The Government’s response to the second Francis Report includes some big proposals for reducing the risk of problems being missed, or having been identified not being addressed, by the regulators. For Monitor this shake up means additional work and a shift in the balance of power between itself and other regulators, particularly the Care Quality Commission (CQC) and the NHS Trust Development Authority (NHS TDA). In his report Francis went even further, suggesting that there should be single regulator for FT authorisations (the CQC), but Ministers did not agree.
One of the requirements of an effective, unified system is that everyone involved in regulation is working to the same standards – that they have a shared vision of what poor looks like. "Patients First and Foremost" says that the CQC, NHS England, Monitor and the NHS TDA will be required to agree between them the data and methodology for assessing hospitals. Performance against these measures will be assessed in annual quality accounts. The proposal is that there will be discussion within DH and the regulators, followed by public consultation, to develop "a small number of fundamental standards focusing on key areas of patient care" which will then be used by the Chief Inspector of Hospitals to make judgements about the quality of a hospital’s services.
Monitor is also one of the bodies working with the NHS Leadership Academy to revisit the most recent (2010) comprehensive guidance for NHS boards on what is expected from them. "The Healthy NHS Board" is being amended to reflect "the lessons learned from Robert Francis’ report. It will then provide a statement of what a good NHS board looks like that everyone, including the boards themselves and their regulators, can understand and work towards." This is particularly significant for FTs and NHS Trusts for two reasons:
- Foundation trusts are subject to special governance conditions in Monitor’s licence which do not apply to other providers. It is quite likely that FTs will have to comply with the guidance under condition 2 or “have regard” to it (which means they have to follow it unless they have a reason not to) under condition 3(a). It is inconceivable that an NHS Trust which does not already meet the Monitor FT licence conditions would be allowed to become an FT.
- The same assessment tools will be used in considering the suitability of candidates for NHS Trust NED appointments (by the NHS TDA), the effectiveness of FT governors and NEDs and (by the Chief Inspector of Hospitals) in giving an overall rating to hospitals.
I will say this only once
A major theme of Government’s response is reducing the burden of regulation. For example, the Health and Social Care Information Centre (HSCIC) will be publishing recommendations that health care organisations including Monitor must "have regard to". This does not mean that they must follow the recommendations, but it does mean that if they choose not to follow them, they should articulate why they have decided not to do so. However, "Patients First and Foremost" says that in some circumstances Monitor, the NHS CB, CQC, CCGs and others may instead have to do as they are told by HSCIC. The example given is that one of them might want to have its own collection of information that was already available from another source – the implication being that HSCIC would say, "no, you have to use the available data set instead".
Another example relates to the new role of Chief Inspector of Hospitals, which sits within the CQC. We are told that, "to avoid duplication this will mean change to the existing quality surveillance responsibilities of Monitor and the NHS Trust Development Authority".
The third example is the proposal for local and regional Quality Surveillance Groups, which will bring together commissioners, regulators, local Healthwatch and "other bodies" to share intelligence about quality issues, including the views of patients and the public.
Fourthly, Healthwatch England will collect information from local Healthwatch and ensure that regulators, including Monitor, are aware of it.
Monitor as the CQC’s enforcer
The Government’s proposals for the Chief Inspector of Hospitals contained a few surprises. One of these was that problems identified by the CQC’s Chief Inspector of Hospitals would not be dealt with by the CQC. Instead the CQC would "delegate" its enforcement powers to Monitor and the NHS TDA. As Jeremy Hunt explained it in his statement to the House, this decision was taken "to ensure there is no conflict" between the Chief Inspector’s role as whistleblower and the work of turning hospitals around. This is an interesting decision for four reasons:
- It seems unlikely that separating investigation from the work of tidying up the mess (across organisational boundaries) will be more effective than putting a single organisation in charge.
- Delegation implies that ultimate responsibility for the clean up role remains with the CQC. If so, then best practice (and under normal circumstances, the law) would require the CQC to be in a position to influence the way in which Monitor and the NHS TDA fulfil their roles. This would be inconsistent with the "conflict" argument.
- Handover to Monitor and the NHS TDA does not happen immediately. Despite the "conflict" there is an initial period during which the provider is to work with commissioners to sort itself out. The CQC will then decide whether it is satisfied with the efforts made and, if not, will pass the provider on to Monitor or the NHS TDA. If there is a "conflict" shouldn’t Monitor and the NHS TDA decide whether the provider has sorted itself out – or is it perhaps recognised that this would give Monitor and the NHS TDA a conflict of interests?
- One of the benefits of giving the Chief Inspector role to the CQC was that every provider would need a CQC licence, so they would already be subject to CQC oversight. The same is not true in relation to Monitor and the NHS TDA, because some providers (the non-NHS Trusts that are exempt from holding a Monitor licence) will not be responsible to either of them, even when licensing comes in for all (other non-NHS Trust) providers of NHS funded health care in 2014. Of course, it may be that these rules will never be applied to non-NHS body providers at all, which would seem an odd omission.
The Government’s revised plans for Monitor include additional levers to ensure that it works closely with the CQC and other regulators. One key aspect of the proposals, which is to be welcomed, is the introduction of a set of common standards to be used whenever quality is to be assessed.