Introductory Profiles

Starting off from the textual and prescriptive side generated by the Legislative Decree no. 229/99, a USL (Unità Sanitaria Locale: Local Health Unit) ought to be defined as an enterprise provided with public legal status and with entrepreneurial autonomy (1.). This is certainly the most complete, legally conceived, definition from a “corporate” point of view, which conveys a rich range of meanings and of operating implications.
If we make an effort to understand what state-owned enterprise means, by using, to this end, a terminology (which certainly requires clarifications) and by relating this concept to the health sector, we shall have to acknowledge that the peculiarity of this management is associated with the potential operating autonomy of health enterprises.
For this type of enterprises, it is essential that the system is properly and efficiently run. Of course, the occasional forays of doctrine (2), brought about by actual legal cases, have so far made it possible to sense (rather than to see), to understand that something is changing within the strategies of health enterprise organisation. In actual fact, in this case by ‘enterprise’ we do not mean the sum of the assets organised by the entrepreneur to run the business (3) (juridical notion), nor the economic order of the life of an institute (4) (economic notion), but an activity that is strictly related to the concept of enterprise, to be regarded as a series of decisions characterised by a specific professional competence (5). Within this organisational scope, the private law corporate act, whereby the operation of local health units is regulated, is of great importance: this is the tool through which public health managers are to redesign the framework of management responsibilities, including those relating to the budget.
It is therefore an operating tool, which is part of the result-control process implemented by the NHS, and hence of its “aziendalizzazione” process, the process whereby emphasis is placed on health service management, which is similar to the procedural act that a board of directors of a private enterprise drafts to outline its general policy.

1) Legal Nature

The problem involved by the regulation of the corporate act, which with its obviously private-law nature fits in the public organisation of the enterprise to regulate its organisation and operation, calls for some reflections with respect to its nature and to its value as far as public interest is concerned; these are two factors that, in actual fact, appear to have taken a course involving a dematerialisation of the enterprise object, in that emphasis is laid not so much on the assets making up the body, but rather on its economic value (6), thus displaying a sharp-cut difference compared to the Italian tradition, which is strongly associated by the definition of ‘enterprise’ given by art. 2555 of the Civil Code.
In fact, whenever an investigation as to the constitutive nature of an enterprise is conducted, it is always necessary to ascertain the presence of the indefectible nature of the organisation (7), with the possibility of choosing in advance organisational models that attain the enterprise objectives in line with its requirements (as in the case of the Corporate Act).
The so-called Bindi Decree has recognised the corporate act to have the nature of a private law act: hence its origin, and consequent development, must be of a civil law type: Memorandum of Association (aimed at the constituent phase of the structure as a juridical person) and Articles of Association (aimed at regulating the activity of the organisation itself) (8). On the contrary, should the act have had the features of a public law regulation source, it would have been ascribed the nature of a regulamentary act (9). In any event, the possibility that a corporate act be considered as the memorandum of association of a health enterprise is to be ruled out, since the constitution procedure for this particular type of enterprise is analytically regulated by law (10).
Ultimately, the contribution that the corporate act may offer with respect to the actual transformation of health organisations into enterprises leads us to define it as a self-government act of the enterprise, which, in compliance with the civil law regulation in force on the subject, and in accordance with the concept of entrepreneurial autonomy, is entrusted with the task of constituting the organisation and regulating the operation of the enterprise in its basic aspects, as they relate to the outside environment, with the purpose of achieving the highest degree of: - Economic efficiency, which means achievement of its purposes with the employment of the lowest possible assets (principle of minimum means results being equal, or of maximum result means being equal). - Effectiveness (ratio between results obtained and pre-established objectives). - Economic character (economic result in the long run). The final evaluations as to the economic character, efficiency and effectiveness, contribute to expressing in the course of the activity the final judgements as to the “quality of the administration and of the management”, it being understood that any system may be improved within set physiological limits.
But the greatest achievement has been that of providing an opening to intervention policies whose structure is much more complex of that within which the enterprise had traditionally been moving, by involving sociological, civil law and organisational considerations. Indeed, the enterprise dimension appears to be deeply changing; the traditional forms of coordination among productive factors, based on a hierarchic structure, tend to be replaced by new types of relations, based on a contractual logic, and hence formally, even though not substantially, equal.

