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Foundation Trusts

5 July 2005 - 9:10am

CSP and RCM release joint guidance on NHS Foundation Trusts

The CSP and the Royal College of Midwives (RCM) have released joint guidance on Foundation Trusts. News Update: 3rd December 2003 GENERAL GUIDANCE TO STEWARDS ON NHS FOUNDATION TRUSTS This is a short briefing for CSP stewards who are interested in finding out more about NHS foundation trusts. The government recently won a vote in the House of Commons on Foundation Trusts allowing legislation enabling the creation of NHS foundation trusts to be passed by Parliament. This briefing contains the following:

  • The CSP's current position on NHS foundation trusts;
  • The progress of the legislation governing NHS foundation trusts;
  • Agenda for Change and NHS foundation trusts;
  • Some advice to stewards on NHS foundation trusts;
  • Further reading/information from the Department of Health (DoH) and other relevant web sites.

  CSP POSITION ON NHS FOUNDATION TRUSTS The CSP is extremely cautious about the merit of NHS foundation trusts, and would prefer to have clear resolution to the problems that may arise from their establishment. The CSP considers it is possible that NHS foundation trusts may contribute to the worsening of existing inequalities in healthcare provision within and between geographical areas. Improved access for foundation trusts to capital funds and other resources including scarce staff and no direct requirement for NHS foundation trusts to contribute to and integrate with local health care plans may work against cohesive planning and service improvement across the health care economy and foster unhelpful competition between health care providers. We await further guidance from the Department of Health on the role of the Independent Regulator to monitor NHS foundation trust behaviour in the local health economy and also information on the requirements placed on them to work with Strategic Health Authorities and Workforce Development Confederations. The role, powers and appointment of the Independent Regulator set up to grant the foundation license and to monitor the performance of the NHS foundation trust is also an area which the CSP would like to see further investigation and review. The CSP supports the TUC proposals that the Regulator reports to a panel comprised of representatives from the local health economy. One of Society's main concerns is the freedoms given to NHS foundation trusts with regard to setting pay and conditions of employment. Whilst the CSP welcomes assurances from the Department of Health and the Secretary of State for Health that all staff will be transferred onto Agenda for Change contracts on the day the trust is granted foundation status. We are seeking further assurances that all staff employed after this date will have the right to be employed on national contracts and that NHS foundation trusts will be required to work within national systems and structures for determining pay, conditions and terms of employment. Due to these and other concerns, which have not yet been satisfactorily addressed by the government or the Department of Health, the CSP voted against the creation of NHS foundation trusts at the recent TUC 2003 Congress. This does not mean that the CSP does not want members to engage in the consultation process within each trust. It is the firm belief of the CSP that members need to be involved and that CSP trade union and professional representation must be established firmly in each NHS foundation trust. CURRENT STATUS OF THE LEGISLATION: THE HEALTH AND SOCIAL CARE BILL The legislation that enables the creation of NHS foundation trusts has currently been voted down in the House of Lords and will need to pass through the House of Commons and back to the Lords for final acceptance before it receives final assent from Parliament. While there is considerable opposition to the particular elements of the Bill which legislates for NHS foundation trusts, the government has made clear its full support and promotion of NHS foundation trusts and is lobbying hard to ensure the is passed by parliament. AGENDA FOR CHANGE: NATIONAL PAY AND CONDITIONS. One of the primary objectives of the CSP is that NHS foundation trusts abide by Agenda for Change and by national pay settlements governed by the new NHS Council and the Pay Review Body. The CSP and other health unions have gained the right for all NHS foundation trust employees to be transferred onto Agenda for Change contracts as part of the requirements of the license for foundation status. This has been supplemented by written assurances from the Department of Health that all NHS foundation trusts must abide by the national time table for roll out of Agenda for Change and that all staff will be entitled to remain in the NHS pension scheme. However, the government refuses to put the requirement in the Health and Social Care Bill for NHS foundation trusts to employ all staff on national contracts and to have pay rises determined by the Pay Review Bodies or national negotiation. It is therefore important that local staff sides gain agreement from the trust to follow national pay determination and conditions of service for all employees. Implementation of Agenda for Change. In line with other NHS employers, NHS foundation trusts will not be required to implement Agenda for Change until the date for national roll out, currently set for October 2004, and they will be instructed by the Department of Health to follow the national time table for roll out. In addition, NHS foundation trusts are required to follow national guidelines for implementation, including taking on board the lessons learnt from the Early Implementer sites. Department of Health and NHS Joint Unions will jointly agree the training and support required by trusts and their staff to undertake key jobs such as sitting on matching panels or undertaking job analysis. Therefore at the present time no NHS foundation trust should be setting matching panels or appointing job evaluation analysts. Preparation for implementation of Agenda for Change should consist of consideration of the resources required and the development of an outline strategy and practical steps that can be taken. This should be decided on in partnership, consultation and agreement with staff sides. ADVICE FOR STEWARDS NHS foundation trust applicants have to meet certain requirements in their constitution and representation structures. These are limited and applicants are expected to produce governance arrangements which reflect the trust's local circumstances. Consequently a variety of governance proposals, including those for employee representation and governors, are emerging. There is no one model of governance or employee representation that the CSP currently supports, and it is for local staff sides to decide whether to support the proposals from trust management or to put forward alternative proposals. However, there are key principles which the CSP considers important for staff side to bear in mind when considering the proposals regarding employee governors and the relationship between the Board of Governors and staff sides:

