Rules versus Principles

Cork

There's a reason the French call a traffic jam, 'bouchon" or cork.

The English NHS is in such a confused process of change that its CEO, David Nicholson wrote a letter of clarification to ‘everyone’ on 17 February 2011.

In this letter he sets out key challenges and issues. My mind for a moment flashed to autocrats championing their own view of the world, as though one were speaking to children. I have said often enough that the NHS has to learn to be an adult organisation. It doesn’t help with letters from ‘daddy’.

But something in this letter caught my eye, on page 5: “Support consortia to achieve authorisation, and will operate a rules-based intervention
regime to ensure consortia remain fit for purpose”. This is very interesting considering the underlying complexity of healthcare and being ‘fit for purpose’ might work for a toaster, but organisations don’t work like this in quite the way this linear mode of thinking suggests. It is worth keeping in mind that the fit-for-purpose mantra has been around in the public sector in the UK for quite some time, and yet the taxpayer continues to fund many dysfunctional organisations. So it is hardly a decisive criterion that organisational survival might depend on.

There is an active debate between rules-based and principles-based regulatory processes, and for a good reason, one of which had to do with the recent crisis in financial markets. What are these two?

  • Principles-based regulation focuses on outcomes, rather than processes.
  • Rules-based regulation requires the regulator to foresee every possible area of activity. This is often characterised as ‘tick box’ regulation.

In comparison to principles, the rules-based approach removes considerable discretion in behaviour, and to some extent simplifies the oversight process as you pay less attention to outcomes.

Let’s consider an example from something I did once. In the regulation of nursing homes, a document of over 60 pages of detailed inspection standards was prepared by an academic group (no surprise there, I guess): this is a set of rules.  What was missing was any statement of what purpose these inspection standards served; this document was silent on outcomes nursing home care should achieve.  So we had lots of rules on inputs and processes and nothing on outcomes (Donabedian would hardly approve). With a group of people, I helped them replace this 60-odd-page document with a single sheet of paper with 5 outcome criteria against which nursing home care could be assessed. These are principles.

The difference between the two can be looked at from a human perspective. If I work in a nursing home, do I carry around in my head 60 pages of inspection standards? No. I am trying to manage care processes. Could, instead, I carry around in my head 5 quality outcome criteria? Most likely.

Since we are talking of processes managed by humans, human frailty needs to be taken into account, and outcomes are a better guide to personal conduct than 60 pages.

I am now worried that an intrusive, pedantic system of compliance management is being put in place which will frustrate clinical service staff, drive management  crazy, and in the end probably provide far too many sources of tension between the two, to say nothing of the regulatory and inspection overhang from the NHS executive suite which will simply get in the way. It is just a useful reminder that the greatest barrier to change lies at the top — that why we say that the bottleneck is at the top of the bottle.

Anyway, healthcare is sufficiently complex that we can’t really create sensible rules.  I wonder why people keep acting as though this weren’t true.

One step forward, at least two back.

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