Overall regulatory framework

Over the last year, NHS Improvement has continued to make progress in implementing its new approach to regulation, following its formation in 2016 from the coming together of Monitor and the NHS Trust Development Authority. NHS Improvement has maintained its focus on supporting trusts to make improvements, however it has to strike a careful balance between this supportive approach and its regulatory functions. This is particularly important as NHS Improvement continues to apply financial control totals and challenging cost improvement programmes as regulatory levers.

Since our last survey, CQC has begun to implement its new regulatory model, in which it takes a more tailored, risk-based approach to inspections and makes greater use of intelligence outside of the inspection period. The two regulators have also taken important steps forward in how they align their approaches, most clearly through their approaches to assessing trusts’ leadership and use of resources.

In the last year, there has also been a significant move to implement plans for local systems through STPs and ICSs. Trusts are increasingly working in collaboration with local system partners, including clinical commissioning groups (CCGs) and local authorities to deliver improvements across whole health economies.

The health and care system is experiencing a major shift in how organisations work together, both at local and national levels, albeit within the existing legislative framework. NHS Improvement and NHS England are rightly working together more closely than ever. Our survey results show that this is crucial for supporting local systems to develop. As trusts seek to balance their organisational duties and leading and contributing to local systems, it is crucial that the regulators stay true to the principles of a risk-based and proportionate approach to regulation, and that they are joined up in their messages and methods.

Trusts are increasingly working in collaboration with local system partners, including clinical commissioning groups (CCGs) and local authorities to deliver improvements across whole health economies.

   

Every year we ask NHS trusts how they feel the overall regulatory system is currently functioning. Last year, we reported a perception among trusts that the regulatory environment was heading in the right direction, with 44% respondents considering the overall regulatory framework to be working 'fairly' or 'very well', an increase from 29% in 2015. This year, 43% of respondents gave this response, which while consistent with the previous year does suggest that improvements have stalled. Worryingly, a third (33%) of trusts believe that the overall framework is working 'fairly poorly' or 'very poorly'.

When asked about the overall regulatory system, trusts report concerns about a lack of coordination across the regulators and other national bodies, burdensome regulatory requirements, particularly in the context of facing increased operational pressures, and duplication in requests from the regulators. There were suggestions that trusts feel they constantly have to adapt to new approaches and requests from the regulators. Trusts also raised concerns about how well the regulatory framework is keeping up with the move to new models of care.

"There’s lots of change [in the overall regulatory framework] which limits its effectiveness as constantly having to respond to changes. It also indicates that it is not working effectively."

"[The sector] strikes me as over regulated, with duplicated functions and activity. The burden on CEOs and trusts as a whole needs quantifying in relation to the overall risk in the system."

 

Value for money

The NHS is facing intense financial pressure and trusts are managing a mismatch between the resources currently available to them and the political and public expectations of the NHS. In this context, demonstrating that the regulatory system adds value for money is crucial.

Therefore it is worrying that only 8% of respondents said they think the regulatory system is good value for money. Half of respondents (50%) reported that the regulatory system is 'poor' or 'very poor' value for money: a broadly similar proportion to last year (56%). Acute trusts take a less favourable view than non-acute trusts, with 59% reporting the system is poor value for money compared to 33%.

Many providers highlighted concerns about the increase in CQC fees in 2018-19. Some question whether an increase in fees is at odds with CQC’s ambition to reduce the burden of reporting requirements and move towards risk-based model of inspection. Respondents suggested that better coordination across the regulators and national bodies and a focus on reducing duplication in requests would go someway to deliver better value for money.
 

"I think we would benefit from a more streamlined regulatory approach which reduces overheads and redirects funds to the benefit of frontline organisations."

"Significant money that could be focused at the frontline is spent with layers and layers of bureaucracy that cannot demonstrate that it is adding value."

 

Regulatory alignment and coordination

 This year’s survey shows a decline in trusts’ experiences of how well the regulators have coordinated their activity over the last 12 months. Fewer respondents said they felt the regulators had coordinated effectively, at both a national level (38%) and at local level (36%), compared to last year (45%).

This is further indication that the improvements reported by trusts last year have stalled. Although respondents noted the regulators’ ambitions to ensure better alignment and coordination, they suggested this has not translated into change in their experiences at local level. Trusts reported that they continue to experience overlap in the requests from the regulators and suggested that the regulators can take further steps to align their methods for gathering data. Some cited frustrations with the length of time it has taken the regulators to agree and clarify their approach to well-led assessments.

"The leadership of CQC and NHS Improvement aspire to coordinate activity, but the evidence of achievement is limited at this stage."

"I feel that NHS Improvement and CQC are now sharing a common understanding of where a trust is in addressing improvement issues."

Consistent national messages

Each year we ask trusts to tell us the extent to which the advice their organisation has received from the regulators has been consistent with policy making by other arm’s-length bodies. Just under half (49%) reported that it had been 'very' or 'fairly' consistent, a similar proportion to last year (47%). This view was more likely to be taken by non-acute providers (62%) than acute providers (43%).

The lack of change over the last year is disappointing given the increasing emphasis on collaboration across systems both locally and nationally. Some respondents reported that the national bodies do not always appear to share priorities and continue to work in organisational silos. As in last year’s survey, consistency in messages from the regulators and from NHS England was also raised by respondents. There was a sense that this is improving, although trusts emphasised the need for the national bodies to coordinate their approaches to developing national policy and guidance. They also suggested the national bodies could do more to ensure consistency in how they are supporting trusts to implement changes.

