Cultural issues related to allegations of bullying and harassment in NHS Highland: independent review report

22. Role of Non-Executive Directors (NEDs)

22.1. In trying to understand what, if any, cultural issues have led to any bullying, or harassment, and a culture where such allegations apparently cannot be raised and responded to locally, it seems important to address in some detail the role of the NEDs. In setting matters out as I do, I do not intend to be critical of individual NEDs who are well-motivated people trying to do their best in difficult circumstances. However, a number of matters have arisen about the way in which NEDs have functioned in NHSH and I discuss these in this chapter.

Information

22.2. Firstly, as one NED put it "it is vital for a NED to know what is going on – and wherever possible to see or hear independent views. There is a real danger of group-think". A number of NEDs at NHSH tried to make a difference while others may have been simply intimidated or wholly frustrated. Access to key documents and other meeting information needs to be good. However, reporting and discussion seems to have been conducted in such a way as to reduce their active and appropriate participation. There has been no clear strategy to provide them with adequate information. They could not do their job effectively.

22.3. On lack of governance specifically, I was told by a former NED that

"there existed no system by which the Board could set a clear strategy for delivery. We never received costed options and alternative proposals on which to base decisions. So never were strategic decisions converted into clear delivery plans containing clear goals, milestones, risks etc by which the Board could direct a robust system of risk management and accountability and through which it could hold the CEO to account within a forum of mutual support and understanding."

22.4. Another had said in his resignation letter:

"I am resigning as I feel that I cannot make a meaningful contribution to the outcomes from the Board. Too many strategic policy issues are taken, outwith the Board process, as being "operational". I have requested,in vain, that the NHSH Board or a Committee discusses key issues including the impact of Brexit on our workforce, the new GP contract and its negative implications for remote rural GPs in the H&I, the consultant led Radiology Service, funding for the Voluntary Sector, the continuation of small rural residential Care Homes etc. There needs to be a much more forensic approach to financial scrutiny. We rarely receive an options appraisal on an issue, simply a recommendation. Constructive criticism is not welcomed."

22.5. Another NED expressed the view that challenge or expressing a different point of view has not been particularly welcomed and rarely has it made any difference to an issue; there is an inability to carry out the role of holding the organisation to account without the information to do so; often they are receiving only reassurance rather than assurance, leading to ineffectiveness as a non-executive director.

22.6. On the theme of information to the Board, a very senior clinician observed:

"There was and, I think remains, no clear ability for clinical advice to get to the Board other than through the Executive Team… The Board did not and does not meet "rank and file" clinicians to inform themselves directly without the filter applied by the Executive team."

This theme was repeated a number of times.

22.7. This diminishing of the input of NEDs is underscored by a senior executive director:

"In the private conversations in senior leadership teams, the NEDs would sometimes seem as nuisances that needed to be won round. Or people that didn't really understand and we needed to manipulate them. I think references to some people, in their absence, could be quite dismissive.

There might be a criticism that they didn't make that many decisions. A lot of stuff was airbrushed. Out of hours review was useless. If you look at the audit trail, board members feel that they haven't all agreed to the final product. Decisions get made at the top. Decision making structure is opaque and labyrinthine, which has developed over time. It's convenient to the management style...

I think if you look at the board papers, they are far too long and drowning the NEDs in information so that they were hard pressed to make a real decision. Need clear executive summaries, recommendations etc so the reader can assimilate the information properly."

22.8. I happened to see one set of Board papers from 2017. They were overwhelming. I cannot imagine what it must feel like to receive and try to digest these, far less ask intelligent questions. This is something which needs serious consideration to enable Board members to perform their function properly. The unnecessary use of jargon is an example of where barriers can be created, deliberately or inadvertently.

22.9. Overall, the sense that the Board (in the form of the non-executives) were disabled is summed up in these words from one observer:

"Everything to do with the Board was orchestrated. …We would have dress rehearsals before the meeting. This is what will be said, this is what will be done. The Board weren't allowed to know exactly how bad it was."

Appointment and Training

22.10. The evidence suggests that the role, appointment, training and support of NEDs appears, in any event (whatever the theory), not adequate in practice to meet the needs of the board of a large publicly funded organisation with an £800 million budget. I note that some NEDs have asked for training in specific areas. I understand that developmental support for NEDs is a Scottish Government function.

22.11. I note that it appears that some NEDs may not be as clear or realistic about the extent and limits of their roles as they need to be. There may be some naivety about the role. There is need to pass on experience from outgoing to incoming NEDs. The lack of experience and knowledge of new appointees is a concern to a number of people with board experience. "There is very little corporate memory," is how it was put. Consideration of an overhaul of how the Board is appointed, trained and sustained appears necessary.

