21. The Board and Governance
21.1. My remit invites me to try 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. In that context, I have been told that what has happened at NHS Highland is a failure in staff governance which should be treated as seriously as a failure in financial or clinical governance. If this is not done, "it sends out the wrong message in terms of the way staff are regarded, both in NHS Highland and in NHS Scotland".
21.2. By way of preface, I recognise that, in what follows, there is inevitably adverse comment about some of what has occurred in the recent past. I do wish to emphasise that these remarks are intended to help explain the situation in which NHSH has found itself and to enable it to move on. I am sure that those in leadership and governance roles have generally tried their best in relation to the serious issues raised. Future progress will come from a healthy recognition of things that have not worked as well as they should in the past. And I recognise that the benefit of hindsight was not afforded to members of a Board under a lot of pressure.
21.3. Concern has been expressed that this report may conflate concerns about "the system" generally and individual or collective actions by Board members. I refer to my earlier remarks that this is not an exercise in finding fault or allocating blame but an attempt to ascertain what can be learned from the past and what might be done differently. I hope that a thoughtful Board will accept this commentary in the spirit in which it is offered and build on it, not through guilt but with a sense of leadership responsibility.
21.4. It is important going forward that the Board is held in high regard by patients, staff and the wider community. What follows bears on the general situation and not any specific case. I have drawn on what I have been told and readily recognise that there will be nuances and other perspectives of which I am not aware.
21.5. For a number of reasons, including inadequate provision of information to the Board which was not conducive to effective and informed decision-making and a culture which tended to discourage challenge, it appears that the Board has not functioned optimally in its governance and oversight role leading to a situation where allegations apparently could not be raised and responded to, adequately, locally. I address some of the issues which arise in this and the following two chapters.
21.6. This review prompts a question: given what has now come to light and the concerns expressed by so many people, why were steps not taken to address this earlier? The Board's response to the public announcement by the whistleblowers in September 2018 recognised that there were issues (for completeness, I append this as a note at the end of this chapter). The question has been asked why it took so long to do so and whether this response was an adequate one in the circumstances.
21.7. A former board member described:
"….an organisational culture that was not open and supportive but was one in which bullying had become institutionalised to a point where it was unrecognisable as an issue. Now with the benefit of hindsight I believe we almost all conformed to it in our daily relations with other members of the organisation complicit in the belief that these were the behaviours expected of us operating at such a level. It was however not only at board level: my role took me to all parts and places within the organisation and all too often I witnessed behaviours which did not support and encourage input and discussion from staff, rather the reverse.
The impact of such a culture had two important consequences: bullying of individuals who felt unable to voice their concerns other than in strict confidence to me and a very poor system of governance and accountability at board level. It is both that led to an institutional culture of intimidation and individual bullying and are therefore inseparable in terms of an analysis as to how we ended up in such a position."
I note that in theory at least "the system of governance and accountability at Board level" in NHSH is the same as in other health boards in Scotland.
21.8. Another observed:
"How much of this about bullying, how much is about governance? There is a culture of suppression - if you're not the right person, it won't happen. Or being labelled as a trouble maker. That leads to bullying."
A Failure of Governance?
21.9. I heard that, over a period of time, concerns have been expressed about a style of management and type of behaviour which many contended was not acceptable in a large and complex organisation. It seems clear that people in leadership positions were or should have been sufficiently aware of the concerns expressed as late as mid-2017 and probably earlier. At times, it appears that opportunities have arisen to address these and that steps which could and should have been taken were not taken.
21.10. One must remember, as I note again below, that this is an organisation with a budget of £800 million of public money. There will be very few Scottish businesses or organisations with budgets of that scale and with the complexity this entails.
21.11. A non-executive director told me:
"The issue of a bullying culture was first raised with the auditors, Audit Chair and Board Chair in late 2016. SG knew about it. Nothing was done. NEDs advised SG in August 2017: "We feel the culture and leadership is a risk to our stated values and objectives." When John Brown came in, he did a verbal report to us that was dynamite. He said it as it is. "Your board do not trust you or have any confidence in you". In essence, we knew about it, we tried to do something about it. But in the meantime, the bullying was going on."
