Governing NHS Foundation Hospital Trusts

The introduction of Foundation Trust (FT) hospital status in 2004 signalled a myriad of structural and cultural changes to hospital governance in the English NHS (Allen et al., Reference Allen, Wright, Keen, Dempster, Hutchings, Townsend, Street and Verzulli2010). As with existing NHS hospital governance arrangements, corporate governance of FT hospitals is centred on a board of directors (usually around 10–12 members) comprising a non-executive chair, additional non-executive directors, a chief executive and executive directors (Chambers, Reference Chambers2012). In addition, FT hospitals contain governors comprising people elected from the local community and staff representatives. They also include a Council of Governors intended to provide a forum to oversee and engage with the executive board across a range of hospital governance issues (Ocloo et al., Reference Ocloo, O'Shea and Fulop2014; Allen et al., Reference Allen, Townsend, Dempster, Wright, Hutchings and Keen2012). The Council has legal statutory duties for appointing or removal of the chair and other non-executive directors, appointment of the trust's auditor and receipt of annual accounts and reports (Table 1).

TABLE 1.

Governing NHS Foundation Trust Hospitals

The latest available data shows that FT hospital trusts have an average of 13,500 governor members, with Councils of Governors consisting of around 30 members made up of public governors (53 per cent), appointed governors (23 per cent), staff governors (19 per cent), and patient/service user and carer governors (5 per cent). The majority of trusts have four Council of Governor meetings a year (NHS Providers, Reference Providers2015).

Governor roles and responsibilities form part of wider developments in contemporary governance that seek to encourage – and also to force corporations to put in place – internal governance structures, management practices and corporate cultures with the aim of achieving socially responsible outcomes (Parker, Reference Parker, McBarnet, Voiculescu and Campbell2007). Combining legal statutory powers and non-legal methods of regulating internal corporate self-regulation and management, governors represent a corporate ‘conscience’ (Selznick, Reference Selznick2002) to encourage FTs to go beyond merely legal compliance towards outputs or actions. They are ‘meta-regulators’ in the sense that they represent a tier of governance promoting internal self-regulation (Parker et al., Reference Parker, Scott, Lacey and Braithwaite2004), focusing on internal responsibility processes rather than exclusively on external accountability outcomes which may fail to recognise and protect rights and interests of patients and public. The approach has approval from those advocating responsive regulatory approaches in healthcare that ‘transcend the polarised choice between punishment and persuasion’ (Healy and Braithwaite, Reference Healy and Braithwaite2006: 56) as well as some similarities with ‘hybrid’ governance perspectives capturing the interactions between different regulatory forms and requirements promoting autonomy and responsiveness, while simultaneously achieving performance measures set by national regulators (McDermott et al., Reference McDermott, Hamel, Steel, Flood and McKee2015; Furnival et al., Reference Furnival, Walshe and Boaden2017; Wright, Reference Wright2009; Maybin et al., Reference Maybin, Addicott, Dixon and Storey2011).

Within such a context, the meta-regulatory techniques at the governors’ disposal include calls for increased transparency and social responsibility (Wright et al., Reference Wright, Dempster, Keen, Allen and Hutchings2012). The promotion of deliberative values also features within governors’ repertoire as they look to actively encourage discussion and participation across various tiers of FT governance. Relationships with the executive are crucial in this regard in terms of holding them to account for what Parker (Reference Parker, McBarnet, Voiculescu and Campbell2007) describes as the meta-regulatory values that transcend ‘narrow self-interest’, are built into the practice and structure of core internal governance processes, and provide sufficient space and flexibility to ensure goals align with social responsibility values (Parker, Reference Parker, McBarnet, Voiculescu and Campbell2007: 215).

These techniques are presented as an effective means to respond to a range of issues, yet very little empirical work has been carried out on the deliberative interface between experts such as executive boards and local stakeholders within such meta-regulatory contexts (Braithwaite, Reference Braithwaite2016). Boldly stated, the meta-regulation literature provides an effective rationale for FT governors, yet the perspective fails to develop and refine how meta-regulatory techniques are translated into practice – the dynamics of what goes on ‘in the room’ of FT governance.

