Health Bill: reforming the foundation trust model - equality impact assessment

Introduction

The general equality duty that is set out in the Equality Act 2010 requires public authorities, in the exercise of their functions, to have due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the act (equality aim 1)
• advance equality of opportunity between people who share a relevant protected characteristic and those who do not (equality aim 2)
• foster good relations between people who share a protected characteristic and those who do not (equality aim 3)

The general equality duty does not specify how public authorities should analyse the effect of their existing and new policies and practices on equality but doing so is an important part of complying with the general equality duty.

In addition, the Secretary of State for Health and Social Care has a duty under the NHS Act 2006 to have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service.

This document therefore considers the impact of the Health Bill (‘the bill’) on people who share each of the 9 protected characteristics, as well as additional factors that have been strongly linked to inequalities related to the health service.

Summary of policy and intended aims

This assessment considers areas of the bill regarding NHS provider policy (specifically, for NHS trusts, NHS foundation trusts (FTs) and independent providers of NHS services). It covers proposed legislation to reflect policy changes to the provider model to deliver the ambitions set out in the 10 Year Health Plan for England.

The 10 Year Health Plan set out plans for a new operating model to deliver a devolved and diverse NHS, including ‘reinvigorating and reinventing’ the FT model. These plans aim to restore the greater freedoms and earned autonomy of FTs.

The changes proposed in legislation as part of the bill are the:

• removal of the requirement for each FT to have a council of governors (CoGs) and members
• introduction of powers to convert FTs to become NHS trusts in cases of serious failure

The aim of the first policy is to replace the FT governance model with a more dynamic approach to staff, patient and community engagement.

The aim of the second policy is to provide the Secretary of State with a regulatory option where converting an FT into an NHS trust is deemed to be required based on the factors the Secretary of State must consider, so that the Secretary of State can use powers of direction over failing trusts. There is a duty to consult on and publish guidance on what should be considered when proposing to make a conversion order, and an obligation to consult specified parties before making the order, so at this stage our assessment is limited to the policy intent. This policy is known as de-authorisation of FTs and may be referred to both as conversion order and de-authorisation.

Most relevant for this equality impact assessment is the proposed change to the FT governance model to remove the requirement for FTs to have CoGs and members. The legal status of the CoGs and members will be removed and the current functions of the CoGs, which are set out in primary legislation, will either be conferred on the Secretary of State (or alternate organisations) or repealed. As part of the 10 Year Health Plan changes, FTs will be expected to put in place their own arrangements for considering and taking account of local patient, staff and stakeholder interests.

Effect on staff

FTs are currently required to have staff members (forming the staff constituency) and at least 3 governors elected by the staff constituency. The bill proposes to remove the requirement for FTs to have CoGs and members, but FTs will be expected to have more dynamic staff engagement processes in place. The impact on staff may vary depending on how FTs implement their engagement process, but the expectation is that FTs will embed staff insights more directly in decision-making. The intention of moving away from a governor model to a more dynamic model is that it provides FTs with greater opportunities to ensure both staff and the wider public can be more effectively represented.

CoGs currently make the appointments of FT chairs and non-executive directors. The bill proposes to confer this power instead on the Secretary of State. Although the identity of who is making appointments will change, this should not have any differential equality impacts on people with protected characteristics, as the Secretary of State is bound by the public sector equality duty in the exercise of this appointments power. This will also align the position for FTs with the position for NHS trusts where all chairs and non-executive directors are appointed by NHS England currently, and, in future, will be appointed by the Secretary of State (subject to Parliamentary approval).

We do not expect impacts on FT staff more generally from introducing the conversion power, as it is intended, from a policy perspective, to be used only in serious cases of failure. If the power were to be used and an FT converted into an NHS trust, staff could be affected by the conversion. However, this is hard to anticipate at this stage of policy development, because the matters the Secretary of State will consider in deciding whether to make a conversion order will be set out in future guidance, which will be consulted upon before publication. At this point, we will consider equalities more comprehensively and address any impacts on staff.

Staff may also be affected following conversion by any subsequent directions issued by the Secretary of State. It is not possible to anticipate these effects at this stage, and they will need to be considered as part of the decision-making on issuing directions.

Effect on patients, service users, carers and family

FTs are currently required to have, as members, individuals who live in areas specified in the FT’s constitution (the public constituency) and may have a patients’ constituency. A patient constituency is a group of members within an FT, typically consisting of patients who have used the trust’s services and the patients’ carers. FTs must have governors elected by the public constituency and, if there is one, the patients’ constituency. The bill proposes to remove the requirement for FTs to have CoGs and members, but FTs will be expected to have more dynamic patient and public engagement processes in place.

