Caring Times – April 2019 – Negotiating with regulators and commissioners in the healthcare sector

The day has dawned and passed on what was supposed to be the day the UK exited the European Union. I can’t help but wonder what can be learned from the exercise and applied to the healthcare sector and its relationships with its regulators. Irrespective of one’s political leanings, much can be learned from the exit exercise. In our practice of acting for healthcare providers in their dealings with CQC and local authorities there are parallels that can be drawn.

One of the most pertinent points in negotiation exercises is an unswerving understanding of one’s own position; a point that appears to have been lacking in the political negotiations on the terms of an exit to this point. In the analogy with the UK’s exit, the inability to agree a position severely weakened the hand of the UK. There is an inherent inequality of negotiating position between healthcare providers and CQC/ local authorities. Some will say that the reason for this is to enable those public bodies to hold providers to account when they appear to fail to meet the standards required of them. We have experienced many occasions where the converse could be said, where the actions of the regulator would not be considered proportionate, where it is clear that regulators stick to their position in the face of clear corroborated evidence. In those interactions it is clear that at times only lip service is paid to the spirit of cooperation and negotiation with providers of healthcare. We would even go so far as to say that providers are often acting from a weakened position such is the disparity of bargaining positions between the two parties.

Healthcare providers are largely beholden to the CQC if it refuses to accept the position put forward in response to regulatory action. CQC does not appear to treat the relationship between it and the providers it regulates as a meeting of equals and at times fails to pay due attention to the provider’s position. CQC is reliant on observations made at inspection visits which could be accused, on occasion, of failing to properly consider the provider’s true position in favour of its own interpretation of information that it seeks to rely on.

Much like the Prime Minister during negotiations around the exit, CQC and local authorities could be accused, at times, of operating in a vacuum. They have been known to continue with a course of action ignoring information which conflicts with their assessment along the way. This inequality and failure to provide parties in the sector to be treated fairly is borne out of the difference in power in the regulator/regulated relationship. The ultimate checks and balances on CQC’s decision-making lie within the courts although action so rarely gets to that stage that it is difficult to see this measure of CQC’s performance as being comprehensive enough to hold CQC itself to account. Only 14 cases progressed to the Care Standards Tribunal in 2018 which is either demonstrative of the might of the regulator or the passive or inconsequential approach of the regulated to enforcement action.

The lack of balance between healthcare providers and their regulators is not just limited to interactions with CQC. Another example of this imbalance relates to interactions with commissioners of health and social care for example in local authorities. Here the keepers of the coin operate what are effectively unilateral ‘negotiations’ with providers of the price that they are willing to pay for the provision of health and social care services. Even if a reasonable price has been reached at the outset for a provider to take on a client, for example, a number of commissioners have refused to increase costs paid for a number of years with the rationale for this essentially owing to cost pressures on local government.

The question of whether the relationship between the regulator and the regulated should be one which is more balanced and provides due consideration to the actual moving quality of care provided at the Home will rage on. In the grand scheme of building a constructive relationship with regulators providers would be wise to exercise a significant degree of caution and make as fulsome and considered communications with regulators as possible.