01 October 2018 by Henry Ker
We speak to the former director for NHS board development, then called the national clinical governance support team, and a senior strategy adviser in the department of health, about the state of health service governance
For the past decade, Professor Paul Stanton has been working with the boards of every kind of NHS organisation – from hospital trusts, community service providers and ambulance trusts, to clinical commissioning groups and mental health trusts. In total, he has worked with the boards of over 185 public sector organisations.
He speaks to Governance and Compliance about how the NHS has been sleepwalking into crisis, as an aging population risks crippling one of the cornerstones of the UK’s welfare system, and about how legislation and a pre-occupation with a health ‘market’ has conspired to promote a muddled, fragmented and dysfunctional system of governance that is woefully unfit for purpose.
Robust and transparent governance is vital to the survival and transformation of the NHS. However, the Health and Social Care Act 2012 – one of the most muddled and ill-considered acts of the Conservative/Liberal Democrats coalition government – is a major obstacle to effective governance and to the whole system reform that is necessary for the NHS to be fit for 21st century purpose.
It perpetuated health and social care separation and further fragmented the NHS by creating a proliferation of clinical commissioning groups (CCGs). They lacked critical mass in terms of the patient populations served and the capacity and capability of their executive and managerial infrastructures. This was compounded by the enigma that is CCG ‘governance’.
The act created ‘governing bodies’ for each CCG – but they are in no sense unitary boards with determinate authority and responsibility. The act specifies that the functions and responsibilities of a governing body are defined and delegated to them by the GP member practices that make up a CCG. Practices, collectively, retain overall accountability for all of the CCGs actions. So, in a sense, the member practices govern the governing body.
As most CCGs are the contract holders for their own constituent GP providers, a CCG is, in effect, a conflict of interest given statutory organisational form.
I can understand why NHS England avoids confronting the muddle of CCG governance and why it tends to see NHS unitary provider trust boards as an obstacle to rationalisation and system reform. Too many provider boards misunderstand their duty.
They were beguiled by the old foundation trust mantra of growing their financial surplus and seeing their first duty as to promote the wellbeing of their own organisation. It is not. It is to promote the wellbeing of the owners of the NHS – and, as we know from the NHS constitution – the NHS belongs to all of us as citizens.
“Whenever there is a conflict between the needs of a trust itself and the overall needs of the health care system, it is the system that must take primacy”
And therefore, since, as John Carver said in his book 'Boards That Make A Difference', ‘governance is ownership, one level down, not management one level up’, the duty of an NHS board is to promote the interests of the population at large, and of local communities.
So whenever there is a conflict between the needs of a trust itself and the overall needs of the health care system, it is the system that must take primacy. Cicero provides the ethical touchstone for every NHS board: ‘Let the good of the people be the highest law’.
At present, although individual trusts are governed, there is no statutory basis for the governance of the health and social care system.
Since there is no appetite in government to create a new legislative framework, governance is pragmatically ignored by the system’s national leaders and performance regulators, NHS England and NHS Improvement. They view governance as grit rather than oil in the machine – slowing down urgent and much needed rationalisation and transformation.
As a result, the Sustainability and Transformation Partnerships that they established to drive the system reform agenda have pseudo-governance that is as ramshackle, opaque and unaccountable as that of CCGs.
To be fair to the national bodies, they and the system reform agenda are still bedeviled by the legacy of a pseudo health market, which commoditises illness, sustains the purchaser/provider split, enshrines competition for publicly funded NHS care and, crucially, competition between NHS providers.
It also bound many health economies to ‘private finance initiatives’, which represent a crippling and long-term financial drain upon budgets.
“As we know from the NHS constitution – the NHS belongs to all of us as citizens”
Far from strengthening the NHS, the pursuits of ‘market disciplines’ and of competition have been pointless diversions of energy. Alongside the folly of the Health and Social Care Act 2012, the market mentality has fragmented what should be a coherent and cohesive system of health prevention and illness provision and weakened the transparency and the robustness of both NHS commissioner and provider governance.
It is essential that there is absolute reciprocal clarity between all provider board members about the governance task, the governance function and the role of the unitary board. This is significantly facilitated where there is a trained and effective company secretary.
So far as I have been able to establish, none of the trusts that have been subject to major public inquiries into profound failures of safety and of quality had a trained company secretary. A key task of the company secretary is to remind the board that the primary responsibility of every NHS organisation is to ensure that the safety and quality of care is their first and overriding concern.
A succession of public inquiries into avoidable deaths have concluded that boards had become preoccupied by financial pressures, the need to restructure or rebuild hospital premises, and by attention to government and regulatory targets. Together, those pressures deflected the board from their primary responsibility for the safety and well-being of patients.
As Robert Francis concluded in 2014, the issues he had uncovered in his public inquiry into hundreds of patient deaths at Mid-Staffordshire were not unique. Traces of the cultural issues there could be found across the NHS. Disturbingly, more recent research suggests that this may still be the case. It is essential that boards maintain a grip – though not a stranglehold – on the safety of care.
