Regulators need to bring more clarity to leadership ratings

According to a recent joint statement published on 20 May, Monitor, the Care Quality Commission and the NHS Trust Development Authority said they were “committed to developing an aligned framework for making judgements about how well led NHS providers are”.

In practice, it seems that they will still be using their own separate frameworks, although there has been an attempt to make the CQC’s key lines of enquiry on leadership align with the TDA and Monitor well led framework, based on the four domains and ten questions from the quality governance framework.

The frameworks will be phased in for assessments from October.

In another article we summarised some of the key elements of leadership as defined under the CQC, TDA and Monitor aligned frameworks.

• Finding the framework: The key elements of leadership from the CQC, Monitor and TDA

The examples fit into five groups:

1. Strategy and risk management;
2. Clearly defined roles/regular consideration of quality and performance;
3. Capability and transparency of the board;
4. Engaging patients, staff and other stakeholders; and
5. Striving to learn and improve.

According to the joint statement, culture “is not something that is easy to measure”.

Following our analysis of the respective frameworks, we have come to a similar conclusion about the frameworks themselves.

‘Monitor’s framework in particular is long, repetitive and not always easy to understand’

It is not always easy to pull out the key points or understand what is meant by them.

So it is likely that it is going to be just as difficult for providers to understand what is to be expected of them in this area as it is going to be for inspectors to assess leadership.

• More from the Insight and Influence channel

Differing opinions

According to a recent HSJ article, a survey of 2,000 NHS staff, published by the King’s Fund, indicated that:

• Only 15 per cent of medics - compared with 45 per cent of executives - thought leadership was good or very good;
• Forty-three per cent of NHS staff felt that inappropriate behaviour was not being dealt with effectively or quickly enough;
• While six in 10 executives thought that enough priority was given to quality of care in the NHS, under three in 10 doctors and nurses felt the same way; and
• Only 39 per cent said a culture of honesty and openness characterised their organisations.

‘A trust really needs to demonstrate effective collaborative leadership across their organisation’

The last point is likely to be of particular interest to regulators given the new statutory duty of candour which will be coming into force from October as a regulatory requirement, which if breached can lead to prosecution.

The survey results do highlight an apparent disconnect between managers and clinicians. This is most worrying because to succeed under the above regulatory framework, a trust really needs to demonstrate effective collaborative leadership across their organisation. 

Post-Francis, the prevailing view is that genuine leadership, rather than managerialism, matters and will be ever more closely scrutinised by the national regulators.

The new kid on the block looking at leadership for the first time is CQC with its “well led domain”. 

‘Inadequate’ leadership

The reason why it is so important to get a “good” rating in the leadership domain is because an “inadequate” rating under leadership - plus “inadequate” in one other quality domain - will normally lead to the chief inspector of hospitals recommending the trust be placed in special measures.

‘Providers with an “inadequate” leadership rating risk being placed in special measures’

At its most extreme, under the single failure regime coming into force through the Care Act 2014, if the CQC issues a warning notice on a NHS hospital provider which is not complied with, the commission must consider whether to require Monitor to appoint a trust special administrator.

Also, adverse CQC ratings will have a major impact on trusts applying for foundation trust status as only trusts judged as “good” will proceed to authorisation. On an individual level there is also the barring regime for senior managers in the NHS that will be enforced by the CQC, which includes broad concepts such as “misconduct” or “mismanagement”.

A not so clear system

The proposed CQC rating review process for hospital trusts, which includes leadership, has serious limitations.

The proposal is that the CQC will publish the inspection report, following which a hospital provider can ask for a review on process, only in respect of ratings at hospital level but not at the aggregated trust level.

As far as “process” is concerned, it is unclear what the rules are in setting ratings. A single hospital will have 54 ratings linked to core services.

At the trust level there will then be a further five ratings culminating in an overall rating of “inadequate”, “requires improvement”, “good” or “outstanding”. 

‘How meaningful and fair the current rating system is remains questionable’  

An acute trust with three full service hospitals will have a total of 167 ratings that somehow will translate into an overall trust rating.   

The most recent consultation from the CQC talks about an algorithmic approach informing ratings but says it is ultimately a question of judgement. 

We can only hope that the CQC will provide far greater clarity when the final version of the acute sector provider handbook is published in October this year.

Be prepared

Our concern is that “well led” may be interpreted by providers to mean telling the regulators what they want to hear. 

There is a hint of that in Monitor having to ask FTs to revisit their two-year financial plans, given the concern that FTs have been overly optimistic about 2015-16 out of a fear that action might be taken against them if they are full and frank about the financial risks. 

‘Regulation should not inhibit autonomy and strong leadership’

It should not be about appeasing the regulators; it is about doing the right thing in the interests of their patients. 

Given the real uncertainties about the operation of the new CQC ratings model, it will be important for trusts to actively engage in the inspection process and challenge findings that they do not agree with during the inspection and when they receive the draft report.

To leave it until the publication of the report will be too late.

So prepare for the inspection, watch out for the draft report and take action, as necessary. Your future and that of your services may depend on it.

Neil Grant is a partner at Ridouts LLP and Joanna Dirmikis is a barrister and advises on health and social care law for the firm