In 2013, CQC was in crisis. During its first four years, beginning in 2009, CQC had been beset by actual and perceived failures. The future of the organisation was in doubt. Then, in 2013, a new management team took over led by Sir David Behan, which instituted root and branch reform of the regulator. Central to the change was a renewed focus on physical inspections of services which had fallen into abeyance.
Over the next five years, CQC’s reputation was restored in the eyes of ministers; an outcome which cannot be underestimated given that the CQC is an agency of the State. However, the irony is that in placing its focus on inspections, CQC would be at its most vulnerable were it not able to carry them out. That very situation emerged in mid-March 2020 when it took the decision to stop all routine inspection activity due to the pandemic.
Regulation at risk
How CQC responded to the pandemic will no doubt be considered as part of a future Public Inquiry, which will look at how all the agencies of the State dealt with the public health crisis. After the SARS outbreak in 2002 to 2004, public health professionals around the world warned that a pandemic would emerge at some point. However, globally, little effort was made to prepare for the inevitable. It later became apparent that the UK was woefully ill-prepared when the COVID-19 pandemic struck in early 2020.
CQC found itself in a real dilemma at the start of the pandemic given its statutory responsibilities remained in place. How could it regulate effectively if its primary tool, the routine inspection, was off the table? It was obliged to rethink the way it regulated registered services, particularly those in adult social care where the greatest emphasis on physical inspections was concentrated – it had already loosened the reins of comprehensive inspections in areas such as the NHS and primary care where there is a far greater focus on data collection and analysis.
After the suspension of routine inspections, CQC committed to introducing a more flexible way of working, with an emphasis on the remote monitoring of services. After some delay, in May 2020, CQC introduced what it called the Emergency Support Framework (ESF). In essence, this was a system of telephone or online calls to registered managers to see how their services were coping with the pandemic. Understandably, there was a focus on infection prevention and control which, until the pandemic, had been just one of many areas inspectors had to assess on inspection.
A standardised set of ESF questions was developed with simple yes or no answers which were used to judge whether or not a particular service was managing during the pandemic. It was a rudimentary risk management process but at least it filled an immediate gap in CQC’s toolkit. In addition to the calls with individual services, CQC communicated with local agencies about services in their areas.
Significantly, the regulator committed to working in a supportive fashion with services, which was a change of tone compared to before the pandemic. Many providers and managers welcomed this supportive approach, even if the ESF itself was of debatable efficacy. The ESF remained in place until the beginning of October 2020 when it was replaced by the Transitional Regulatory Approach (TRA) which looks at a broader range of indicators, with a focus on safety, access and leadership.
As with the ESF, the TRA focuses on supportive conversations with managers but there is a risk scale that requires regulatory action if a service is judged to be very high risk or high risk. The work under the TRA is called Transitional Monitoring Activity (TMA). Since introducing the TMA framework, there has been an increasing number of physical inspections based on considerations of risk, as well as many infection prevention and control inspections of care homes carried out at the request of the Department of Health and Social Care. The vast majority of site visits have been conducted either as targeted inspections or focused inspections.
As a result of the increased inspection activity required of it by the Department, as well as its focus on registering services that support the system’s response to the pandemic, CQC will be doing fewer TMA calls during the first few months of 2021 than originally planned. It will also not be reviewing the ratings of services that are due for review, or have improved, unless improved ratings of such services would increase commissioning capacity within the system. The reality is that if the Department wants CQC to concentrate on inspection activity and registering new designated COVID-19 services, CQC must pause other areas of work. It is, after all, a body with only finite resources overseen by the Department.
Relevance and impact
CQC was keen to assume a national role at the start of the pandemic, notably signing up to the 2nd April 2020 national guidance document, Admission and Care of Residents during COVID-19 Incident in a Care Home. This guidance contained the statement, ‘Negative tests are not required prior to transfer/admissions to care homes’ which caused so many problems for care homes subsequently. In addition, CQC initially took a lead role on testing before it was taken away from it. CQC also developed a tracker for homecare services, in parallel with the development of the care home capacity tracker by the NHS.
