Bad regulation, good regulation

Régulation de la machine à vapeur Merlin

If only it were that easy. (Photo credit: zigazou76)

There have been quite a few cases of late of regulatory failure by the Care Quality Commission [CQC] in the UK.  How can regulatory performance be monitored and improved?

The first thing to realise is that regulators are monopoly suppliers of regulation; that means, that if they don’t do a good job, the regulated don’t have a choice.

Regulators often find reasons to expand their remit (regulatory creep) and because they are prima facie trusted to do their work, regulatory overseers’ consent. Tight performance expectations coupled with effective oversight helps, as does conducting regulatory benchmarking exercises to assess comparative performance with other regulators. This helps keep regulators focused and not get drawn into expanding, like a gas, from what they need to do essentially.

The people who work as regulators invariably derived there expertise from the industry area being regulated. In the case of the CQC, people who had worked in hospitals. This creates an obvious risk in terms of ‘regulatory capture’ by the regulated. The NHS used to speak of being a ‘family’, all cosy, and as we all know, in families it is important to support each other and suppress dissent — paternal/maternal models of behaviour dominate.

But, regulators need to learn how to adopt new behaviours from what got them the job in the first place; much organisational failure arises from failure of people alter their behaviour as roles change. The relationship between regulatory and regulated cannot be chummy; it must be built on evidence that the regulator knows what they are doing and are not going to be compromised by past relationships or a need to be ‘liked’ by the regulated. The selection of the ‘great and the good’ to act as chairpersons and chief executives risks individuals putting their own reputation ahead of the need to regulate with vigour. Sometimes, as the NHS is learning, regulators have to have the teeth to do what needs to be done.

Perhaps more relevant is how regulatory inspectors use their knowledge when inspecting a hospital. While one hopes they use their knowledge well, they are not immune from making assumptions that something is happening (because in their experience seeing ‘A’ means ‘B’ is happening, when in fact it may not). I recall doing some performance work in a UK NHS hospital, and as I was walking through A and E and noticed that guideline posters were both out of date and not dated.  I was told they would change that immediately. Well, mundane stuff making sure guidelines are current, and dated as such, but pretty sloppy. Perhaps a regulator might assume that staff would know what to do. A risky assumption.

Regulatory inspectors need to be able to test all the systems to ensure the are working together. This means, for instance, taking a patient chart at random from the records and tracking the patient care through to discharge, and perhaps follow up at home.  I did a review of discharge on an NHS hospital and was looking at the charts and asked the ward staff about discharge plans for various patients. I was told for some of them that they didn’t have target dates, but that they made up dates for patients to keep them quiet. I asked what the patients thought of this and they said they usually forgot anyway. Needless to say, this sort of dishonesty is easy to catch (the staff thought I was ‘like them’ and would understand the need; I wasn’t and I didn’t); doing good chart audits of this sort are part of a detailed hospital regulatory inspection. Are the staff still dishonest, though? Let’s just say they didn’t do very good care planning as they had no target dates for discharge against which to calibrate resource use and then review when things didn’t happen as planned. Easy to pick up. With better care planning, it is easier to be honest with the patients.

I take a leaf from the nuclear industry regulatory inspection process. A basic assumption is that the regulated have good reasons to conceal, mislead and hide relevant information.  Since the stakes are high that poor inspection leads to system problems (think Japanese report on Fukushima nuclear site), starting from a position of doubt about the veracity of information enables a more robust approach to regulation.

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