21.12. I suspect that some senior executives and some board members (though not all) have suffered from a degree of unconscious blindness. While it might have been obvious that something was wrong, for a variety of reasons they have not seen it or have been unable to act on it. It is likely that many of the cognitive biases and other influences mentioned in chapter 8 have been at play and that may be understandable in the circumstances. I believe there are other reasons and I explore some here.
21.13. When asked "What one step would make a difference?" a non-executive board member told me:
"The truth needs to come out. The NEDs were aware of it eighteen months ago. We have been working through the process of telling SG." "…as a board we have missed a lot." "There have been some big misses by this board. We have a lot of reflecting to do."
21.14. A senior executive told me:
"That's the other thing that worries me about the situation. There is so much that has come up to the surface that we're not aware of. That is awful. It worries me more than anything else."
21.15. A very senior figure commented:
"They (the Board) have been paralysed by fear of doing the wrong thing."
21.16. A former non-executive director described the situation as seen by that person at that time (a view not held by all nor necessarily applicable now):
"Board operation prevented the CEO from being held to account in a forum where in depth examination of issues could be undertaken [of] evidence of institutionalised intimidation and its supporting committees were held in much the same way and allowed inappropriate behaviours between people. Intimidation was the norm.
… relations within the Board between executives and non-executives were confrontational and often made "personal" or at worst non-executives were deemed to be wasting the time of executives by their questions and/or requests. Non-executives received little or no support for their role. I coached informally several members or lay members about their role as they felt inadequate or foolish as a result of their treatment at the Board. The number of resignations should have caused questions to be raised by government."
"I raised issues discreetly with the Chair and within the Remuneration Committee under "our duty of care to our staff" but got nowhere."
21.17. A central reason behind the resignation of at least one non-executive director was the lack of proper governance. To that person, the Board appeared peripheral and a rubber stamp, with decisions being taken by the chief executive and the Chair. Presentation of information to the Board was not conducive to effective and informed decision-making. Some board members played little part in discussions. It seemed that there was little opportunity for or encouragement of challenge. There was general concern about poor communication.
21.18. I understand that various non-executive directors have expressed concern about governance in recent years and the Brown and Polley reviews (referred to elsewhere) took place. One of the curiosities of the situation is that a number of non-executive directors have resigned but there seems to be a lack of transparency regarding the reasons for their doing so. It is arguable that both the Board (and, indeed, the Scottish Government) were, or should have been, sufficiently alerted by these developments alone to act more decisively at an earlier stage. It appears that resignation letters were not shared by the Scottish Government, even with the Chair. I understand that some board members feel that they did all they could. I sense that red lights should have been flashing by 2017 at the latest although some concerns about governance were apparently raised by Audit Scotland in 2015.
21.19. A director observed:
"We have had at least three or four NEDs leave. I don't know how many need to leave before someone wakes up to the fact we have a problem." "They haven't pulled their punches either. They wrote to the government and said the Chair cannot keep the CEO in check. We've had so many, a governance review. No trust in the CEO and no confidence in the chair. You'd think something would happen from that."
21.20. Concerns were expressed by a number of respondents about the Chair's ability to hold the chief executive fully to account. A now retired director expressed this concern about accountability:
"My experience tells me that power rested with one individual in the organisation and they acted as the gatekeeper of opinion and advice to the Board and other senior officers. There was not the ability to safely challenge or express alternatives…In my opinion, the very necessary separation of powers held by the Executive (the chief executive), the Chairman, Non-Executives and Staff Director completely broke down... An organisation where there is responsibility without accountability results in turn in an extremely unstable organisation."
21.21. This seems especially relevant to events in and around August 2017. While hindsight is a great thing, the concerns raised then were, I sense, not as well handled by the then Chair as they could have been. I acknowledge that he would be in a difficult position and that Scottish Government was also involved at that time. Decisive action at that stage to address concerns, amid board resignations and a difficult situation regarding radiology, might have made a big difference.
21.22. I believe that the Chair recognised that there was a problem in that people may have lacked confidence in the systems for raising their concerns and engaging in a conversation about their concerns directly with the Board. I acknowledge that external reviews have been commissioned and other steps taken to address the situation which has now arisen and that the Board is also awaiting this report.