Some have suggested that CQC could have done far more to support the adult social care sector during the pandemic, possibly seconding inspectors to the front line or reinspecting at scale far sooner than it did. According to this narrative, CQC has much to do to enhance its reputation, having largely stepped back from inspection during a national crisis. I believe this is unfair. Understandably, during the first lockdown, CQC did not want to have its inspectors going into services given the risk of cross-infection. However, CQC did not stop inspecting altogether, instead adopting a risk-based approach when deciding whether to cross the threshold of a service.
There is a strong argument that CQC’s credibility is based on its ability to carry out physical inspections, and there are now far more inspections being undertaken than before. As the Executive Team Report for the 20th January 2021 Board Meeting said, ‘At the request of the Department of Health and Social Care, we have agreed to complete 1,200 inspections in adult social care in December 2020 and January 2021 – an increase of 300 over our previously agreed commitment. In future months we aim to complete over 600 inspections per month in these settings.’
The majority of the inspections are risk-based, drawing on the significant increase in information received from the public during the pandemic, including whistle-blowers. CQC is also continuing ‘to monitor and assess services where there is a risk of closed cultures developing.’
Beyond the pandemic
On 7th January 2021, CQC published a consultation paper on its proposed strategy for the next five years: The World of Health and Social Care is Changing. So are we. It runs until 5pm on 4th March.
It is based around four themes:
- People and communities.
- Smarter regulation.
- Safety through learning.
- Accelerating improvement.
The document contains a good deal of rhetoric, and is short on detail, so the sector will have to see what transpires when CQC provides its response to the consultation in May 2021.
What is proposed is a radical change in the way CQC regulates the care sector. To a significant degree, it is informed by the new remote and virtual ways of working that CQC has had to adopt during the pandemic.
CQC proposes that it becomes a regulator of local systems, not just individual services, tackles health inequalities and assumes a greater improvement role rather than the current one which is compliance and enforcement driven. It also proposes moving to a regulatory system based around greater real-time intelligence to support its improvement role and target its regulatory interventions more effectively. A move to real-time regulation would allow for ratings to be changed more frequently, without the need for a site visit.
CQC also wants to introduce a regulatory system that focuses on outcomes based on the experiences and expectations of people using services and their families rather than one dominated by processes and inputs.
Regulating by algorithm
CQC would prefer a system of regulation that is no longer based on a set schedule of routine inspections in adult social care. It wants to introduce a system that is technology driven, supported by targeted or focused site inspections, as required by risk analysis. As the consultation document says, ‘We now have IT systems that can handle large amounts of data, which will enable us to use artificial intelligence and innovative analysis methods. This replaces more manual handling of data and will ensure we interpret data in a more consistent way.’
The difficulty with adopting a desktop, intelligence-driven approach to regulation, supported by risk-based inspections, is that it looks a lot like the strategy of CQC back in 2010 which failed so spectacularly. CQC may say that 10 years on, technology is far more sophisticated, but regulating by algorithm is risky and depends on the quality of the data received, including the ability of providers to self-assess the performance of their services in an accurate fashion.
Significantly, the University of Manchester and The King’s Fund’s Study on CQC Regulation, in September 2018, emphasised that regulation is a social process, saying, ‘For the regulator, it seems their credibility, authority and effectiveness are only as good as the people who make and sustain regulatory relationships with providers. Many of the decisions that CQC staff are called upon to make are complex and require expertise in the clinical domain as well as a sophisticated understanding of organisations and their development. We think that investment in those staff and in the processes of recruitment, training and professional development is particularly important.’
I would agree wholeheartedly with this statement. Of course, CQC will argue that the choice is not a binary one, which must be right on one level. CQC needs to invest in its people and in new technology. However, if CQC is to carry forward a stronger relational and supportive model of regulation in adult social care, it will need to be driven by humans not computers; for the time being at least.
How do you think CQC has responded to regulation during the COVID-19 pandemic? Share your feedback below.