Care Quality Commission Third party review of CQC’s regulatory approach Final report 23 January 2013 This final report has been prepared for the Audit, Risk and Assurance Committee at the Care Quality Commission. No party, other than the Care Quality Commission is entitled to rely on the Final Report for any purpose whatsoever and we accept no responsibility or liability to any other party in respect of the contents of this Final Report. © 2013 Deloitte LLP Deloitte LLP 2 Hardman Street Manchester M3 3HF The Audit, Risk and Assurance Tel: +44 (0) 161 832 3555 Committee www.deloitte.co.uk Care Quality Commission Finsbury Tower 103 - 105 Bunhill Row London EC1Y 8TG 23 January 2013 Dear Sirs, Third party review of the Care Quality Commission’s regulatory approach We have assumed that the information provided to us and management's In accordance with the terms of the purchase order dated 10 September representations are complete, accurate and reliable; we have not 2012 (the ‘Contract’), for the third party review of the regulatory approach independently audited, verified or confirmed their accuracy, at the Care Quality Commission (‘CQC’), we enclose our final report dated completeness or reliability. In particular, no detailed testing regarding the 23 January 2012 (the ‘Final Report’). accuracy of the financial information has been performed. The Final Report has been prepared for the sole use of the CQC and is The matters raised in this report are only those that came to our attention subject to the restrictions on use specified in the Contract. No party, other during the course of our work and are not necessarily a comprehensive than the Care Quality Commission is entitled to rely on the Final Report for statement of all the strengths or weaknesses that may exist or all any purpose whatsoever and we accept no responsibility or liability to any improvements that might be made. Any recommendations for other party in respect of the contents of this Final Report. improvements should be assessed by CQC for their full impact before they are implemented. The Final Report must not, save as expressly provided for in the Contract be recited or referred to in any document, or copied or made available (in Yours faithfully whole or in part) to any other person. The Audit, Risk and Assurance Committee is responsible for determining whether the scope of our work is sufficient for its purposes and we make no representation regarding the sufficiency of these procedures for CQCs purposes. If we were to perform additional procedures, other matters might come to our attention that would be reported to CQC. Deloitte LLP Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 2 New Street Square, London EC4A 3BZ, United Kingdom. Deloitte LLP is the United Kingdom member firm of Deloitte Touche Tohmatsu Limited (‘DTTL’), a UK private company limited by guarantee, whose member firms are legally separate and independent entities. Please see www.deloitte.co.uk\about for a detailed description of the legal structure of DTT L and its member firms. 2 Care Quality Commission Third party review of CQC regulatory approach © 2013 Deloitte LLP Contacts and contents Page The contacts at Deloitte in connection with this report are: Introduction and scope 4 Steve Bundred Executive Summary 7 Lead reviewer Findings and commentary 11 Dr. Jay Bevington Partner Recommendations 36 Nicky Cooke Appendix 1: Terms of Reference 40 Director Appendix 2: Section 48 of the Health & Social Care Act 2008 43 3 Care Quality Commission Third party review of CQC regulatory approach © 2013 Deloitte LLP Deloitte UK print A4 (21.00 cm x 29.70 cm) Introduction and scope 4 Care Quality Commission Third party review of CQC regulatory approach © 2013 Deloitte LLP Introduction │Executive Summary │ Findings │ Recommendations │Appendices Introduction and scope Project scope Our approach This report sets out the findings of our independent review of the Our approach to delivering the project scope has consisted of: Care Quality Commission’s (‘CQC’) use of its investigation powers as 1. Reviewing documentation which included: set out in Section 48 of the Health and Social Care Act 2008 in relation to NHS Hospital Trusts and Foundation Trusts to provide • The results of compliance reviews, inspections and assurance to the Audit, Risk and Assurance Committee (‘ARAC’) of: investigations undertaken between April 2010 to August 2012 for each Trust; • the reasonableness and proportionality of CQC’s regulatory • CQC Judgement Framework; activity using investigatory powers (and the procedures underpinning those) using the cases noted as studies; • CQC Guidance about Compliance; • CQC enforcement policy; • the adequacy and proportionality of the use of investigation powers; and • Chronologies for each Trust prepared by CQC; and • Relevant internal policies and Board and • where appropriate, to make recommendations regarding areas management team minutes; and for improvement. • Other relevant information, including risk summit The detailed terms of reference are included in Appendix 1 and the minutes. scope is in line with the Purchase Order dated 10 September 2012. 