21.23. While the question arises whether his relationship with the chief executive was sufficiently robust and frank, I acknowledge that the Chair was in a difficult position and would be trying his best in the circumstances in which he found himself. He has since resigned. However, in a public service with a budget of £800 million, new leadership should look seriously at all of these matters and the learning arising from what has occurred, especially in connection with holding to account. If this is done, it should be possible to assess and respond to allegations, such as those of bullying, more fully at an earlier stage.
Accountability and Competence
21.24. Overall, 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 reasonable to conclude that the Board has not functioned as well as it could. There appears not to have been a culture of sufficient openness and one which welcomes challenge.
21.25. One non-executive director told me:
"I think we need to change our approach to how people can raise things. Talking with the whistleblowers, they have tried to raise things for a while. So have NEDs. We didn't know. As a board, we need to work on ourselves and how we lead. We have new members who we don't know that well, so difficult to trust. Exec board colleagues, still don't have that much contact with them outwith board meetings."
21.26. I note that the Scottish Government published a guide for board members of public bodies in 2015. This summary on roles and responsibilities is helpful:
"The four main functions of the Board of a public body are: to ensure that the body delivers its functions in accordance with Ministers' policies and priorities; to provide strategic leadership; to ensure financial stewardship; and to hold the chief executive and senior management team to account."
21.27. NHSH has its own clear guidance about the role of the Board and its members, including non-executive members. It appears that the problem here is not lack of information but lack of implementation.
21.28. It is possible that concerns about the functioning of the Board went deeper. One former board member told me:
"Competence is another contributor. Some of the players were a level beyond their competence... The body was not competent enough to know what they wanted."
21.29. I note that the fit and proper person regulation (FPPR) requirements which came into force for all NHS trusts and foundation trusts in England in November 2014 require NHS trusts to seek the necessary assurance that all executive and non-executive directors (or those in equivalent roles) are suitable and fit to undertake the responsibilities of their role.
21.30. In order to meet compliance with these requirements, all NHS trusts must ensure they have robust processes in place to assess the suitability of directors at the point of recruitment and throughout their ongoing employment. They are also required to have effective arrangements in place to tackle issues should any concerns be raised about a director's ongoing fitness and suitability to carry out any such role.
21.31. Although not applicable in Scotland, these illustrate what might be expected of a board functioning well and of an appointment and review system which is itself fit for purpose.
21.32. None of this is helped by what seems like an extraordinary governance structure. As I believe Audit Scotland commented over three years ago, the governance model seems extensive and impenetrable to many. It does not seem conducive to open, transparent and effective operation. I confess that I found the maps of the governance structure complicated and very difficult to navigate. I found nobody who was able to explain to me how all the many and extensive committees operate in connection with each other. There appears to be no comprehensive organisational diagram or other presentation of the governance relationships. I understand that executive and non executive directors have raised this and been told that legislation or government guidance is needed for many aspects.
21.33. Incidentally, the same appears to apply to the multi-layered management structures. A very senior director manager was unable to describe this either and another commented on a lack of integration operationally.
21.34. I have the impression that attempts have been made to examine and reform governance but progress seems to be slower than may be necessary. The Brown and Walsh report in May 2018 covered all of this in some detail. Again, there must be a simpler way of managing the organisation without, as one person suggested, tearing down the whole governance structure and starting again.
The Jan Polley Review
21.35. Simply by way of illustrating that there may be nothing new in much of what I comment on here, I note that the Jan Polley review which reported in February 2016 included the following recommendations:
"A deeper understanding of the respective roles of non-executive board members and executive board members in order to build confidence in and share appreciation of how they work as a team, adding greater value to each other;
A review of the remits of the governance committees to minimise duplication of papers and discussions and clarify the roles of and relationships between the Board and its committees;
A strengthening of the corporate governance support given to the board and its non-executive members in order to reinforce governance processes, including the training and development opportunities available to board members."
21.36. I should add that, while generally outside my remit, the absence of a proper strategic plan with specific goals and timelines seems to be a contributor to the current sense of lack of direction. The report by John Brown made recommendations in this regard as it did on holding to account, roles and responsibilities and other matters referred to in this report. Executive Directors have pointed out that NHS Highland has a 'NHS Highland Strategic Quality and Sustainability Plan', which was approved by the Board in 2017. Work was apparently also undertaken in 2018 on a simplified info-graphic summary, which was discussed with executive and non-executive directors but has not been finalised, due to changes in staff.