Further clarification is needed regarding the techniques of meta-regulation and how internal and external governance processes work together to facilitate, enforce, regulate or supplant governance networks (Parker, Reference Parker, McBarnet, Voiculescu and Campbell2007). In this case, Parker (Reference Parker, McBarnet, Voiculescu and Campbell2007) calls for research into corporate responsibility processes and how these are negotiated within particular contexts, particularly in the light of research showing the potential for ‘morally thin’ techniques for meta-regulation aimed solely at internal compliance systems and policing agents at the expense of corporate social responsibility.

Our contribution directly addresses this issue, drawing on deliberative theory to inform an empirical analysis of how FT governors interact with a wide range of actors across multiple governance tiers. In the next section we introduce deliberative perspectives and explore their potential in the context of meta-regulation, before introducing an empirical study of such deliberations within a series of FT governance case studies.

From meta-regulation to deliberation: analysing Foundation Trust hospital governance

With roots in the tradition of deliberative democracy, a deliberative approach explores the communicative processes by which actors are informed about a policy issue, consider its complexities and reach a consensus on a particular issue or concern (Hendriks, Reference Hendriks2005, Reference Hendriks2009; Abelson et al., Reference Abelson, Blacksher, Li, Boesveld and Goold2013, Reference Abelson, Forest, Eyles, Smith, Martin and Gauvin2003; Dryzek, Reference Dryzek2000). It implies commitment to the understanding that, in order to be considered legitimate, policy decisions should involve those affected by a decision (Dryzek, Reference Dryzek2001) – not just specialists or elites – and that deliberation promotes a collective communicative power which counteracts domination and strategic manipulation (Hendriks, Reference Hendriks2009).

Underpinned by republican notions of restorative justice that seek to ‘defend non-domination as a normative foundation for governance’, judicial and educational branches of governance provide citizens or ‘primary groups’ with opportunities for participation (Braithwaite, Reference Braithwaite2015: 33–34). The essence of democratic legitimacy is the capacity of those affected by a collective decision to deliberate in the production of that decision (Michels, Reference Michels2011) through discussion and the exchange of arguments in which individuals justify their opinions, discuss problems and solutions and show themselves willing to change their preferences.

Citizen participation through deliberative forums, such as expert forums and citizen panels, has positive effects on the knowledge, skills and attitudes of those involved in the process (Michels, Reference Michels2011). Yet, there are clearly limits to these endeavours. Deliberative methods may have only limited influence on decisions and may serve largely symbolic purposes as legitimation for internal political expediency (Hendricks, Reference Hendriks2009; Harrison and Mort, 1998), i.e. function as ‘technologies of legitimation’ (Harrison et al., 1997) in securing compliance with decisions. A review of deliberative methods in healthcare suggests that policies formed through public participation in deliberative processes can be considered more legitimate, justifiable and feasible compared to hierarchical modes of governance (Degeling et al., Reference Degeling, Carter and Rychetnik2015). However, despite frequent application of deliberative methods to healthcare issues (Street et al., Reference Street, Duszynski, Krawczyk and Braunack-Mayer2014), results are often disappointing (Mitton et al., Reference Mitton, Smith, Peacock, Evoy and Abelson2009). In order to explore the extent to which the deliberative potential of FT hospital governors as meta-regulators is realised, we apply a deliberative systems approach (Ercan et al., Reference Ercan, Hendriks and Boswell2017) to the sites, spaces and actors involved in FT governance in a series of case studies. Our concern is to understand how deliberative processes are shaped by the experiences and perspectives of actors and observers (Yanow, 2006; Dryzek, Reference Dryzek1982), and to explore the contingent nature of such processes (Parkinson, Reference Parkinson2006; Hendriks, Reference Hendriks2011). In the context of FT hospital governance, the role of FT governors is based on the premise that lay citizens – defined here as patients and the public – are valued and capable of contributing to discussions and debate regarding hospital governance. The role of executive boards is based on the premise that they are willing to present and defend their perspectives before a public forum, encouraging dialogue and understanding about hospital performance and governance proceedings.

Our particular interest lies in the extent to which governors are informed about an issue, how they deliberate with the board and the extent to which, through these deliberations, both parties achieve shared ownership of hospital governance. Our analysis is thus informed by a systems perspective of public deliberation, in which we endeavour to gain a detailed understanding of the actors, sites and activities in FT governance – the forms of communication used and their effects.