As providers, commissioners and other services are expected to work together to transform care, it is more important than ever that the national bodies are coordinated and consistent in their messages and approaches.

"Better than it used to be but a long way to go still. New planning guidance is encouraging example of better coordination."

"NHS England and NHS Improvement are inconsistent with differing views on commissioners and providers."

Regulators’ understanding of local pressures

In order to be able to respond to intelligence from and about providers, regulate activities in a proportionate way, and provide support that is tailored to trusts’ specific needs, the regulators need to have a good understanding of the pressures that trusts are facing.

On the whole, the majority of respondents believe that the regulators have a 'very good' or 'fairly good' understanding of the pressures facing providers. Three quarters (75%) said NHS Improvement has a good understanding, and 62% felt CQC has a good understanding. However there is a mixed picture in terms of how this has changed over the last year. The proportion reporting that CQC has a good understanding has increased since our last survey (from 48% to 62%), however providers believe NHS Improvement’s understanding of the sector has declined over the same period (from 89% to 75%).

When asked about the regulators’ understanding of local pressures, trusts reported that while the regulators appear to understand the challenges, they do not always behave in ways that reflect this understanding. As one trust commented, the message from the regulators is often:

"We understand the pressures on A&E caused by increased demand, delayed discharges etc....When are you going to get to 95%?"

There were suggestions that this is a result of a lack of communication between regional and national teams within the regulators. Other trusts felt that the regulators understand the pressures but do not understand how to support trusts to overcome them. There were also suggestions that the regulators’ response to pressures is too slow.

"Whilst regulators say they understand the pressures, they then act as though the pressures don’t exist."

"There is evidence of a good understanding that there are pressures – but not necessarily of how those pressures can be assuaged whilst still maintaining patient safety and the quality of care."

"The regulatory system cannot solve the problems in itself and the lack of people within it who have run a complex healthcare system make it difficult to value some of their demands and requirements."

Engagement with the regulators

The majority of respondents reported feeling 'very satisfied' or 'satisfied' with the way the regulators’ regional teams have engaged with them over the last 12 months. The findings suggest an improvement in trusts’ relationships with regional CQC teams, with 70% reporting they feel satisfied this year, up from 61% in last years’ survey. However, the proportion of trusts who report feeling satisfied with the engagement with regional NHS Improvement teams has declined since last year (from 80% to 73%).

Trusts’ experiences of engaging with the regulators’ regional teams varied considerably. Some reported feeling very satisfied with local relationships and the professional and supportive approach taken by regional teams. Other trusts felt that changes in staff in the regional teams had made it difficult to develop relationships and meant it had taken longer for the regional teams to develop an understanding of the specific issues facing trusts. There was also a sense among some trusts that while their engagement with regional teams had been positive over the last 12 months, a lack of clarity within the regulators about the responsibilities of the national and regional teams had led to confusion and duplication.

"We have suffered from ad hoc senior regional input over the past 12 months which doesn’t help strengthen awareness of areas which are improving and building relationships with the team."

"The junior team can miss out on the subtleties and nuances which are important."

"The [CQC and NHS Improvement] regional teams have engaged in a highly professional manner with the trust."

"The overlap and blurred accountabilities between the regional and central NHS Improvement teams has been an issue especially around management of cash, capital and business cases."

Regulatory burden and impact

As in previous surveys, we asked providers whether the overall regulatory burden experienced by their organisation had increased, stayed the same, or decreased over the last 12 months. The results suggest that the regulatory burden on trusts remains excessively high; this is the fourth of our surveys in which respondents have reported an increase in regulatory demands.

This year, more than two thirds (67%) reported that the regulatory burden had increased over the last 12 months, with 28% suggesting it had stayed the same and only 2% reporting a decrease.

The results suggest that the regulatory burden on trusts remains excessively high; this is the fourth of our surveys in which respondents have reported an increase in regulatory demands.

   

The pressure is compounded by ad hoc requests for information. Nearly two thirds (62%) of respondents reported that there had been an increase in ad hoc requests in the last 12 months. However, there is some room for optimism that this is moving in the right direction, having reduced from 76% two years ago.

"We had over 200 requests following a two day inspection."

Proportionality

It is important that the regulatory system is proportionate and risk-based, and that the regulators’ focus is on seeking assurance that boards leading their organisations effectively.

In light of this, it is concerning that over half (56%) of trusts did not feel that the current reporting requirements are proportionate to the level of risk they manage. The proportion of trusts that do think it is proportionate (36%) has declined over the last two years. There were different views within the sector, with 30% of acute trusts suggesting the reporting requirements are proportionate to risk, compared to 47% of non-acute trusts.

Respondents pointed out that regulation and reporting alone do not help trusts to manage the risks and challenges they are facing. There was a view among some providers that the regulators do well to adapt their approach depending on the level of risk a provider is managing, but others warned that the regulators’ response to concerns can at times feel disproportionate.

Some trusts suggested that regulators’ requirements can, at times, have a detrimental effect, as meeting requests to provide information and assurance to the regulators diverts resources away from the management of risks and challenges. Others reported particularly heavy-handed responses from the regulators when risks at a trust had been flagged, or when their trust had entered special measures, which they thought had restricted the trusts’ ability to address the issues.

"The ever increasing expansion of [CQC’s] powers could give rise to either over light or overly heavy handed management and intervention.”

"The number of returns for the digital incident across the NHS [in 2017] was out of proportion to the scale of the issue and took the experts away from dealing with the incidents due to the specialist natures of the requests."