Governance in healthcare (III): the supervisory board

Since the introduction of the Wtza in 2022, it is generally mandatory for all healthcare providers to appoint an 'internal supervisor'. In practice, the internal supervisor will usually be a supervisory board or – a more common term in healthcare – a board of supervisors.

Not all healthcare providers are required to appoint a supervisory board. Exceptions include:

• Healthcare providers with ten or fewer care providers;
• Healthcare providers (i) with twenty-five or fewer care providers, (ii) where clients cannot stay for at least 24 hours, and (iii) where there is no medical specialist care, personal care, guidance, or nursing;
• Academic hospitals, forensic psychiatric institutions, or family and parent initiatives.

The IGJ monitors compliance with the requirements for an internal supervisor. If a healthcare provider does not meet these requirements, the IGJ can impose an order subject to a penalty or advise the CIBG to revoke the admission permit.

The Wtza sets certain requirements for the internal supervisor. These do not fully align with the requirements for a supervisory board, but there is some overlap. The Wtza sets the following requirements:

• A supervisor may not also be part of the management;
• The internal supervisor must be composed in such a way that the members can operate independently and critically in relation to each other, the management, and other stakeholders;
• The healthcare provider must document the division of responsibilities between the internal supervisor and the management and the way internal conflicts are resolved.

A healthcare provider that complies with the Healthcare Governance Code does not automatically comply with the Wtza and vice versa. The Healthcare Governance Code adds additional requirements, such as drafting a profile for various vacancies, the maximum number of terms for a supervisor, and the nomination right of the client council.

It is important for every healthcare provider to ensure that the statutes and governance structure are aligned with the requirements of both the Wtza and the Healthcare Governance Code.

The task of the supervisory board is to oversee the policy of the daily or general management (the board) and the general affairs within the institution. The supervisory board also advises the management.

Additionally, the Healthcare Governance Code stipulates that the supervisory board is the employer of the management. Thus, the supervisory board can appoint or dismiss the management. For healthcare providers structured as a private limited company, this may be different, and the authority to appoint and dismiss directors may lie with the general meeting of shareholders.

Conflicts can arise between the management and the supervisory board regarding the policy or general affairs of the healthcare provider. It is common for the management to feel that the supervisory board is overstepping its bounds. The Wtza and the Healthcare Governance Code explicitly require a procedure for resolving (internal) conflicts. Common methods of conflict resolution include mediation or arbitration. If no solution can be reached, the conflict will likely end with the departure of either the management or the supervisory board.

Heeft u vragen over de Governancecode Zorg, neemt dan contact op met Sonja Geldermans, advocaat Ondernemingsrecht.

Blog series
This blog series will address various key points of governance in healthcare, such as the role of the client council and the regulations that apply (or will apply) to commercial healthcare institutions.

1. Governance in healthcare (I): a maze of laws and regulations
2. Governance in healthcare (II): the Healthcare Governance Code
3. Governance in healthcare (III): the supervisory board

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