Facing the music | NMC Review

Healthcare regulation faces a cacophony of criticism. How should it change and what part should the public and professionals play?

?When people?s lives and wellbeing are at stake, the public doesn?t want to hear about light touch regulation,? according to Cynthia Bower, Chief Executive of the Care Quality Commission (CQC), the health and social care systems regulator for England (Santry 2011). She was setting out her plans in response to damning criticism, but also adding her voice to a broader debate about regulation and its purpose. Amid a crescendo of concerns about poor care, from Mid Staffordshire to the Vale of Levento Winterbourne View, healthcare regulation is in the spotlight.

There are different types of healthcare regulation and a plethora of regulators (box 1). Yet professionals have dominated regulation for much of its 500-year history (box 2). Professional self-regulation developed to recognise specialist skills and ensure that only those meeting the standards set by their peers gained professional status. As late as the 1970s the Merrison Committee, examining the role of the General Medical Council (GMC), concluded that a regulatory body must also be a professional body.

As it turned out, the 1975 Merrison report played the final chords of professional self-regulation. Its proposals represented ?the last moment when so confident astatement of the superiority of the professions, their right to control their own affairs and their ability to act in the public interest could be made? (Davies and Beach 2000). Significant changes began in the world of nursing and midwifery regulation. The General Nursing Council and Central Midwives Boardwere replaced by the UK Central Council for Nursing, Midwifery Council and Health Visiting (UKCC), which was in turn superseded by the Nursing and Midwifery Council (NMC).

?Amid a crescendo of concerns about poor care, healthcare regulation is in the spotlight?

There were changing registration requirements, rising fees and growing numbers of fitness to practise cases. Amid this noise the mood music of regulation itself was changing, though almost unheard at the time. Better regulation required a balancing of the interests of the professions with those of employers, service users, educators and others, are view of the UKCC concluded (JM Consulting 1998). In tune with the emergence of patient-centred care in the 1990s, professional self-regulation gave way to a subtle but significant variation and professional regulation in the public interest came to the fore. Systems regulation also began to develop, with the Commissionfor Health Improvement founded in England in 2001.

The review that led to the establishment of the NMC chimed with a new regulatory paradigm that found its expression later in the Hampton principles (2005) and the Legislative and Regulatory Reform Act (2006). Regulators should not set aspirational standards, and should only intervene if there is a threat to public protection. Regulation should be transparent, accountable, proportionate, consistent and targeted. Above all, it should be ?light touch?.

Politicians like cutting red tape and light touch regulation is an engaging idea, but hard to sustain when faced with care scandals. This is creating tensions in people?s expectations of regulation, as shown in the current debate on whether statutory regulation of healthcare support workers would improve care. Two recent documents highlight some of the complexities.

Enabling excellence (2011) sets out the government?s proposed direction for healthcare regulation. It adheres to the Hampton principles, and is a continuation of the regulatory paradigm of the late 1990s, being a strategy not just for reform but also for simplification. It says statutory regulation should not be extended to healthcare support workers, and instead supports a voluntary arrangement (?Transforming regulation?, NMC Review, issue 1, p33).

Contrast this with a recent report of the House of Commons Health Committee (2011), whose chair Stephen Dorrell MP introduced it by saying, ?At a time when there are signi?cant concerns about standards of care? it is important that the professional regulators step up to the plate.? In a view reminiscent of Merrison, the report encouraged the NMC to ?embrace more ambitious objectives for professional leadership?. Moreover, directly challenging government policy, it endorsed mandatory statutory regulation of healthcare support workers, as ?the only approach which maximises public protection?.

Some opponents of extended regulation think professional regulation has failed to change the quality of everyday healthcare. Their concern that its focus on individual responsibility may lead to scapegoating has some justi?cation. And the regulatory system may in itself be inadequate to deal with increasingly complex issues, with the current separation of the potentially punitive power of a professional regulator and the enforcement regimes of a systems regulator. The regulatory paradigm that neatly separates individuals and systems is ?awed.

Take systems regulation. Despite the CQC?s recent promise that its inspections will focus more broadly on quality of care and the views of service users, systems regulation must necessarily focus on processes and policies. When failure is investigated, responsibility heads to the highest possible point in an organisation, and corporate decapitation is called for. Enforcement actions, whether closure of services or financial penalties, are not in themselves transformative. They may reduce the likelihood of terrible incidents, but they cannot alone create better outcomes.

?We need a new language of regulation that deals with the collective and focuses on the everyday?

Professional regulation, on the other hand, focuses on individual responsibility at the expense of a corporate view. Investigated through the prism of professional misconduct, responsibility for failure tends to gravitate to the front line, and the person furthest down the chain of command is made the scapegoat. The professional regulator can remove a single dangerous person from a healthcare environment, but the removal alone does not necessarily improve the situation.

These are descriptions of extremes, and the reality is significantly more nuanced. Nevertheless, there is a gap between professional and systems regulation in dealing with the everyday reality of complex healthcare delivery. Even in the simplest of healthcare interactions, the planning, delivery and assessment of care is neither an individual act, nor the working out of a system, but a collective effort. Neither end of the regulatory spectrum adequately deals with collective action or collective responsibility.

