A flea in the ear needed

Big fleas have little fleas upon their backs to bite ’em,
And little fleas have smaller fleas, and so on ad
infinitum.

In a new twist to an old theme, the question “Who regulates the
regulators?” is currently exercising the Better Regulation Task
Force – the independent body established in 1997 to advise the
government on action to protect the quality of regulation and its
enforcement. I would like to offer an answer based on an analysis
of what needs fixing in the field of social care regulation.

I am as enthusiastic about regulation as I was when in 2001 I was
appointed to the National Care Standards Commission board. I want
to do exactly what the legislation requires of us: to protect
service users from abuse, and to raise the standard of provision.
Inevitably the commission has been hampered by all the business of
starting up a new national organisation; assimilating staff from
hundreds of different employers each with their own approach,
standards and culture; building an IT system; opening national,
regional and local offices, to say nothing of devising procedures
and negotiating protocols for our core activities of inspection and
the other processes of regulation. But we are making progress. We
will soon publish the first-ever national evaluation of residential
provision, and are beginning to accumulate the same new information
about domiciliary services. We are inspecting all residential homes
for the first time against a national set of minimum standards. We
are beginning to build consistency and inclusiveness. So what is
lacking?

First, any rigidity inherent in the regulatory framework tends to
stifle innovation and undermine some perfectly acceptable minority
forms of provision that the legislation appears not to have
properly acknowledged. The same rigidity prevents us targeting our
resources where we believe the greatest need and risks to be – for
example, recognising good practice with “inspection holidays” or
part-substituting external accreditation for our detailed scrutiny.
These are perhaps the most critical instances of our being denied
the flexibility we need: freedom to choose from among a toolkit of
possible techniques, instruments and approaches that which is fit
for the particular purpose, and even the ability to invent new
forms of regulatory activity in response to new forms of provision.
However, flexibility means power, and power must be accountable:
someone would have to oversee our use of discretion. The courts and
the ombudsman will adjudicate in individual cases, but there must
be some body with the authority to hold our strategies to
account.

Next, we are too process-based and insufficiently outcome-oriented
to properly focus on what is really important. The national minimum
standards against which we inspect define much of the “soft”
aspects of required care in terms of “good practice” – nothing more
specific – and these difficult-to-measure aspects are critical to
users’ quality of life. Do we focus on what can be measured, and
take record-keeping as a proxy of the rest? Well, not quite. The
commission is still young and developing its competencies. But the
fact remains that outcomes are the most difficult things to
quantify. To allow a profusion of different forms of social care so
long as the eventual result is “a good quality of life” for the
user invites subjectivity and imprecision, requires sound judgement
based on experience and evidence and – ultimately – trust allied to
discretion. But who should oversee our exercise of these
judgements? Who has the right to decide what gives the proper
balance between opportunity and oversight, freedom and risk?

Thirdly, regulation requires us to determine exactly what qualities
of provision should be required of providers. But much existing
provision falls far short of the “good practice” required by the
minimum standards. I don’t doubt that Polly Toynbee’s experience in
a care home of working flat out in order to get the last resident
up by 11am is quite normal.¹ Or the room full of
residents with various degrees of dementia, hardly spoken to, let
alone given interactions and occupations, that I saw recently. But
if the commission required homes to have staffing levels needed to
get all people up and ready for the day at the time you or I would
take for granted, what would happen to the sector? And that’s
leaving aside dementia care mapping and modern, specialised
provision for people with dementia, or a variety of other qualities
necessary for a civilised life. And when the duty to inspect social
services departments is added to our present remit, at what
accelerated speed should the new Commission for Social Care
Inspection direct commissioners away from institutional towards
arguably more appropriate home-based care? Eggs and omelettes, yes;
but who decides what disruption users should suffer in exchange for
eventual gains? Good practice is a broad spectrum reaching from
worst to best: within it, who should set the detailed and specific
threshold for registration?

My answer to each of these questions is the same: users and
potential users of the regulated services must be the ultimate
arbiters of what is right. Not via some lip service to
consultation, some tokenistic engagement (though we must consult
and engage with users more and better), but through a real shift of
power, to counterbalance the relative powerlessness of the
individual user. I propose that in exchange for the freedom to
exercise discretion in regulatory technique and in setting the
standards required we should be accountable to a statutory body,
appointed by the secretary of state, whose purpose is to scrutinise
or evaluate our activity. It could be a small body with a minimal
secretariat. Its members would be, primarily, disabled and older
people and representatives of organisations of disabled and older
people, from whom its chairperson would be drawn. Perhaps linked to
the Disability Rights Commission and the National Audit Office,
this body would have the power to require formal responses to its
reports from the regulating commission and the Department of Health
and would have wide powers to obtain information from the
regulator. It would represent the interests of all users of social
care, without necessarily having on its board a user of each
imaginable category, in the same way the Disability Rights
Commission represents the spectrum of disabled people.

I expect the cost of the body to be trivial compared with the
£30m-plus per year of the Commission for Patient and Public
Involvement in Health and compared with the savings that would flow
from better-focused operation of our resources and from the
avoidance of undesired and perverse effects within the marketplace.
In terms of effectiveness, it would be a much-needed counterweight
to the lobby power of the provider sector, whose interests, however
enlightened, can never be identical with those of users, and should
never be substituted for it. It would, of course, need to steer an
intelligent course between being a lobby group and an academic
institute, taking the most effective and appropriate functions of
each role.

If the national minimum standards are the shelf upon which social
care is based, regulation and inspection are the brackets holding
it on the wall. And users (through advice to the secretary of
state) must be the final judges of how high, wide and deep at any
one time the shelf should be. By putting users centre-stage, and
allowing the regulator to act efficiently and effectively, this
would bring governance fitter for purpose. With the Health and
Social Care Bill at committee stage, the time for the government to
act is now.

– This article does not represent the official view of the
National Care Standards Commission.

Bryan Heiser is a board member of the National Care
Standards Commission and is a former graduate prize fellow, Kennedy
School of Government, Harvard University. Contact him at
heiseruk@aol.com

Reference

¹ Polly Toynbee, Hard
Work, Bloomsbury, 2003