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We need to talk about place-based regulation

We need to talk about place-based regulation
9 June 2016

In order to transform care greater collaboration between providers and commissioners is beginning to develop but how is this new way of working going to be regulated?

In order to transform care greater collaboration between providers and commissioners is beginning to develop but how is this new way of working going to be regulated?

Regulating individual organisations as though they are fully in control of everything they are formally accountable for is unhelpful. The interdependencies across the health and care system mean many problems can only be solved through place-based collaboration. For example, when people are waiting for longer than four hours in a hospital’s A&E department, the solution is likely to require commissioners working with a range of providers to improve health and care provision outside the hospital.

Commissioners and providers have therefore been tasked by the national bodies with jointly developing plans to transform care in their local area to be fundamentally more sustainable. But there is a risk that these efforts could be derailed by regulation that was designed for a different set of challenges. This has given added urgency to calls for regulators to look at quality and finance across the whole system in a local area, in other words – place-based regulation.

The Care Quality Commission (CQC) and NHS Improvement (NHSI) have already started to consider what place-based approaches to regulation might look like. But without a clear sense of purpose, place-based regulation might be setting out to solve the wrong problem.


Greater flexibility

Around half (46%) of NHS leaders responding to a recent survey of our (NHS Confederation) commissioner and provider members said that planning and implementing new models of care locally would be helped by greater flexibility on regulation in the short term, as long as organisations have a credible plan for the long term. For example, investing in alternative services to more appropriately and efficiently manage risk across the local system as a whole can mean an organisation needs to take on additional short-term financial risk – an investment that may be stopped if a regulator focuses on sustainability of that organisation in isolation from others locally.

In response, some essential short-term flexibilities from regulators have already been seen in new care model vanguard sites – such as support for them to test how a shared budget for their whole population would work in practice. A range of flexibilities may now be needed beyond these sites, to avoid derailing efforts to spread new care models.

Is this kind of pragmatic adaptation of the CQC and NHSI’s regulation sufficient?

Or, does the problem require a bigger response? If so, we need to start talking about what this would actually mean in practice.


The power

If we are looking for NHSI and CQC to drive better collaboration across local health and care systems, this raises a major question about the role and powers they should have as part of a bigger framework for place-based collaboration. Will regulators be asked to enable, to encourage, or to secure collaboration?

Commissioners and providers tell us time and again the volume of short-term reporting of activity (not only to regulators) takes disproportionate time, at the expense of progress on transformation. If regulators and others involved in holding the system to account can cut the overlap and duplication of requests for information, and start to tell a more consistent story about what good looks like, this in itself will be a start in helping to enable greater collaboration.

The Five Year Forward View can only be delivered by local leaders working together to transform entire local health and care systems. But “immaturity of local relationships” was cited by 61% of NHS leaders as a barrier to developing joint plans for sustainability in our member survey earlier this year.  As NHSI develops the improvement support “offer”, how strongly should it focus on supporting and encouraging continuous improvement of local collaboration in the interests of populations – even while the formal regulatory model may still focus on organisations?

Place-based approaches to inspection and regulation would require inspection teams, who would be charged with scrutinising activity across an area and a wide range of services, to have a much broader set of knowledge, skills and experience than has previously been necessary when looking at single organisations. This should include people with senior level experience and understanding of everything from commissioning to the governance arrangements of different organisations and sectors. For place-based regulation to be credible with commissioners and providers, those carrying out the inspection/regulation will need to be seen to understand all parts of the system. 

Things start to get really tricky, however, if the problem is seen as regulators needing formal powers to make organisations collaborate, or follow a place-based plan. Extending the role of regulation in those ways would raise highly contentious issues around the extent of autonomy individual commissioners and providers have. It also raises the prospect of yet more complexity in regulation. If this route is pursued, it will be critical to learn from experience of the interaction between the arm’s length bodies and local leaders in the ‘success regime’. There will also be a need to build consensus among commissioners and providers around the new approach. This – and the legislation that would be required to amend regulators’ powers – would take time. Given the financial pressures and urgency of the transformation task, this may be time that we simply don’t have.


Concerns and complications 

The task of developing place-based regulation is complicated, and made more urgent, by the range of models for joint accountability within accountable care organisations, alliance contracting, and proposals to go further in devolution of health powers. If the response is simply to tailor regulation in each place, can the NHS afford the resources the regulators will require for this? On the other hand, might a one-size-fits-all policy design pre-empt some of the accountability arrangements that local leaders may want to develop?

All involved will also be all too aware that place-based regulation will be critical to whether patients and the public have confidence in our newly-transformed health and care systems – despite the long shadow cast by failures of the past. How much regulatory control will the centre really be willing to devolve or delegate to local leaders?

The need for regulation to quickly become more place based, to help speed care transformation, conflicts with the time that would be needed to get any wholesale redesign right.

All of this means a conversation is urgently needed about what place-based regulation should set out to achieve, how far the formal powers and overall focus of regulation need to shift towards place rather than organisation, and what would be ‘good enough’ for the transformation task at hand.

Commissioners and providers will also now need to hear the CQC and NHSI explain how place-based regulation will affect what they do on the ground, and how it will make a positive difference for patients.

By Kate Ravenscroft, head of policy and research, NHS Confederation.

The NHS Confederation is working with our membership of CCGs and providers of NHS-funded services to better understand these issues, and will explore this with the CQC and NHSI at our annual conference on 15-17th June. You can join the conversation by visiting the conference website:

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