Findings

We identified a range of interactions between governors and boards within the governance of FT hospitals. The following section presents findings clustered into participatory storylines (Hendriks, Reference Hendriks2005). First, we consider the nature of governor contributions to hospital governance and the extent to which their input was deemed valuable. We then explore ways in which board members, as the dominant interest group, were willing to present and defend their actions before the public forum of Council of Governor meetings. Finally, we detail the extent to which these deliberative interactions facilitated collective reasoning and achieved consensual decision-making.

Governor contributions to hospital governance

Public governors described their role as representing patients and the public within hospital governance structures and activities. Often motivated to ‘make a difference’ or ‘give something back’, many governors had prior experience of healthcare services either as a member of staff, patient or carer. Their aim was to oversee and improve hospital standards as an independent and critical voice outside of ‘the establishment’:

Governors reported involvement in a variety of governance structures and activities. They participated as observers in hospital subcommittees related to finance, quality and safety, and patient experience, as well as the nominations committee involved in the appointment of the chair and non-executive directors. They joined hospital ‘walk round teams’ that included non-executive Board members, clinical staff and corporate services. Governors also had their own internal working groups, which brought governors with particular interests together to carry out patient surveys as well as formal and informal visits to wards and departments.

Many Board members shared this view of the governors’ role. They welcomed the extra pair of eyes in the way governors ‘were able to see things in a different way’ as their work in documenting patient experience got them closer to a patient perspective:

While the governor role was supported, questions were raised about the ability of governors to represent the public. Some governors expressed difficulties in working with the general public who were often reluctant to come forward or unable to provide relevant information.

Board members also raised concerns about the representativeness of governors. As predominately older, white and retired, there was still much work to be done to engage other parts of the community as well as involving staff governors.

Concerns regarding representativeness were also reported by governors themselves who questioned the motivations and calibre of many of the governor membership.

Our on-site observations also supported the view that the membership of Councils of Governors lacked diversity. While attendees included both men and women, the vast majority were white and retired.

Executive Board presentation and defence before a public forum

Our observations of governor meetings challenged the assumption that governors can influence and hold boards to account. While settings of the meetings differed (Skye toured across the area while other sites tended to take place in the education or learning centre building), the composition was similar with lead governors in attendance with a range of executive and non-executive board members meeting in ‘lecture’ style (executive board members at a top table) or ‘cabaret’ style (executives and governors sitting together on tables). Agendas were also largely similar in the way meetings would proceed around a series of updates led by executive board members.

Across the sites the meetings tended to centre on the executive board and members of staff presenting particular case studies of quality and safety performance. At Lewis, examples included governors being shown a ‘patient experience DVD’ about how the hospital was responding to the Francis Inquiry (Francis, Reference Francis2013) and a presentation by the director of infection control regarding the prevention and spread of e-coli.

Time was spent by the chair and chief executive updating governors with ‘progress reports’ on specific developments. The ‘chair's report’ often contained items about how the board was working with governors to improve governor education and awareness. The ‘chief executive report’ would often draw the governor's attention to key performance ratings related to waiting times, finance and infection control. These would be summarised in line with regulator risk ratings, drawing attention to particular red amber green (RAG) ratings of performance.

Central to these presentations and reports was the way Board members would defend current performance. Thus at Arran, clostridium difficile (C.Diff) rates consistent with poor performance were presented and explained as the result of patients bringing in C.Diff from the community (i.e. the problem lies elsewhere). At Lewis, mid-table performance ratings were criticised for failing to take into consideration the effect of complex case-mix on lengths of stay, particularly for elderly patients. Board members also used reports to draw attention to the politics and conflict associated with proposed policy changes. A siege mentality was depicted by the chief executive and chair to lobby and mobilise governors to encourage the public to use the hospital over their local rivals who were accused of colluding and encouraging ambulance services to deliver elsewhere. At Islay, proposals set out by the chief executive in relation to hospital reconfiguration also led to calls for governors to lobby the local population ‘to help us communicate. . . what we're trying to do’.

