HSJ’s fortnightly briefing covering safety, quality, performance and finances in the mental health sector. Mental Health Matters is now written by HSJ’s new mental health correspondent, Rebecca Thomas. Tell her what you think, or about issues she could write about, by emailing her in confidence at rebecca.thomas@wilmingtonhealthcare.com or by sending a direct message on Twitter.

Have the Care Quality Commission’s attempts to curb the learning disability market negatively impacted the national transforming care programme?

Potentially.

This week the regulator’s lead for mental health, Paul Lelliot, let slip that the CQC intends to carry out a further consultation on its controversial “registering the right support” rules.

Introduced in 2017, the rules effectively sought to curb the size of inpatient and specialist accommodation for patients with learning disabilities and/or autism.

It means both NHS and private providers would find it difficult to build and register any new services which resemble “campus” or “congregate settings” (and have more than six beds).

It was essentially introduced to support the transforming care programme and national attempts to reduce the NHS’ reliance on large institution-type hospitals.

The new regulations have already provoked a few legal challenges against the CQC, so talk of a further consultation could set some hares running.

With one example of the regulator winning its case, and another example of it losing, the CQC’s legal rights to regulate the market are not straightforward.

A question more easily answered is whether the CQC should regulate it.

Unintended consequences

HSJ is beginning to see evidence of some unintended consequences resulting from the regulator’s good intentions.

In January this year, for example, Liverpool Clinical Commissioning Group revealed the CQC had declined to register a 16-bedded “step through” unit for patients with learning disabilities.

The unit, which received national funding, was intended to act as accommodation for those ready to be discharged from inpatient beds and those who don’t quite need a full admission.

According to the CCG, the regulator declined its registration as the building did not fully conform to the new regulations.

Ironically the commissioner said this had impacted on its ability to discharge six people from an inpatient unit.

There are a few issues at play here.

Paul Ridout, partner for Ridouts law firm, warns the “fatal flaw” in the CQC’s vision for LD units is that it will “probably cost one-and-a-half to two times more than what the existing market [offers]”.

As he put it, for those thinking of making an investment, it comes down to how much revenue can be generated from a bed. To be cost effective, a smaller unit – let’s say with six beds – is likely to require a greater revenue margin in comparison to a 12-bed unit.

So, is there a risk the CQC’s actions will make beds more expensive for the NHS and local authorities? Perhaps.

The greater risk, however, is that the rules dissuade providers from investing in the market altogether.

This seems to have been the case in Barnsley, where commissioners warned in November they had not been able to identify a supplier for crisis or safe place accommodation. This was “largely” because of the CQC’s registration requirements, the CCG said.

I’ll refer back to a warning from Mr Ridout here: “People will invest if they believe the investment to be valuable or if it is likely to have a good prospect of success. People are not going to invest if they are going to spend millions of pounds to end up with a building in a field which isn’t worth it.”

While curbing the market may result in less of those undesirable assessment and treatment units in the future, the CQC will have to be careful in its upcoming consultation that it does not stunt the market altogether.

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