The must-read stories and debate in health policy and leadership.

Flexing its muscle

At first glance, the Care Quality Commission’s announcement that it was to prosecute a care home manager over a teenager’s suicide was nothing new. But, on closer inspection, it was clear the regulator was doing something it has never done before.

The care home manager was being prosecuted for being complicit in the care home’s breach of the fundamental standard regulation to provide safe care, introduced after Mid Staffs in 2014.

To bring this prosecution against the individual, the CQC has used a piece of 2008 legislation that was originally intended to enforce offences related to registration under the Health and Social Care Act.

This obscure section includes a clear reference to any officer or director of an NHS body being guilty of an offence if they consented, connived or in other ways were responsible for the organisation’s offence.

In one move, the CQC has shifted the focus of the fundamental standards, recommended by Sir Robert Francis QC, to make individual directors liable for prosecution if they are personally linked to decisions which lead to the organisation failing one of the standards.

As Philippa Doyle from law firm Hempsons told HSJ, this is a completely new interpretation that will require scrutiny by trusts of how their directors are acting. It is also another sign of the CQC flexing its muscles on criminal prosecution.

On one hand, this is long overdue. The NHS has had fundamental standards in place for several years and the CQC is rightly now expecting the providers to meet their legal obligations to patients.

On the other hand, the consequences of the CQC’s actions may not automatically lead to improved care. It could prompt defensive medicine, closed cultures, and a desire to hide mistakes to avoid the threat of legal action.

The ability of the CQC to prosecute individuals for a breach of the fundamental standards may well be an unintended consequence of adding the regulations to a 2008 piece of legislation.

In capitalising on one unintended consequence, the CQC needs to be sure it isn’t setting in motion a myriad of others.

Told you so

At the beginning of this year, HSJ covered the prediction that NHS England’s £1.9bn specialised commissioning budget for mental health would be devolved entirely to providers.

Now a firm and official target has been set, with a letter from NHS England’s new care model chief Stephen Firn saying the entire country should be covered by provider collaboratives by 2022.

There appears to be consensus that handing specialised commissioning budgets over to providers is the right direction for mental health. The new care model pilots where this has been tested so far appear to have been successful. However, some leads have pointed out that when it comes to actually transferring the budgets from NHSE, progress has been much slower.

This is perhaps not surprising considering the copious amounts of data on activity which need to be unravelled to move from a national to local pictures - and of course the risk involved in letting go of big sums. Word is that the data is poor, so providers might anyway want to be wary of signing up to the financial risk.

NHSE’s letter also revealed it planned to include learning disability and autism budgets in the expansion. This will be a significant change to the national transforming care programme to overhaul LD services. In the hands of NHS England, clinical commissioning groups and local authorities, it has so far has failed on most of its targets to move people out of institutional care.

Will providers have more success? It will be no easy feat.