Corporation.
"COMMITTEE" means a committee appointed with the approval of the Chairman
and/or Chief Executive.
"COMMITTEE MEMBERS" shall be persons formally appointed by the Chairman
and/or Chief Executive to sit on or to chair specific committees.
"COUNCIL OF GOVERNORS” shall mean the Council of Governors of the
Corporation as constituted by the Constitution, which has the same meaning as
the Board of Governors in the 2003 Act.
"DEPUTY CHAIRMAN" means the Non-Executive Director appointed from among
the Non-Executives to take on the Chairman’s duties if the Chairman is absent
for any reason.
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"CHIEF FINANCIAL
Corporation.
OFFICER
" means the Chief Financial Officer of the
"EXECUTIVE DIRECTOR" means a Member of the Board of Directors who holds
an executive office within the Corporation.
"MEMBER OF THE BOARD" means an Executive Director or Non Executive
Director of the Board (Member in relation to the Board does not include its
Chairman.).
"MEMBER OF THE COUNCIL" means a Governor of the Corporation (Member in
relation to the Council does not include its Chairman.).
"MOTION" means a formal proposition to be discussed and voted on during the
course of a meeting.
"NOMINATED OFFICER" means an officer charged with the responsibility for
discharging specific tasks within SOs and SFIs.
"NON-EXECUTIVE DIRECTORS" means a Member of the Board of Directors who
does not hold an executive office of the Corporation.
"OFFICER" means employee of the Corporation or any other person holding a
paid appointment or office with the Corporation.
"SFIS" means Standing Financial Instructions.
"SOS" means these Standing Orders.
"TRUST" means the Birmingham Children’s Hospital NHS Foundation Trust.
"TRUST SECRETARY" means a person appointed to act independently of the
Board to provide advice on corporate governance issues to the Board and the
Chairman and monitor the Corporations Compliance with the regulatory
framework and monitor the Trust's compliance with the law, SOs, and
observance of NHS Executive guidance.
"VICE - CHAIRMAN" means the Governor appointed from the Public Governors
to take on the Chairman’s duties if the Chairman, Deputy Chairman or any other
Non-Executive is absent or unable to chair the Council of Governors for any
reason.
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2.
THE BOARD OF DIRECTORS
2.1
All business shall be conducted in the name of the Corporation.
2.2
All funds received in trust shall be in the name of the Corporation as corporate trustee.
2.3
The Board has resolved that certain powers and decisions may only be exercised or
made by the Board in formal session. These powers and decisions are set out in
"Reservation of Powers to the Board" Appendix 1 and have effect as if incorporated into
the Standing Orders.
2.4
Composition of the Board of Directors - In accordance with the Constitution the
composition of the Board of Directors of the Trust shall be:
The Chairman of the Trust
6 Non-Executive Directors
6 Executive Directors including:
• the Chief Executive Office
• the Chief Financial Officer
• a medical or dental practitioner (the Chief Medical Officer)
• a registered nurse or midwife (the Chief Nursing Officer)
2.5
Appointment of the Chairman, Executive Directors and Non-Executive Directors –
In accordance with the Constitution (Paragraph 8.8, 9.4, 9.5 and 9.6), the Chairman and
the other Non-Executive Directors are appointed and removed by the Council of
Governor Members at a Council of Governors’ meeting.
The Chief Executive and Executive Directors are appointed in accordance with the
Constitution (Paragraphs 9.5 and 9.6). The Non-Executives appoint and remove the
Chief Executive and a committee consisting of the Chairman, Chief Executive and NonExecutives appoint or remove the Executive Directors.
2.6
Terms of Office of the Chairman and Directors - The regulations governing the
period of tenure of office of the Chairman and Directors and the termination or
suspension of office of the Chairman and Directors are contained in the Constitution
(Paragraph 9.6).
2.7
Appointment of Deputy Chairman - For the purpose of enabling the proceedings of
the Trust to be conducted in the absence of the Chairman, the Chairman will appoint a
Non-Executive Director to be Deputy Chairman for such a period, not exceeding the
remainder of his/her term as Non-Executive Director of the Trust, as they may specify
on appointing him/her.
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2.8
Any Non-Executive Director so elected may at any time resign from the office of
Deputy Chairman by giving notice in writing to the Chairman and the Chairman may
thereupon appoint another Non-Executive Director as Deputy Chairman in accordance
with paragraph 2.7 (above).
2.9
Powers of Deputy Chairman - Where the Chairman of an NHS Foundation Trust has
ceased to hold office or where he has been unable to perform his/her duties as Chairman
owing to illness or absence, references to the Chairman in the Schedule to these
Regulations shall, so long as there is no Chairman able to perform his/her duties, be
taken to include references to the Deputy Chairman.
3.
MEETINGS OF THE BOARD OF DIRECTORS
3.1
Admission to the Public and the Press – The meetings of the Board of Directors
shall not generally be open to members of the public unless the Board of Directors
decides otherwise in relation to all or part of a meeting. In doing so the Board of
Directors shall have the same rights to exclude members of the public from any part
of such a meeting for confidential or other appropriate reasons. The Chairman may
also exclude any member of the public from an open meeting of the Board of
Directors if they are interfering with or preventing the proper conduct of the meeting.
