Consultations on the regulation of health and care

Between 2006–08, the Department of Health published consultations on the regulation of health and care, proposing a new system of health and social care regulation.

Prior to this, the Department of Health had conducted a wider regulatory review on the health and social care system and found that regulation should act as an incentive to better self-regulation, and that system management and regulation should take into account the need to tackle health inequalities. In addition, the review found that system management should consider broader value-for-money issues on a community rather than organisational basis.

2006 consultation

In November 2006, the Department of Health launched 'The future regulation of health and adult social care in England' consultation on bringing together the regulation of NHS and adult social care services. This followed the 2005 Budget announcement that the government would bring forward proposals to merge the Healthcare Commission and the Commission for Social Care Inspection.

A new regulatory body

The department suggested the new independent regulator would have a key role in ensuring providers met national standards and provide an independent assessment of commissioners and NHS providers. The Audit Commission would continue to play a role in ensuring the proper use of public funds by primary care trusts (PCTs) and strategic health authorities (SHAs). Monitor would continue to be the independent regulator of foundation trusts.

A 'fair playing field'

The document explored the role of market and competition regulation and explained that new competition rules would be published in 2007 to clarify European legislation.

It was envisioned that commissioners would have a role in ensuring a 'fair playing field' and in encouraging a diverse range of providers locally.

Nationally, the regulatory framework and pricing policy would ensure a fair playing field between all types of provider. The department proposed to offer providers the right of appeal to a strategic health authority, where there was a dispute between a commissioner and a provider. The department also suggested an independent appeals process to the new merged regulator, due to economies of scale. However, it was noted that the Office of Fair Trading would have an interest in the rules governing competition.

Social care

The department emphasised the importance of independent regulation and inspection in social care due to the absence of a regional intermediate tier, such as the SHAs in the NHS. Additionally, it was recognised that approximately one-third of social care users were self-funders. The new regulator would ensure that all care home and domiciliary care providers met national standards.

Government response – the CQC

The government published its response to the consultation in October 2007.

The government intended to introduce a common system of registration, compliance and enforcement across the NHS and independent sector. For the first time, the new regulator would have powers to close NHS providers.

The new independent regulator of health and social care, the Care Quality Commission (CQC), brought together the functions of the Commission for Social Care Inspection, Healthcare Commission and Mental Health Act Commission.

Originally, the government had intended for the CQC to take on an arbitration role in competition decisions. Following the consultation exercise, this was deemed inappropriate and, instead, the Department of Health would create an independent panel to consider issues which could not be resolved locally.

2008 consultation

On 25 March 2008, the Department of Health launched a further consultation on the detail of the new Care Quality Commission's (CQC) registration requirements.

Registration for independent sector and social care providers had been established under the Care Standards Act 2000. In the future, it would be illegal for health and adult social care organisations to provide services without registering with the CQC. The registration requirements would cover essential levels of safety and quality.

The new registration requirements were due to be implemented from 2010. The consultation proposed that the CQC would use its registration functions to:

• assess if an applicant would be able to meet the required levels of safety and quality
• assess whether a registered provider was delivering those essential levels of safety and quality
• enforce those essential levels.

The CQC would be able to apply sanctions, including warning notices and fines, and would have powers to de-register providers, place condition on registration, or prosecute.

Monitor's powers to authorise foundation trusts would be distinct from CQC's powers to register providers.

The consultation document proposed that registration should cover the following 18 domains:

• whether care and treatment was safe and effective
• whether vulnerable people were being safeguarded
• cleanliness, hygiene and infection control
• medicines management
• whether people had access to safe and sufficient nourishment
• whether people had care and treatment in safe, suitable places which supported independence, privacy and personal dignity
• the use of safe and suitable equipment
• informed decision making and involvement
• whether appropriate consent mechanisms were in place
• responses to complaints
• supporting independence
• whether people, families and their carers were treated with respect
• risk management, quality governance and clinical governance arrangements
• record keeping
• whether the workforce was safe and competent
• whether the provider was resourced appropriately
• whether the workforce was appropriately supported to provide safe and effective care
• cross-sector working.

The document suggested a wide range of services that might fall under the registration requirements, which included personal care, palliative care and diagnostic services. It also listed elements of the services that might not require registration, such as befriending and mentoring services.