In the short term, governing bodies of CCGs must do their best within the profound statutory constraints within which they operate to provide guidance and wise counsel to CCG officers and to their constituent GP practice members, in order to promote the interests of their local patient populations and the wider local community.
In the longer term, new statute will be needed to generate proper, transparent, and robust governance and accountability of the commissioning function and to ensure that commissioning is a collective function that straddles public health, illness and social care.
I see some evidence of greater diversity in NHS boards, and I have seen positive transformations in the governance in some NHS providers.
I can think of one board that includes five medical directors. This has changed the focus and the quality of discourse in the boardroom. It required courage to break the mould – the law says you must have a medical director, but it does not say you must have only one.
That is a great example of a board using creativity and imagination to transform itself. For the most part, the law specifies minimum, but never maximum, levels of governance performance.
I have also encountered trusts that have found new and innovative ways to reach out to their local populations and examples where local authorities and the NHS have really tried to come together, lay aside their historic differences and to act as the servants, not the masters, of community need.
The NHS has been poorly served by politicians of all parties – and by the poor leadership provided by my own ‘baby boomer’ generation.
By contrast, in the face of a malign and sometimes toxic legacy and political climate, the current NHS leadership has, I think, been courageous and forthright in its diagnosis of the need for profound change and for a new funding settlement. It cuts corners and breaks rules, but nonetheless does so (for the most part) with the best of intentions.
Through no fault of the current generation of leaders and front-line staff, the NHS is caught in a vice between a decade of public sector austerity, NHS and local authority defunding and inexorable and accelerative demand escalation.
There are multifactorial drivers of demand. Some are lifestyle-led; such as the looming tsunami of obesity, costing the NHS £4.2 billion a year, or soaring alcohol dependence, which costs £3.4 billion a year. Lifestyle associated illness could have been substantially mitigated by wiser investment in education and prevention but other drivers of demand are inescapably demographic.
“Because of the strong association between most major illness groups and advancing age, the biggest driver of demand will be the ageing population”
However, because of the strong association between most major illness groups – cancer, heart disease, diabetes, dementia, arthritic degeneration and so on – and advancing age, the biggest driver of demand will be the ageing population.
Because of the post-war spike in birth rate, there will be a massive increase in the number of people who by 2022 will be 75 and by 2032 will be 85. Across England as a whole, the increase in the number of 85-year-olds between now and 2032 will be 77%, while by 2039 the number of 90-year-olds in our society will nearly triple.
Already more than 60% of acute NHS beds across the system are occupied by people 65 and above. Our acute hospitals have become de facto hospices – six out of ten older people currently die in a hospital bed. If current trends continue, by 2030, only one in ten people will die at home. This is ethically disgraceful and financially catastrophic.
There has never been an honest public debate in this country about the implications of our inexorably ageing society. As a result, we have failed to invest adequately to develop comprehensive hospice and hospice at home provision or to prioritise support to home based family carers.
We still are light years away from a system that brings together primary, community and social care and thus eliminates avoidable hospital admissions and delayed discharge, which would enable acute and specialist providers to do what they should exist to do – that is provide short, intensive episodes of care to those who are acutely, not chronically, ill. This will not be cheap.
We have got to get beyond the notion that health and social care are separable, they are not. The more frail, the more vulnerable someone is, the more dependent they – and their carers – are on a properly articulated health and social care system. Far too many people are victims of ‘structural iatrogenesis’. We must bring together the funding, planning and governance of health and social care provision.
The funding of the NHS and of social care is, of course, a matter for the community at large and for government. Given the track record of the latter, I would currently rate the chance of NHS survival as no better than evens.
“We still are light years away from a system that brings together primary, community and social care and thus eliminates avoidable hospital admissions and delayed discharge”
An equal possibility, is that we will move towards a two-tier system where people are encouraged, and indeed required, to take out private health insurance. What we know about two-tier systems is that they are more costly and less effective than the NHS.
The only chance of a radical new funding settlement for health and social care is predicated on the long overdue public and political debate about the implications of the ageing population.
In 2013, the House of Lords select committee’s excellent ‘Ready for Ageing’ report concluded that government was unprepared for the ageing population and that there needed to be an urgent public debate on the profound implications of this reality for society as a whole. No such debate has ever occurred. We are in imminent danger of sleep walking over a precipice.
An additional £12 billion per annum needs to be raised for the next a decade or more. That money needs to be used, not to alleviate short-term pressures, but to transform the service – new models, new patterns, new locations of care.
Primary care and community care need to come together and to be resighted on health promotion and managing long-term conditions; mental and physical health care need to be integrated and end-of-life care and carer support need massive investment. Only then will our acute and specialist hospitals be able to perform, and perform outstandingly well, their core function of dealing with episodes of illness.
If that were to happen then the NHS will be alive and thriving when it reaches its centenary in 2048. It is the great civilising legacy that the previous generations bequeathed to all of us. If it is allowed to perish from neglect, then we will miss it more than we can ever imagine.