There may be an impact on patients, service users, carers and family as FTs introduce these different engagement processes. However, FTs will still be under the public sector equality duty and need to comply with the requirements and expectations set out in the statutory guidance on Working in partnership with people and communities. The impact on patients, service users, carers and family may vary depending on how FTs implement their engagement process but the expectation is to embed patient and public voices more directly in decision-making and allow them to provide feedback on services. As with staff representation, the intention of moving away from a governor model is that it provides FTs with greater opportunities to ensure that patient engagement mechanisms are more representative of the communities they serve.

We do not expect impacts on FT patients, service users, carers and family more generally from introducing the conversion power, as it is intended, from a policy perspective, to be used only in extreme cases of failure. If it were to be used, we expect this would be in the interest of patients and the wider public and should have a positive impact on them, as NHS trusts are likely to be directed to improve performance. No FT has ever been de-authorised before (under the previous de-authorisation power, which was repealed under the Health and Social Care Act 2012) so there is no evidence from past initiatives to use when considering the impact on patients and wider public.

If the Secretary of State were to choose to use the power to convert an FT, the intention would be to address serious failure, thus creating a positive impact on services for patients. The Secretary of State would also be bound by the public sector equality duty in exercising this power and when issuing directions to a failing trust, which could have positive impacts on people with protected characteristics.

Engagement and involvement

The provider policies included in the bill stem from the 10 Year Health Plan, which was based around engagement with thousands of staff and members of the public and considered the 250,000 contributions made through the Change.NHS website.

More recently, over August to November 2025, NHS England engaged with NHS leaders and representative bodies, including NHS Providers, on the bill proposals.

Analysis of impacts

There is limited evidence on the demographics of FT CoGs or how FTs ensure that the members in their public constituency or the governors, most of whom are elected by members, are representative of the population they serve. Some FT websites may publish demographic data on their CoGs but there is no requirement for them to do this, so there is no published data on the overall demographics of FT CoGs.

As an example, Kent Community Health NHS FT has published data on their website on the demographics of their public members, which includes ethnicity, gender and age. These statistics include their elected governors, as they are elected from among the members, but do not specify the demographics of the governors in particular.

FTs have a legal duty to make sure their public constituencies are representative of those eligible for membership but this duty does not go into the detail of matching with specific demographics or protected characteristics.

We looked at published evidence and stakeholder feedback to consider the possible impact of removing the requirement for FTs to have CoGs and members on people with protected characteristics. We did not find any evidence of significant negative or positive impact on people with the following protected characteristics:

• disability
• sex
• sexual orientation
• race
• gender reassignment
• religion or belief
• pregnancy and maternity
• marriage and civil partnership

More dynamic patient and staff representation models may reduce unlawful discrimination, harassment and victimisation for groups with these protected characteristics, if they are able to provide feedback directly to FTs and FTs then act on this feedback to improve the experiences of these people. Similarly, more dynamic patient and staff representation models may advance equality of opportunity for groups with these protected characteristics, if they are able to provide feedback directly to FTs and FTs then improve accessibility of their services to these people. However, this will depend on future engagement processes and decisions made by FTs.

The Department of Health and Social Care will oversee the work of FTs on these representation models as part of the regular provider oversight mechanism and will provide support, as needed, to ensure that FTs are best placed to meet the policy aim. For example, work is under way to prepare supporting materials on how to comply with the ‘Working in partnership with people and communities’ guidance.

Age

Due to the voluntary basis and time requirement of the governor role, we have heard that CoGs tend to be made up more from older populations. This is mainly based on internal engagement with FTs and on published research which uses case study data[footnote 1]. Some FTs may publish demographic data of their CoG members on their website but there is no requirement for an FT to publish this data. As an example, Kent Community Health NHS FT has published on their website that 2,865 members out of 7,250 (approximately 40%) who had stated their age are aged over 60. According to Kent County Council, the proportion of Kent’s population, excluding children under 15, aged over 60 is approximately 33%. It is not possible to ascertain the age of Kent Community Health NHS FT CoG members.

More dynamic patient and staff representation models may benefit all age groups if they are able to provide feedback directly to FTs and FTs then act on their feedback when making decisions. However, this will depend on future engagement processes and decisions made by FTs.

Other identified groups

These are not covered by the Equality Act 2010.

Socioeconomic background and geography are routinely included in considerations on health and social care policy. This is due to health inequalities, which are differences in health outcomes that are unfair and avoidable and are rooted in socioeconomic background and geography.

Poor mental health is considered to be closely linked to health inequalities and is therefore also routinely included in considerations of health and care policy.

