Legislation is a bizarre and inadequate attempt to fix a spurious problem, argues Bill Morgan

It is difficult for me to conceive of a party conference taking place during the passage of a major piece of healthcare legislation without anyone talking about it. But during next week’s Conservative Party conference, that is precisely what will happen.

The legislation in question – the Care Bill – makes profound changes to the system of safety regulation in healthcare. Maybe because the bill focuses predominantly on social care, the changes it makes to healthcare are hardly being discussed at all.

The reforms have been brought about by the theory that the Care Quality Commission suffers from its responsibility both for inspecting healthcare providers for signs of failure, and then for taking enforcement action to stop the failure harming patients. This, it is suggested, leads inspectors to cover up concerns for fear that their enforcement action would otherwise prove ineffective.

Despite the lack of evidence to support this theory, the Care Bill nonetheless seeks to address it by splitting apart the inspection and enforcement roles of the CQC – but only, bizarrely, for state-owned providers. Presumably this is because the government deems private providers to be safer.

It then, equally curiously, splits responsibility for enforcement action between Monitor for foundation trusts and the NHS Trust Development Authority for NHS trusts – even though the TDA and Monitor have nothing like equivalent powers of intervention.

Finally, it assumes that the enforcement mechanism of choice will be special administration – a lever designed not to address safety issues, but to rescue services at risk of closure.

Flawed from the start

This proposed system is deeply flawed. For a start, it creates a system in which a single organisation responsible for enforcement – the CQC – is substituted for a range of organisations with differing jurisdictions and differing powers of intervention.

Indeed, in the case of NHS trusts, the system is completely circular: enforcement action will now be led by the TDA which, as the “headquarters” of NHS trusts, is the organisation whose prior failure to address a safety issue will have led to the need to take enforcement action in the first place.

In relying (in special administration) on an entirely unsuitable regulatory lever, the system lacks credibility. First, special administration is an immensely disruptive process that might exacerbate, rather than address, quality failures.

Second, special administration is too time-consuming a process to rely on to take urgent action to protect patients from unsafe care settings.

And third, it is politically risky – as Jeremy Hunt knows from his experience with Lewisham. Relying on a regulatory mechanism that causes a political headache every time it is used is unlikely to be sustainable.

This explains why the regulatory regime anticipated in the Care Bill has failed at the first time of asking – with the hospitals judged to be failing after the Keogh review instead placed into “special measures”, rather than special administration.

“Special measures”, which has no definition in law and therefore no place in a regulatory regime, means nothing more than a package of interventions led by the TDA and Monitor and designed on a case-by-case basis.

This is by no stretch of the imagination the system of regulatory simplicity demanded by Robert Francis in the Mid Staffordshire inquiry. It is, in fact, the system which would operate in the absence of regulation.

Special measures suffers two further flaws. At some point, so many providers will be in special measures – currently 11 hospitals, with the health secretary saying there will be more to follow – that its use as a regulatory lever will be meaningless because providers will not fear it.

Worse, if providers in special measures can expect extra support, as the government has indicated, then there will be a perverse incentive on them to get placed into it – just as deficits proliferated throughout the NHS in 2005 when there was virtually no downside to financial failure.

The deficits crisis is one of the reasons Patricia Hewitt’s tenure as health secretary may not be remembered fondly, but the regulatory system she put in place was elegant in its simplicity – and it is being weakened by the Care Bill.

The CQC’s powers of enforcement were easily understandable (such as being able to suspend a service) and painful for an organisation to bear (a suspended service could not generate any income). The CQC alone was responsible for deciding when they should be used.

Regulation without teeth

In practice, of course, this regulatory system has not responded as one would hope – both through the CQC failing to identify concerns, as we have seen, tragically, at Morecambe Bay, and then through the CQC failing to take enforcement action; for example, trusts and FTs have seen just two service suspensions and no fines or deregistrations over five years.

However, I do not agree with the health secretary that this lack of enforcement action is the consequence of a “conflict of interest” between a regulator having responsibilities for both inspection and enforcement. Rather, it occurs because safety regulators are always weak when attempting enforcement action against services that are the public’s only option.

The CQC has issued many warning notices to A&Es, for example, but to go one step further and suspend these services would result in patients being displaced into other – perhaps overstretched – units. It would run the risk of causing more harm than good. This is a step the CQC has never been willing to take.

These situations abound in the NHS and the inability of regulators to take effective enforcement action in response to every failure will persist for as long as some of the services provided in the NHS are natural monopolies. That is, forever.

Splitting apart inspection and enforcement will have no positive impact on the regulatory system at all. Indeed, the impact of the Care Bill’s changes is likely to be negative.

There is also a political danger for the government in these reforms because it is raising expectations that changes to regulation alone will cure the NHS of its ills. This danger is only heightened if the reforms result in dozens of hospitals finding themselves in special measures in the run-up to the general election – and unwilling to find their way out.

There is an even greater danger that the government – in complicating still further the regulatory system when so many including Robert Francis have demanded its simplification – ends up weakening rather than strengthening the only safety net patients have. Those dangers are surely ripe for discussion at a party conference.

This article was first published in the Health Service Journal. You can read it here.