April 2016 saw the coming together of Monitor and the NHS Trust Development Authority to form NHS Improvement, which has since made good progress in developing its new approach to regulation.
Its new single oversight framework presents an opportunity for the regulator to be pragmatic in the way it oversees trusts, taking into account their contribution to wider health economy challenges and delivering strategic change, rather than being used as a blunt regulatory tool which penalises trusts for taking risks. That said, it continues to face having to strike a careful balance between a more supportive approach to improvement with its formal regulatory functions.
The CQC has now consulted and is preparing to roll out its new regulatory model, which will see fewer inspections and a more tailored approach. These changes could, if carefully implemented, pave the way for a more sustainable inspection regime. As regulators are facing intense scrutiny to ensure that the sector overcomes current challenges, maintains quality, transforms care and delivers efficiency savings, it is crucial that the way in which they respond stays true to the principles of a risk-based and proportionate approach to regulation.
As in previous surveys, we asked respondents how they feel the overall regulatory system is currently functioning. The survey reveals that there is a perception among trusts that the regulatory environment is heading in the right direction, with 44% of respondents considering the overall regulatory framework to be working ‘fairly’ or ‘very well’ (figure 1) – an increase on the 29% recorded in our last survey in 2015.
Respondents also stressed that there is still room for significant improvement. Despite progress made in terms of regulatory bodies working more closely together, the demands placed on NHS foundation trusts and trusts when it comes to complying with regulatory requirements have not reduced.
Figure 1
Worryingly, about a third of respondents (32%) continue to report that the regulatory framework is operating ‘fairly’ or ‘very poorly’. Too many competing demands, overlapping layers of regulation, an institutionally focused regulatory system that is not conducive to working effectively across local health systems and the need to reduce the number of regulators remain the major sources of concern among respondents when asked about the overall regulatory system.
“Improvements continue with greater alignment now observed between NHS Improvement and CQC. However, there needs to be further information so that the framework adequately deals with new models of care.”
“While it is refreshing to see regulatory frameworks aligning such as the CQC and NHS Improvement’s well-led reviews, the overall work required to fulfil requirements has not reduced.”
“Increased regulation from NHS Improvement and CQC, which increasingly overlaps and duplicates the role of commissioners and other forms of accountability.”
“[The] single oversight framework is anything but single. There are still 2 regulators CQC and NHS Improvement. Should be one.”
“The big problem is that regulation of individual trusts gets in the way of system working.”
Value for money
Against a backdrop where the fees that providers pay regulators have risen at a time of sustained financial constraints, with an intense search for efficiencies underpinned by the pressure to restore financial balance, demonstrating that regulatory activity adds value and is commensurate to the benefits it brings to patients, the public and those regulated is crucial. It is therefore concerning that over half of respondents to our survey (56%) indicated that the regulatory system providers ‘poor’ or ‘very poor value’ for money for taxpayers (figure 2). Compared to findings from the 2015 survey, more respondents were neutral about the value for money of the current regulatory system compared to the findings (an increase from 25% to 37%).
Among the recurring themes raised were issues around persisting duplication and overlap and a lack of tangible benefits to patients and providers, along with the greater financial pressures due to the costs of regulation now being borne by providers directly. The institutional nature of the regulatory regime at the expense of a focus on systems was also seen as one of the factors contributing to limited value.
“Too many regulators, causing overlap and duplication of resource and cost.”
“The regulatory framework is excessive and there is often duplication. There are occasions when the regulatory system does add value, however it can often be the case that the regulatory system has no tangible benefits to the provider.”
“The individual regulators are doing their best. However, they are often focusing on the wrong targets (individual trusts rather than systems).”
“Hard to judge value for money against any clear criteria. However, duplication of regional NHS England and NHS Improvement functions would not seem to represent good value.“
Figure 2
Regulatory alignment and coordination
On the whole, a greater proportion of respondents to this year’s survey – 44% – agreed that there has been effective coordination between the regulators (figure 3).
These findings are a positive indication that regulators’ efforts to ensure better alignment and reduce duplication are starting to gain a welcome momentum, but the task ahead remains considerable. While respondents recognise that the regulatory framework may be starting to move in the right direction, many commented that it remains imperative for regulators to sustain their efforts to address tensions in the current regulatory framework. One respondent summed this up by stating that “the tide has turned but the sea is still stormy”.
While the concerted effort to improve coordination of regulatory approaches was noted, respondents also argued that implementation remains inconsistent at times. Respondents also felt that a gap remains in terms of broader alignment with the rest of the regulatory infrastructure, in particular with NHS England, and a need to further improve coordination across systems. This is particularly important given the shared expectations placed on providers and commissioners to work together to transform care. Significant challenges to achieving a more aligned regulatory framework remain, as reflected in that over a third of respondents (35%) continue to report that regulators are not effectively coordinating their activity.
“There is definitely a direction of travel of improvement.”
“The single oversight framework is now seeing some alignment with the CQC. However there appears to be little alignment with the way in which NHS England and NHS Improvement work.”
“While they are more joined up e.g. joint publications there is still overlap between the roles of the key regulators.”
“CQC and NHS Improvement are trying to work together, but the SOF is just a fudge. Merge them!”
“They are moving in the right direction but the problem is not so much coordination between CQC/NHS Improvement as coordination across systems.”
Figure 3
Consistent national messages
Feedback from our members through previous regulation surveys has raised the challenges they face because of having to navigate conflicting views from regulators and other arm’s length bodies. We asked respondents about the extent to which they feel that the advice that their organisation received from the regulators has been consistent with policy making by other arm’s length bodies. Almost half of respondents (47%) considered the advice received to be either ‘very’ or ‘fairly consistent’.
While there are signs of progress, in line with previous surveys, respondents felt that more consistent messages do not always shape regulators’ actions in practice. Respondents also called for regulators to take a more joined up system-wide view rather than working within organisational silos. It was also clear that the different thresholds of proportionality that various regulators apply were also having an impact on consistency. It was also emphasised that mixed messages from NHS England and NHS Improvement remain an issue.
“Recognise national bodies’ efforts e.g. planning guidance and approach of the single oversight framework but there are clearly NHSI/NHSE tensions.”
“We have to balance money with performance and quality, the fact that this is very challenging is directly linked to the regulatory framework.”
Figure 4
Regulators’ understanding of local pressures
The ability of regulators to provide effective improvement support and enable providers to develop locally tailored solutions in collaboration with their local partners is predicated upon a good understanding of local pressures and challenges facing providers.
As in previous years, respondents to this year’s survey felt that regulators generally demonstrate a good understanding of the pressures NHS providers are facing. There was some variation across regulators with more positive views expressed about NHS Improvement’s understanding, with 89% of respondents stating it showed a ‘fairly’ or ‘very good understanding’, in comparison to 48% of respondents who said the same about the CQC (figure 5). While an understanding of the pressures that providers are under is important, this is not sufficient unless reflected in the actions regulators take. As in previous years, respondents were more reticent about the degree to which this understanding is followed through in practice.
“Don’t doubt the understanding; their ability to act in response is a different matter.”
“While there is understanding, this is not seen through into actions.”
While respondents reported having good working relationships with both the CQC and NHS Improvement at a regional level, with a higher degree of satisfaction for NHS Improvement (80%) compared to the CQC (61%) (figure 6), the survey findings do reveal some variation across regions.