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HEALTHY REGULATORS Regulating for quality requires trust and independence The Care Quality Commission

The Care Quality Commission is the independent regulator of health and adult social care in England.

Our purpose: We make sure health and social care services provide people with safe, effective, compassionate, high-quality care and we encourage care services to improve.

Our role: We monitor, inspect and regulate services to make sure they meet fundamental standards of quality and safety and we publish what we find, including performance ratings to help people choose care We ask five key questions of all services to inform our judgements and ratings:

zz Are they safe?

zz Are they effective?

zz Are they caring?

zz Are the responsive to people’s needs?

zz Are they well-led?

This booklet accompanies the speech that David Behan, Chief Executive of the Care Quality Commission, gave at the ‘Healthy Regulators’ discussion, hosted by the Institute for Government, on 29 July 2014.

David Behan Chief Executive

b INSIGHTS – HEALTHY REGULATORS INTRODUCTION

The landscape of regulation and of their experiences in public forums and regulators is constantly shifting. share information more easily. We are evolving to meet new demands CQC, as the regulator of the health and on us as regulators, and new public social care sector, makes judgements of expectations on the services we regulate. the quality delivered by the 44,000 health However, regulation and regulators often and social care services in England. From seem confusing and bureaucratic to the this perspective, during this period of public and people who depend on us. unprecedented change, it is clear that Rightly, the way regulators operate is our fundamental goal is to be a regulator continuously under scrutiny, but we also that has the trust of the public, that is need to be trusted by the public to do the effective in meeting its purpose and is an job we are here to do. As the world changes organisation we can be proud of. To do around us we must change to keep up, to this, our independence and impartiality be relevant and effective. is important. That is why the Health Secretary, Jeremy Hunt, said: Public scrutiny is evolving too. People are using new and more sophisticated ways of “We will … give the CQC statutory expressing their views and expectations, independence, rather like the Bank of as service users but also as taxpayers and England has over interest rates. The consumers. Earlier this year, the media welfare of patients is too important for reported that public complaints to the energy sector’s ombudsman had broken political meddling and our new legislation all previous records, with the explicit will make sure ministers always put expectation being that those regulating patients first.” the industry would have to listen and act. Just this month, academics at Plymouth With Royal Assent of the Care Act 2014 University published a report looking at earlier this summer, we have been given the drivers behind increased complaints greater independence from Government. to doctors, citing the role social media has It is the right time to explore how our played in encouraging people to discuss increased independence in law can help us

introduction 1 become trusted to fulfil our role as a strong This in turn relies on having a strong, and effective health and social care sector independent and impartial regulator. regulator. These issues are not exclusive to health As the regulator, we have a responsibility and social care. It is also about the broader to make fair, consistent and robust role of regulation, public bodies and, judgements of quality. But that’s only half ultimately, public trust. This is the start the picture. We all also have a responsibility of a conversation about what it means to use these judgements to drive to have independent yet accountable improvements as commissioners and system regulators, about what it means on the side leaders, as providers and professionals, as of people who use services whatever those media commentators, as politicians, and services might be, and about encouraging also as patients, service users and carers. improvement in quality through regulation.

UNDERSTANDING AND INFLUENCING QUALITY

In healthcare, what we mean by quality Our view of quality in the health and has shifted over time and continues to social care sector: evolve. XX Safety – are people protected from abuse and avoidable harm? From the father of quality assurance, Avedis Donabedian, setting out his seven pillars XX Effectiveness – does people’s care, of quality in 1966 and during the 1980s, treatment and support achieve good to Lord Darzi’s High Quality Care for All outcomes, promote a good quality of life and is it based on the best available in 2008, describing a health service where evidence? quality is “at the heart of everything we do”, and now CQC’s new approach where XX Caring – do staff involve and treat people with compassion, kindness, dignity and we now measure quality in terms of safety, respect? effectiveness, caring, responsiveness and being well-led. Although it may be particular XX Responsiveness – are services organised to health and social care, there are similar so that they meet people’s needs? attempts to define how we understand XX Well-led – does the leadership, quality in other sectors. management and governance of the organisation deliver high-quality, person- centred care, support learning and innovation, and promote an open and fair culture?

