Time to rethink NHS regulation

Early this month the Professional Standards Authority (PSA) released a report called Rethinking Regulation. Given the remit of the PSA, the report covers the profession led regulators but also looks at wider system regulation across the health and social care sector, notably the role of the Care Quality Commission.

‘Regulation in its current application is neither coordinated nor coherent’

In the report, the PSA argues that there is a need for a radical overhaul of regulation in the health and care service sector, and identifies that the current system is standing in the way of further progress and change, rather than supporting it.

Calling for deregulation, less regulation and more effective regulation, it aims to promote transparency and efficiency by overhauling the current state of expensive and incoherent regulation.

The report is hard-hitting and should be taken seriously by the Department of Health in looking at reducing the regulatory burden and demonstrating value for money from regulation across the sector. 

• More analysis and resources from Insight and Influence

Not coordinated or coherent

The report states that regulation in its current application is neither coordinated nor coherent, despite reforms of the past decade doing what they can. Regulation is being asked to do too much, to do things it should not do, things it cannot do, and things that do not need to be done. It has stretched itself too thin, proving subpar service across the board, all at great expense, whereas what it should be doing is a few things well and efficiently.

The PSA says the underlying problem lies in the archaic and now defunct roots of regulation. Regulation has evolved in a piecemeal fashion over the past 150 years or so, with service regulation finding its origin in the various Factory Acts and Education Acts of the 19th century. As a result, its composition is far from efficient.

‘There are still more than 20 different regulatory agencies overseeing health and care’

In spite of some consolidation over the past decade, there are still more than 20 different regulatory agencies overseeing health and care, each in response to specific stimuli, but without the benefit of an overarching design, a controlling intelligence, or even a coherent set of principles.

Take for example the Care Quality Commission. As a regulator, its role is to minimise harm and to seek to do so by changing individual or organisational behaviour. However, the PSA states that it is uncertain whether the regulator has improved the quality of care in a significant, sustained way, or if the benefit of this approach outweighs the very considerable costs, with CQC’s operation expenditure in 2014-15 reaching £211m.

One also has to bear in mind that this does not include the considerable regulatory costs of compliance incurred by the organisations CQC inspects.

What is needed?

The PSA states that there is a desperate need to revise and reform the relationships between regulators and those they regulate, with a shift away from “blame” into “constructive mistrust”, one in which people take responsibility as part of a team, are vigilant about each other’s work and prevent harm before it happens. This way, instead of assigning and shifting blame, the new regulatory system would encourage and support people as individuals and as teams to drive achievement and improvement.

Another area ripe for change is the call for greater clarity and precision of regulatory goals. The PSA states that it is the role of regulators to set standards and to check whether they are met, and to help the task of shaping the health and care systems in a way that facilitates achievements and maintenance of standards of care. However, this line is often crossed over and blurred, with the aim of being responsible for their achievement and improvement. This should not be the case. Once a regulator becomes too intimately involved in putting improvements into effect, it loses its objective and impartial advantage.

The PSA argues that the desire to make regulators responsible for improvements is triggered by an incomplete diagnosis of the problem of continuing lapses in quality.

A revised and reformed regulatory framework

The PSA has sought to address the various problems of the sector through its proposal to create a revised and reformed regulatory framework. This framework for health and care should be modern and efficient and run by a flexible, diversified and motivated workforce. In order to achieve this they would implement:

• a shared “theory of regulation” based on “right touch thinking”;
• shared objectives for system and professional regulators, and greater clarity on respective roles and duties;
• transparent benchmarking to set standards;
• a rebuilding of trust between professionals, the public and regulators;
• a reduced scope of regulation so it focuses on what works (evidence based regulation);
• a proper risk assessment model detailing who and what should be regulated, put into practice through a continuum of assurance;
• the removal of boundaries between statutory professions and accredited occupations;
• a system to make it easier to create new roles and occupations within a continuum of assurance;
• a drive for efficiency and reduced cost which may lead to mergers and deregulation; and
• placing real responsibility where it lies with the people who manage and deliver care

Conclusion

Where the report is light is in putting forward tangible reforms. The report is particularly critical about service regulation. While there are undoubted structural and operational weaknesses in the current CQC and Monitor/the NHS Trust Development Authority arrangements, there can be no doubt that considerable efforts have been made in recent years to improve the effectiveness of the regulatory framework exercised by those bodies, particularly through improved joint working.

In addition, the CQC is starting to look at regulating whole health and care systems rather than just individual services. This is a welcome development, particularly if CQC seeks to scrutinise funding and commissioning issues as part of this new working approach. CQC is also makes positive noises in its new report, A Fresh Start for Registration, about enabling innovation to flourish and adopting a proportionate approach to risk in relation to new ways of providing care. A differentiated model of regulation is now being introduced rather than a one size fits all approach which was always doomed to failure.

‘Effective performance management of inspectors is crucial to the effectiveness of regulation’

At Ridouts, we often see a disconnect between the impressive policy statements and work principles published by regulators and the reality on the ground. Effective performance management of inspectors is crucial to the effectiveness of regulation but very often inappropriate behaviour is not confronted. There also needs to be a willingness to accept justified criticism rather than defend the indefensible.

Providers should be confident in challenging regulators in a constructive, informed way in the public interest and to ensure proper accountability. Checks and balances are essential in any democratic system and an acceptance by regulators that they can and often do get things wrong is required. The behaviour of regulators is just as important as the behaviour of providers in making the system work. 

Neil Grant is a partner of Ridouts LLP