Socioeconomic background and geography

Due to the voluntary basis and time requirement of the governor role, we have heard that CoGs tend to be made up more from older populations and perhaps those in higher socioeconomic groups. More dynamic patient and staff representation models may have positive impacts for those not typically fulfilling these voluntary roles.

Currently, the governor is a voluntary role, and volunteers are expected to travel, for example, for meetings, conferences or to meet other governors. This may have influenced who volunteered for CoGs, with an emphasis towards those with a higher socioeconomic background, for example, if cost of travel was a factor (although we believe that they were usually reimbursed) or towards people with fewer demands on their time. For example, travelling to and attending meetings could place restrictions on the participation of disabled people, elderly people and people with caring responsibilities.

FTs will be expected to design their own engagement functions that best suit them and the populations they serve. It is unclear at this stage how they will set up these processes and how the patient and staff representation models will be different, although they will have to design these in compliance with their public sector equality duty. It could be the case that the FTs continue to recruit for voluntary roles that require some travel. Therefore, the current factors that would determine someone’s willingness to apply for the role could continue to exist.

How any volunteers would be expected to carry out engagement (for example, online or in person) and how they would be supported to contribute (expenses reimbursed, paid for their time, one-off or ongoing commitment) may impact who is able to volunteer for these roles. FTs will be expected to consider representativeness and avoid engagement bias towards those from a higher socioeconomic background and with fewer time constraints.

Mental health

We did not find any evidence of the impact of removing FT CoGs and members on people with poor mental health.

Summary of analysis

Overall impact

Feedback from previous research and engagement with FTs suggests the impact of CoGs may have been variable [footnote 1] [footnote 2] [footnote 3]. Some stakeholders expressed views that CoGs were encumbering boards looking to take difficult but necessary decisions, or were not effectively representing the views and priorities of the diverse communities served by the FT. For example, governors may engage strongly on a particular issue that is close to them, while engaging less on other issues that may be more pertinent to other FT service users and patients. This means that this model does not encourage advocating on a range of issues or surfacing issues for those who are not represented on the council. These views may not be representative of all FTs, but they represent some of the challenges with the current CoG approach.

The intention for the removal of CoGs and members, coupled with ambitions outlined in the 10 Year Health Plan, is to generate overall positive equalities impacts through better representation of people with protected characteristics in giving feedback to FTs and informing FT decision-making. This could help FTs reduce unlawful discrimination, harassment and victimisation of people with protected characteristics by ensuring their feedback is used to improve the experience of patients, service users, carers and families. If FTs can engage and act on diverse staff, patient and public feedback, they could improve equality of opportunity for people with protected characteristics by improving access to FT services for their local communities.

However, the exact scale of impacts and whether they are realised will depend on what FTs choose to do. As this is not specified in legislation, we are unable to assess the impact at this stage. Support and guidance will be provided to FTs to establish well-functioning, dynamic arrangements to engage with staff, patients and their local communities.

Addressing the impact on equalities

We did not identify any direct adverse impacts on equalities of removing FT CoGs and members from legislation.

We noted that any positive equalities impacts will depend on how FTs choose to design their staff, patient and public engagement models and how well they can act on staff, patient and public insights in their decision-making.

We know that current barriers to providing feedback exist for many people with protected characteristics, and these are discussed in the equality impact assessment on the abolition of Healthwatch England and local Healthwatch. It will be important for FTs to consider these barriers and design more accessible engagement processes for all patients, including those with protected characteristics. While this is not specified as a legislative requirement in the bill, there is concurrent policy work to encourage FTs to design more dynamic models of staff, patient and public engagement and it will be considered as part of the assessment process for providers to become advanced FTs.

Monitoring and evaluation

We will gather evidence on how FTs design their new models of staff, patient and public engagement through ongoing provider oversight work and as part of the advanced FT programme. We will gather evidence specifically on the impact on people with protected characteristics, where possible.

In addition, each individual measure will be considered as part of the overall monitoring and evaluation strategy for the bill. More information about the strategy is available in the summary of the overall bill equality impact assessment.

1. Millar and others. Meta-regulation meets Deliberation: Situating the Governor within NHS Foundation Trust Hospitals Journal of Social Policy 2019: volume 48(3), pages 595 to 613. ↩ ↩2

2. Allen and others. Investigating the governance of autonomous public hospitals in England: multi-site case study of NHS foundation trusts Journal of Health Services and Research 2012: volume 17(2), pages 94 to 100 (subscription required). ↩

3.  Anand and others. Autonomy and improved performance: lessons from an NHS policy reform Public Money and Management 2012: volume 32(3), pages 209 to 216 (subscription required). ↩