In this article, Nythan Smith discusses CQC’s new strategy on regulation in respect of provider improvement, both today and in the future.  CQC has largely resorted to enforcement action against providers in the fulfilment of its statutory requirement to encourage improvement.  This new strategy marks a change in CQC’s intentions in improving the quality of providers in the sector.  What might this mean in practice for health and social care providers?

CQC announced its new strategy on how it will regulate the health and social care sector in the years to come recently. It is light on detail but does provide a framework upon which CQC’s future action will align. CQC attempts, in its strategy, to address the imbalance on its over-emphasis on enforcement to the detriment of support for improvement across all health and care services.

The objectives of CQC are enshrined in law and it is required to encourage the improvement of health and social care services.  To date this has almost exclusively been achieved through conducting inspections of services and taking enforcement action against those services where CQC deems providers to fall short of the standards required of them.  In its new strategy CQC partially acknowledges its part to play in driving improvement in the sector as a whole outside of the way it has conducted its business in the past.  This is a departure from its largely passive approach to improvement activity in the past.  The strategy is unfortunately light on the detail as to how this will work in practice in the provision of support to providers.  It is important with any system of improvement support that room is also given to providers to enable them to action those improvements.  Further to coin a Government phrase ‘the protective ring’ around NHS Trusts which is particularised in the support package that is put in place when a Trust is deemed to fall short of its regulatory standards (special measures) is simply not there for independent health and care providers.  NHS Trusts receive an improvement director to specifically work on the progress, and are supported by at least one partner organisation who excels in the area that the Trust in special measures finds itself.  Economies of scale may prevent such a package being in place for independent providers but if the imperative is the improvement of health and care services a package of support which approaches that offered to NHS Trusts should be on offer to independent providers.  CQC should take up the mantel in the absence of the body encouraging improvement in in the wider health and social care sector. It’s all well and good saying that improvement will be supported by CQC but if that improvement is to work alongside CQC’s sometimes heavy handed approach to enforcement then the change will be negligible.

Another objective of CQC is to encourage the efficient and effective use of resources in health and social care.  The historic rush to enforcement action by CQC creates a vicious cycle whereby providers have to dedicate significant resource to respond to CQC which diverts resource away from the provision of health and care.  This is in the very establishment where it is alleged negative practice has been observed and where resource is most needed.  An issue with CQC enforcement action is very much in the manner in which it is provided.  CQC point fingers at areas where they have allegedly found fault but do not particularise precisely what steps a provider should take to improve.  There is no mention of this change to the way that CQC regulates providers in its new strategy so it is likely that this practice of not setting out the steps providers need to take to improve will continue.  This is categorically not an efficient and effective use of the limited resources of healthcare providers.

CQC’s focus should be on encouraging provider improvement in a proportionate manner.  It is accepted that CQC too have finite resources in which to perform its role of encouraging improvement.  CQC should particularise precisely what providers need to do to meet the standards that the regulations place upon them.  The present requirement of responses to lengthy and detailed accounts of historic positions is not an efficient way of CQC performing its regulatory function.  Of course there is likely to still be providers who cannot meet those standards but the rush to enforcement action is too hasty and too disproportionate too often.

CQC is largely continuing as is with some minor tweaks.  For all the talk in this article of what CQC should be it’s important to focus on what it is and what it intends to be.  There does seem to be a rebalancing of the regulator more towards also fulfilling its improvement function but this is likely to take time.  Time which providers who face enforcement action today will not have to spare.  If CQC is to become an improvement champion or at least support the setting up of systems which support improvement it also needs to adapt its internal culture in respect of how it engages with providers. In the absence of a recasting of CQC’s approach of using enforcement activity as both the carrot and the stick providers will continue to need to dedicate significant resource to interacting with CQC.  With legal input Resource which some may say would be better placed in actually improving the services offered by Providers.

Nythan Smith

Solicitor

[email protected]

02073170353