2 INSIGHTS – HEALTHY REGULATORS Understanding and influencing quality 3 The idea of quality, in most regulated Influencing quality through sectors, is complex; it is particularly regulation complex in health and social care. We need to find simpler ways to articulate Through discussions with providers and and communicate what is good quality people who use services, we are now clear and what is bad quality. Regulators can about our purpose and role in the health determine whether a service is compliant and social care system: with regulations, but a different yet “Our purpose is to make sure health insightful question for a regulator is whether you would place a loved one of and social care services provide people your own in the care of that hospital, care with safe, effective, compassionate, home, or GP practice. This can be distilled high-quality care and we encourage care down to something that our Chief Inspector services to improve. Our role is to monitor, of Adult Social Care calls the ‘Mum’s Test’ – inspect and regulate services to make Would you want your mum to be cared for sure they meet fundamental standards here? Making the judgement of quality real of quality and safety and to publish what and personal may be a way to cut through the complexity. we find, including performance ratings, to help people choose care.” If quality is a complex concept in health and social care, then so too are the CQC Strategy 2013 mechanisms for influencing it. There are In order to deliver this, like other regulators broadly five groups who influence quality: we deliver three important functions: we 1. Commissioners protect people who use services, we have a whole system overview, and we reduce 2. Providers information asymmetry. 3. Professionals Protect people who use services from 4. Regulators harm 5. Public voice, directly or through This is part of the fundamental role of the representatives. state as a ‘protector’. It has shaped the The impact of these groups may rise or fall history of government, regulation, taxation, over time. Their direction may shift; they and even architecture. From protecting may be competing against each other or citizens from violence and protecting complementing one another at different workers from exploitation, right the way times. The focus here is on the role and through to the establishment of the welfare impact of regulators in influencing state and protection from poor quality – for quality, and how that enables others to example through consumer rights – the influence quality. state had, and has, a role to protect. The evolution of regulation is therefore intimately linked to our development as a society and through specific events that

Understanding and influencing quality 3 have struck a particular political, social, is in a privileged position of having a remit economic, ethical or emotional chord with across health and social care, which gives it the public. This was particularly the case for a unique sector overview. This is important the deinstitutionalisation of mental health because people usually don’t experience care in England and the development of these services in isolation from each other mental health protections. but as a connected whole, especially those people who are most vulnerable. While the aim of ‘protection’ has developed and become more embedded, the move to “OUR AIM IS TO DEVELOP A rights and standards – and thus regulation – is also partly a response to the changing CONFIDENT VOICE ON THE nature of state provision. Where once THINGS THAT MATTER TO the state set expectations and delivered PEOPLE WHO USE SERVICES.” them in closed monopolistic systems, the plurality of the market now means that Reduce information asymmetry regulators, like CQC, set standards for Where quality is hard to judge, there everyone who provides services, whether is a role in developing an impartial they are public or private. and expert view of quality and helping We have seen a similar development others to understand it. This is about in energy, education and healthcare. levelling the playing field on information Regulation is now a preferential mechanism and knowledge. Here we have a role in through which state protection is given. opening up the ‘secret garden’ of medical and social care knowledge to the public. Whole system overview Although typically it is knowledge for the consumers about the providers, often it is Regulators also have an overview of the also about providers understanding their whole system through consistent and own performance, and about the people exhaustive coverage of the sector. That paying for services (whether commissioner means the ability to see across providers in the NHS, local authority, people funding and across sectors, to spot patterns, trends their own care or on behalf of a loved one) and outliers. This view is built from both understanding what they are buying. the bottom up and the top down, through understanding each provider individually, As a regulator helping to reduce this and also understanding the context or asymmetry, we are trying to hold up a market in which the sector operates. mirror to the whole spectrum of quality. We use our expert inspectors, our clinical Our aim is to develop a confident voice experts and our Experts by Experience on the things that matter to people who (people who use these services who take use services. That means speaking up with part in our inspections) to describe and courage when we see something that is identify ‘outstanding’ and ‘good’ care, as unacceptable, to raise a challenge to the well as care that ‘requires improvement’ system to respond on behalf of people or is ‘inadequate’ . We don’t do this in using services now and in the future. CQC isolation, but with accredited partners