22.12. The view has been expressed more generally that neither NEDs nor the Scottish Government fully understand the important role that NEDs should play. Be that as it may, Government guidance states: "Public bodies ......... allow the public sector to benefit from the skills, knowledge, expertise, experience, perspectives and commitment of the members who sit on their Boards and focus in depth on clear and specific functions and purposes."^[42]

22.13. Unless people with the necessary skills, knowledge, expertise and experience (and ability to ask the right questions in the right way while understanding financial, risk and other management issues) are appointed to NHS boards, there is a danger that governance will not be effective and national policies will not be implemented effectively. There may be a difficulty in finding people with the requisite competence and skills. If so, that should be faced up to, with clear criteria and honesty if they cannot be met. I am told that Board appointments have seemed to some to place too much power in too limited a selection process, leading to perceptions of favouritism.

22.14. I was interested in these comments about the need for external input:

"Within NHS Highland and more generally within NHS Scotland there is an introspective approach to organisational development and an 'internalisation' of responses to whistleblowing, bullying and harassment and grievances, and generally to governance. [x] advised me that the governance review framework he was using was developed by the NHS Board Chairs. This leads to 'group think' and behaviours. There would be benefit in establishing an external, independent source of advice for Boards and Board members on these and other governance issues. My experience is that NHS Scotland and particularly NHS Highland does not recognise the validity of advice and practice from private sector businesses to themselves, citing the NHS as too complex and different."

22.15. This was also said:

"Over recent years there has been an increase in appointment of Local Authority councillors and staff, and ex-politicians to Boards, particularly Chairs, which has introduced a more political way of working, with both a small and large 'p', and changed the dynamic of Boards. My view is that this has contributed to a dilution of the role of the NHS Board and compromised the role of the non-executive director."

22.16. A concern was expressed that NEDs who are also councillors may be inclined to bring their own issues and agendas to meetings. I sense that this may not be confined to councillors.

22.17. I was also told that the imperative of inclusivity can lead to large boards, which seek to accommodate many interests, but that this may come with a cost to board effectiveness.

22.18. I did not explore the role of the Audit Committee but its effective functioning is clearly crucial.

Looking Ahead

22.19. One experienced NED offered this view which I record in full as a helpful guide for the future:

"There is minimal investment in development of non-executives in the skills required for the role and the 'training' for board members is quite basic. Also NHS Highland did not utilize the checklist tools^[43] for Board Members provided by the Auditor General in many of her reports.

A more business-like approach is required. Improvements would be:

• Base recruitment of non-executives on their skills and abilities to do the job rather than their specific knowledge of sectors, issues, interests.
• Clarify the role of the non-executive as a governance role, providing independent judgement on issues of strategy, performance and resources. As per the Cadbury Report, their independence brings a degree of objectivity to the Board's deliberations and a valuable role in monitoring executive management.
• Provide induction for executives and non-executives on their roles, the role of the Board, the Chair, Vice Chair and Committee Chairs.
• Establish the role of the Senior Independent Director to act as a sounding board for the chair and an intermediary for other directors if they have concerns. They would also hold annual meetings, and other meetings as necessary, with non-executive directors, without the chair, to appraise the performance of the chair.
• Confirm and provide training for Committee Chairs on their role as well as how to chair meetings.
• Provide regular (at least annual) governance training for Boards framed in their specific environments to identify any issues, developments etc required and discuss solutions and improvements. Training to include such as what is assurance? How to look for assurance, what dimensions to consider in decision making.
• Record/codify/formalize Board conventions and procedures alongside Standing Orders (across NHS Scotland) and include in induction and training. Eg Board decision making re brokerage; Board members right to dissent, how it should be recorded.

All of these to be developed with external independent experts in governance."

22.20. I have been made aware of some really helpful initiatives for NEDs in other NHS boards, such as Lothian, where there are well developed resources and an induction programme, alongside good support from executives and administrators, and structured shadowing with clinicians, with six board development sessions per year. There is a structure for sharing of concerns and a "buddying" system for new NEDs. I am sure NEDs in NHSH would gain much from the support of, and the kind of initiatives available to, their colleagues elsewhere.

Remuneration

22.21. Finally, the rate of remuneration of a NED (£8,000 per annum) is, I understand, for a time commitment of one day per week. However, the actual time commitment (and responsibility) is considerably higher than this; I am told that "many will be responding to something on every day during the working week". I understand that the Scottish Government is currently considering the remuneration of NEDs as part of a programme of work to review the system of corporate governance in NHS Scotland and do not comment further on this.