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A new vision: Reforming regulation

The Care Quality Commission (CQC) launched its new five-year strategy in May and described it as ‘purposefully ambitious’. In this article, Neil Grant of Gordons Partnership LLP reviews its main themes and considers whether it signals a change in culture within the regulator.

CQC is in the ascendancy. The Government is reinstating powers for CQC to ‘performance assess’ local authorities – in terms of how they discharge their social services functions under the Care Act 2014.

The Government also wants CQC to assess quality and leadership, in respect of the Integrated Care Boards and Partnerships being introduced on a statutory footing in England through the Health and Social Care Bill. The Integrated Care Boards will be the successor bodies to Clinical Commissioning Groups.

These new responsibilities for CQC fit into its vision of being a regulator, not only of individual services but of populations and local systems. They align with CQC’s five-year strategy and its two core ambitions: (1) assessing local systems and (2) reducing inequalities in health and social care. How these new statutory responsibilities will be funded remains to be seen. The equitable approach would be to impose fees on local authorities and Integrated Care Boards, rather than pass them on to registered providers.

Additionally, CQC is committed to a radical shift in the way it regulates individual services, moving away from a schedule of comprehensive inspections towards a more ‘real-time’ form of regulation which is supposed to be more targeted and flexible. In essence, it is a hybrid model of inspection combining remote data-driven working, backed up by site visits, if needed. CQC also wants to move away from dense inspection reports and move towards publishing key information about services which will be more accessible to the public.

The question is: Will this promote a new way of working within CQC? A way of working which is based on collaboration with providers and where both sides are prepared to listen to and learn from each other?

The key themes

People and communities

‘Regulation that’s driven by people’s needs and experiences, focusing on what’s important to people and communities when they access, use and move between services.’

A criticism of regulation, since the first national inspectorate was created in 2002, has been a reluctance on the part of regulators to engage with people and families in relation to complaints about care services. Repeatedly, regulators have said over the years that they do not investigate complaints on behalf of service users and families in respect of regulated services. In one sense that is correct. CQC and its predecessors have never been given the role of complaint handlers.

However, the adopted and longstanding position of health and social care regulators regarding  complaints has caused confusion in the mind of the public and led to regulators failing in many instances to investigate concerns raised by service users and families. Instead, regulators have often just referred complainants back to providers or to safeguarding. In doing so, regulators have failed to look at the concerns from the perspective of compliance with statutory requirements.

It appears CQC is seeking to address this issue by placing a renewed emphasis on listening to service users and families and, importantly, acting on concerns which, following investigation, are judged to be valid. Significantly, CQC describes itself as an advocate for change on behalf of service users. Central to this role will be gathering more feedback from people using services, families and advocates. CQC says, ‘When people take the time to share their experiences with us, we’ll provide a response in the way people need it and explain how their feedback has informed our view of quality.’ If CQC does deliver on this commitment, it will mark a major change to how it works.

 Smarter regulation

‘Smarter, more dynamic and flexible regulation that provides up-to-date and high-quality information and ratings, easier ways of working with us and a more proportionate response.’

The move to a more real-time form of regulation has never been achieved before and is another radical statement of intent. CQC’s senior management has confidence in big data and says ‘We’ll use innovative analysis, artificial intelligence and data science techniques proactively to support robust and proportionate decision-making, based on the best information available.’

CQC is not planning to go back to pre-pandemic ways of working. Its intention is to continue with remote working, involving the ongoing analysis of data about care services. CQC says there will be more contact with registered providers, through telephone calls and virtual meetings. This is a continuation of the Emergency Support Framework and Transitional Monitoring Approach.

On 13th July 2021, CQC introduced monthly reviews of care services. If the information in CQC’s possession about a service does not point to a need to reassess a rating or the quality of care, CQC will publish a short statement on the provider profile page of its website informing the public that ‘a review has taken place and that we had no concerns based on the information we held at that time. We will also communicate this with the provider by email prior to the public statement being published.’

If a reassessment is needed, CQC may ask for additional information. Where it believes ‘people may be at increased risk of poor-quality care, we may undertake an immediate on-site inspection and this may happen at any time. In these cases, we may update the rating for a service.’ For the time being it appears that changes to ratings will continue to be linked predominantly to on-site inspections, pending CQC deciding on the precise circumstances when it may be possible to change ratings without visiting a service.

