Key Covid-19 legal developments in the health sector: Streamlined governance to respond to an emergency

Published 24 March 2020

As the NHS moves into the next phase of Covid-19 recovery, governance arrangements and system working will be an essential tool for that recovery. Whilst individual organisations will seek to return to business as usual arrangements, system level working will be moved up a gear to enable comprehensive ICS coverage by April 2021, building on the relationships that have been essential for managing the pandemic to date.

Modifications to internal governance procedures

NHS organisations continue to remain fully accountable for their decisions as the Covid-19 pandemic continues, however, organisations should now be seeking to take decisions as closely as possible to the “business as usual” position where reasonable practicable, however, it is recognised that modified procedures will be necessary in some instances.

Organisations who developed a modified governance procedure to allow their organisation to adapt to guidance from regulators quickly should be further updating those plans in accordance with the latest guidance published. Modified procedures should be used only for as long as is necessary and should not seek to bypass oversight and scrutiny mechanisms.

Engagement with non-executive directors, Council of Governors (where applicable) and stakeholders, as well as consultations should be carried out wherever possible. Where usual engagement cannot be carried out due to urgency, briefings should be periodically prepared so that the appropriate level of scrutiny can take place. This will be particularly important where, for example, executive directors have been given increased delegated powers for urgent decision-making. Such delegated powers should be reviewed regularly, with business as usual returning wherever possible.

To enable effective decision-making under the current circumstances, organisations should continue to use technology where possible i.e. holding meetings via virtual conferencing facilities or by phone. Briefings should be circulated by e-mail and key contacts should be put into place, wherever possible, to enable effective communication between decision-makers and stakeholders (e.g. boards of directors and governors). Non-urgent business should be held over and organisations should not seek to enter into material or significant transactions until appropriate oversight can be provided. Where matters have been held over, this should, again, be regularly reviewed to prevent a back-log of decisions wherever possible.

There is a significant risk that organisations will face subsequent claims or other legal challenges, which relate to the time in which the pandemic is happening. Therefore, all decisions made as a matter of urgency due to COVID-19 must be appropriately documented to ensure that a sufficient audit trail is created (and can be produced to a court or regulator, if required, at a later date).

Accelerated system working

NHS England announced the third phase of the NHS response to Covid-19 effective 1 August on 31 July: NHS response to COVID19: Phase 3, which is an update to the guidance issued in April that outlined measures for the second phase. The third phase includes (i) updates on the latest Covid national alert level; (ii) priorities for the rest of 2020/21; and (iii) outline financial arrangements heading into autumn as agreed with Government. As part of this there is a continued focus on collaboration “between clinical teams, providers and CCGs operating as part of local systems (i.e. STPs and ICSs), local authorities and the voluntary sector, underpinned by a renewed focus on patient communication and partnership.” In fact, Phase 3 expects all local systems to accelerate joint working through a development plan that is to be agreed with their regional NHSE/I leads, further emphasising the move toward comprehensive ICS coverage by the beginning of the next financial year. The proposed development plan will accelerate the creation of a robust system governance and will require:

• collaborative leadership arrangements with effective decision-making as well as clearly defined arrangements for provider collaboration, place leadership and ICPs;
• creation of partnership boards to allow the local system to serve their community, which will need to involve detailed governance arrangements that allow for effective and efficient decision making in the best interests of the population served;
• streamlined commissioning – organisations should note that the applications to merge CCGs should be submitted by 30 September 2020 to enable comprehensive ICS coverage by 1 April 2021;
• plans for developing and implementing full shared care records, which must be consistent with the data protection regime and allow the aggregation of data for population health.

It is vital that the governance arrangements, which underpin system working, are detailed and clear. Key issues include:

• what the objectives are for the various collaborative arrangements within the system, and how this fits with the obligations of the constituent organisations;
• whether the relevant committee-in-common or working group is making recommendations to constituent organisations or seeking to take decisions (and if so, on what basis);
• how decisions will be taken, including details of any delegated authority provided to particular individuals that are part of collaborative leadership arrangements where relevant; and
• how any joint appointments / intra ICS collaborations will work.

All of the above should be wrapped up in a memorandum of understanding, which should also include detailed terms of reference for the various committee-in-common or working groups.

The MoU will set out the overarching arrangements for the system, alongside the rules for each committee/forum, with clear lines of reporting and oversight to the constituent organisations. Failing to properly codify the governance arrangements at the outset can result in inefficient decision making, duplication or worse still disagreements between the parties arising due to non-alignment within the system.