2) Conceptual Meaning of Corporate Act

When we talk about private law corporate act, we need to acknowledge the existence of an actual requirement for adequate planning of the corporate system, so as to ensure that, in the healthcare or hospital enterprise, among the various possible variants, the one which is most in line with the specific features that a certain healthcare organisation displays, is implemented. The term “act”, in particular, should not simply recall a whole range of formal procedures or an update of management programmes, but a variety of solutions and interventions that may deeply alter the culture of the organisation, thus contributing in a decisive manner to the substantial transformation of the enterprise.
The most fitting notion of “act” is the one that business economy and managerial tradition has defined as “managerial act” or “planning and control act”, with the purpose of distinguishing two major stages of a single process of leadership and government of the corporate activity. In this regard, three points a crucial: - The contribution that the corporate act may offer to the change in mentality, by stating the notion of objectives, at time of planning, in order to achieve the same. - The importance that the notion of ‘act’ may acquire, ranging from a restrictive interpretation of it as manifestation and result of a will, to the broader one involving a human behaviour producing juridical effects, in the form of a document. - The solution, through the adoption of the corporate act, of the problems concerning management activity and internal organisational processes. In this case, in which it plays a guiding role that clarifies responsibilities, the corporate act should be interpreted as the maximum expression of health enterprise autonomy, by creating the required motivations for the achievement of efficiency, effectiveness and quality of performance. More specifically, it is to supply the choice and evaluation criteria, also of an economic nature, required to adequately implement the rationality of decisions. In this case, rationality should be viewed as conformity with economic requirements in the choice and use of resources, in the management of operating processes and, finally, in the service offered to patients.
Furthermore, we should not forget that a private law act introduces into the micro-organisation of corporate management, within the shell of macro-organisation (11) represented by the public sector (indeed a health enterprise is a body provided with public law legal status), the notion of privatisation, thus deeply influencing the health enterprise, which stands out because of the following peculiarities: - It is a utility enterprise with a social vocation. - It is a compound public enterprise, characterised by the universality of assistance and by extra-economical purposes. - It is a highly integrated enterprise, with complex and bureaucratised organisational macro-structures, with a consequent increase in organisational costs. - Being a public organisation, it is entirely or partly free from competition. We are therefore dealing with significant features, which, by acting on and influencing the corporate culture, inevitably encourage the introduction into the system of the private law act, which is indispensable in order to meet the requirements of effectiveness and efficiency, already imposed on the Civil Service with art. 1 comma, 1 of the Law no. 241-90 (12).

3) Contents

The analysis of the corporate act cannot set aside the study of the articulate range contents relating to it. A distinction is drawn among: a) contents which are compulsory according to the law, b) contents which are compulsory because of a corporate choice c) and optional contents. The logic of this repartition originates from the desire to combine health protection objectives over the entire national territory and the need to rationalise the employment of resources and therefore the requirement to define organisational and management models aimed at the qualification of the system as a whole. The sum of such principles and rules represents the reference institutional framework for the activity of health organisations, which affects its supply processes, its strategic space and its organisational changes (13).

3.1 Compulsory Contents
According to the Law 1) Organisation and operation regulation of the enterprise (art. 3, comma 1 bis, Legislative Decree no. 229-99). 2) Identification of the operating structures provided with management or technical/professional autonomy, subject to analytical reporting (art. 3, comma 1 bis, of the above-mentioned Decree).
3) Identification of the private law precepts relating to direct contracting out and negotiation of the supply of goods and services, with a value lower than that set by the community regulation (art. 3, comma 1 ter).
4) Identification of the district based on the criteria set forth by the Regional Authority for the subdivision of local Health Units into districts (art. 2, comma 2 sexies, letter c), guaranteeing a minimum population of at least sixty thousand inhabitants, except for the cases in which a different regional provision exists in view of the geomorphologic features of the territory or of the low resident population (art. 3 quarter, comma 1).
5) Regulation of the departmental organisation of all the operating units of the organisation, in compliance with art. 17 bis (art. 4, comma 1 bis, letter a).
6) Regulation of the powers awarded to the administrative director, to the health director, as well as to the base, district and department directors and to the facility managers, of the tasks, including, for the managers of complex structures, the decisions involving a commitment of the enterprise towards third parties for the implementation of the objectives set forth in the corporate general and financial policy (art. 15 bis, comma 1).
7) Identification of the criteria and modalities whereby powers to manage facilities and offices is assigned to executives, with the compliance, on the part of health service executives, with the provisions of art. 15 ter, of the Legislative Decree 229-99, subordinating the conferment of assignments to the compliance with the modalities set forth in the national collective labour agreements, to the compatibility with the financial resources available and to the compliance with the limits for the number of assignments and facilities set forth in the corporate act as regards assignments of a prevalently professional nature or of plain facility management, taking into account the annual evaluations of the technical committee according to art. 15, comma 5 (art. 15 bis, comma 2).
From a genuine service orientation point of view, the contents which are compulsory according to the law display the willingness on the part of the Legislator to shape the corporate act as an example of the changes introduced into the traditional model of health management, now based on the separation among programming, policy and control functions, with the objective of definitely transferring the centralistic-bureaucratic power towards the periphery (e.g.. the departments), in the light of the health policy and economic policy trends. Of course, the change in the organisational and functional set-up resulting from the adoption of this “government” act must necessarily be expressed through strategic actions, such as: - Identification of an agreement model involving the local bodies for a programming system. - Construction of a system of interdisciplinary relations with the other institutional parties. - Establishment of a quality system. - Definition of the financing sources. - Strengthening of the health information system so as to have available a planning tool. - Reengineering of the supply distribution.

