Many NHS trust board members cannot be sure whether or not their hospital is operating within the law, the Audit Commission has found.

Formal processes to ensure boards can be certain legal and regulatory standards are met have been reduced to a “paper chase”, risking a repetition of the major failures at Maidstone and Tunbridge Wells and Mid Staffordshire foundation trust, it says.

Audit Commission chief executive Steve Bundred told HSJ the commission’s study, Taking it on Trust, was undertaken in the wake of concerns aired by the foundation trust regulator Monitor about the way boards were working at some applicant trusts, the high profile failures at a handful of NHS hospitals, and discrepancies between what trusts tell regulators about their performance and what inspectors find.

The commission studied governance structures and processes at 15 NHS trusts. It found an abundance of formal controls and processes designed to ensure non-executive board members could hold the trust to account on its performance. But many of these had been reduced to a “paper chase rather than critical examination,” and had become “disassociated” from the day to day running of the trusts.

“The controls are in place. Everywhere we looked they were there,” Mr Bundred said. “But they are not always being operated as rigorously as they should. If boards don’t get this issue right then patients can be at risk.”

“We are not saying things are going wrong, but that things could be much better,” he added. “Mid Staffordshire and Birmingham [Children’s Hospital foundation trust] are examples where things did go wrong. Because they happened, it’s incumbent on all boards to ensure they are working effectively.”

“In some instances boards might not know where the weaknesses are because the controls they have in place to give them assurance are not working as they should.”