The revelation of the Commission for Care Quality (CQC) cover up is, arguably, a watershed in public perceptions of regulation in England. The insights into regulator malfeasance in office suggest the public may no longer view regulators as merely incompetent (the accusation resulting from the perceived failure of financial regulation) but move closer to the view that regulators are self-serving and not to be trusted to protect the ordinary citizen. For the new management of CQC the difficult task is that of restoring trust in the state regulation of health and social care. This dilemma for state regulation is nevertheless a triumph for the informal citizen-based regulation of whistleblowing and protest that, to an extent, exposed the perversity at the heart of the CQC.
CQC is making very visible repairs. It is this visibility that is such an opportunity for understanding, not only how to make better regulation, but how to make ‘good’ regulation. CQC is consulting again (this closed on 12th August 2013) and, besides taking public and expert statements, it also is considering independent reports on its performance and methods. These provide a unique insight to look into the workings of a large state regulator. One of those reports is examined below.
The report by Walshe and Phipps is available from CQC  and was commissioned by CQC to inform the ‘Consultation on changes to the way we inspect, regulate and monitor care services’ due to end on the 12th August 2013. The aim of the Walshe and Phipps report is to assess the current model of CQC regulation drawing on relevant academic research and to enable planning and evaluation for future changes. The method chosen is ‘realist theory-driven evaluation’. This involves drawing on research to derive theories about how regulation works and then contrasting this theory with CQC regulatory methods. The empirical investigation undertaken for the report investigates how inspectors and regulation managers believe CQC interventions achieve their aim.
Consequently, the report identifies where there are unintended consequences arising from the methodology and, notably in this instance, where there are contradictions, gaps in knowledge and logical inconsistency.
The headline conclusions of the report are:
- CQC does not have an improvement ethos but operates a basic compliance methodology to floor-level standards. However, the report goes on to point out that the generic nature of the standards and the use of generic inspector staff means that even this basic level of compliance would be difficult to achieve.
- The present standards do not differentiate between the different organisational types found in health and social care. It is recognised that CQC is already taking steps to address this.
- CQC believes that its website inspection reports help inform the public but the report claims that they are only designed for enforcement purposes and do not give enough information on quality of care.
- At present CQC does not have the information/data to operate a plausible risk-based regulation. The report goes on to offer ways in which the existing data could be better used.
- The report notes that the CQC operates a generic model of inspection, implying that inspectors with no knowledge of a particular kind of setting or group, for example the residential care of people with learning disability, would be expected to inspect such a setting.
- The authors take the view that inspectors should have knowledge of legal powers and responsibilities, regulatory knowledge, and knowledge of the area being regulated. CQC, at the time the report was produced, was unable to provide data on training and background for the 900+ staff working for it.
In order to reach these conclusions the authors set up benchmarks using UK and international regulators. There are broad comparisons made but there is not a critical approach taken to these benchmark regulators rather an acceptance that what they are doing is right. Ofsted was one of those benchmark regulators and it serves as an example of that uncritical approach – until recently the Ofsted methodology allowed schools to be rated outstanding even though inspectors judged teaching and learning were not of the highest standard.
The report conclusions are very critical. Every aspect of CQC regulation is seen as ineffective or misdirected. Basics of regulatory expertise appear to be unknown by the organisation even though much of the academic knowledge cited is available in basic regulation textbooks (for example).
The report team are given a limited brief, which is to assess the contribution of academic evidence available and from that to construct recommendations for evaluation and future performance. How far this brief is achieved relies on the breadth and relevance of academic sources and on the authors’ ability to identify weaknesses and strengths.
Having said that there are a number of significant omissions.
- The role of patients and families in the regulatory process is absent. This is surprising given the centrality of such groups in exposing inadequate health care practice and poor regulation. It is almost as if these groups and the end user are peripheral to regulation. However, it should be noted in the authors’ defence that, taking into account the omissions in the regulatory literature, this should come as no surprise.
- Given the alleged failings at CQC you might have thought the authors could have brought a tighter focus on the purpose of regulation. Obliquely they do by reference to a basic compliance or in contrast an improvement purpose. However, there is no mention of the phrase ‘public interest’. While there might be a ready understanding by consumers and citizens of what ‘public interest’ means academic commentary has rejected it as ‘an empty vessel, filled with the values of those who define it on any particular occasion[6: p. 2] . The government sponsored ‘better regulation’ agencies in various iterations have further devalued the concept by elevating private interest as public interest . In two recent England and Wales codes of practice for regulators there is no mention of public interest and end users are redefined as businesses [8, 9]. Little wonder that English regulators can lose their way.
- While it might appear that the report is accepting of the organisation and governance of CQC there is a strong suggestion that training and educating staff in the organisation could empower them to use knowledge to challenge from within. It is outside the remit of Walshe and Phipps to comment on bullying as a management method  but in approaching the problematic notion of the regulatory professional the report assumes and promotes a staff group equipped with expertise in health, care and regulation.
The report is intended to be a ‘line in the sand’ between the old CQC and the new. However, the report, including its omissions, is a challenge to the new incumbents at CQC to do some rapid learning to convince the public that they can regulate knowledgeably, listen to people and put the public first.
1. Walshe K, Phipps D: Developing a strategic framework to guide the Care Quality Commission’s programme of evaluation. CQC. London: CQC; 2013.
2. Coryn CLS, Noakes LA, Westine CD, Schröter DC: A Systematic Review of Theory-Driven Evaluation Practice From 1990 to 2009. American Journal of Evaluation 2011, 32(2):199-226.
3. Dozens of ‘outstanding’ schools downgraded [http://www.bbc.co.uk/news/education-23450685]
4. Baldwin R, Cave M, Lodge M: Understanding regulation : theory, strategy, and practice, 2nd ed. / Robert Baldwin, Martin Cave, Martin Lodge. edn. Oxford: Oxford University Press; 2012.
5. Francis R: Independent Inquiry into care provided by Mid Staffordshire NHS Foundation Trust January 2005 – March 2009
Volume I. In: The Mid Staffordshire NHS Foundation Trust Inquiry. vol. 1. London: House of Commons; 2010.
6. Feintuck M: The Holy Grail or Just Another Empty Vessel? “The Public Interest in Regulation. In: Inaugural Lecture. Middleton Hall, University of Hull: University of Hull; 2005.
7. Dodds A: The Core Executive’s Approach to Regulation: From ‘Better Regulation’ to ‘Risk-Tolerant Deregulation’
doi:10.1111/j.1467-9515.2006.00503.x. Soc Policy Adm 2006, 40(5):526-542.
8. Better Regulation Executive: A Code of Practice for Regulators – a consultation. In. Edited by Office C: BRE; 2007.
9. Better Regulation Executive: Code of Practice on Guidance in Regulation. In. London: Department for Business, Innovation and Skills; 2009.
10. People Opportunities Ltd: Exploring Bullying and Harassment in the CQC In. Doncaster; 2013.