3.2
Nothing in these Standing Orders shall require the Board to allow members of the public
or representatives of the press to record proceedings in any manner whatsoever, other
than in writing, or to make any oral report of proceedings as they take place without the
prior agreement of the Board.
3.3
Calling Meetings - Meetings of the Board of Directors shall be held at such times and
places as the Board may determine and there will be no fewer than six meetings per year.
3.6
Meetings of the Board of Directors are called by the Trust Secretary, or by the
Chairman, or by four Directors who give written notice to the Trust Secretary
specifying the business to be carried out. The Trust Secretary shall send a written
notice to all Directors as soon as possible after receipt of such a request. The Trust
Secretary shall call a meeting on at least fourteen but not more than twenty-eight
days’ notice to discuss the specified business. If the Trust Secretary fails to call such a
meeting then the Chairman or four Directors, whichever is the case, shall call such a
meeting. Six Directors including not less than three Executive Directors (one of whom
must be either the Chief Executive or the Chief Financial Officer), and not less than
two Non-Executive Directors shall form a quorum.
3.5
Before each meeting of the Board, a notice of the meeting specifying the business to
be proposed to be transacted at it shall be delivered to each Member of the Board of
Directors, or sent by post to the usual place of residence of the Member, so as to be
available to him/her at least three clear days before the meeting.
3.6
Lack of service of the notice of the date and place on any Director shall not affect the
validity of a meeting.
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3.7
Failure to serve such a notice specifying the business on more than three Directors will
invalidate the meeting. A notice will be presumed to have been served at the time at
which the notice would be delivered in the ordinary course of the post.
3.8
Notice of Meetings – Save in the case of emergencies or the need to conduct urgent
business, the Trust Secretary shall give to all Directors at least fourteen days written
notice of the date and place of every meeting of the Board of Directors.
3.9
Lack of service of the notice on any director shall not affect the validity of a meeting.
3.10
Setting the Agenda - The Board of Directors may determine that certain matters shall
appear on every agenda for a meeting of the Board and shall be addressed prior to any
other business being conducted. (Such matters may be identified within these SOs or
following subsequent resolution shall be listed in an Appendix to the SOs.)
3.11
A Member of the Board desiring a matter to be included on an agenda shall make his/her
request in writing to the Chairman at least 10 clear days before the meeting, subject to
SO 3.4. Requests made less than 10 days before a meeting may be included on the
agenda at the discretion of the Chairman.
3.12
Chairman of Meeting - At any meeting of the Board of Directors, the Chairman, if
present, shall preside. If the Chairman is absent from the meeting the Deputy Chairman,
if there is one and he/she is present, shall preside. If the Chairman and Deputy Chairman
are absent such Non-Executive Director as the Directors present shall choose shall
preside.
3.13
If the Chairman is absent from a meeting temporarily on the grounds of a declared
conflict of interest the Deputy Chairman, if present, shall preside. If the Chairman and
Deputy Chairman are absent, or are disqualified from participating, such Non-Executive
Director as the Directors present shall choose shall preside.
3.14
Annual Public Meeting - The Corporation will publicise and hold an annual members
meeting in accordance with the Constitution within eight months of the end of the
financial year.
3.15
Notices of Motion - A Member of the Board desiring to move or amend a motion shall
send a written notice thereof at least 10 clear days before the meeting to the Chairman,
who shall insert in the agenda for the meeting all notices so received subject to the notice
being permissible under the appropriate regulations. This paragraph shall not prevent any
motion being moved during the meeting, without notice on any business mentioned on
the agenda.
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3.16
Withdrawal of Motion or Amendments - A motion or amendment once moved and
seconded may be withdrawn by the proposer with the concurrence of the seconder and
the consent of the Chairman.
3.17
Motion to Rescind a Resolution - Notice of motion to amend or rescind any resolution
(or the general substance of any resolution) which has been passed within the preceding
6 calendar months shall bear the signature of the Member of the Board who gives it and
also the signature of 4 other directors. When any such motion has been disposed of by
the Trust, it shall not be competent for any director other than the Chairman to propose a
motion to the same effect within 6 months, however the Chairman may do so if he/she
considers it appropriate.
3.18
Motions - The mover of a motion shall have a right of reply at the close of any
discussion on the motion or any amendment thereto.
3.19
When a motion is under discussion or immediately prior to discussion it shall be open to
a Member of the Board to move:
•
An amendment to the motion.
•
The adjournment of the discussion or the meeting.
•
That the meeting proceed to the next business. (*)
•
The appointment of an ad hoc committee to deal with a specific item of
business.
•
That the motion be now put. (*)
*
In the case of sub-paragraphs denoted by (*) above to
ensure objectivity motions may only be put by a member of the
board who has not previously taken part in the debate.
No amendment to the motion shall be admitted if, in the opinion of the Chairman of the
meeting, the amendment negates the substance of the motion.
