Quality & Compliance Magazine: Are we there yet? The never ending journey of CQC regulation

In September 2012, CQC issued a consultation paper on its strategy for 2013 to 2016 called, “The next phase”.  Although the consultation exercise has now closed, and CQC’s response is awaited, the actual consultation document makes for some interesting reading. There are some encouraging signs for providers which we pick up in this article.

A differentiated model of regulation         

Cutting through the jargon, what this means is that CQC proposes to regulate different sectors in different ways.  Quite what this will mean in practice remains to be seen but it is a welcome statement of intent. The uniform approach to regulation adopted by CQC in its first phase has not worked. You cannot regulate a large NHS hospital as though it were a care home.  Additionally, you need to have specialist inspectors going into specialist services, not generic inspectors, some of whom come from an administrative background.   It seems an obvious point and one that at Ridouts we have made repeatedly in representing the sector. However, it is positive that CQC is going to look carefully at the expertise of its inspectors to see if the current inspectorate is fit for purpose.

It is apparent that CQC proposes to move away from routine, annual inspections of most health and social care services. This approach had been introduced by Cynthia Bower, the former chief executive, in response to the Winterbourne View affair. However, David Behan, the new chief executive of CQC, has confirmed in his press briefings that CQC is going to be a very different organisation, taking a risk based approach to regulation.  He has described it as not “soft touch” but “appropriate touch”.  That is a realistic response given the ever expanding number of services CQC has to regulate and the fact that health and social care is an increasingly diverse sector.  It regulates over 40,000 locations already and is due to take on the regulation of 8,500 GP practices from April 2013.

CQC says it will make greater use of information and evidence, including an evaluation of the impact of its regulatory activities.  A criticism of CQC in its first phase was that it had not set itself clear regulatory goals and performance indicators.

Building relationships with providers

There is an acknowledgment that CQC has much work to do in building respect and credibility with providers. The aim is to be a regulator that is ‘good to do business with’.  There is a commitment to be consistent and proportionate. That is welcome given that our experience at Ridouts is inspectors often fail to focus on what really matters i.e. outcomes and user experience, and instead gravitate to the paperwork and tick box inputs.  The attitude of many inspectors will also need to be challenged. While there are many courteous and professional inspectors, unfortunately there is a cohort who can be aggressive and judgemental.  Therefore, it will be important to tackle not only the issue of the expertise of inspectors, but their conduct if the respect of providers is to be won.  That will be particularly important given that fees are likely to increase in line with the Department of Health reducing its grant-aid to the organisation.

CQC will need to listen carefully to what providers are saying. There has been a tendency at CQC to take a view that it is always right, exemplified by the fact that it  says that its judgements cannot be challenged, only facts. We have come across many inspection reports where the facts were not in dispute but the judgements were unfair. We have successfully managed to persuade CQC to revise its judgements about particular outcomes, sometimes going from major or moderate concerns to compliant.

One thing that CQC should do in terms of adult social care and independent healthcare is disclose its Quality and Risk Profiles (QRPs) to providers. QRPs for the NHS are made available to providers and commissioners of services. The CQC “Inspector’s handbook” states that QRPs for the NHS “…are an important tool to help them continuously monitor compliance, make sure that everyone is working from the same information, and improve how care is provided and commissioned”. The commitment to share QRPs with adult social care and independent health providers was made some time ago by CQC and it should honour that commitment. Use of information goes two ways – it may be useful to the regulator in estimating risk and to the provider in furthering its quality assurance and compliance functions.

Strengthening work with other public agencies

CQC says that it will need to work closely with a host of national strategic partners, including Ofsted, Monitor and professional regulators such as the Nursing and Midwifery Council and the Health and Care Professions Council. In addition, CQC will build constructive relationships with local authorities which commission adult social care services. There is no specific mention of the safeguarding function exercised by local authorities. At Ridouts we have seen an increasing tendency for CQC to refer matters to safeguarding that historically the regulator would have investigated. There is a real need for clarity about the respective roles of CQC and local authority safeguarding teams given that the latter have become quasi-regulators without the statutory framework to support their investigations. Frequently, we attend safeguarding meetings about systems issues where CQC have not even bothered to attend (even when they have been the source of the referral).

Conclusion

What the sector needs is stability and clarity in terms of regulatory expectations. Rather than jump in and serve warning notices which appears to be the approach at the moment, many issues are capable of resolution through a dialogue with the provider.  There is no reason why the regulator cannot give guidance about meeting standards as this is part of their function in promoting improvement.  All too often we hear of inspectors who say that it is not the function of the regulator to give advice. “Command and control” regulation as typified by CQC in its first phase is a rather dated approach.  A more balanced approach to regulation would see CQC exercise both a “policing role” and a “guide and counsellor” role.  That can only happen if there is clarity as to what is meant by non-compliance which if unresolved then moves into enforcement. The outcome of the consultation will be interesting to see in what direction David Behan will be taking his organisation.

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