All models of regulation have flaws

In Press review on May 18, 2009 at 3:05 pm

A report by the Care Quality Commission today highlights flaws with self-regulation. The NHS Trusts responsible for the care of Baby P were responsible for assessing their own performance. Those Trusts told the (then regulator) the Healthcare Commission that they were doing ok: they were meeting the national standards. In fact of all the measures over three years, the Trusts only declared two out of 60 standards unmet. The commission then rated those Trusts excellent (GOSH) Fair (Whittington) and Good (North Middlesex).

The process for determining these standards is set out by the report:

“Every NHS trust in England is responsible for ensuring that it complies with the Department of Health’s core standards.”

“As part of the current annual health check process, we ask all trusts to assess their performance against the standards and publicly declare this information . . . If the trust’s board is not satisfied that the standards are being met, it must take appropriate action.

The Commission cross-checks the declarations using publicly available information from sources such as clinical audits, surveys and performance data from other regulators. Using all of this information, the Commission’s regional teams target inspections to check that trusts have performed at the level that they actually declared. All non-compliance with the standards is followed up.”

In this instance self-regulation failed tragically but a more heavy-handed system of regulation is also not without problems.

Government regulation can lead to a diminished sense of responsibility amongst those who have to meet the rules. Because someone else is responsible for finding out if you are good enough, you take less responsibility for making sure that you are and spend more time making sure the things that the inspector might find are ok – knowing that there are some things they are less likely to find out.

At the event I attended earlier this week Robert Peston argued that the best form of regulation was one where individuals are encouraged to exercise their judgment and take responsibility for their actions. He suggested that the creation of the Financial Services Authority had led to more rules but a diminished culture of responsibility for adhering not just to the letter but the spirit of the law.

Self-regulation also enables a more proportionate regulatory process. The Healthcare Commission required far fewer inspectors, making it better value for money and was often able to inspect more hospitals, more quickly than a more thorough inspection process. Ofsted began by leading the inspection process but reformed its processes to ensure that inspections happened less frequently but self-inspection enabled inspectors to identify early problems which required greater intervention.

As Deidre Hutton said at the same event, we have a police force but we don’t expect there to be no criminals. So perhaps the failure of the regulatory system in healthcare shouldn’t lead to fundamental reform. But it will be hard for government not to take a more proactive ‘heavy handed’ approach – even though that also has difficulties.


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