Non-executive directors (NEDs) have been part and parcel of the make up of NHS boards for many years and their role and function is familiar to many. There is a general consensus that non-executive, constructive challenge remains central to the successful management of risk that will be essential in implementing the long term plan and moving to system working. But references to the key role of the trust NED have become less explicit in national policy documents in recent years. This blog unpicks three common misconceptions about the role of NED to set the record straight, and explores how NEDs must continue to support and challenge NHS organisations.
The role of NED
The nature of the NED role is, to some extent, self evident from the name. They are directors and board members and as such have the same status as executive directors. Unlike executives who manage the organisation, non-executives have no executive powers, so they cannot, as individuals instruct or direct staff or work for the trust. But their duties, responsibilities and liabilities as board members are identical to those of executive directors. Ideally NEDs bring outside experience to the boardroom, but executive directors may also have experience outside of the NHS.
Where NEDs differ from executives is that NEDs bring an independent perspective to the board that executives who are an integral part of the organisation cannot bring. NEDs form a majority on trust boards and this, combined with their independence helps to create a questioning dynamic in the boardroom that ensures risk to the implementation of strategy are subject to appropriate challenge and that the board seeks robust assurance that what they think they know is supported by evidence.
NEDs form a majority on trust boards and this, combined with their independence helps to create a questioning dynamic in the boardroom that ensures risk to the implementation of strategy are subject to appropriate challenge and that the board seeks robust assurance that what they think they know is supported by evidence.
Specialist advisor (Governance)
Challenges and opportunities
In recent years, we have observed several themes that suggest the role of the NED is less well understood in national policy making circles than once it was. First NEDs are increasingly being asked to take on what amounts to executive duties. Secondly NEDs are often being seen as part of a broader oversight function in systems rather than as board directors. Finally sustainability and transformation partnerships (STPs) and integrated care systems (ICSs) tend to be led by executive representatives from the component partner organisations, NEDs are generally missing from decision making as directors at a system level.
Taking the quasi-executive role first: NEDs being asked to act as ‘champions’ in certain areas of a board’s work. Many NEDs do a first class job in the champion role and I do not wish to detract from their efforts. But the essence of the board director role is that directors do not have portfolios in the boardroom. They are jointly and severally responsible for the entire range of the board’s work, not just part of it. Furthermore if the champion role involves work outside the boardroom, which surely it must, then this takes NEDs away from being non-executive and therefore detracts from their independence. Foundation trusts can only delegate to executive directors and committees of directors, so they cannot lawfully delegate a champion role to a NED if it involves any work outside the boardroom. This leaves the NED in question awfully exposed. NHS trusts can delegate to NEDs, but it is debateable whether this is good practice given the central importance of NED independence as a safeguard against groupthink. While it is laudable that boards are asked to take particular care in certain aspects of their work, it is debatable whether having champions is the best way to go.
Another recent development which is understandable but carries risk has been the creation of system wide forums in some STPs/ICSs which group together foundation trust and trust NEDs with clinical commissioning group lay members and non-cabinet councillors as a group. While we fully understand that local system partners see a need for a challenge and oversight group to help scrutinise system level decisions across the system footprint it is essential to recognise the considerable diversity across these three different roles that have little commonality other than the fact that they are not executive. NEDs are not scrutineers of trust board decisions but part and parcel of the decision making process. Nor are they part of the NHS’ public engagement function, important as that is, in its own right. As board members NEDs stand for the owners of their organisations – in the case of the NHS the public, but so do their executive colleagues. An oversight/scrutiny and patient champion role at system level is a far cry from a NED majority on local trust boards with a significant impact and indeed a potential veto on board decisions.
I am certain that there NEDs performing a useful role in oversight of system leadership groups. But it is equally important for colleagues in the national bodies to recognise that the development of forums such as these, is a ‘fudge’ being undertaken by committed local partners seeking to establish appropriate governance arrangements, in the absence of a legal framework which allows for non executive challenge at the system level. NEDs as directors need to be part and parcel of the decision making process by forming committees in common that take system level decisions rather than this being left to groupings of chief executives. In the longer term, there may well be argument for systems (STPs/ICSs) to be led by unitary boards made up of NEDs and executives but we are some way off that.
NEDs also need to ensure that challenge continues to take place back at their own board, so that systems can be helped in managing existing and new risks as they are identified.
Specialist advisor (Governance)
Finally NEDs also need to ensure that challenge continues to take place back at their own board, so that systems can be helped in managing existing and new risks as they are identified.
For this to continue to happen effectively there has to be a clear understanding of the role, something that takes a little effort, but is not in itself a challenge. In our view, the role of NED carries the right combination of responsibility and skill to make a powerful and valuable contribution to the role provider boards play within a newly formed world focused on collaboration, and system working. To realise that potential we need to understand what the role is, and just as importantly, what it is not.
About the author
