Regulation has an important role to play in public services – particularly those, such as the NHS, that manage high levels of risk, where good leadership, processes and governance are of paramount importance to safety. Trust leaders recognise that independent regulation and oversight can play a valuable role in holding up a mirror, providing impartial assessment and challenge, as well as appropriate transparency and accountability for service users and taxpayers. In a nationally-led public service, independent oversight is also important in maintaining focus on national-level priorities, and in providing support and assistance where improvement is needed.
These roles complement, but do not replace, the role of the trust board, which provides strong leadership, good governance, and the capacity and capability for self-reflection within the provider organisation.
The context for providers
This report focuses on trust leaders' views and experience of regulation during 2023/24.
The past year has once again proven challenging for the health service. Trusts have made significant progress, particularly on treating ever-increasing numbers of patients and reducing waiting times for the longest waiters. But they have achieved this amid an unprecedented combination of factors, including:
- Rising levels of demand and patient acuity, with people presenting with more complex conditions, requiring more resources and staff time to deliver their care.
- Persisting care backlogs and record numbers of people awaiting elective treatment.
- Challenges around care quality, safety, and culture, with intense scrutiny of maternity and inpatient mental health services, and the ambulance sector, in particular.
- Ongoing industrial action throughout the year involving multiple staff groups.
- Widespread staff exhaustion, burnout and low morale.
- Capacity shortfalls in related services such as social care, education, primary care, public health and housing, which directly affect people’s health and which interface with the services trusts provide.
- The impact of years of underinvestment, with constraints on productivity including mounting deficits, workforce shortages, industrial action, and inadequate estates and facilities.
The regulatory context
In 2023/24, one year on from the passing of the Health and Care Act 2022, national bodies' approaches to regulation and oversight continued shaping, and adapting to, system working. At the same time, they were reacting to the increasingly difficult operating environment for providers. Regulation and oversight by CQC, NHSE and ICBs was therefore evolving within a complex and changing set of circumstances.
In line with its 2021 strategy, A new strategy for the changing world of health and social care (CQC, 2021), CQC has been working to transform its regulatory approach, with the aim of becoming more flexible, more responsive to risk, and more focused on whole systems rather than individual organisations. At the centre of this approach is a new single assessment framework (CQC, 2024a), devised to apply equally to providers, systems and local authorities.
During 2023/24 CQC trialled and implemented aspects of this new approach. From November 2023 it started rolling out the single assessment framework across England, and piloted its local authority and integrated care system assessments. While making these significant changes, CQC focused its activity where it judged there to be the greatest clinical risk, such as maternity services and, over the winter, emergency departments.
CQC has faced challenges with some key aspects of its new approach, including technical difficulties with its provider portal, while ICS assessments have been delayed for further refinements in discussion with the Department for Health and Social Care (DHSC). Kate Terroni, who became interim chief executive of CQC following Ian Trenholm's departure in June 2024, has recently publicly apologised for these difficulties (Booth R, 2024).
During the period covered by this survey trusts and ICBs were being assessed under NHSE’s NHS oversight framework for 2022/23 (NHSE, 2022a). A refreshed framework for 2024/25 was being consulted on when this survey was conducted.
This year's survey also explored trusts' experiences of NHSE’s operating framework (NHSE, 2022b), which was published in 2022 and signalled an intended shift in culture, mindset and how oversight is conducted. The framework aimed to describe the respective roles and accountabilities of providers, ICBs, NHSE national and regional teams, and to clarify NHSE’s expanded remit following its organisational restructure. It gave ICBs an explicit role in overseeing trusts’ performance: while NHSE retains statutory accountability for overseeing both ICBs and NHS providers, it will be discharging its functions relating to trusts in collaboration with ICBs.
ICBs offer the opportunity, as part of system working, to foster a sense of shared responsibility and collective endeavour among system partners. However, there is an inherent tension in their dual role as partners and conveners, as well as overseers, of providers. We have recently reflected on that tension, and identified the potential for conflicts of interest inherent in such complex relationships, in our response to NHSE’s consultation on an updated oversight and assessment framework (NHS Providers, 2024a).
2023/24 was the first year in which trusts experienced significant oversight from both NHSE and ICBs. The impact of this is discussed in detail in the survey results.
A pivotal moment for regulation
The underlying issues that affected providers in 2023/24 largely remain in place: the task trusts face, of balancing care quality, operational performance, and finances, is tougher than ever. For 2024/25, systems have been asked to reduce expenditure, including staff pay costs (with headcount reductions not ruled out), while maintaining quality of care and improving productivity.
During summer 2024 Lord Darzi is conducting a review of NHS performance (DHSC, 2024a), and DHSC is developing a 10-year plan for the service (Anderson H, 2024), due to report in spring 2025.
At the time of writing, CQC's new assessment approach, its ratings and inspections, as well as its leadership and staffing, are subject to a review, commissioned by DHSC and led by Dr Penny Dash (Townsend E, West D, 2024). The review was launched in May 2024 under the Cabinet Office public bodies review programme (Parris C, 2023), and published its interim findings on 26 July 2024 (Dr Dash P, 2024). Dr Dash’s interim report identified significant failings in CQC's effectiveness and made recommendations for steps the regulator should take to restore the confidence of health and care providers and the public in its processes and judgements.
NHSE's oversight and assessment framework is also in the process of being updated (NHSE, 2024) following a consultation in May to June 2024.
This report, therefore, comes at a crucial time for the NHS, and at a pivotal moment for regulation. As the new government sets expectations for delivery in the short term, and considers the long-term direction for the NHS, it is worth considering the impact of regulation on trusts, the extent to which it adds value, and how it can support or impede progress towards shared goals.
About this survey
This report details the results of our ninth annual survey on regulation and oversight. It was conducted during April and May 2024, and asked trust leaders to consider their experience of regulation during 2023/24. Responses came from trust chairs, chief executives, company secretaries, medical directors and nursing directors.
This year's survey received responses from 122 unique trusts, accounting for 58% of the provider sector and representing all regions and trust types. We are grateful to all those who contributed. We also thank CQC and NHSE who gave feedback on our proposed survey questions, and engaged with us and our members constructively in refining their respective regulatory approaches.
In addition to the survey findings, the analysis and the commentary in this report is informed by our ongoing engagement with providers, and the experiences they have shared in our conversations with the regulators and beyond.
In this report, where we refer to 'the regulators' and 'national bodies' we mean CQC and NHSE.