Systemic changes may be needed to ensure safety regulators can really make a difference, but proposals in the Care Bill may not be the answer, argues Bill Morgan

To historians, the new Care and Support Bill may come to be remembered as the law that decisively changed the balance of public funding for social care. To NHS-watchers, it also makes substantial changes to the system of regulating NHS providers.

‘The bill does nothing to remove the CQC’s backstop enforcement powers (even if it does duplicate them)’

These changes should not be underestimated simply because they pale in comparison against the bill’s provisions on social care. The NHS provisions seek to strengthen the system of NHS safety regulation in response to the report into Mid Staffordshire Foundation Trust by Robert Francis QC − and make significant changes as a result.

But they do not do this in line with Mr Francis’ recommendations − and I do not know why. In fact, there are three things in particular that I do not understand.

Splitting the regulator

I do not know why the Care Bill breaks the traditional role of a safety regulator into two parts: inspection and enforcement. The Care Quality Commission has, to date, done both − but now the enforcement function is to be transferred to Monitor for foundation trusts and the NHS Trust Development Authority for trusts.

Jeremy Hunt explained to the Commons health committee that this is to avoid a “conflict of interest”, where an inspector who identifies a fault feels obliged, at a later point, to say there is no longer a fault for the sole reason that their enforcement action would otherwise have proven ineffective.

I do not understand this argument. The Civil Aviation Authority does not shy away from grounding aeroplanes because doing so might expose its inability to guarantee perfectly safe skies. And the Health and Safety Executive is not famed for its reticence to take enforcement action.

The government must accept this too, because the bill does nothing to remove the CQC’s backstop enforcement powers (even if it does duplicate them). 

‘There is an implicit assumption that the NHS is incapable of resolving quality issues that the private sector could’

So I feel the government must marshal a more coherent argument to justify splitting apart its safety regulator into two roles − particularly when Robert Francis made it clear that regulatory complexity itself contributed to the failings at Stafford Hospital. After all, would you get on an aeroplane if the person who might have inspected it and found a fault had to negotiate with others in order to ground it?

Sadly, whichever argument the government can marshal will suffer a fatal flaw: inspection and enforcement are being split for NHS organisations − but not the private sector. This brings me to my second concern.

Back the chief inspector

Why does the government believe the NHS and the private sector deserve different regulatory regimes? If the changes to NHS regulation are designed to make providers safer, why does the private sector not need similar regulation?

There is an implicit assumption that the NHS is incapable of resolving quality issues that the private sector could. However, the government has not admitted − or is not willing to admit − that this is its view.

My third concern relates to the chief inspector of hospitals’ role − a policy I applaud Mr Hunt for introducing. I believe safety regulation in healthcare has suffered in the past because the NHS is too powerful: a safety regulator may have the lawful authority to suspend a service on safety grounds, but how can it in practice when there is no alternative provision? (Are there parallels here with the HSE’s unhappy period of responsibility for railway safety?)

It is conceivable that, in these circumstances, a regulator may indeed hide evidence of failure for fear of demonstrating its own impotence. If there is a potential regulatory solution to this (and I doubt there is), it is the one Mr Hunt has identified: to identify a specific individual whose job it is to identify and publicise failure “without fear or favour”, and to use the law to “reach into” that individual.

Why my concern? Well, the Care Bill does not do this. In fact, it does not mention the chief inspector at all.

Resolving issues

I hope, at least, the government finds answers to the criticisms I set out above. More importantly I hope it finds solutions if it cannot find answers.

‘The bill is passing a hung parliament. This places government policy in a precarious position’

My first solution is to dispense with the attempt to divide safety regulation into inspection and enforcement. The CQC must retain responsibility to take enforcement action without having to pass responsibility for that decision to Monitor or the Trust Development Authority. That would also have the benefit of aligning government policy more clearly with the Francis report’s recommendations.

That said, I recognise the case for a regulatory regime that triggers structural solutions on quality grounds for a certain category of provider, namely NHS trusts. It is among these trusts that we witness the greatest number of longstanding quality issues and where, for too long, politicians have shied away from taking action. If the chief inspector was vested with the power to trigger use of a quality failure regime for these trusts, and had a duty to do so, that would help tackle some of the NHS’s greatest challenges once and for all.

Precarious policy

For foundation trusts that, like private sector providers, are operationally independent, there is no place for nationalising quality failures in the way the bill envisages. If an FT or private provider cannot deliver essential services without becoming insolvent, then those services would be rescued anyway through the Monitor-led special administration process.

My final solution − if we want the chief inspector to be effective − would be to use the Care Bill to make sure the law reaches into him or her, imposing direct duties of investigation and intervention. These duties would ensure, for example, that where there is a need for NHS trusts to be tipped into the quality failure regime, it is indeed used.

The bill is passing through Parliament − and a hung parliament at that. This places government policy in a precarious position: it faces being exposed, scrutinised and amended if MPs believe it will not work. I therefore hope, for the government’s sake, that it has answers to the questions I have raised. If it doesn’t, I hope it is willing to find solutions.

Bill Morgan is a is senior adviser at MHP Health Mandate and a former policy adviser to Andrew Lansley