3.2 Compulsory Contents Chosen by the Enterprise
The compulsory contents chosen by the enterprise may relate to all kinds of subjects, depending on the strategic options of the general management, whose tasks represent the reason for its existence, the determination of its work and the foundation of its authority and legitimation. From the point of view of each individual health enterprise, we may add that in most cases it is the management staff itself that identifies the necessity, the significance and the specificity of contents of the act that is compulsory by choice, which should be viewed as the natural complement of the compulsory contents according to the law, of course taking into account the principles and criteria adopted by the Regional Authority. In any event, it is not possible to set aside contents that, because of the manifold activities, variedly combined in the numerous operating processes, whose productive purpose and mission significance consists of meeting the requirements of the patient, will necessarily have to be provided for.
1) Identification of the registered headquarters and of the peripheral seats of the enterprise.
2) Corporate logo, purpose, vision and mission.
3) The enterprise organisational model, its structural and functional articulation, the regulation of the levels of competence and responsibility, the general strategic lines for the definition of the organisation and operation of the departments and districts, the distinction between functions of the staff (whoever offers his contribution to the work of the enterprise through a third party who does not report to his enterprise or through any of his subordinates, who makes an effort to improve the service or the profit, with the different typologies of staff involved in: a) programming b) planning c) organisation) and of the line (whoever works directly on the result of the enterprise, the so-called operators) (14).
4) The regulation of decentralisation of powers, tasks and functions (conditionally to integrations, modifications and updates).
5) Medium- and long-term strategic objectives.
6) The regulation of powers and modalities for the assignment of management offices within plain facilities, complex facilities, organisational positions, professional activity and responsibility offices.
7) Property endowment.
8) Regional Authority-University agreement protocols.
9) Differential modalities in the supply of healthcare services, in order to achieve greater compliance with the citizens’ requirements.
10) Implementation of a process of constructive cooperation with Local Bodies, in compliance with the spirit of the healthcare reformation.

3.3 Optional Contents (cross reference)
As far as this category of contents is concerned, as it appears obvious, health enterprises are generally free to introduce discretionally and willingly into the corporate act some “connotations” which are above all selected in connection with the territory in which the facility is located, which is a prerequisite for the personalisation of the individual contents, by ensuring an agreement between objectives and means. Indeed, the situation of health enterprises requires a significant ability to integrate and cooperate with the territory, in order to consolidate and recover, wherever the need should arise, a rigorous and optimal system of allocation of resources, depending on the services supplied and on the health results.

4) Corporate Act Drafting Modalities

As far as the private law corporate act drafting modalities are concerned, the Legislative Decree containing: “Regulations for the rationalisation of the National Health Service” has not touched art 3, comma 1 bis, to regulate it as required. At the moment there are two solutions that appear to prevail: one favourable to an analytical regulation and one favourable to a synthetic regulation.
The first one is based on the argument that, in order to deal with the numerous requirements of health enterprises, the contents need to be specified in detail and exhaustively (and the analytical description of the contents that are compulsory according to the law appears to confirm this theory). The second current of thought, on the other hand, deems the analytical exposition of the contents as an example of rigidity, and deems that the purposes of the health enterprise can also and above all be pursued with a clear-cut and flexible act, with the aid of general principles that can be adapted as the actual situations that materialise are dealt with and solved, also with subsequent implementation regulations. In our opinion, it would be necessary, as far as possible, to find a compromise solution that reconciles the analyticity features as far as the structural aspect of health enterprises is concerned (General-administrative-health management, Departments, Districts, Bases, Agencies), and the flexibility features as far as operation is concerned (trying to interpret and respond to the environmental and development stimuli which make a health enterprise capable of pursuing flexibility and efficiency at the same time).

Closing Comments

The issue we have attempted to describe with the above mentioned considerations leads to an inevitable conclusion, that is that a health enterprise, which is first of all an operating tool of the Regional Authorities, and is subsequently expression of the NHS, is to organise itself (and the Corporate Act is a means for this purpose) according to responsibility criteria, by managing the available means according to flexibility criteria and by providing the enterprise with opportunities of entrepreneurial autonomy, whereby the Corporate Act is to represent the chief means of management innovation and modernisation. In short, health organisations need to base their activity on flexible and interfunctional plans, by reconciling the need to face the scarcity of available resources with the need for innovation and change, leaving behind the old management approaches and switching from a logic based on acts to a logic based on objectives, by setting forth organisational and clinical guidelines capable of perceiving and properly interpreting environmental stimuli, so as to be able to respond to the requirements of the moment in an appropriate manner, through rapid and incisive decisional processes.

Ubaldo Comite
Professore a contratto
Cattedra di Organizzazione Aziendale
Università della Calabria