The strategy is light on detail about how this new system of smarter regulation will operate. It is apparent that CQC wants to tread cautiously rather than introduce a ‘big bang’ set of reforms. More evolution, than revolution. There is a concern that, with the move away from periodic comprehensive inspections, the bigger picture will be lost and replaced with a focus on risk. This is sometimes called the deficit model of regulation. It will be important for providers to supply CQC with information about innovation and creativity. However, this may well lead to increased demands on services in relation to capturing and supplying data. Research by NHS Digital suggests 71% of the sector has no digital access to people’s medications information. Approximately 30% of social care providers are partially digitised, with a further 30% still using entirely paper-based systems, which means approximately 15,000 CQC-registered care providers have limited or no access to basic digital infrastructure.

Safety through learning

‘Regulating for stronger safety cultures across health and care, prioritising learning and improvement and collaborating to value everyone’s perspectives.’ This theme focuses on the importance of organisational culture in improving safety. It highlights the need for there to be open and honest cultures focused on learning and improvement in relation to safety.

CQC highlights that it ‘wants staff to feel confident that we’ll also listen and act when they raise concerns with us, and we’ll intervene quickly where appropriate.’ It will be important for CQC to test what staff say, rather than just accept what is said as the truth. Sometimes staff will not have the experience or full information to understand why something happens in the way it does within a service. For example, staffing levels – a staff member may allege that they are insufficient; but there is evidence to show they have been deemed safe using an established dependency tool.

Accelerating improvement

‘Enabling health and care services and local systems to access support to help improve the quality of care where it is most needed.’

At one point, CQC was canvassing opinion about becoming an improvement agency, possibly sending teams into services needing support. CQC has now realised that approach would compromise its independence to act as an investigative body and prosecutor. Instead, the focus is on encouraging improvement through offering ‘a range of resources to support them to decide for themselves the best way forward.’

CQC adds, ‘We’ll build stronger ongoing relationships with services by having more regular contact with them’ and ‘our regulation will become more constructive and supportive – using what we know to help services to tackle problems early.’

It remains to be seen whether CQC will deliver on its professed desire to work more collaboratively with providers. One of the problems is that it is not clear when collaboration starts and ends. In Wales, the improvement agenda is embedded in the legislation with the clear statutory expectation that attempts at improvement will come first and, only if that fails, will enforcement action follow.

Very often regulation comes down to the personalities of inspectors. Some are far more focused on the bigger picture with a desire to focus on the positive; others hone in on one or two perceived failures and downgrade the service as a result. It will be essential for CQC to performance manage its inspectors far more effectively to ensure they are promoting improvement and collaboration in the first instance, subject, of course, to consideration of risk within each service.

One useful proposal included in the strategy is for CQC to offer analysis and benchmarking data to enable providers ‘to self-assess how they’re performing against similar services and areas. Our benchmarking information will also show us where we need to focus our work to drive improvement.’

Navigating what’s to come

When starting out as a regulatory lawyer in 1992, one colleague described inspectors as guides and counsellors, as well as prosecutors. With the creation of the national inspectorates something of the former was, unfortunately, lost. It is hoped that CQC’s strategy will restore the balance in favour of collaboration and support. A focus on improvement and support is crucial as services rebuild after the pandemic. It remains to be seen whether a change of approach really does emerge over the next five years.

With no clear plan, or timetable in place, providers will have to keep abreast of the changes as they are introduced. As the sector well knows, nothing ever stays the same in the world of regulation for long.

Neil Grant is a Partner at Gordons Partnership LLP Solicitors. Email:  Twitter: @LlpGordons

About Neil Grant

Based in Guildford with Gordons Partnership Solicitors, Neil Grant has worked as a regulatory lawyer in the health and social care sector for twenty-eight years. Over that time, he has developed a national reputation. Neil only acts for providers, not regulators or commissioners. However, his advice is informed by having acted in the past for inspectorates and other public bodies at a very senior level, including the Care Quality Commission in its early days.

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