The NHS Trusts (Membership and Procedure) Amendment Regulations 2014 came into force on 14 April 2014. These Regulations make small but significant changes to the NHS Trusts (Membership and Procedure) Regulations 1990 relating to the grounds for disqualification from appointment as a chairman or non-executive director of an NHS trust.

Historically, the 1990 Regulations disqualified anyone who was a chairman, member or director of a health service body from appointment as the chairman or non-executive director of an NHS trust.  The 2014 Regulations remove that ground of ineligibility and replace it with confirmation that a person can become:

  • a chair or non-executive director of an NHS trust where that person is already a chair or non-executive director of another NHS trust or NHS foundation trust;
  • a non-executive director of an NHS trust where that person is already an executive director or an employee of an NHS trust or a director or employee of an NHS foundation trust; and
  • a non-executive director of an NHS trust where that person is performing or providing primary medical, dental or ophthalmic services under the NHS Act 2006 or is a partner, shareholder, director or employee of an organisation that does so.

The NHS Confederation has commented that these restrictions were seen by the NHS Trust Development Authority and the Department of Heath as barriers to making appointments to the Boards of NHS Trusts. The NHS Confederation commented ‘… there are no similar barriers to appointments in either the foundation trust or independent sectors, leaving the NHS trust sector at a disadvantage in being able to appoint suitably qualified and experienced board members’.

This change is of most importance to NHS trusts – and, of course, those who wish to be appointed on their boards.

As confirmed by the NHS Confederation, NHS foundation trusts have only limited restrictions on who can be appointed as directors of their boards within the NHS Act 2006, Schedule 7. However, many NHS foundation trusts decide to voluntarily insert additional grounds for ineligibility to become a director of their organisation within their constitution.  It is common for such grounds to cover matters such as previous dismissal from an NHS body for a reason other than redundancy.  Moreover, foundation trust constitutions often stipulate that a chairman, member, director of a health service body cannot be a director of their trust. 

It may be that many foundation trusts chose to insert such a ground for ineligibility because they were following the precedent set by NHS trusts. Foundation trusts could decide (and always could decide) to remove those non-statutory, additional grounds of ineligibility if they wish by following the appropriate process for amendment of their constitution.  

However, before doing so, foundation trusts should consider the rationale behind such a provision appearing in the 1990 Regulations in the first instance. Whilst removing the ground for ineligibility does open up the pool of candidates for board positions, it may also give rise to conflict of interest issues and issues as to an individual’s capacity to take up more than one chairman/directorship role at an NHS organisation – at time when the needs of the NHS are more demanding than ever.

The NHS Trust Development Authority has developed a protocol to set out how it will monitor, manage and where necessary prevent any conflict of interests from arising for NHS trust boards once the amendment begins to be implemented.  Only time will tell whether that works and whether the amendment helps improve the calibre of candidates to NHS trust boards.