The Department of Health’s Performance and Capability Review of CQC

Understandably, all the recent headlines about CQC have been around the resignation of CQC’s Chief Executive, Cynthia Bower, although she will not be departing until September 2012. Her resignation coincided with the publication of the Department’s Performance and Capability Review of CQC.  While light on detail, it does give some interesting pointers to the likely future direction of CQC in terms of strategy, management and operations.

There can be no doubt moving forward that CQC has at its core purpose the assurance of essential standards of safety and quality. CQC is not about improvement beyond the essential standards.  CQC has identified two strategic priorities to meet this responsibility:

  • To focus on quality; and
  • To act swiftly to eliminate poor quality care.

A telling admission within the Review is that so far there is limited practical evidence of the effectiveness of the new regulatory model under the Health and Social Care Act 2008 and that “there is much work to do to ensure CQC is a sustainably improving organisation delivering a respected regulatory system that protects patients and service users.”

A more sophisticated compliance regime?

The Review has identified a need to ensure that compliance regime is tailored to reflect the different risks and needs of different sectors and locations. Clearly a “one size fits all” approach is not working.  A district general hospital is different to a care home which is different to a dental practice. The Review states, “CQC needs to understand and communicate how the model should be adjusted to suit different locations and sectors in response to different risks.”

There is no recommendation to abandon the generic inspector model at this stage although reference is made to its potential weaknesses. Instead, CQC has to review and implement improved access to sector-specific expertise for inspectors, including clinical expertise when they require it. CQC is also required to develop and share with the Department, plans to sustain sufficient numbers of inspectors with “the right skills and capacity to meet future priorities.” At Ridouts, we have long had a concern about the effectiveness of a regulator that has recruited inspectors with administrative backgrounds rather than professional backgrounds in health or social care. Whether this generic inspection model continues must be doubtful, particularly is inspection is about outcomes rather than “tick-box” inputs.

The Board

There is an acknowledgement that the current Board of CQC is not working. The Department will be taking steps to strengthen the Board and its governance structures including a review to ensure that it has the right mix of skills and capability. In this regard, the concern is that at executive level, strategic capability needs to be improved, with more and wider sector-specific expertise drawn in.  There is a perception that too few executives have experience of managing health and social care services.

Consistency

Unsurprisingly, this was raised as a particular concern by providers who contributed to the Review, particularly on the part of larger provider organisations that span regions.  In addition, the Review notes, “Overall, providers taking part in the Review often perceived a mismatch between initial feedback or text of a report, which was often positive, and the final conclusions of a report, for example, failing one or two essential standards.” This is an issue that we at Ridouts have encountered when acting for clients in challenging compliance review reports.

There is also a perception that inspections overstate minor problems. The Department states that there appears to be a “greater need for openness and dialogue with providers to explain how inspectors plan to assess quality, why certain standards are important, and on what basis decisions are being taken.” A recommendation of the Review, therefore, is for CQC to take clear actions to assure consistency and transparency in compliance activity and regulatory decision-making.  Our experience is that inspectors in general have become far more remote from providers since CQC was established and the fear is that a move to a “non-compliance” regime will only add to that sense of distance and suspicion.

Next steps

What the Department will be doing is to commence a comprehensive review of the regulations (which CQC calls the essential standards) “as a whole to ensure the framework is proportionate in minimising the risks to people who use services; it will examine the extent to which CQC regulation can mitigate that risk. The review will address issues where the regulations are not supporting an effective proportionate regulatory framework.” This seems to acknowledge the sector’s concern that CQC can overstate minor problems and not focus on areas of greatest risk.  As part of this review of the regulations the Department will consider any relevant recommendations of the Mid Staffs Inquiry, and the Public Accounts and Health Select Committee reviews of CQC. The intention is to consult on any changes later in the year.

More immediately, the Department will be concluding an initial review of the regulations shortly “with the laying of new regulations before the Easter recess”.  It is anticipated that these in the main will be “tidying up” revisions to the regulations, although it may include a new form of enforcement notice to cover breaches which are no longer continuing but which may warrant prosecution, subject to a consideration of representations from the provider. Ridouts will be monitoring these developments closely and will be posting an up-date as soon as the new regulations are available.

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