First, the new regulator. This July the government published its draft legislative programme for the next parliamentary session. It included a Health and Social Care Bill aimed at creating a new regulatory body - Ofcare - and scrapping the Healthcare Commission, the Commission for Social Care Inspection and the Mental Health Act Commissioner.
Ofcare will take on these bodies' various functions but will operate in a more streamlined and integrated way. It will be responsible for safety and quality assurance and for the information and performance assessment of healthcare providers, linked to a system of registration applicable to the NHS and independent providers.
This represents a significant change. At present, only independent healthcare providers are obliged to be registered with the Healthcare Commission; NHS hospitals are not required to do so. This change means not only the creation of a level playing field across the entire sector but also means that all providers, including NHS bodies, may now find themselves instructed by Ofcare not to admit patients if standards are not being met or even find their registration suspended or revoked. In such circumstances, NHS hospital managers and others implicated in the breach may find themselves in the firing line.
Second, the new powers. The areas where the health secretary has promised tougher regulation currently fall in the general remit of the Healthcare Commission. Its NHS functions at present are largely concerned with publishing data, reviewing and assessing the performance and quality of health services provided by NHS bodies, various associated powers of inspection and entry, acquiring information and explanations, investigating and making reports to the health secretary.
Tougher sanctions
There was an initial step towards toughening up the regime last year when legislative changes enabled the health secretary to publish a code of practice relating to healthcare-associated infections. Breach of the code gave the Healthcare Commission the right to serve an improvement notice on the NHS body concerned, with which it was required to comply. However, even if the breach persisted, the commission's powers were limited to making a further report to the health secretary on that further breach. While nobody relished being on the wrong end of a Healthcare Commission report or an improvement notice, the commission did not itself have the power to impose fines or other sanctions.
What the health secretary now seems to be proposing is that Ofcare will itself have powers to impose sanctions as part of a much more robust and tougher-minded regulatory regime applicable to NHS and independent providers and designed to drive 'ward to board' accountability. Whether this is so - and whether the Department of Health is prepared to stand back and let Ofcare exercise its powers and impose sanctions - remains to be seen. One can certainly see the DoH at the very least being keen to be consulted where an NHS hospital is to be ordered not to admit patients or is on the point of losing its registration as a healthcare provider, but will it insist on having the power to veto Ofcare's decisions and on what grounds?
The aim is to have Ofcare in existence by next year but whether all this goes ahead will depend, of course, on whether a snap election is called - and who wins.
Clearly, the DoH fully recognises the problem and this is only the latest in a series of initiatives to tackle it. Infection costs the NHS£1bn a year; patients pay even more heavily.
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