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Regulation: what have we learnt?

The Health Foundation's Chief Executive, Jennifer Dixon, reflects upon the turbulent history of health care regulation.

Even hardened aficionados of regulation in health care might be surprised that the first references in the UK date as far back as 1421. No there wasn’t a medieval Care Quality Commission operating at that point– but petitions by physicians to Henry V to stop quacks from practising medicine. In fact as our timeline shows, regulation of individual professionals precedes regulation of organisations and services by over 600 years.

The next 200 years saw the formation of guilds for surgeons, the Royal College for Physicians (‘to curb the audacity of those wicked men who shall profess medicine more for the sake of their avarice than from the assurance of any good conscience’) and the Society for Apothecaries. But it wasn’t until 1860 that the first nursing school was set up at St Thomas’s London, supervised by one Florence Nightingale.

In contrast, the regulation of services and institutions is a very modern activity. It was only in 1969 that an independent inspectorate for hospitals was set up following a well publicised scandal at Ely Hospital, a psychiatric hospital in Cardiff. This Hospital Advisory Service was indeed advisory, concentrating on peer review and not inspection against published standards. Its main job at the time was to assess staff to patient ratios. Seven years later its work was extended to community services (but not primary care) and renamed the Health Advisory Service.  Social services was to get its first inspectorate in 1985, but unlike the case for hospitals the Social Services Inspectorate was part of the Department of Health and not independent.

The 1990’s saw the purchaser provider spilt in the NHS, with more arms-length bodies forming with some sort of scrutiny of health care as direct management of NHS providers was abolished.  For example, the Audit Commission’s duties were extended to audit the finances of NHS Trusts and carry out value for money studies. The NHS Litigation Authority (established in 1995) assessed trusts against risk standards and operated a risk pool scheme, as it does today.

But it was in the period from 1997 onwards that regulation of the quality of care in health and social care was really developed. Unfortunately, our timeline shows not only forward evolution, but regression characterised by an astonishing amount of avoidable organisational turbulence and wasted human effort.  Only NICE has survived largely intact - in part because of its more discrete function.

The turbulence in activities to regulate the quality of care in health and social services has taken the form of setting up and abolishing bodies in quick succession. This has been less to do with the competence with which the organisations have been managed, and more about fundamental confusion and disagreement as to the role and merits of independent regulation itself versus other means of driving and assuring quality. This has been aggravated by a political timetable which prefers bodies to be set up and show results quickly. To a large extent these conditions remain today, with the regulatory landscape still very vulnerable.

In my view, this vulnerability is because of lack of clarity and agreement along at least three key dualities. First, the extent to which regulation does help improve quality and reduce risk of poor quality care relative to other activities eg directives from the centre, competition, financial incentives, transparency, support of local providers and so on. This is largely an empirical question, albeit difficult to answer.

Second, preconceived beliefs in what should improve quality of care. Here there are two major fault lines. Those who believe that extrinsic ‘prods’ are most effective (and there are subgroups of those who believe payment and competition are most effective and those who essentially believe that ‘command’ is most effective). And those who believe that intrinsic motivation of health professionals should be the most powerful lever. These are not empirical issues but value judgements.

The third duality is those who believe there is a strong role for a national body to regulate quality, and those who believe it should be a more local matter for whatever reason. Again this tends to be a debate about outlook and values, rather than being empirically based.

The turbulence is perhaps more understandable when you consider all those dualities alongside political rhetoric and then toss in ‘events’ such as the major quality lapses at Mid Staffs.

Yet over time the fog is clearing. The longer-run trend away from national or local government running health and social care providers is accepted, and thus the move from command and control to governance (through regulation). The value of independent assessment against standards of quality of care and publication of the results is also accepted. What is more opaque and therefore contested is the form of independent assessment that is optimal, its cost and effectiveness, and the opportunity cost.

Our timeline helps show that swift set-up and abolition is a costly way to make progress, despite the political attractions of doing so. Only through evolution plus careful analysis and debate can the contested space of regulation grow smaller. Let’s hope the timeline over the next ten years shows more enlightenment.