Paul Stanton on NHS boards' duty to the public

Paul Stanton

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The good of the public must be served ahead of NHS boards' narrowly defined organisational interests, placing them as servants of the community need and not its masters.

Real authority in the NHS (the rhetoric of "new localism" notwithstanding) continues to flow from a politically driven Department of Health, through NHS senior management via strategic health authority chief executives to those of primary care trusts and NHS trusts - effectively bypassing and marginalising chairs, non-executive directors and therefore the boards. In my opinion, this profoundly and inescapably compromises system governance.

In my last article, I began to touch on some of the ways in which a system that is overpoliticised and still reflexively centralist inevitably generates tensions and frustrations for the chairs and non-executive directors of local NHS organisations - whether these organisations are commissioners or providers. But despite these constraints, boards can still add value to their organisations and, through this, add value to the communities they serve.

There is significant confusion and muddle in the DH and the NHS about the nature of governance. It is not uncommon to hear senior figures talking about boards managing or leading their organisations. This implies a fundamental lack of clarity about the explicit separation that should exist between the task of a board, which is primarily legislative (making policy, setting strategic goals and holding the executive, and through them the organisation, to account) and the task of the executive (albeit some executives are also corporate directors within the legislative board), which is to lead and manage the organisation so that policies are implemented, strategic goals are achieved and the local community is served.

In making this distinction, I am influenced by the work of John Carver, whose model of "policy governance" is admirably clear, and by good practice (though by no means common practice) in the private sector.

Policy constraints

When I talk of the legislative function of a board and the making of policy, I recognise that all policy is constrained and informed by the statutory framework and the jurisdiction within which any particular organisation operates. In the case of a public sector body, this legal framework is the necessary precondition to the very existence of the organisation. That is, an NHS (or other public) body is the offspring of statute - it does what it does because a statute says that it must do it (mandatory legislation) or that it may do it (permissive legislation). Only when operating within this statutory framework is a board acting within the boundaries of its own authority.

In my work with the boards of more than 100 NHS organisations, I have been surprised by how little explicit attention was paid to the discharge of even their most major statutory duties, whether these apply to all organisations (such as the duty of care) or are specific to the NHS (such as the duty of quality) or a broader public sector duty, such as that of working in partnership with other public sector bodies. The one public sector duty that, historically, was all too often at the forefront of the mind of NHS boards was the legal duty to achieve financial balance.

This is not to say that NHS boards would have chosen to be financially pre-occupied - most realise that finance is a means rather than an end - but that the pressure of the system tended to narrow and to distort their priorities. Maintaining a balance between these duties and consciously framing their own policies within the letter and the spirit of the law is a necessary precondition to legitimate governance. It is not, however, sufficient.

Values of the NHS

To govern authoritatively and effectively, a board needs to establish policies that make explicit to the local community and to the executive arm the values that must underpin the NHS. These should be embedded in all aspects of an NHS organisation's dealings with those it serves, those it employs and those with whom it works in collaborative partnerships. An NHS board should be pro-actively committed to Cicero's precept: "Let the good of the people be the highest law."

A board should explicitly embed a commitment to humanity, to compassion and to the elimination of injustice and inequality in its policies. Although it is important to make such pronouncements clearly and publicly, it is not what is said but what is done that matters. A board has a duty to scrutinise the organisation's activities and satisfy itself that the executive authentically demonstrates these values in its own leadership, that it embeds them within the organisation's culture and that it aligns all performance management systems and processes so they are reinforced and rewarded.

Servant of the community

In doing so, and in establishing its strategic goals through an incorporative and reciprocal process of discourse (where listening and informing are in true balance) with all its strategic stakeholders (its local community, its staff, regional and local government, the SHA and business communities), an NHS board is living out its duty to put the good of the public served ahead of its own narrowly defined organisational interests - to make the organisation the servant, rather than the master of community need.

In the past, this has been enormously challenging, since the system was obsessed with the behaviour of the granular organisational part and seemingly indifferent to the performance of the systemic (intra NHS or wider public sector) whole. There was a perverse incentive to achieve your own goals and balance your own books, albeit at the expense of other partners.

This is now changing with the introduction from 2009 of the pan-regulatory comprehensive area assessment - a change that should be as welcome as it is (decades) belated. This will support NHS boards, whether they are exclusively or primarily commissioners or whether they are providers, to establish strategic goals that derive from and pursue the public good.