2. Conducting semi-structured interviews with key CQC Our review focused on three case study acute hospital trusts: personnel; Barking, Havering and Redbridge University Hospitals NHS Trust (‘BHRT’); University Hospitals Morecambe Bay NHS Foundation 3. Conducting semi-structured interviews with representatives Trust (‘UHMB’) and Basildon and Thurrock University Hospitals NHS from the 2 of the Trusts; Foundation Trust (‘BTT’). CQC had undertaken an investigation at 4. Conducting semi-structured interviews with external both BHRT and UHMB, but although there had been a history of stakeholders including relevant SHAs, other healthcare regulatory concern at BTT the S.48 power had not been used. UHMB regulators including Monitor; and BTT are NHS Foundation Trusts and hence are also subject to 5. Analysing and evaluating the evidence; regulatory powers conferred upon Monitor. 6. Undertaking a feedback session with the ARAC on 30 November 2012 and Board on 12 December 2012. The We would like to thank CQC Board members, staff, and external purpose of these sessions was to provide verbal preliminary stakeholders for their engagement during this project. feedback on the results of our work; and 7. Designing and facilitating a 2hr workshop with the key senior internal stakeholders in the CQC regulatory process to discuss the key issues identified by our review and to test and work through sensible, realistic and pragmatic actions in response to recommendations made. This will take place in early 2013. 5 Care Quality Commission Third party review of CQC regulatory approach © 2013 Deloitte LLP Introduction │Executive Summary │ Findings │ Recommendations │Appendices Introduction (continued) Structure of the report Glossary of terms used throughout this report Our detailed findings in respect of all these matters are set out below under the following headings: • Board oversight of regulatory activity; CQC = The Care Quality Commission • Preliminary decision making; BHRT = Barking, Havering and Redbridge University • Resourcing, methodology and conduct of the investigations; Hospitals NHS Trust • Reporting and impact of the investigations; UHMB = University Hospitals Morecambe Bay NHS Foundation Trust • Liaison with other stakeholders; • Other issues. BTT = Basildon and Thurrock University Hospitals NHS Foundation Trust Our findings comprise a description of what we found in relation to each area along with an series of recommendations. A summary SHA = Strategic Health Authority statement is provided within the Executive Summary. NPA = National Professional Advisors The findings have been mapped against the terms of reference in HCC = The Healthcare Commission Appendix 1. S.48 = Section 48 of the Health & Social Care Act 2008 Next steps S.52 = Section 52 of the National Health Service Act 2006 We recommend that CQC should create an Action Plan that SUIs = Serious Untoward Incidents incorporates how CQC proposes to implement the various recommendations detailed in this report, by when and how the Board will monitor progress. 6 Care Quality Commission Third party review of CQC regulatory approach © 2013 Deloitte LLP Deloitte UK print A4 (21.00 cm x 29.70 cm) Executive Summary 7 Care Quality Commission Third party review of CQC regulatory approach © 2013 Deloitte LLP Deloitte UK print A4 (21.00 cm x 29.70 cm) Executive Summary │Introduction │ Findings │ Recommendations │ Appendices Executive Summary CQC was established in October 2008 and became operationally We would advise that there should be stronger and clearer oversight active on 1 April 2009, when it merged with and replaced the by the CQC Board of strategically significant regulatory decisions of regulatory functions of the previous three regulators: the Healthcare this kind. This would have the added advantage of ensuring that the Commission; the Commission for Social Care Inspection; and the reasons for the decisions are fully documented and the decisions Mental Heath Act Commission. properly recorded. Section 48 of the Health & Social Care Act 2008 gives CQC a useful In the case of BTT, the decision not to launch an investigation was in and potentially very powerful strategic regulatory tool. CQC has our view correct, and remains so, although an investigation could undertaken four investigations under S.48 of the 2008 Act, since NHS nevertheless have been justified on the basis of the criteria applied providers were first registered on 1 April 2010, and has learned to such decisions at several points. BTT is an example of the rapidly from its experience. Therefore it has already taken many of the importance of allowing maximum flexibility for the exercise of actions we might otherwise have suggested based on our review of judgement within a transparent regulatory framework and the CQC the two case study investigations. However, there are further framework provides for this. improvements which can be made and CQC has not yet made use of this tool to its best effect.