3.20
Chairman’s Ruling - Statements of Members of the Board made at meetings of the
Trust shall be relevant to the matter under discussion at the material time and the
decision of the Chairman of the meeting on questions of order, relevancy, regularity and
any other matters shall be final.
3.21
Voting - Subject to the following provisions of this paragraph, questions arising at a
meeting of the Board of Directors shall be decided by a majority of votes but:
a)
in case of an equality of votes the Chairman (or in his absence the Deputy
Chairman or in the Deputy Chairman’s absence a Non-Executive Director who
is appointed by the Directors at the Meeting to chair the Meeting) shall have a
second and casting vote.
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b)
no resolution of the Board of Directors shall be passed if it is unanimously
opposed by all of the Executive Directors present or by all of the NonExecutive Directors present.
3.22
All questions put to the vote shall, at the discretion of the Chairman of the meeting, be
determined by oral expression or by a show of hands. A paper ballot may also be used if
a majority of the directors present so request.
3.23
If at least one-third of the Directors present so request, the voting (other than by paper
ballot) on any question may be recorded to show how each Member of the Board present
voted or abstained.
3.24
If a Member of the Board so requests, his/her vote shall be recorded by name upon any
vote (other than by paper ballot).
3.25
In no circumstances may an absent director vote by proxy. Absence is defined as being
absent at the time of the vote.
3.26
An officer who has been appointed formally by the Board to act up for an Executive
Director during a period of incapacity or temporarily to fill an Executive Director
vacancy, shall be entitled to exercise the voting rights of the Executive Director. An
officer attending the Board to represent an Executive Director during a period of
incapacity or temporary absence without formal acting up status may not exercise the
voting rights of the Executive Director. An officer’s status when attending a meeting
shall be recorded in the minutes.
3.27
Minutes - The Minutes of the proceedings of a meeting shall be drawn up and submitted
for agreement at the next ensuing meeting where they will be signed by the person
presiding at it.
3.28
No discussion shall take place upon the minutes except upon their accuracy or where the
Chairman considers discussion appropriate. Any amendment to the minutes shall be
agreed and recorded at the next meeting.
3.29
Minutes shall be circulated in accordance with Members' wishes.
3.30
Suspension of Standing Orders - Except where this would contravene any statutory
provision or any direction made by Monitor, any one or more of the Standing Orders
may be suspended at any meeting, provided that at least six Members of the Board of
Directors are present, including no less than three Executive Directors (one of whom
must be either the Chief Executive or the Finance Director) and three Non-Executive
Director, and that a majority of those present vote in favour of suspension.
3.31
A decision to suspend Standing Orders shall be recorded in the minutes of the meeting.
3.32
A separate record of matters discussed during the suspension of Standing Orders shall be
made and shall be available to the Chairman and the Members of the Board.
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3.33
No formal business may be transacted while Standing Orders are suspended.
3.34
The Audit Committee shall review every decision to suspend Standing Orders.
3.35
Variation and Amendment of Standing Orders - These Standing Orders shall be
amended only if:
•
a notice of motion under Standing Order 3.12 has been given; and
•
no fewer than half the total of the Corporation’s Non-Executive Directors vote in
favour of amendment; and
•
provided that at least six Members of the Board of Director are present,
including no less than three Executive Directors (one of whom must be either
the Chief Executive or the Finance Director) and three Non-Executive
Directors
•
the variation proposed does not contravene a statutory provision or direction
made by Monitor.
3.36
Record of Attendance - The names of the Chairman and Members of the Board present
at the meeting shall be recorded in the minutes.
3.37
Quorum - No business shall be transacted at a meeting of the Board of Directors unless
at least six Directors including not less than three Executive Directors (one of whom
must be either the Chief Executive or the Finance Director), and not less than two NonExecutives shall form a quorum.
3.38
An officer in attendance for an Executive Director, but without formal acting up status
may not count towards the quorum.
3.39
If the Chairman or Member of the Board has been disqualified from participating in the
discussion on any matter and/or from voting on any resolution by reason of the
declaration of a conflict of interest (see SO 6 or 7) he/she shall no longer count towards
the quorum. If a quorum is then not available for the discussion and/or the passing of a
resolution on any matter, that matter may not be discussed further or voted upon at that
meeting. Such a position shall be recorded in the minutes of the meeting. The meeting
must then proceed to the next business. The above requirement for at least one Executive
Director to form part of the quorum shall not apply where the Executive Directors are
excluded from a meeting (for example when the Board considers the recommendations
of the Appointments and Remuneration Committee).
4.
ARRANGEMENTS FOR THE EXERCISE OF FUNCTIONS BY
DELEGATION
4.1
Subject to the Regulatory Framework and such directions, if any, as may be given by
Monitor, the Board may make arrangements for the exercise, on behalf of the Board, of
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any of its functions by a committee or sub-committee, appointed by virtue of Standing
Order 5.1 or 5.2 below, in each case subject to such restrictions and conditions as the
Board thinks fit.
4.2
Emergency Powers - The powers which the Board has retained to itself within these
Standing Orders (SO 2.3) may in emergency be exercised by the Chief Executive and
the Chairman after having consulted at least two Non-Executive Directors. The exercise
of such powers by the Chief Executive and the Chairman shall be reported to the next
formal meeting of the Board for ratification.
