Memorandum submitted by NHS Confederation (H&SC 14)


The NHS Confederation represents the organisations that make up the modern NHS. Our membership includes over 95% of NHS organisations - acute trusts, ambulance trusts, mental health trusts, primary care trusts, foundation trusts and special and strategic health authorities. Independent sector members who provide NHS services are also part of the NHS Confederation.




We welcome the setting up of the new regulator for health and social care to bring a more integrated approach

It is important that the new regulator pursues a risk-based approach and builds on the work of its predecessors

The wide-ranging powers of the Secretary of State to make regulation should be balanced by stronger duties to consult outside organisations

The changes to the standard of proof strike the right balance between protection for staff and safeguarding patients


Part 1: The Care Quality Commission

We welcome the setting up of the new regulator for health and social care as it will bring a more integrated approach. It will have tougher powers, backed by fines, to inspect, investigate and intervene where hospitals are failing to meet hygiene standards. However, it must avoid becoming overly bureaucratic or placing excessive burdens on those delivering care to NHS patients.



Over 50 different bodies currently inspect, assess or monitor the NHS. The various assessment bodies use different approaches to audit and inspection and frequently use different but similar standards requiring different versions of the same information. This bureaucratic accounting diverts trusts from providing the most effective and safe care for their patients.


Example 1: The Clinical Negligence Scheme for Trusts and the Annual Health Check, run by the Healthcare Commission both assess patient safety. However, the two organisations do not accept each other's standards and so similar and overlapping information must be supplied to both.


Example 2: Documented evidence is sometimes required on top of clearly visible evidence. Physical proof of the installation of single-sex wards and a new toilet block were not acknowledged by the Healthcare Commission in one trust's experience of the Annual Health Check until they had produced otherwise unnecessary, detailed paper work to prove the changes.


How the CQC should work

We hope that the committee stage of the Bill will set the tone for the behaviours of the CQC. We see the following as particularly important:


Continuity: One concern is that the new regulator may decide on a 'year zero' approach and forget the lessons that their predecessor organisations have learned over the past few years. The NHS Confederation believes they should emphasise continuity with what has gone before so trusts can work efficiently with the regulatory regime. Patients and the public need to see whether trusts are improving over time rather, not have to compare constantly changing measures of performance.


A risk-based approach: The CQC should focus on organisations where there may be problems rather than inspecting all organisations, all of the time.


Reducing bureaucracy: Regulation is important for providing public assurance on safety, quality and value for money and in driving forward improvement locally. However, it should follow the Government's better regulation principles and be proportionate, consistent and targeted.



It is vital that the new regulator should simplify ways of holding trusts to account. One way this can be done is that at present regulators are supposed to find a single means of seeking the same information and data. However, where an inspecting organisation departs from this we believe there should be an active duty on any regulator to cooperate with other regulators to find the information rather than asking trusts for it.


This duty could be inserted into Schedule 4 Interaction with other authorities. At present this gives the CQC the right to prevent inspections it believes would be an unreasonable burden, subject to the view of the Secretary of State. Clause 63 gives the CQC a duty to promote the effective co-ordination of reviews or assessments carried out by public bodies.



The Bill sensibly gives the Secretary of State wide-ranging powers so that regulations can be reformed to fit to changing circumstances such as new superbugs or new ways of delivering care. However, this should be balanced by stronger duties to consult and the Bill should say which employer, professional and patient organisations should be consulted for which parts of the Bill.


Avoiding 'double jeopardy'

It is vital that in establishing a new regulator there is total clarity on which regulator (the new Care Quality Commission or Monitor) has the power to intervene where Foundation Trusts are concerned. The bill as currently drafted at Clauses 61 and 65 is too ambiguous and does not provide the clarity Foundation Trusts require to avoid facing a position of 'double jeopardy'.



Part 2, Regulation of Health Professions

Revalidation process

The Bill will introduce a process of revalidating the professional competence of all doctors. This will occur every five years in a process that will involve an appraisal process to confirm they have met the standards expected. We support this change on the grounds that because trusts are responsible for the quality of the services they provide, they should have responsibility for the continuing competence of their professional staff.


Clause 91: the office of the Health Professions Adjudicator

We believe that the Office of the Health Professions Adjudicator should be completely independent and therefore agree with the GMC that it would not be appropriate for it to be a non-departmental public body. It should be an independent statutory organisation in order to avoid the potential for political intervention in decisions.


Clause 104: Standard of proof in fitness to practise proceedings

We support the changes in the standard of proof in malpractice cases from a criminal to a civil standard. This will not mean that all cases are decided on the balance of probabilities; the standard of proof will be proportionate to the seriousness of the case. Striking off clinicians will be a final option that requires the strictest burden of proof. A better balance needs to be struck between safeguarding patients and legitimate protections for staff and the NHS Confederation believes that the civil standard would be more appropriate


January 2008