The Care Quality Commission has been in trouble for a while. Externally it has been under fire from the media for failing in big ways and in smaller ways. Internally it has struggled to deal with the demands of delivering a new streamlined regulatory model to ensure compliance across all ‘care’ settings in England, especially as it is fashioned from the remnants of three older regulatory bodies: the Healthcare Commission, the Commission for Social Care Inspection and the Mental Health Act Commission, bodies which themselves had diverse institutional histories and cultures.
So the publication today of the DH Performance and Capability Review is of great interest to anyone interested in standards in care for people with mental health needs in England. The report published is basic but a few conclusions are transparent:
• The CQC has to improve significantly on several fronts. It needs to develop a clearer strategic vision and communicate this more effectively to the regulated sectors and to the wider public.
• We need to work out what effective regulation of care looks like. The CQC has focused narrowly on using inspection to ensure compliance, and unlike its predecessors it has not defined its role as driving up the quality of care through engagement within the regulated sectors(para 2.16). This may or may not be the right approach but it has yet to be evaluated (para 2.19).
• But perhaps most importantly we are stuck with the CQC. Whilst many stakeholders have little affection for it no one wants to go through the pain of restructuring again (para. 10).
Within mental health there have long been murmurings about the short-sightedness of dismantling the Mental Health Act Commission. The MHAC may not have always have been well-loved but it had the virtue of not being despised by health and social care professionals or the public. The report says little specifically about the role of the CQC in inspecting settings where people are detained under the Mental Health Act beyond observing that the integration of the former MHAC responsibilities into the wider organisational structure of the CQC has not been effective (para 3.36).
So what are the implications of the performance and capability review for the inspection of mental health services?
Well obviously we are not going to get a specialist inspector with a specific responsibility for mental health services reinstated. I do not think anyone anticipated this, but the case that was made for not losing the MHAC under the amendments to the Mental Health Act 1983 seems to me to be as strong as ever. Places where people can be legally detained if they are unwell enough and are potentially unwilling to adhere to treatment have a very different atmosphere to other social care settings. Nurses, doctors and auxiliary staff in psychiatric wards all know that they have practical and legal powers to detain patients who try to leave. Of course abuses of power may occur in any care setting, but they are more likely to arise in settings where people feel that their use of authority is both natural and inevitable and as a result stop critically examining their conduct.
We should listen carefully to all further communications concerning the evaluation of the CQC’s ‘regulatory model’. Since the review itself states that the effectiveness of this model has not been established it is premature to draw conclusions here. But in light of the above of particular interest will be whether the CQC is able to continue to promote a generic model of inspection across care settings whilst maintaining a sensitivity to the needs of specific groups of service users. The Review identifies adults deprived of their liberty or lacking mental capacity as two such groups (para 3.45).
There are some very welcome references in the Review to the fact that the CQC needs to be especially sensitive to the views of service users. It identifies the need to integrate user perspectives into the development of the regulatory model (para 3.43) and the need to ensure inspectors have access to user expertise where required although they stop short of recommending that (some) inspectors should have personal experience as users (para 4.6). In mental health the CQC already employs a service user panel who not only consult on strategy but also participate in inspections in conjunction with commissioners. This may be an area where mental health practice can inform practice in other areas.
It is a shame that the Review makes no reference to the CQC’s critical role in protecting human rights. The CQC is listed by the UK as one of the 18 member organisations that make up the national preventative mechanism we have established to meet our obligations under the Optional Protocal to the United Nations Convention Against Torture (OPCAT). No reference is made to the OPCAT in the CQC’s Position Statement and Action Plan for Mental Health. Whilst it may be the case that CQC inspection and ongoing monitoring will deliver adequate safeguards to meet our obligations under OPCAT it is a shame that this link is not made explicit. It is further a shame that the normative goal of achieving human rights protection is not explicitly identified by the Review as one of the goals of an effective regulatory model.
Taken together the findings of the Review itself lead to a big hmmm from me. The task the CQC was given was hard and it has struggled to find its feet. Criticising the individuals involved seems pointless, especially in light of the universal reluctance to dismantle it and start over. A much more important question which this review does not provide an answer to is what does the public expect the CQC to deliver? The review conceptualises the tension between regulation to secure compliance and regulation to secure improved standards in care as a technical issue. It is, instead, a tension based upon a clash of values which has not been openly acknowledged let alone debated.