4.3
Delegation to Committees - The Board shall agree from time to time to the delegation
of executive powers to be exercised by committees or sub-committees, which it has
formally constitutes in accordance with directions issued by Monitor. The constitution
and terms of reference of these committees, or sub-committees, and their specific
executive powers shall be approved by the Board.
4.4
Delegation to Officers - Those functions of the Trust which have not been retained as
reserved by the Board or delegated to an executive committee or sub-committee shall be
exercised on behalf of the Board by the Chief Executive. The Chief Executive shall
determine which functions he/she will perform personally and shall nominate officers to
undertake the remaining functions for which he/she will still retain an accountability to
the Board. See Appendix 1.
4.5
The Chief Executive shall prepare a Scheme of Delegation identifying his/her proposals
which shall be considered and approved by the Board, subject to any amendment agreed
during the discussion. The Chief Executive may periodically propose amendment to the
Scheme of Delegation which shall be considered and approved by the Board as indicated
above.
4.6
Nothing in the Scheme of Delegation shall impair the discharge of the direct
accountability to the Board of the Chief Financial Officer to provide information and
advise the Board in accordance with statue or Monitor’s requirements. Outside these
regulatory requirements the Chief Financial Officer shall be accountable to the Chief
Executive for operational matters.
4.7
The arrangements made by the Board as set out in the "Reservation of Powers to the
Board and Delegation of Powers" shall have effect as if incorporated in these Standing
Orders.
4.8
Overriding Standing Orders – If for any reason these Standing Orders are not
complied with, full details of the non-compliance and any justification for noncompliance and the circumstances around the non-compliance, shall be reported to the
next formal meeting of the Board for action or ratification. All Members of the Board
and staff have a duty to disclose any non-compliance with these Standing Orders to
the Trust Secretary as soon as possible.
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5.
COMMITTEES
5.1
Appointment of Committees - Subject to such directions and guidance as may be given
by Monitor, the Board may and, if directed by him/her, shall appoint committees of the
Board, of one or more Members of the Board.
5.2
A committee appointed under this regulation may subject to such directions as may be
given by Monitor or the Board appoint sub-committees consisting wholly or partly of
members of the committee (whether or not they include Directors or wholly of persons
who are not members of the Trust committee (whether or not they include Directors).
5.3
The Standing Orders of the Trust, as far as they are applicable, shall apply with
appropriate alteration to meetings of any committees or sub-committee established by
the Board. In which case the term ‘Chairman’ is to be read as a reference to the
Chairman of the Committee as the context permits, and the term ‘Member of the Board’
is to be read as a reference to a member of the committee also as the context permits.
5.4
Each such committee or sub-committee shall have such terms of reference and powers
and be subject to such conditions (as to reporting back to the Board), as the Board shall
decide and shall be in accordance with the Regulatory Framework and any direction or
guidance issued by Monitor. Such terms of reference shall have effect as if incorporated
into the Standing Orders.
5.5
Committees may not delegate their executive powers to a sub-committee unless
expressly authorised by the Board.
5.6
The Board shall approve the appointments to each of the committees which it has
formally constituted.
5.7
Where the Trust is required to appoint persons to a committee and/or to undertake
statutory functions and where such appointments are to operate independently of the
Board such appointment shall be made in accordance with applicable statute and
regulations and with guidance issued by Monitor.
5.8
The committees and sub-committees established by the Trust are:
Audit
see Appendix 2
Appointment & Remuneration
see Appendix 3
The Board shall also establish such other committees as required to discharge the
Board’s responsibilities.
5.9
Confidentiality - A member of a committee shall not disclose a matter dealt with by, or
brought before, the committee without its permission until the committee shall have
reported to the Board or shall otherwise have concluded on that matter.
5.10
A Director of the Trust or a Member of a committee shall not disclose any matter
reported to the Board or otherwise dealt with by the committee, notwithstanding that the
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matter has been reported or action has been concluded, if the Board or committee shall
resolve that it is confidential.
6.
DECLARATIONS OF INTERESTS AND REGISTER OF INTERESTS
6.1.1
Declaration of Interests - The Regulatory Framework requires board members to
declare interests which are relevant and material to the board of which they are a
Member. All existing board members should declare such interests. Any board
members appointed subsequently should do so on appointment.
6.2
Interests which should be regarded as "relevant and material" are to be interpreted in
accordance with guidance issued by Monitor and in the Constitution paragraph 11:
6.3
6.4
a)
A position of authority in a charity or voluntary organisation in the field of health
and social care.
b)
Directorships, including Non-Executive directorships held in private companies
or PLCs (with the exception of those of dormant companies).
c)
Ownership or part-ownership of private companies, businesses or consultancies
likely or possibly seeking to do business with the NHS (excluding a holding of
shares in accompany whose shares are listed on any public exchange where the
holding is less than 2% of the total share issue).
d)
Majority or controlling share holdings in organisations likely or possibly seeking
to do business with the NHS.
e)
Any connection with a Voluntary Organisation or other organisation contracting
for NHS services.
f)
Any connection with an organisation, entity or company considering entering into
or having entered into a financial arrangement with the Trust including but not
limited to lender or banks
No Board Member shall be treated as having a relevant and material interest in any
contract, proposed contract or other matter by reason only –
a)
of his membership of a company or other body if he has no beneficial interest
in any securities of that company or other body; or
b)
of an interest in any company, body or person with which he is connected
which is so remote or insignificant that it cannot reasonably be regarded as
likely to influence him in the consideration or discussion of, or in voting on,
any question with respect to that contract, proposed contract or other matter.
