There have been suggestions that NHS provider boards need to rely more on delegations and committees in common so that decisions can be made at a system level. There are clear advantages to system working and the appropriate use of delegation in order to reach system-wide decisions with the minimum of bureaucracy. However, clinical commissioning group (CCG) governing bodies and provider boards remain the legal units of decision making within the NHS at local levels, partnered closely by local authorities. This means trust boards remain the unit of decision making within the NHS provider sector, accountable for quality outcomes for patients and it is a key duty of the board to properly supervise the work of the executive.

Learning from where service delivery has gone tragically wrong, including at Mid Staffordshire from 2005 to 2009 and Morecambe Bay in 2010, its clear that one of the key determinants of failure was that executive directors were not properly challenged, supervised and held to account by their board. Strong boards are rarely a problem. Conversely, weak boards can lead to disaster.  

Systems are not bodies corporate and do not have any legal standing. They cannot be board led and they cannot use the same method of corporate governance as is used by boards. System working strengthens the role of executives and, unless care is taken, likely diminishes the role of NEDs. Leaders in systems have attempted to tackle this issue in a number of ways. These have included the appointment of independent system chairs and of scrutiny groups of NEDS, CCG lay members and councillors. These moves are welcome, not least because they can facilitate objective approaches to discussions on difficult issues. However, these groupings are of individuals with very different duties, accountabilities and legal standing, and the fact that they meet together does not confer on them any statutory powers to act as a counterbalance to executives.

If challenge and proper supervision of the executive is to take place at system level and risk is to be properly managed, we will need to have unitary boards at system level. That in turn will require primary legislation, which – in this respect at least – is unlikely to be forthcoming in the short term. In the absence of such bodies, we must rely on reference back to existing local boards of directors so that system risks are properly challenged, managed and assured.

Bringing together different parts of the NHS should present the opportunity to build on what is best about corporate governance in the NHS. That means opting for best practice rather than looking for a common denominator. When considering best practice, the Myners report for the Co-op group echoed the findings reviews from Cadbury onwards on the strengths of the unitary board. We believe that what is true of the private and co-operative sectors is also true of the NHS, that the retention of the unitary board is essential to best practice in corporate governance.