Individual healthcare professionals create collective norms as they work together, and those norms in turn shape them. Those collective norms are codified into systems, which in turn influence collective activity. Without an acknowledgement of the power of the collective as a bridge between the individual and system, our understanding of healthcare delivery is incomplete, and our regulatory paradigm cannot be effective. In its current form, systems regulation cannot support collective responsibility, while professional regulation is too focused on punishing individuals to deal with collective failure.

Regulation is under great pressure, and perhaps even failing. We need a new language of regulation that deals with the collective: an effective regulatory regime that focuses on the everyday, not the extremes. New thinking is needed to help regulators safeguard public health and wellbeing, and drive up standards. This thinking needs to focus not just on patient safety, but also on public trust in the professions. It must avoid over-regulation, especially when it damps down positive innovation. Balancing these issues and concerns, three simple principles are central to the new regulatory paradigm: being proactive, rethinking standards and reaching out.

Being proactive

In the new paradigm, regulators have a responsibility to be proactive. For the NMC, this means responding decisively when concerns are raised. For example, the request that universities remove their nursing and midwifery students from Pilgrim Hospital in Boston, Lincolnshire, in response to serious concerns raised by the CQC, shows the power of collective action to improve healthcare education. Being proactive also means that the NMC has started initiating its own investigations, using powers under section 22(6) of the Nursing and Midwifery Order 2001. Over 200investigations have already been launched this year in response to media reports. Standing on the sidelines waiting to be invited in is no longer adequate. As Cynthia Bower says, regulators have to ?cross the threshold? and work collaboratively with organisations under pressure to support andenable change.

Rethinking standards

Reimagining regulation also means a fundamental rethink of the purpose and nature of standards. Standards for education and practice are NMC core business, but have too often described the bare minimum of expected quality. Used as a blunt regulatory tool, they allowed the removal from the professions of people who signi?cantly underperformed, but they have never been aspirational. Too many professionals upholding NMC standards found they simply supported existing good practice, and no more.

The NMC is now committed to setting what it describes as ?standards with stretch? in the current reviews of the code (NMC 2008) and record keeping guidance (NMC 2009). It recognises the need for collective effort to implement, change and improve practice at every level and in every setting. It will also set standards that focus on improving health outcomes. Looking for measurability and impact in the setting of standards is challenging, especially when the relationship between the regulator, the standards and the multifactorial delivery context is so complex. Setting standards with stretch requires regulators to become professional leaders.

Reaching out

Finally, the new regulatory paradigm requires regulators to reach out to the public by setting out clearly the standards of care they can expect, and providing an open door for expressions of concern when those standards are not met. Professional regulation, even if it is exercising professional leadership, cannot be the sole domain of professionals. Healthcare regulators are required by law to regulate in the interests of public health and wellbeing, but in reality can be far removed from the everyday concerns of patients and service users. The NMC is now listening closely to those concerns, and ensuring their voice is heard at every level of regulatory decision-making. Regulators must also reach out to each other and act collaboratively with employers for the collective good. The NMC memorandums of understanding with systems regulators across the UK help ensure information is shared, and concerns that otherwise would fall into the regulatory gap are acted on. It is also engaging more positively with employers.

Whatever happens in these uncertain times, the healthcare environment will continue to change. Can regulation also change fast enough to safeguard public health and wellbeing, and drive up professional standards? There may be trouble ahead, but it?s time for regulation to face the music.

References

• Davies, C and Beach, A (2000). Interpreting Professional Self-Regulation. London: Routledge.
• Department of Health (2011). Enabling Excellence: Autonomy and Accountability for Health and Social Care Staff. Command paper Cm 8008. London: TSOL
• Hampton, P (2005). Reducing administrative burdens: effective inspection and enforcement. London: HMSO
• House of Commons Health Committee: Annual accountability hearing with the Nursing and Midwifery Council (2011). HC 1428, London: TSOL
• JM Consulting (1998), The Regulation of Nurses, Midwives and Health Visitors: Report of a review of the Nurses, Midwives and Health Visitors Act 1997, Bristol: JM Consulting
• Nursing and Midwifery Council (2008). The code: Standards of conduct, performance and ethics for nurses and midwives.
• Nursing and Midwifery Council (2009). Record keeping: Guidance for nurses and midwives.
• Nursing and Midwifery Council (2010). Raising and escalating concerns: Guidance for nurses and midwives.
• Nursing and Midwifery Council (2011). Transforming regulation. NMC Review, issue 1, p33.
• Santry, C (2011) In charge of the not-so-light any more brigade. Health Service Journal, 28 July 2011, pp16-17.
• Legislative and Regulatory Reform Act (2006). London: HMSO
• Report of the Committee of Inquiry into the Regulation of the Medical Profession (1975). Command paper Cm 6108, London: HMSO [Merrison Committee Report]

Source: http://www.nmc-review.org/issues/issue-3-autumn-w/understanding-regulation/facing-the-music/

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