Enforcement: whose job is it anyway?


On 21 May, the Care Bill witnessed its first debate in Parliament. To historians, it may come to be remembered as the law which decisively changed the balance of public funding for social care. But to NHS-watchers, the Care Bill also makes substantial changes to the system of regulating NHS providers.

These changes should not be underestimated simply because they pale into comparison to 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 Stafford Hospital by Robert Francis – and make significant changes as a result. But they do not do this in line with Robert Francis’s recommendations – and I do not know why.

I do not understand three things in particular.

I do not know why the Care Bill breaks apart what has been the traditional role of a safety regulator into two: inspection; and enforcement.  The Care Quality Commission (CQC) has, to date, done both, but now the enforcement function is to be transferred to Monitor (for NHS foundation trusts) and to the NHS Trust Development Authority (NTDA) (for NHS trusts). Jeremy Hunt has explained to the Health Select 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 that 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 (HSE) is not famed for its reticence to take enforcement action.  The Government must accept this too, because the Care Bill does nothing to remove the CQC’s backstop enforcement powers (even if it does duplicate them).

So I feel that the Government must marshal a more coherent argument to justify splitting apart its safety regulator into two roles – particularly when Robert Francis made clear that it was regulatory complexity itself which contributed to the Stafford Hospital scandal.  After all, would you get on an aeroplane where the person who might have inspected it and found a fault must negotiate with other people in order to ground it?

Sadly, whichever argument the Government can marshal will suffer a fatal flaw: it is splitting apart ‘inspection’ and ‘enforcement’ only for NHS organisations – but not for the private sector.  This is my second concern. Why does the Government believe that the NHS and the private sector are deserving of different regulatory regimes? If, for example, the changes to NHS regulation are designed to make providers safer, then why is the private sector not in need of similar regulation? There is an implicit assumption that the NHS is incapable of resolving quality issues which the private sector could, but the Government has not admitted (or is not willing to admit) that this is its view.

My third concern relates to the role of the Chief Inspector – a policy which I applaud Jeremy Hunt for introducing.  I believe that 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 is it in practice able to do so when there is no alternative provision (there are 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 otherwise demonstrating its own impotence. If there is a potential regulatory solution to this – and I have doubts that there is – then it is the one Jeremy 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. So why my concern? Well, the Care Bill does not do this. In fact, it does not mention the ‘Chief Inspector’ at all.

I hope – at least – that the Government finds answers to the criticisms I have set out above. But more importantly, I hope they find solutions if they cannot find answers.

The first solution I would offer is to dispense with the attempt to divide safety regulation into ‘inspection’ and ‘enforcement’.  The CQC must retain the responsibility to take enforcement action, without having to pass responsibility for that decision to Monitor or the NTDA. That would also have the benefit of aligning government policy more clearly with the recommendations made by Robert Francis.

Having said that, I do recognise that there is a case for a regulatory regime which triggers structural solutions on quality grounds for a certain category of provider: NHS trusts. It is within the family of NHS 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 – then that would help to tackle some of the NHS’s greatest challenges once-and-for-all.

But for foundation trusts, which – like private sector providers – are operationally independent, there is no place for nationalising quality failures in the way the Care Bill envisages.  If a foundation trust or a private sector provider is incapable of delivering essential services without becoming insolvent, then those services would be rescued anyway through the Monitor-led special administration process.

And my final solution – if we do want the Chief Inspector to be an effective post – 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 pressed into use.

The Care Bill is now 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 Parliament believes it will not work.  I therefore hope, for the Government’s sake, that it has answers to the questions I have raised.  And if it doesn’t, I hope it is willing to find solutions.


This blog has also been posted on the Health Service Journal.