If Board Directors have any doubt about the relevance of an interest, this should be
discussed with the Chairman.
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6.5
At the time Board Directors' interests are declared, they should be recorded in the board
minutes. Any changes in interests should be declared at the next board meeting
following the change occurring. It is the obligation of the Director to inform the Trust
Secretary in writing within 7 days of becoming aware of the existence of a relevant and
material interest. The Trust Secretary will amend the Register upon receipt within 3
working days.
6.6
If a Director has a relevant and material interest (including a pecuniary interest),
whether direct or indirect, in any contract, proposed contract or other matter which is
under consideration by the Board of Directors, he shall disclose that to the rest of the
Board as soon as he is aware of it and where there is a conflict of interest he shall
withdraw from the meeting and take no further part in it. If there is a dispute as to
whether a conflict of interest does exist the majority will resolve the issue with the
Chairman having the casting vote.
6.7
This paragraph 6 applies to a committee or sub-committee as it applies to the Board of
Directors and applies to a member of any such committee or sub-committee.
6.8
Directorships of companies likely or possibly seeking to do business with the NHS
should be published in the Trust's annual report. The information should be kept up to
date for inclusion in succeeding annual reports.
6.9
Register of Interests - The Trust Secretary will ensure that a Register of Interests is
established to record formally declarations of interests of Board Members. In particular
the Register will include details of all directorships and other relevant and material
interests that have been declared by both Executive and Non-Executive Board directors,
as defined in SO 6.2.
6.11
These details will be kept up to date by means of a monthly review of the Register in
which any changes to interests declared during the preceding month will be
incorporated.
6.12
The Register will be available to the public and the Chairman will take reasonable steps
to bring the existence of the Register to the attention of the local population and to
publicise arrangements for viewing it.
6.13
In establishing, maintaining, updating and publicising the Register, the Corporation shall
comply with all guidance issued from time to time by Monitor.
7.
DISABILITY OF DIRECTORS IN PROCEEDINGS ON ACCOUNT OF
PECUNIARY INTEREST
The entire text of this section is based on the Membership and Procedure regulations.
7.1
Subject to the following provisions of this Standing Order, if the Chairman or another
Member of the Board has any pecuniary interest, direct or indirect, in any contract,
proposed contract or other matter and is present at a meeting of the Trust at which the
contract or other matter is the subject of consideration, he shall at the meeting and as
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soon as practicable after its commencement disclose the fact and shall not take part in the
consideration or discussion of the contract or other matter or vote on any question with
respect to it.
7.2
The Board may exclude the Chairman (or another Member of the Board) from a meeting
of the Board while any contract, proposed contract or other matter in which he/she has a
pecuniary interest, is under consideration.
7.3
Any remuneration, compensation or allowances payable a to the Chairman or a Member
by virtue of paragraph 9 of Schedule 2 to the NHS & Community Care Act 1990 shall
not be treated as a pecuniary interest for the purpose of this Standing Order.
7.4
For the purpose of this Standing Order the Chairman or other Member of the Board shall
be treated, subject to SO 7.5, as having indirectly a pecuniary interest in a contract,
proposed contract or other matter, if he, or a nominee of his, is a director of a company
or other body, not being a public body, with which the contract was made or is proposed
to be made or which has a direct pecuniary interest in the other matter under
consideration;
7.5
The Chairman or a Member of the Board shall not be treated as having a
pecuniary interest in any contract, proposed contract or other matter by reason
only:
7.6
(a)
of his membership of a company or other body, if he/she has no beneficial
interest in any securities of that company or other body;
(b)
of an interest in any company, body or person with which he is connected as
mentioned in SO 7.4 above which is so remote or insignificant that it cannot
reasonably be regarded as likely to influence a director in the consideration or
discussion of or in voting on, any question with respect to that contract or matter.
Where the Chairman or Member of the Board:
(a)
has an indirect pecuniary interest in a contract, proposed contract or other matter
by reason only of a beneficial interest in securities of a company or other body,
and
(b)
the total nominal value of those securities does not exceed £5,000 or onehundredth of the total nominal value of the issued share capital of the company
or body, whichever is the less, and
(c)
if the share capital is of more than one class, the total nominal value of shares of
any one class in which he has a beneficial interest does not exceed 2% of the
total issued share capital of that class,
this Standing Order shall not prohibit him/her from taking part in the consideration or
discussion of the contract or other matter or from voting on any question with respect to
it without prejudice however to his/her duty to disclose his/her interest.
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7.7
Standing Order 7 applies to a committee or sub-committee of the Board as it applies to
the Board and applies to any member of any such committee or sub-committee as it
applies to a Member of the Board.