21.37. In passing, I note one other issue which seems germane to the effective functioning of a board seeking to hold senior executives to account. That is the holding of board meetings in public.
"The other dynamic that is a constant… the theatre of the board meeting itself in public. What gets discussed in private versus public. There is a real issue - quite a tricky thing - to raise issues that need to be discussed at an open board meeting that will not impede the executives. The public nature is an ongoing problem. Not many people turn up, but it is webcast so in theory... and the press are there, in a small community. It's in the paper the next day."
21.38. I asked myself the question: how useful is subjecting health boards in this way to open public meetings and intense media scrutiny? On balance, does it assist or hinder? Does it fulfil an effective audit purpose? Might this be done differently? There must be an argument that the public nature of the meeting inhibits the kind of scrutiny which is essential. If board members are competent and have been transparently appointed, perhaps they should be trusted to get on with it, with specific open public fora once or twice a year.
21.39. This has been a lengthy chapter but effective governance is critical to the future of the organisation. As one senior clinician commented:
"Moving forward, the chief executive has left the organisation but there now needs to be a fundamental change in the relationships between clinicians and the corporate team, if the present situation is to improve. The individuals who have raised the issue did so in a manner that I do not support or condone. I can, however, see why they felt they had to do it in that way, having taken an issue to the CMO and attempted to bring the culture of Board officers to the attention of the Board.
The way that members of staff have been dealt with and the resignations of Non-Executive Directors of the Board certainly gave the strong impression that the clinical governance of the Board did not come up to the standards you would expect from a public institution. Whether the actions of the Board and the Executive team are labelled as bullying or simply poor management is less important than the need to move forward for the benefit of the service in general and the wellbeing of patients and staff alike."
These words aptly sum up the need for a change of direction at board level.
21.40. Board statement issued in October 2018, agreed by all board members present:
"We all joined the Board of NHS Highland because we care very much about the NHS and the services we provide for the people of the Highlands. It feels like NHS Highland is being publicly torn apart, with little right of reply.
"For the sake of all of our staff and the people we serve we feel this cannot continue in this way. Our offer to meet the four clinicians remains open and we hope others will speak up and we urge that to happen as a matter of urgency.
"For the four doctors to make a public claim that 'a thread of cruelty has purposefully been spun throughout NHS Highland' simply cannot go unchallenged.
"We feel sure that everyone who cares about the NHS will share the view that our patients, staff and public deserve better and we are calling on everyone to make their voice heard."
21.41. The statement went on to say:
"We recognise the utmost seriousness of the situation and are prepared to leave no stone unturned to get to the truth. There is clearly an issue of some sort which needs to be understood. We are of the firm opinion that it is surely in everyone's interest for any allegations to be addressed as a matter of urgency.
"Therefore, we unanimously express our ongoing frustration that we are being denied any substance to the accusations and also that the opportunity to have a mature, responsible and respectful dialogue continues to stall."
Board members heard from Dawne Bloodworth, NHS Highland's interim director of HR, that all the internal evidence to date paints a very different picture from what is being publicly alleged.
She said: "There is no evidence that I have seen to date that indicates that the four doctors represent the views of all GPs and Consultants. Indeed some clinicians have raised concerns to this effect.
"In common with all parts of the NHS there are certainly pressures in the system and as a board we acknowledge that. Sadly we also know there are some incidents of bullying, past and present. We are unanimous as a board, however, that to claim there is a systemic culture of bullying is not a true representation of the facts and opinions that we are currently aware of including feed-back from staff."
She went on to stress: "That should not in any way, shape or form underplay any incidents of bullying. We have a duty of care to anyone who has been bullied and we are truly sorry that it can happen. We also have a duty or care to anyone accused of bullying to make sure they are also not unfairly treated.
"As a board we have mechanisms, policies and procedures in place to manage this. We have also invited external HR scrutiny to see what more we can do to bring the highest level of confidence possible."
She added: "I believe the action that we have taken so far has been immediate to actively encourage staff to express their concerns and views through a wide range of routes. We continue to welcome feed-back from staff who we know have a range of views. Somehow we need to encourage everyone to work together and in all good faith I really hope that something positive can come from this."