4 INSIGHTS – HEALTHY REGULATORS Understanding and influencing quality 5 and through extensive consultation with It is not a perfect market. In some areas the public, providers and professionals. it is not really a market at all. It is not like Defining what ‘good’ looks like will have buying a TV or a car where you have lots the effect of setting a standard across the of choice of products, manufacturers, and sector that is higher than the minimum retailers. threshold required by law, and will better There is a sharp power asymmetry between reflect the level of quality that would pass the people who use health and social care the ‘Mum’s Test’. services, and the providers in ‘the system’. The size, complexity and specialism of …And thereby encouraging the services means the system can have improvement significant power over the individual, no Improvement is not part of the functions matter how much ‘Googling’ they have listed above. However, we have an done beforehand. important role in encouraging improvement There are very real consequences when it through performing these three functions goes wrong. This is an industry that can be and by doing them well. CQC is not an life or death. It is an industry that affects improvement agency, but is an agent everyone; it touches the heart of what it of improvement. While we should means to be a compassionate and caring encourage improvement, we cannot take society. Getting it wrong can be degrading, responsibility for delivering it. To do so undignified and deadly. would compromise our independence and undermine our ability to deliver impartial All this makes it even more important for judgements of quality. This distinguishes the regulator to be involved in defining CQC as a quality regulator, and not an what good quality looks like, and improvement agency. describing it expertly in a language that directly speaks to the public. Health and social care is an especially complex case “CQC IS NOT AN IMPROVEMENT AGENCY, BUT IS AN AGENT OF No other sector has the same particular mix of complexity, consequence and IMPROVEMENT” market distortion as health and social care. This increases the importance of sector regulation across all three of the functions above.

Understanding and influencing quality 5 REGULATORS ARE UNIQUE, BUT NOT ALONE

As a quality regulator we have unique XX Monitor, who shares the regulatory powers to register, inspect and enforce space over NHS providers on leadership the rules in the health and adult social and sustainability in terms of finances care sector in England. and quality. XX Professional regulators who define We have the power over market entrance and test the rights and guidelines for and exit, and the power to physically professionals to practice. enter every service to inspect. We have independence of judgement in a way As a public body and system regulator, that others in the system mostly cannot we regularly collaborate and cooperate provide because of other incentives or even with these other bodies. We need to be conflicts of interest. And we have a role in confident in how we interact with them setting expectations of what good quality and recognise what they can do that we actually looks like. cannot. With their help we should embrace new technologies and channels for listening Although this makes our role as regulator to how people experience services, for unique, we are not alone. We share the example, the quantity and richness of data space we operate in with others, for from the new NHS ‘Friends and Family test’ example: feedback survey. Social media offers greater XX The Health and Safety Executive and speed, frankness, and more continuous the Police who also have strong powers scrutiny than any inspection method could, to protect people from harm. even though it cannot give an expert view, or a consistent, comparable view. XX The Parliamentary and Health Service Ombudsman and Local Government Perhaps the challenge for regulators is in Ombudsman who have a role in complementing rather than competing with investigating, encouraging improvement others in the same space, particularly by and disseminating learning, and hold focusing on what we are uniquely placed to providers to account when they have do – and then doing that bit really well. been responsible for harm. XX Think tanks like the Health Foundation, Kings Fund or the Nuffield Trust, who offer an impartial system overview, and consumer organisations like Which?, Dr Foster and Iwantgreatcare.org, work to reduce the information asymmetry.

6 INSIGHTS – HEALTHY REGULATORS Building trust in regulators 7 BUILDING TRUST IN REGULATORS

To effectively protect people from harm, in a climate of declining trust in public provide a system overview and reduce bodies. The challenge is to be more open, the inherent information asymmetry, transparent and honest about areas of we need to build trust, credibility and weakness in a way that doesn’t further erode this public trust. This is a much ultimately respect for what we do. broader issue than just for CQC, or even We need to build trust with the providers regulators in general. Rebuilding trust will we regulate, the people who use services, take time and will require a collective drive the policy makers and decision makers, across arms-length bodies, government with MPs and ministers, and also with departments and regulators. To be trusted the public. This is hard. It is probably the and credible we need to have a track greatest challenge we face as a quality record of delivering, and of meeting, the regulator, and as CQC. It is even harder expectations set of us.

Trust, Credibility, Respect

Consistently Awareness of Independence good track who we are and with record what we do accountability

A good track record develop a new approach to inspection to be consistent, comparable, robust, expert At CQC we are taking this challenge and trusted by people. Our extrinsic seriously. We have made mistakes in measures of quality need to align with the the past, but are now working hard at intrinsic motivations of those who deliver building a new track record of doing services (for example, to provide good the right thing and living up to the high quality, compassionate care) and need to expectations placed on us. We are turning align with public expectations – otherwise ourselves upside down and inside out to

Building trust in regulators 7 regulation will be seen as a distraction or voice is at the centre of what we do’ if the a bureaucracy. As the regulator, we should public do not know who we are. want what the people who use the services Walk down the street and ask someone if we regulate want – good quality care. they have heard of Ofsted and you’re very likely to hear a ‘yes’. Ask if they are even Awareness of who we are and aware that that health and social care is what we do regulated or monitored, a third of people To have a credible track record, people would say ‘no’. Ask if they know who the also need to be aware that we exist, know Care Quality Commission is, less than 1 what we stand for and have a high-level in 10 would say ‘yes’. Over time, we’d understanding of what we are trying to do. like that to change. As we build trust and It is empty rhetoric to say that ‘the public’s credibility, there will be greater awareness of us and our role for the right reasons.

