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The bewildering and counter-productive world of NHS regulators

By: Ben Gowland CEO NHS Nene Clinical Commissioning Group @ccginsider
Published: Saturday, October 4, 2014 - 12:17 GMT Jump to Comments

The new system of the NHS has its flaws, and nowhere is this more pronounced than in the area of regulation. But it is essential that all concerned collaborate to make the best possible sense of it.

The CQC is having a spat with a CCG in the North East, and is refusing to let the CCG join its inspection of their local hospital.  To understand what is really going on here, we first need to take a few steps back.

There are now many regulators in the NHS. There is the Care Quality Commission (CQC), the Trust Development Authority (TDA), Monitor (who now have a role as both Foundation Trust regulator and economic regulator), and then NHS England itself. 

Alan Milburn for one believes this is too many. Writing for the Foundation Trust Network, he says:
‘All the political parties argue for more nurses on hospital wards but none are prepared to write the cheques to pay for them. They all want to prevent lapses in care but the army of regulators being unleashed on the NHS forces care providers to look upwards to those who regulate them instead of facing outwards to the citizens who use them. The balance has swung too far towards top-down regulation as the primary instrument for improving standards.’  

The problem over and above the fact that we have so many regulators, is that we are actually trying to do two things at once. 

One argument says that we are trying to run a market within the NHS, and so have market regulators. The role of CCGs is to manage contracts which include quality and performance markers, and so providers are accountable to their lead CCG under the terms of the contract. Monitor is then responsible for regulating the overall market to ensure that it is functioning effectively.

Another argument is that there is no market in the NHS, and that in reality we are trying to run the NHS as one entity. This is the line that David Prior, Chief Executive of the CQC, takes. In an article in the Daily Telegraph, Prior says that there was no real market in healthcare, leaving many patients at the mercy of their local hospital, regardless of its quality. “We can talk about competition until the cows come home," says Prior, "but if you live in Norwich there is one hospital" - adding that the regulator exists because the market can not be left to its own devices, as communities rely upon their local hospitals.

So on the one hand you have CCGs and Monitor operating within the context of the purchaser provider split, but on the other hand you have the CQC who quite clearly are ignoring it.

The Department of Health have tried to bring some clarity to the situation regarding the respective roles of regulators.

In their May 2013 report, The Regulation and Oversight of NHS Trusts and NHS Foundation Trusts the DoH said, ‘In future, this division of roles will be simpler and clearer: the Care Quality Commission (CQC) will focus on assessing and reporting on quality; and Monitor and the NHS Trust
Development Authority (TDA) will be responsible for using their enforcement powers to
address quality problems.’

But this starts with the CQC’s premise that there is no NHS market. This guidance would make sense if indeed there was no market, no commissioner/provider split, no contract for service, and no CCG. But there is. So we end up with this absurd situation where we sometimes behave as if we have a market and sometimes behave as if we don’t, and have rules, responsibilities and requirements for both scenarios.

So it is no wonder that we have ended up in a situation where a CCG Chief Clinical Officer has twice written to the CQC to request that the inspection of their local hospital, South Tees Hospitals Foundation Trust be handled as a joint CCG/CQC inspection. And the response? Rejected, due to ‘potential conflicts of interest’. 

What possible conflicts of interest could there be between a commissioner and provider? It depends on your mind-set. If you believe there is a market in the NHS, then there are none that obviously spring to mind. If you don’t, and think that NHS England regulates CCGs in the same way that Monitor regulates Foundation Trusts, and that CCGs have a job that is separate from Foundation Trusts, but that the performance of the Foundation Trust impacts on the performance of the CCG (still with me?), then maybe you could find a conflict of interest.

Whatever the CQC might think, there is an internal market within the NHS. Foundation Trusts do have contracts with CCGs, through which they are accountable to the CCG for quality and standards. The benefits of the CQC and CCGs working together, sharing insights and learning, and supporting the inspection process from diagnostic through to action plan implementation are clear. 

The new system of the NHS has its flaws, and nowhere is this more pronounced than in the area of regulation. But surely it is the responsibility of all of those trying to operate within the new system to make the best possible sense of it, and work together in the best interest of patients.

The last word should go to Professor Don Berwick, an international expert in patient safety, who was asked by the Prime Minister to carry out a review following the publication of the Francis Report into the breakdown of care at Mid Staffordshire Hospitals. 

The following is a quote from an article in Management in Practice,

‘US healthcare expert Professor Don Berwick’s report into patient safety states that the NHS regulatory system is “bewildering” and “complex”. Managers and hospital directors do not get clear signals about what they should be doing with regard to safety, the report claimed. Berwick recommends merging some or all of the organisational regulators – such as Monitor and the Care Quality Commission (CQC) – so that responsibility for quality, patient safety, standards and outcomes are transferred to NHS England or other bodies. Berwick warned that unless the bodies find a way to work together, with an in-depth, independent review of the structures before 2017, a merger should definitely be considered.’

Ben Gowland is one half of the team that produces RealityBites - The National HealthCare Conversation a weekly podcast discussing the triumps and defeats of UK healthcare.

You can also find other Inside Health columns by clicking here or through the front page of the Information Daily

Alan Milburn - Seizing the opportunity, the next decade for NHS reform 

David Prior Telegraph article

The Regulation and Oversight of NHS Trusts and NHS Foundation Trusts

The CQC/CCG disagreement over South Tees Hospitals Foundation Trust regulatory process


The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the official policy or position of The Information Daily, its parent company or any associated businesses.



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