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Too many cooks

A key regualtor for the NHS and healthcare professions is the Healthcare Commission, but a separate outfit regulates Foundation Trusts. Is the NHS being swamped by regulators?

As the election approaches, we can expect the NHS to become a political football, but does this gives us an insight into how the NHS will be regulated? At the moment the key player is the Healthcare Commission (HC), but a separate outfit called Monitor regulates Foundation Trusts.

Is the NHS over regulated and getting in a complete muddle? A recent survey of NHS chief executives by the Health Service Journal suggests that there is trouble ahead.

Last year, the HC consulted on those areas it wishes to measure performance against in NHS bodies. It has come up with 472 prompts, which must be considered in the new HC rating system that will replace the star rating scheme. The prompts are grouped around 24 core standards.

The idea is that NHS bodies can use the prompts to assess their own performance against the core standards, supporting a self-assessment model.

According to the HSJ survey, 81 per cent of NHS chief executives believe these prompts will, in effect, become new targets. Figures also, worryingly, suggest that only 5 per cent of CEOs see the HC as totally independent from government.

The idea of establishing the HC as an independent outfit spawned from the inquiry into the Bristol Hospital scandal. If the majority of NHS CEOs doubt the independence of the HC then it is probable that many other staff in the NHS will share this view. This is bad news for the HC - trust and confidence is crucial.

The other issue that is far from clear is what happens to an NHS body that fails to meet the prompts or targets? Trusts and Primary Care Organisations will be graded on a five-point rating, ranging from `very good' to 'serious concerns'.

Despite this, as part of the patient choice agenda, John Reid, the Secretary of State for Health, recently stated that he would not object to NHS providers going out of business if they could not attract and keep patients. There is likely to be a lot of stick for mediocre performers in the post-election NHS.

It is clear that the HC has a lot more work to do in establishing its credentials in the NHS and beyond. If the public and parliament fail to trust the systems put in place by the HC there will be real problems. 

Rocky foundation
For Foundation Trusts this is a double whammy as they are bound by the proposed HC framework and also have to satisfy Monitor requirements relating to their finance and overall governance. The recent debacle at the Bradford Hospitals shows Monitor has a lot of power to oust chairs and CEOs if they are perceived as failing.

With more and more NHS providers seeking Foundation status, the muddle and overlap between the HC and Monitor is going to get a lot more problematic. The government has stated that all NHS providers should become Foundation Trusts, so why have two separate regulators?

Monitor was effectively put in place as a sop to the awkward squad on the Labour backbenches who were dead against Foundation Trusts. The idea was that Monitor, as an independent regulator, would protect the public interest. As the HC's thinking emerges and becomes clearer, and more of the NHS shifts to Foundation status, the shelf life of Monitor and the HC in their current forms must be under question.

Many NHS providers are suggesting that they will need to employ substantial resources to measure themselves against 472 prompts and 24 core standards. At a time when the Tories are attacking NHS bureaucracy it seems that the new rating scheme could spawn yet more bean counters in the NHS! The HC should consider ways of keeping the 24 core standards and severely reducing the associated prompts.

Regulatory compliance
Beyond the HC and Monitor, the NHS and other providers are bound to comply with the regulations put in place by the statutory bodies regulating the professions - the General Medical Council (GMC), and the Nursing and Midwifery Council. The principle of the health professions regulating their own affairs has been around a long time, but is under increasing pressure. Nurses and allied health professionals have recently had their regulatory bodies revamped to provide greater lay input.

A report from Dame Janet Smith relating to the crimes of Harold Shipman suggests that the GMC is now due for further changes. The government will have to respond to the Shipman inquiry and it is likely that GMC reform will be high on the political agenda after the election. Some of the criticisms of the GMC also strike a chord with the other statutory regulators, with inherent perceived tensions between professional self-interest and public protection.

At the moment, health professions are regulated by nine separate bodies, each with its own rules, procedures and costly infrastructure. Once the election is out of the way we might see a sensible attempt to rationalise this over-complex structure.

The core principles of ethical behaviour and practice are common to all regulated practitioners. Does it really need nine bodies to undertake the key task of protecting the public by regulation of the professions? A single agency could streamline this important function. It would need a sophisticated sub-structure to ensure each group got appropriate profession-specific attention, but this could work, provide greater clarity and save money. Will a third Blair term be radical enough to consider such change? Would a Tory administration blithely maintain the status quo?

Answers to such questions lie in the public response to the concept of professional self-regulation. The days when deferential patients gratefully accepted the wisdom handed down from a professional are waning, a decline driven ever faster by the patient choice agenda.

The Tories and Labour are putting patient choice at the very heart of their respective manifestos. The choice issue will challenge the traditional power structures in the health sector and the customer is likely to get more of a say, regardless of the victor.

Regulation of the health sector is a vital public function. If it is to work it must carry the trust of policy makers, the public, professions and providers. Recent events suggest that many stakeholders are confused by current arrangements or simply have little regard for them. This cannot continue and I predict that the next government, whatever its colour, will want to rebuild confidence in regulatory frameworks and processes.

Pharma is no stranger to complex regulation, but in its dealings with the health professions it will need to keep an eye on potential changes, in particular the regulation of doctors. On a number of occasions colleagues in the sector have complained to me privately about the behaviour of doctors at industry events.

Admittedly, a minority spoils things for a broadly honest majority, but if the GMC and the regulation of doctors are tightened up, there will be knock on effects for the pharma sector on its relationships with doctors and others. Ethical and appropriate behaviour will be under the microscope and the industry will need to think how it can respond appropriately. After the election, the regulation agenda is set to change. Watch this space!

The Author
Ray Rowden is an independent health policy analyst

2nd September 2008

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