INDEPENDENCE WITH ACCOUNTABILITY

Alongside this credible track record and and make judgements, yet independent awareness sits an essential building in making those judgements themselves, block of trust – independence with no matter how inconvenient or accountability. All regulators need to be unwelcome they may be. accountable for the way they operate

Funding Government grant-in-aid, and (increasingly) provider funding Legal underpinning • Clearly defined purpose and statutory duties Appointments Freedom to set priorities and The power to appoint the Chair • discharge duties • Accountability to Parliament and thereby the public

CQC’s technical underpinning

8 INSIGHTS – HEALTHY REGULATORS On a technical level – legally and financially defined purpose, and freedom to set our – understanding the balance between priorities and how to discharge our duties. independence and accountability is However, beyond the legal dimension important. Each regulator is surprisingly of our independence lies a much more different in this respect. Who has the power complex web of relationships and to appoint, who can tell you what to do accountabilities. This web of relationships or how to do it, who do you report back holds CQC in the right balance between to each year, who pays your salary? There independence and accountability, beyond is huge scope for difference between all what is technically defined in law. regulators across all sectors. First, we are formally independent from “AS THE REGULATOR, WE Parliament, Government Ministers and SHOULD WANT WHAT THE the Department of Health (DH), and yet PEOPLE WHO USE THE we are accountable to DH for the budget, dependent on Ministers for appointments, SERVICES WE REGULATE WANT and held to account through the Health – GOOD QUALITY CARE.” Select Committee to Parliament in their capacity as a democratic representative of the public. For CQC, there are two technical factors that could detract from our independence: Second, we are independent of others funding and appointments. We are who have a role in the system, but do not funded in part by grant-in-aid from the directly provide services, like NHS England, Government and, in an increasing part, Public Health England, Health Education by the providers we regulate through the England, Monitor, the professional fees we charge them. This means we have regulators, and trade bodies. Here, we a responsibility in how we use resources to can be collaborative and responsive, but both providers and the Government. And we will remain independent and will not as a public body with statutory powers, be accountable. Our joint work focuses the Secretary of State appoints our Chair. on understanding the context we operate This power of appointment matters, and is in, but as the independent regulator with often the focus of the public debate about a whole system overview, we are able to independence, as we saw earlier this year challenge these bodies when they fall with Ofsted. short in performing their role in improving quality. Although these factors need to be considered, our purpose and independence Finally, we have the relationships where is clearly defined in law and has been we are formally independent and yet we further embedded through the introduction want to be accountable. Perhaps the best of the Care Act earlier this summer. With expression for this sort of accountability the new Care Act in place, the scales is ‘moral accountability’. We want the have now tipped in favour of technical providers we regulate and the people who independence for CQC. We have a clearly use services to hold us to account. We want

Independence with accountability 9 to listen, to be responsive, to be relevant, voice through commentary on the issues to be trusted. that matter, in a tone that is challenging XX Being independent yet accountable yet constructive, not full of jargon. We to providers would mean listening to need to be talking in a proportionate way understand where we might not have about both good and bad services so that followed the right process, but standing our view is not distorted to the negative. firm on our well-made judgements. What we say also needs to be personal and real, built on real examples and understand XX Being on the side of people who use the people behind the statistics. For us, services and being accountable to them that means speaking on behalf of people requires us to think about care from who use health and social care services by their perspective. We also need to be ensuring we do so fairly, impartially and open and humble – speaking directly truthfully. This is what we do, particularly to people in any case where we got it through our thematic reviews that are wrong. Ultimately, the answer to “who focused on issues that matter for a is regulating the regulators?” is you, as particular group of people or type a member of the public. You are holding of service. us to account for the way we regulate and the resources we use to do it. We The audience matters too. We need to should never forget that. understand how to talk with people on their terms, not ours, while speaking Think of us as the referee on the pitch. to the public at large, as well as to We enforce the rules, and hold to account individuals, to the system, and to providers. those who break the rules. We are not Understanding how people want to engage the players on the pitch, we are not the with the sort of information we provide spectators in the stands and we are not sometimes means also working with the coach in the dugout. The referee has others, such as Dr Foster, NHS Choices or the ability to influence the players to play Netmums, where that dialogue is already a good game. How the referee enforces established. the rules and encourages players to play changes influences the way the game is Whether we can develop an authoritative played. We, like the referee, are impartial, voice on quality will ultimately depend on expert, and held to account for our what we say, and to whom. Words alone are judgements. We influence the quality of not enough; our words need to be backed the game without being a part of it. up by actions.

