Underperforming trusts will face fines and closure under powers given to new health and adult social care regulator Ofcare, HSJ has learned.

Underperforming trusts will face fines and closure under powers given to new health and adult social care regulator Ofcare, HSJ has learned.

The new regulator will replace the Healthcare Commission, the Commission for Social Care Inspection and the Mental Health Act Commission in April 2009. It will be able to charge trusts a registration fee.

A draft of the Department of Health's latest plans for regulation of health and social care, following a consultation on its proposals published in November 2006, says the new regulator will be responsible for quality and safety and will be able to impose fines on underperforming trusts.

Shut-down risk

The draft, seen by HSJ, says Ofcare, short for the Office of Health and Adult Social Care, could also instigate a statutory warning notice demanding improvements, a formal caution, a temporary suspension of registration, conditions restricting what can be provided or criminal prosecution.

As set out in the original proposals, failing trusts and services could also be shut down by losing their registration. The current procedure, in which the Healthcare Commission places failing trusts under special measures, will be abandoned.

Strategic health authorities and the DoH will retain responsibility for assessing the financial performance of NHS trusts, and Monitor for the financial performance of foundation trusts.

NHS Confederation policy director Nigel Edwards said: 'If you have to resort to fining, then it implies you think your other regulatory arrangements aren't satisfactory.

'We want to avoid making fining people a frequent part of regulation as it is somewhat against the prevailing culture of healthcare.'

On-going assessment

Providers will be assessed through ongoing monitoring and specific investigations, the document states.

Ongoing monitoring will be done through the new performance assessment, and additional information will be provided by sources such as Monitor and the public. Specific investigations may involve site inspections, it says.

Providers that require investigation will be identified through a 'risk-based methodology' that will be made publicly available.

Ofcare will have 'broad powers of intervention [and] discretion about how and when to use them'.

The document adds that problems could first be tackled informally to 'encourage improvement, for example by offering advice, increasing monitoring or visits'.

Suggestions for improvement

It emphasises that Ofcare will not be responsible for choosing how improvements are made but 'may offer suggestions', and adds that in most cases providers should be able to recover and maintain services.

But if the situation 'is of sufficient concern to warrant enforcement action', Ofcare will be given the powers to ensure compliance such as fines and deregistration.

The document includes a checklist of principles to help decide which interventions to use to 'enable a consistency of decision-making and guard against claims of arbitrariness or unfairness'.

The principles include taking into consideration how seriously the provider is failing to meet the terms of registration and the availability of local partners.

Ofcare will be required to consult on and then publish an enforcement policy describing how it will deal with failing organisations.

New providers may be subject to more investigations, the document warns, 'to provide assurance that the new services are being appropriately delivered', while an established provider could be left for several years.

Service continuity

Where a provider is shut down, PCTs will be responsible for ensuring continuity of care - but Ofcare will have to 'consider the balance of risk' on how this will affect patients.

'Ofcare will be placed under a duty to have regard for service continuity. It would not close down a service if closing it posed greater risk to service users than keeping it open.'

Providers will be able to appeal against decisions taken by Ofcare to the Care Standards Tribunal.

While commissioners will be subject to performance assessment, the document says there is no need for a commissioner failure regime. This is because reform has changed the regime for providers but not for the management environment.

See 'Ofcare: 'Ambitions and metrics' mark launch of a new regulatory era'

Click here to read the Department of Health's November 2006 proposals