Our observations indicate that the chair tended to be the most visible of the board members in ‘orchestrating the debate’, summarising key points and steering questions following the reports and presentations. In some instances, chairs used the meetings as an opportunity to pursue their own queries, positioned as in governors’ own interests, and using the opportunity to question the executive. At Skye, the chair responded to poor performance in relation to C.Diff using the opportunity to press the director of nursing for more details about compliance with C.Diff performance targets, mobilising governors to respond:

With the majority of meeting time taken up by board performance updates, governors played a relatively minor role in the proceedings. On occasions there were questions of clarification (‘Can you catch e-coli through hands or through medicines?’) as well as support and gratitude to the board for particular reports and presentations. There were, however, some instances of challenge to the reports, in which governors highlighted irregularities and breaches of performance targets. More critical voices were also occasionally heard. Governors at Lewis called for more up-to-date information and challenged the chair's assertion that the existing ‘induction programme’ provided enough information. At Skye, governors challenged chief executive accounts that the board was developing an inclusive trust strategy:

When faced with challenges, board members navigated them with non-responses or counter arguments. Most often chairs initially deflected critical questions by simply thanking governors or with quite general reassurances: for example, ‘[name] is looking into that’ or ‘there's an action plan’. There was generally little evidence of actions and, instead, formulaic reiterations of the need to improve, e.g. ‘We have to continuously improve, keep training and keep driving standards.’

Collective reasoning and consensual decision making

Our observations above support the view that FT governance can provide opportunities for collective reasoning and consensual decision-making. Governors described gaining insights into executive board activities through involvement in hospital governance structures. Through participant observation in board appraisals, attendance of board and governor meetings and subcommittees, access to board papers and contributing to annual reports, governors described being assured that the board was fulfilling its duties. They expressed confidence in their ability to hold the board to account through access to information and scrutiny of information presented to them, e.g. questioning the chief executive report and asking questions. On this basis, there was a high degree of praise and respect for boards often ‘doing as much as possible’ to improve performance.

Some board members reported that they were held to account by governors. Through membership of committees, subgroups, and Council of Governor meetings, governors were described as a ‘critical friend’ in being able to ask pertinent questions, request information and ask for changes to be made.

However, some board members raised concerns about governors assuming non-executive powers. Non-executive directors were particularly concerned that some governors ‘thought they were directors’ in holding the executive to account:

Board members also raised concerns about how informed and considered the input from governors actually was. Board members described ‘underwhelming’ experiences of conversations, suggesting that governors tended to lack insight and understanding of current issues. Central to these concerns were notions of governor inability to take a system or organisational perspective on hospital performance, focusing instead on specific personal issues (‘hobby horses’).

Such complaints and frustrations were also expressed by governors, who suggested some were often focused on single objectives and personal issues rather than pursuing strategic approaches to analysing any organisational issues:

Gaps in governor knowledge and expertise with regard to performance information were also evident, with many governors suggesting that they did not understand the data, leading to missed opportunities to further scrutinise the board.

We also identified a preference for governors to draw on personal experiences. At Lewis, a governor described how on a walkabout they identified transport difficulties as a key feedback, which challenged the board's list of priorities, supposedly built on the patient perspective. At Arran, governors described how car parking continues to be a problem along with improvements to department signs, problems with lifts and the price of food and drink. In response to such expressed concerns, the chair or chief executive would typically draw attention to the challenges of responding to such issues (‘you're talking about a massive agenda there’) or pointing to how the hospital was resolving the issue (‘we are working with the health and well-being board around this issue’).

In order to improve collective reasoning and decision making, both governors and board members emphasised education and training to raise the current standards of analytical expertise. Governors were particularly supportive of chairs who allocated time for feedback to governors about board meetings, and provided governors with an opportunity to ask questions and probe particular points. As a way to improve governor awareness and standards, Islay introduced a complaints register to collate complaints and look for emerging themes. The initiative was seen as successful in focusing attention on patterns of complaints within data, rather than individual governors ‘raising individual issues and complaints’.

Governors also raised the need for more time to gain sufficient knowledge and understanding beyond their current three-year tenure. Given the time and energy needed by governors to understand the ‘jargon’, it was felt that governors were not given enough time to settle into the role. This explained why governors were often timid and hesitated to contribute, particularly in the first two years as new governors needed time to ‘get up to speed’. With experienced governors asked to leave, loss of organisational memory was apparent.