Demonstrating our independence Our actions and accountability We need to be clearly demonstrating the independence of our judgements and Our words the consequences of the actions we take. Obviously we need to speak the truth Through our registration of services, about what we find, as best we can know enforcement of fundamental standards, it. This means developing an authoritative inspections and ratings, we should be fair,

10 INSIGHTS – HEALTHY REGULATORS impartial, open, consistent, and justified. “WE WILL WORK HARD This is especially important given our TO DEMONSTRATE OUR unique position as the regulator across INDEPENDENCE AND BUILD A health and social care. We should be listening and be responsive without being GOOD TRACK RECORD SO swayed, by politicians, governments or THAT OUR JUDGEMENTS lobby groups. Our independence should CAN BE TRUSTED … AND, mean that people can be confident that we IMPORTANTLY, USED TO DRIVE are doing the right thing. IMPROVEMENT IN THE QUALITY OF SERVICES FOR THE PEOPLE WHO USE THEM”

FOR CQC THIS MEANS CHANGE

We are one year into a three-year strategy, underestimated. It is a huge responsibility Raising Standards, Putting People First, for CQC to get right. which will see us develop a new approach Sound judgements of quality alone will to regulation and inspection. Central to only get us so far. To improve the quality of the changes we have been making is services, these judgements also need to be a commitment to regulate and inspect respected, and used. services differently by sector, led by our Chief Inspectors and more specialist Providers and professionals should use inspection teams, including members of the our judgements to help them improve the public. This is being supported by a new quality of the services they provide. Often, system of Intelligent Monitoring that helps the most important step for improvement us decide when and what to inspect. It also to happen is the acknowledgement that includes listening to people’s experiences improvement is required. Our judgments of care and using information from across should help providers understand the the system. We are working hard to develop quality of services they provide, and help our track record and build trust in the them focus their improvement efforts. organisation we are becoming. Commissioners and system leaders should There is still a lot more to do, but we use our judgements to take action in the are committed to this journey. We will areas where care is not good enough, and take responsibility for providing sound celebrate good and outstanding care where judgements of quality for the services we find it as an example for others across we regulate. This task should not be the system.

For CQC this means change 11 The media and politicians should take our Our argument is that for regulation to judgements in context and appreciate the encourage improvements in the quality of complexity of quality in health and social health and social care, CQC needs to be care, yet use them to champion change independent, accountable and trusted. This and highlight where care is inadequate or is is what people who use services and their failing to improve. families want us to be. By putting people at the heart of what we do, that is what we And finally the patients, service users and are hoping to achieve. the public – that is, everyone – should use our judgements to become savvy consumers, make informed decisions and better choices, and voice their expectations about the care that they want for themselves and their loved ones.

“Think of us as the referee on the pitch. We enforce the rules, and hold to account those who break the rules. We are not the players on the pitch, we are not the spectators in the stands and we are not the coach in the dugout. The referee has the ability to influence the players to play a good game. How the referee enforces the rules and encourages players to play changes influences the way the game is played. We, like the referee, are impartial, expert, and held to account for our judgements. We influence the quality of the game without being a part of it.”

12 INSIGHTS – HEALTHY REGULATORS STARTING A WIDER CONVERSATION ON REGULATION AND PUBLIC TRUST

This paper is not trying to give the of developing a more stable model of answers, merely raise some interesting regulation? and constructive questions about how XX How do regulators take a system we regulate in health and social care, and overview and what impact does their perhaps in other sectors too: voice have in identifying and galvanising improvement on issues that matter for XX Is ‘quality’ a useful measure? What does it mean outside of health and social people who use services? care? XX How can, or should, regulators embrace the new types of data and feedback XX Should regulators see themselves on the side of people who use the services they from social media and consumer regulate? How can they demonstrate organisations to help them to be more this? responsive and proportionate? XX Is getting the balance right between XX Is the oscillation between deregulation and regulation that we have seen in independence and accountability the the past inevitable, or is there a way way to build public trust in regulators?

For CQC this means change 13 HOW TO CONTACT US

Call us on: 03000 616161 Email us at: [email protected] Look at our website: www.cqc.org.uk Write to us at: Care Quality Commission Citygate Gallowgate NE1 4PA

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