8.
STANDARDS OF BUSINESS CONDUCT
8.1
Policy - Staff must comply with national guidance ‘Standards of Business Conduct for
NHS Staff’ and any guidance and directions issued by Monitor.
8.2
Interest of Officers in Contracts - If it comes to the knowledge of an officer of the
Corporation that a contract in which he has any pecuniary interest not being a contract to
which he is himself a party, has been, or is proposed to be, entered into by the Trust
he/she shall, at once, give notice in writing to the Trust Secretary of the fact that he/she
is interested therein.
8.3
An officer must also declare to the Trust Secretary any other employment or business or
other relationship of his that conflicts, or might reasonably be predicted could conflict
with the interests of the Corporation.
The Corporation may require interests, employment or relationships so declared by staff
to be entered in a register of interests of staff.
8.4
Canvassing of, and Recommendations by, Directors in Relation to Appointments Canvassing of Directors or Governors of the Corporation or of any members of any
Committee of the Corporation directly or indirectly for any appointment under the
Corporation shall disqualify the candidate for such appointment. The contents of this
paragraph of the Standing Order shall be included in application forms or otherwise
brought to the attention of candidates.
8.5
A Member of the Board shall not solicit for any person any appointment under the
Corporation or recommend any person for such appointment: but this paragraph of this
Standing Order shall not preclude a Member of the Board from giving written
testimonial of a candidate's ability, experience or character for submission to the
Corporation.
8.6
Informal discussions outside appointments panels or committees, whether solicited or
unsolicited, should be declared to the panel or committee.
8.7
Relatives of Members of the Board or Officers - Candidates for any staff appointment
under the Corporation shall when making application disclose in writing whether they
are related to any Member of the Board or the holder of any office under the
Corporation. Failure to disclose such a relationship shall disqualify a candidate and, if
appointed, render him/her liable to instant dismissal.
8.8
The Chairman and every Member of the Board and every officer of the Corporation shall
disclose to the Chief Executive any relationship with a candidate of whose candidature
108
that Member of the Board or officer is aware. It shall be the duty of the Chief Executive
to report to the Corporation any such disclosure made.
8.9
On appointment, Members of the Board (and prior to acceptance of an appointment in
the case of Executive Directors) should disclose to the Corporation whether they are
related to any other Member of the Board or holder of any office under the Corporation.
8.10
Where the relationship to a Member of the Board of the Corporation is disclosed, the
Standing Order headed ‘Disability of directors in proceedings on account of pecuniary
interest' (SO 7) shall apply.
9.
TENDERING AND CONTRACT PROCEDURE
9.1
Duty to comply with Standing Orders - The procedure for making all contracts by
or on behalf of the Corporation shall comply with these Standing Orders (except
where Standing Order 3.28 is applied).
9.2
Contracts - The Board may enter into contracts on behalf of the Corporation within
the Regulatory Framework and shall comply with:
(a)
these Standing Orders; and
(b)
the Corporation's Standing Financial Instructions.
9.3
Personnel and Agency or Temporary Staff Contracts - The Chief Executive shall
nominate officers with delegated authority to enter into contracts of employment,
regarding staff, agency staff or temporary staff service contracts.
9.4
Contracts involving Funds Held on Trust – Such contracts involving charitable
funds shall comply with the requirements of the Charities Act.
10.
CUSTODY OF SEAL AND SEALING OF DOCUMENTS
10.1
Custody of Seal - The Common Seal of the Corporation shall be kept by the Trust
Secretary in a secure place.
10.2
Sealing of Documents - The Seal of the Corporation shall not be fixed to any
documents unless the sealing has been authorised by a resolution of the Board which
expression includes by virtue of the resolution, of the Board adopting these Standing
Orders documents, approved for sealing by the Chairman and either the Chief Executive
or another Executive Director.
10.3
Register of Sealing - An entry of every sealing shall be made and numbered
consecutively in a book provided for that purpose, and shall be signed by the persons
who shall have approved and authorised the document and those who attested the seal. A
109
report of all sealing shall be made to the Corporation at least quarterly. (The report shall
detail the seal number, the description of the document and date of sealing).
The seal should be used to execute deeds (e.g. conveyances of land) or where otherwise
required by law.
11.
SIGNATURE OF DOCUMENTS
11.1
Where the signature of any document will be a necessary step in legal proceedings
involving the Corporation, it shall be signed by the Chief Executive, unless any
enactment otherwise requires or authorises, or the Board shall have given the necessary
authority to some other person for the purpose of such proceedings.
11.2
The Chief Executive or other Executive Directors shall be authorised, by resolution of
the Board, to sign on behalf of the Corporation any agreement or other document (not
required to be executed as a deed) the subject matter of which has been approved by the
Board or committee or sub-committee to which the Board has delegated appropriate
authority.
12.
MISCELLANEOUS
12.1
Standing Orders to be given to Members of the Board and Officers - It is the duty
of the Chief Executive to ensure that existing Members of the Board and officers and all
new appointees are notified of and understand their responsibilities within Standing
Orders and SFIs. Updated copies shall be issued to staff designated by the Chief
Executive. New designated officers shall be informed in writing and shall receive copies
where appropriate of SOs.
