External regulation in the NHS

Trusts subject to ‘special measures’ require more support

It is nearly five years since the newly formed healthcare regulator, the Care Quality Commission (CQC), took full control of NHS regulation. The aim is to subject the NHS to the scrutiny of an external regulator, in order to achieve greater accountability in the sector. Now that it has been in place for several years, its performance can be reviewed.

Current position

Faced with a number of NHS scandals – particularly Mid Staffordshire and Morecombe Bay – the Government decided that the public was entitled to further accountability for NHS management and clinicians. Public trust in the sanctity of the NHS was eroded and it was no longer politically acceptable to rest on past laurels, when the NHS was able to adequately regulate itself.

Regulation requires evidence of compliance with rules; transparent governance systems require evidence of policies and procedures, which are implemented to secure compliance; and both require a display of that compliance to external observers. This was a real challenge for NHS managers who were not prepared or trained and, in some cases, were not accepting of a system whereby performance was externally reviewed.

Public or independent

Independent services have faced increasing external regulation since 1927. Investors, managers and individual care providers have grown accustomed to external scrutiny. In many cases, those stakeholders have come to value the discipline of external accountability, provided that review is objective, fair and conducted by reference to established benchmarks.

As a final sanction in the independent sector, the regulator can require closure of a service. That result is not possible in the case of a public service, except in limited small unit cases. The public will not accept the removal of services and would prefer the availability of an inadequate service, than none at all.

This fundamental difference has prescribed very real challenges for legislators, regulators and service providers in the public sector. Their aim is to provide effective sanctions, other than closure of a service, for unacceptable performance.

Purpose of regulation

In reviewing the current regime and evaluating its success or failure, it is vital to reflect on the purpose of regulation. In no particular order, this includes:

• Securing service improvement
• Punishing those perceived to have failed (institutionally and individually)
• Establishing satisfaction with levels of safety and effective treatment
• Achieving service user satisfaction – that is fit for purpose
• Ensuring wider public trust in the service

Those who devise and manage the system must balance the component parts of the agenda so that an effective service is sustainable. This will achieve a service that is valued by its users, a source of pride for those who work in it and an institution in which confidence is rightly reposed. This however is not an easy balance and sadly the current political obsession with stigmatisation and criminalisation is prominent.

Focus on outcomes

The mantra for all regulators in 2015 is to be outcome-focused – but which of those outcomes prevail is difficult to decipher as there may be conflict among agendas and prospective outcomes. Over the years, there have been a variety of approaches to regulation:

• Light touch and reliance on self-assessment for compliance
• Regulation by inspectors inexperienced in the particular disciplines inspected
• A more rigorous inspection framework placing significant reliance on service user feedback

The latter more modern approach has followed on from political disquiet about the failure of earlier models. This has culminated in a system designed to rate a particular service by reference to five categories – safe, effective, caring, responsive and well led. Each service and each component of a service are judged against each category as to whether they fit into: ‘outstanding’, ‘good’, ‘requires improvement’ or ‘inadequate’. It should be noted that ‘adequate’ is not found in the list – it does not sit well with a statutory regulatory requirement for simple compliance with regulation. There are obvious tensions in this approach where regulatory action is proposed for a service that is deemed compliant but not considered ‘good’, which is said to be the minimum acceptable.

This approach has many attractions, particularly in single secure activities, typically in small care homes. There are however real problems applying this to a major NHS service, which will have many units with different disciplines. These different elements will often be rated at different grades that can create real difficulties in rating an overall service or trust. The two examples below show how a trust with better individual scores may have a worse rating than a trust which objectively performs less well.

Scenario one

For a single site hospital provider, the overall rating at provider level is ‘inadequate’ even though none of the overall core service ratings are rated inadequate – out of 40 assessments, two rated ‘outstanding’, four ‘inadequate’ and 34 ‘good’.

Scenario two

For a single site hospital provider, the overall rating is ‘requires improvement’, yet only one of the core services has been rated ‘inadequate’. Out of 40 assessments, three rated ‘inadequate’ (all in A&E), five ‘require improvement’ (one in A&E) and 32 ‘good’, but the overall rating was better and still only ‘requires improvement’.

One can immediately see the inconsistency in relation to the ratings outcomes based on how the underlying core ratings line up.

The real problems arise when the system, which was once seen as supportive and helpful, is rendered toxic. This can happen through regulatory and governmental misuse of public relations, inferring from statistical analysis that a trust is not in need of extra support but is one that has failed and which, along with its officers, needs to be stigmatised or even criminalised.

This was highlighted by the recent Norfolk and Suffolk NHS Foundation Mental Health Trust case, where the trust’s good points were ignored. It was thus characterised as such a failure that it was required to have so-called ‘special measures’ imposed. To the uninformed, this sounds horrendous. In reality ‘special measures’ means nothing more than that a trust is perceived as having particular challenges and the decision is to support that trust by encouraging it to appoint a special improvement team. This ensures that key directors are not diverted from operations to improvement and that the trust is exhorted to seek guidance from those who have overcome these challenges before.

Significant advance

The new CQC inspection methodology should be seen as a significant advance provided that it is engaged with the correct spirit:

• A more robust approach is required
• Expert inspectors are to be welcomed
• Forthright feedback with clear indication on prospective remedy is overdue

The problem with the final conclusion is that for a major multi-service provider, the picture may be so mixed that it becomes impossible to deliver an overall fair picture. To step from that into rounding down to the worst or even a weighted worst, may be seen to undo the progress made in the inspection process.

The regulator does a disservice if it demoralises front line staff which tends to panic the public. This process would be welcomed if it were presented as objective, in which independent experts suggest things that might be done better and offer support that enables managers to improve.

Sadly however at Norfolk and Suffolk, with no statutory justification (‘special measures’ has no legal provenance or definition), the regulator and politicians have chosen to use such a finding, which is dubious in its accuracy, as a mark of failure.

It would be much better if the media stated: ‘X Trust has been found to face particular challenges and will receive additional support to enable it to address these’. A good, if overly bureaucratic system, is spoiled by the determination to name, shame and punish, which does nothing to support dedicated staff or to give confidence to the public. The CQC, Monitor and politicians should support the NHS to address what should be short-term issues.

Paul Ridout is Senior Partner at Ridouts LLP