The CQC was created in 2008 to take over the function of the previous English Health and Social Care regulators (The Commission for Social Care Inspection and the Healthcare Commission). It took on its role from 2009, at first merely continuing the functions of the previous regulators and subsequently introducing the new system of regulation (regulated activities as opposed to establishments) with effect from 1st April 2010 for the NHS and from 1st October 2010 for social care homes). Other activities had other start dates.
From the start the CQC made its professional activities much more complex than was necessary. For the first time all the existing providers were required to re-register (as opposed to simply transferring from one system to its successor). The regulation of activities as opposed to establishments has led to conflict and confusion which, even the CQC, cannot control effectively in practice.
The CQC set out to regulate, in 2010, by promoting a system of trusted provider self-disclosure where regulation was seen as quality assured management by providers, monitored by the regulators.
Regulation is a statutory legal framework which gives the public confidence that practitioners in specialised areas of activity are held to account. Statute prescribes the rules which are inevitably minimum compliance rules, failure to comply with which may result in a penalty, and, in an extreme case enforced expulsion from the sector.
So called light touch application of a statutory enforcement scheme, where providers take the lead on accountability was always doomed to failure. The senior managers entrusted with ‘overseeing’ this contributed to the natural failure, they being drawn from NHS commissioning. These managers showed no experience as regulators and, in some cases, even a clear distaste for the ‘dirty hands’ day to day provisions of regulation.As is well known, matters fell apart largely around two NHS scandals-Mid Staffs and Morecombe Bay. Senior CQC managers were replaced by an extensive team led by those experienced in identifying skill sets necessary to deliver effective care and with an appetite to restore confidence in the public that the protective role of user safety was being effected robustly to ensure compliance and improve services.
Throughout this period, until 2012, the law remained the same but was interpreted and enforced to a different agenda. The CQC do the things they do because they have the same extensive, intrusive and in some cases draconian powers to engage apparent default in provision.
The emphasis of the law was upon compliance and that compliance was enforced with suitable sanctions.
The important powers include: –
· a right enter and inspect at any time without the need for provider consent
· a power to prosecute
· a power after suitable process, sometimes in cases of perceived serious risk to users at very short notice, to suspend services, cancel registration, or, to impose new and changed conditions
The CQC can require important or identify prosecutable failure in the latter once by a formal warning which is published often in dramatic and alarming terms and all in short order.
The ‘new’ CQC set about the task of repairing its damaged image, as a toothless tiger, by engaging in high profile and very aggressive intervention which seems to be more about shaming, punishing and thereby enhancing the media image of CQC as fierce, effective and to be feared, rather than any sense of collaborative joint working towards improvement which had been the hallmark of previous policy.
The CQC announced (as an independent regulator) that it was on the side of service users and would take their concerns, right or wrong (or even un-investigated) to be a starting gun for intervening actions).
This was a regulator to be reckoned with and, it would use its powers and be seen very clearly to be seen to use those powers.The CQC had made no secret of its frustration at being a compliance monitor and in 2012, under the strap line, ‘only Good is good enough’, moved its remit away from pure compliance review to individual Rating of provider services in whole or in part.There was very little statutory change, merely a permission for CQC to issue a Rating after a review of a service principally by a visit but also by reference to so called ‘Intelligence’ – press reports, stakeholder review (commissioning, safeguarding, user groups and review websites indeed anything available anywhere) but without any obvious moderation for relevance or accuracy.
In effect the CQC decided to impose its own view of a better regulatory system over and above the statutorily protected scheme which it was established to administer and implement. All of this was done with the barest statutory authority. The CQC have devised the Rating system, implemented that system and act as judge in its own cause on matters of challenge.
With a system, which is not underpinned by a statutory regime of challenge, the CQC effectively control standards, expectations outcomes and sanctions.The CQC does not welcome challenge and does not brook dissent. It will use its extensive resources to stifle informed or moderate challenge.The Rating System has four outcomes: Outstanding, Good, Requires Improvement and Inadequate. Please note that there is no compliant rating and it is compliance which the current statutory establishment regulates.
Providers will be assessed in five domains: Safe, Effective, Caring, Responsive and Well led.Failure in any of the first four almost inevitably leads to a stated failure in Well Led. Although Intelligence monitoring will be focused through a visit, a Rating assessment is not formally a visit which requires cooperation as a compliance inspection. It may or may not be followed by enforcement action which may be challenged; not much use where the damage is already done.
The results, after a review of accuracy, but, to which little more than lip service is paid, will be published. Often this will be in dramatic and alarming terms.The effect is to spook the customers. Public commissioners will be reluctant to use public money to commission services perceived to be poor. Indeed, ‘Requires Improvement’ means a state which is largely compliant but not sufficiently mature as to sustain a perception of Good. I doubt many of the public would jump to that interpretation.
Privately funded customers will inevitably look elsewhere absent a particular loyalty.Even where there is an enforcement action a business, may be ruined by unchallengeable rumour and opinion long before there is a real opportunity to hold regulators to account.
Despite the hostile environment, those faced with such situations should challenge courteously and with proper supporting evidence, whenever, wherever, and to whomsoever the opportunity presents. Sometimes good outcomes can be effected.
The CQC, under current management, has clearly done a highly effective job of improving the perception of its performance in the eyes of the watching public, the media and the Government.
However, the price has been that providers are showing an increasing lack of confidence in the objectivity and impartiality of the CQC and particularly its inspection teams, who are clearly encouraged that they are the law and not, as is the case, subject to the law. This needs to be addressed.
Having established a formidable profile for ferocity and ruthlessness, the CQC need to more quickly get providers on side.
The CQC needs:
· to establish a challenge process which is and which is seen to be fair
· to recognise that not all its staff are effective, informed and indeed honest
· to show itself as receptive to challenge, reflecting on issues, and, also where appropriate conceding, or, if it considers itself correct, robustly maintaining its position with a transparently objective rationale. That may include ‘I stand by my position’, not as a stock answer, but with evidence backed reasons which show the soundest of judgement
· to make available immediately all notes of visits and minutes and memoranda from decision making meetings. There is no justification for the current fudge. Such material
should justify the chosen process, not, be seen as a risk that that process will be condemned.
· to demonstrate that it understands that it is subject to the law and not above it
· to give respect by the quality and humility of its conduct in providers rather than simply ‘Do as I say – OR ELSE!’
To achieve these outcomes and gain greater respect and confidence across all stakeholders, the CQC may need to consider replacing or supplementing staff at all levels of seniority.The prize will be great, the reduction in dispute costs management will be significant and the CQC will come to be seen as a respected source of wisdom rather than a monster to be feared and appeased.
Remember Winston Churchill’s words:
‘An appeaser is a person who feeds a crocodile in the hope that it will eat him last’.