  • There needs to be a clearly defined remit in the Board of Governors' constitution which defines the role of the employee representatives and their relationship with staff side. The role of the employee governor and that of staff side must be clearly established;
  • Clear lines of communication between employee governors and staff sides must be established and maintained;
  • Employee governors should not be given a remit which would enable the trust to avoid consultation with staff sides on all issues which affect the employment of staff in the trust;
  • While appreciating that employee governors and trade union representatives have different roles, where supported by the staff side the CSP would prefer the employee governors to be trade union representatives;
  • The CSP does not support models of governance which propose only medical and nursing employee representatives. While the CSP can see benefits in represenatation based on broad professional groups it is essential that where models based on professional groups are are proposed there must be an AHP representative and a representative(s) for non-clinical staff;
  • The CSP considers that there needs to be more than the minimum of one employee representative, but the exact number is a matter for local staff sides and the trust. From current consultation documents the CSP has seen so far, numbers of employee governors range from a minimum of 4 to a maximum of 6 employee governors on the Board.

Staff Constituency The CSP considers that there needs to be a clear and strong relationship between employee governors and NHS foundation trust employees and other constituency members. The guidance states that NHS foundation trusts must support all governors in developing and sustaining an infrastructure to enable them to fulfil their representative role. While clearly employee governors are required to represent all staff members within their constituency and not to represent the views of a particular trade union the CSP strongly supports trade union representatives holding some or all of the employee governor positions. The Department of Health guidance acknowledges that union representatives as employee governors possess the skills and experience which will be an asset to the Board of Governors. Staff Sides should pay particular attention to the remit of the governors on the Board, their nomination and election process and how their relationship with staff sides will be defined. Where staff sides feel they want to have more influence on the Board of Governors it can be proposed that the Staff Side or Staff Side representatives act as advisors to the Board. Human Resource Strategy It is a requirement of the license that NHS foundation trusts demonstrate that they provide robust and pro-active support to staff in their learning and development needs and that they have a comprehensive human resources strategy. The human resources strategy should contain a commitment to work with the staff side and recognised NHS trade unions on all aspects of the strategy. It should also contain clear and comprehensive information on how the trust will support all staff in their learning and development needs and contain a commitment to equity of access to support for CPD. Other key elements of the human resource strategy should be:

  • Recruitment and Retention Initiatives and Objectives
  • Workforce Development
  • Working Time Directive
  • Learning and Development Strategy
  • Pay and Conditions Strategy
  • Implementation of Agenda for Change and the KSF
  • Work/Life Balance Strategy including Improving Working Lives accreditation or IWL Plus.
  • Diversity Strategy

Professional Representation On all aspects of professional representation within the new NHS foundation trust governance structures and on the broader elements of the consultation regarding, for example, the proposed PCT representatives and the trusts constituency, CSP stewards should work with their managers to achieve outcomes which support the development of physiotherapy services. Given current demands on CSP Senior Negotiating Officers, they are unable to assist stewards or members in these elements of the consultation process. The following objectives are part of the current CSP strategy:

  • The CSP is promoting the establishment of a senior AHP representative as executive director on the Board of Directors.
  • The CSP is promoting the establishment of a senior AHP representative as executive director on the Board of Directors.
    • Where this is supported by staff locally it would support an AHP or physiotherapy advisory group be set up to act as advisors to the Board of Governors on key issues impacting on AHP services.
    • Where the trust has a relationship with universities/university providing AHP education (undergraduate and post-graduate levels) the CSP wants there to be an AHP representative on the Board of Governors from the University in addition to the university governor representing medical education and deaneries.

    Regulated Services As part of the license application all NHS foundation trusts must list the services it will be bound to provide in order to continue to be licensed as foundation trusts. These are known as regulated services and will be listed as part of the consultation process. CSP stewards should request to see the list of regulated services and should check with managers that all services that require physiotherapy and which employ physiotherapy staff are included in the list. There is no obligation for a trust to provide services which are not 'regulated' once it has received foundation status. USEFUL WEB ADDRESSES If you would like to find out more about the consultation process and NHS foundation trusts the following web addresses will be useful: Department of Health (foundation trusts homepage):  Department of Health (Involving Patients): Democratic Health Network (DHN): The DHN was set up by the Local Government Information Unit (LGIU) to provide policy advice, information, research and the exchange of good practice on the developing health and social care agenda. Catalyst: A campaigning think tank for the labour movement. It has produced a briefing on NHS foundation trusts. House of Commons Health Select Committee:   The Socialist Health Association:  


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