12.2
Documents having the standing of Standing Orders - Standing Financial Instructions
and Reservation of Powers to the Board and Delegation of Powers shall have the effect
as if incorporated into SOs.
12.3
Review of Standing Orders - Standing Orders shall be reviewed annually by the
Corporation. The requirement for review extends to all documents having the effect as if
incorporated in SOs.
12.4
Dispute Resolution – Questions and disputes regarding the interpretation of these
Standing Orders and the procedure to be followed at meetings of the Board of Directors
shall be resolved in accordance with the procedure set out in the Constitution (paragraph
20).
110
Appendix 1
SCHEME OF DECISIONS RESERVED TO THE BOARD
REF
THE BOARD
TOA
THE BOARD
SOs
Constitution
SOs
DECISIONS RESERVED TO THE BOARD
General Enabling Provision
The Board may determine any matter it wishes in full session within its statutory powers.
THE BOARD
Regulations and Control
1. Approve Standing Orders (SOs), a Schedule of Matters Reserved to the Board and Standing
Financial Instructions for the regulation of its proceedings and business.
2. Suspend Standing Orders.
3. Vary or amend the Standing Orders.
4. Ratify any urgent decisions taken by the Chairman and Chief Executive in accordance with
SO 4.2.
5. Approve a Scheme of Delegation of Powers from the Board to Committees.
6. Require and receive the declaration of Board members’ interests that may conflict with those
of the Corporation and determining the extent to which that Member of the Board may
remain involved with the matter under consideration.
7. Require and receive the declaration of officers’ interests that may conflict with those of the
Corporation.
8. Approve arrangements for dealing with complaints.
9. Receive reports from committees including those that the Corporation is required by Monitor
or other regulation to establish and to take appropriate action on.
10. Confirm the recommendations of the Board’s committees where the committees do not have
executive powers.
11. Approve arrangements relating to the discharge of the Corporation’s responsibilities as a
corporate trustee for funds held on trust.
12. Establish terms of reference and reporting arrangements of all committees and sub-
111
REF
THE BOARD
DECISIONS RESERVED TO THE BOARD
committees that are established by the Board.
13. Authorise procedures for the use of the seal.
14. Ratify or otherwise instances of failure to comply with Standing Orders brought to the Trust.
15. Secretary’s attention in accordance with SO 4.8.
16. Discipline Members of the Board or employees who are in breach of statutory requirements
or SOs.
Constitution
THE BOARD
SOs
Constitution
1. Appoint the Deputy Chairman of the Board.
2. Appoint and dismiss committees (and individual Members of the Board) that are directly
accountable to the Board.
3. Confirm appointment of Members of the Board of any committee of the Corporation as
representatives on outside bodies.
THE BOARD
SOs
SOs
Appointments/ Dismissal
Strategy, Business Plans and Budgets
1.
2.
3.
4.
5.
THE BOARD
Define the strategic aims and objectives of the Corporation.
Approve the Corporation’s policies and procedures for the management of risk.
Approve budgets (Capital and Revenue).
Approve annually the Corporation’s proposed organisational ‘Performance Plan’
Ratify proposals for acquisition, disposal or change of use of land and/or buildings
Audit
1. Approve the appointment (and where necessary dismissal) of internal auditors, and to
receive reports of the Audit Committee meetings and take appropriate action.
2. Receive the annual management letter from the external auditor and agreement of proposed
action, taking account of the advice, where appropriate, of the Audit Committee.
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REF
THE BOARD
Constitution
THE BOARD
SOs
DECISIONS RESERVED TO THE BOARD
Annual Reports and Accounts
1. Receipt and approval of the Corporation's Annual Report and Annual Accounts.
2. Receipt and approval of the Annual Report and Accounts for funds held on trust.
SOs
THE BOARD
Monitoring
1. Receive such reports as the Board sees fit from committees in respect of their exercise of
powers delegated.
2. Continuous appraisal of the affairs of the Corporation by means of the provision to the
Board as the Board may require from Directors, Committees, and officers of the Corporation
as set out in management policy statements. All monitoring returns required by Monitor and
the Charity Commission shall be reported, at least in summary, to the Board.
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DECISIONS/DUTIES DELEGATED BY THE BOARD TO COMMITTEES
REF
COMMITTEE
SFIs
AUDIT COMMITTEE
The Audit Committee will:
(NON-EXECUTIVE
DIRECTORS ONLY)
1. Advise the Board on internal audit services;
2. Review establishment and maintenance of effective systems of internal control and risk
management;
3. Monitor compliance with Standing Orders and Standing Financial Instructions;
4. Review the annual financial statements prior to submission to the Board of Directors and
Council of Governors.
Constitution
APPOINTMENTS AND
REMUNERATION
COMMITTEE
DECISIONS/DUTIES DELEGATED BY THE BOARD TO COMMITTEES
The Remuneration Committee will:
1. Appoint (subject to approval of the Council of Governors), appraise, discipline, and remove the
Chief Executive.
