Questions over Monitor’s role will be raised
With the heat dissipating after the battle over the Health Act, the light is finally starting to fall on the mechanics of the reformed NHS.
August - usually a barren month for public policy announcements - will see a wave of consultations on integral aspects of the NHS system, including: who needs to hold a licence to provide care; the rules governing competition; and the failure regime, including a “special administration” process for insolvent private providers.
Monitor kicked things off by consulting on the conditions under which providers will be licensed to supply NHS funded care. It will come as no surprise that many of the more radical and untested controls floated by the regulator - credit ratings, debt caps, “cash lock-ups” for financially distressed providers - have fallen by the wayside.
But even after this frenzy of consultation is over, providers still face significant uncertainty about how they will be regulated.
Monitor also told HSJ this week that it has scrapped plans to separate its current role overseeing foundation trusts from its new duties as a “sector regulator”, which would have involved building “Chinese walls” to prevent “inappropriate” flows of information. Chair David Bennett says any potential conflict of interests will be resolved according to a “single fundamental question: what answer will be in the best interests of patients?”
Because the regulator must - legally - be guided by that question, it “positively shouldn’t be having” Chinese walls, he adds.
The “best interests of patients”, however, is susceptible to a wide range of interpretations. With that as the guiding principle for its dual role, the regulator potentially has the reach and leeway to structure the new world in a number of ways.
Ultimately, we will not know how the machinery of regulation works until we see how it is operated.