2. Appoint and dismiss Executive Directors
3. Decide the appropriate remuneration and terms of service for the Chief Executive, Executive
Directors and other Directors (excluding Non Executive Directors) including:
 all aspects of salary (including any performance-related elements/bonuses);
 provisions for other benefits, including pensions and cars;
 arrangements for termination of employment and other contractual terms;
 proper calculation and scrutiny of termination payments to executive directors;
4. Report in writing to the Board the basis for its decisions.
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SCHEME OF DELEGATION FROM STANDING ORDERS & CONSTITUTION
SO REF
DELEGATED TO
AUTHORITIES/DUTIES DELEGATED
1.1
CHAIRMAN
2.7
BOARD
3.3
CHAIRMAN
Call meetings.
3.12
CHAIRMAN
Chair all Board meetings and associated responsibilities.
3.20
CHAIRMAN
Give final ruling in questions of order, relevancy and regularity of meetings.
3.21
CHAIRMAN
Having a second or casting vote
3.31
BOARD
Suspension of Standing Orders
3.36
BOARD
Variation or amendment of Standing Orders
4.2
CHAIRMAN &
CHIEF EXECUTIVE
The powers which the Board has retained to itself within these Standing Orders (Standing Order
2.3) may in emergency be exercised by the Chair and Chief Executive after having consulted at
least two Non-Executive members
4.3
BOARD
Formal delegation of powers to committees and sub committees and approval of their constitution
and terms of reference.
4.4
CE
4.8
ALL
The Chief Executive shall prepare a Scheme of Delegation identifying his/her proposals that shall
be considered and approved by the Board, subject to any amendment agreed during the discussion.
Disclosure of non-compliance with Standing Orders to the Trust Secretary as soon as possible.
6.1
THE BOARD
6.10
TRUST SECRETARY
Final authority in interpretation of Standing Orders (SOs).
Appointment of Deputy Chairman
Declare relevant and material interests
Maintain Register(s) of Interests for the Board.
115
SO REF
DELEGATED TO
AUTHORITIES/DUTIES DELEGATED
8.1
ALL STAFF
8.8
ALL
Disclose relationship between self and candidate for staff appointment. (CE to report the disclosure
to the Board.)
9.3
CE
Nominate officers to enter into contracts of employment, re-grading staff, agency staff or
consultancy service contracts.
10.2
BOARD OR
CHAIRMAN (WITH
AN ED)
Authorise use of the Seal
10.1/10.3
TRUST SECRETARY
Keep seal in safe place and maintain a register of sealing.
10.3
BOARD
11.1
CE OR (WITH
BOARD
AUTHORITY) OTHER
ED
11.2
CE OR OTHER ED
Sign where authorised by resolution of the Board or a committee or sub-committee with delegated
authority, on behalf of the Corporation any agreement or document not requested to be executed as
a deed.
12.1
CE
Existing Board members, officers and employees and all new appointees are notified of and
understand their responsibilities within Standing Orders and SFIs.
CONSTITUTION
CE
Prepare annual accounts in accordance with directions made by Monitor with the approval of the
Treasury. Lay a copy of the annual accounts, and any report of the auditor on them, before
Parliament; and
once this has been done, send copies of those documents to Monitor.
CONSTITUTION
TRUST SECRETARY
Comply with directions issued by Monitor.
See the Register of Sealing (quarterly).
Approve and sign all documents which will be necessary in legal proceedings
Maintain the Register of Members
116
ANNEX 8 – FURTHER PROVISIONS
Disqualification for Membership
A8.1
Schedule 7
Paragraph
1(2)
An individual may not be a Member or shall cease to be a Member as
appropriate if:
(a)
the individual is under ten years of age; or
(b)
the individual has been specifically excluded in writing from any of
the Trust’s premises or other facilities in whole or in part following
a decision of the Board of Directors that such a course of action is
necessary because, for example, the individual concerned has been
violent, aggressive or has committed an act of gross misconduct; or
has been identified as a vexatious complainant.
(c)
the Board of Directors considers that an individual has or is likely to
cause harm or detriment to the Trust and after the Trust has
consulted with or made reasonable efforts to consult with the
individual about the concerns of the Board and the Board notifies
the individual about his disqualification accordingly.
A8.2
Notwithstanding anything contained in this Constitution, no person who
ceases to be a Member pursuant to paragraph A6.1 (b) or (c) shall be readmitted to Membership except by a decision of the Board of Directors.
A8.3
It is the responsibility of Members to ensure their eligibility and not the
Trust, but if the Trust is on notice that a Member may be disqualified
from Membership, they shall carry out all reasonable enquiries to
establish if this is the case.
Termination of Membership
A8.4
A Member shall cease to be a Member if that Member:
(a)
resigns by notice to the Secretary or the Chief Executive; or
(b)
ceases to be entitled under this constitution to be a Member of any
constituencies as defined in section 7; or
(c)
dies; or
(d)
the Council of Governors, having made reasonable enquiries
determines that the Member no longer wishes to be a Member; or.
(e)
is disqualified in accordance with A6.1 or any other provision of
this constitution.
117