Health & Care Regulation

In February 2019, HSC presented its proposals to the States of Deliberation on the future regulation of health and care. These were overwhelmingly supported. This is my speech opening debate.

Sir, As members will know, a key aim of the partnership of purpose is proportionate governance: ensuring clear boundaries exist between commissioning, provision and regulation. In the policy letter setting out the new model of health and care, the Committee for Health & Social Care stated that it is likely there will always be some overlap between those who decide what kinds of services should be provided and how they should be paid for, those who provide these services and those who regulate the services to ensure safety. However, there needs to be, in particular between commissioning and regulation, a framework which is proportionate to the size, resources and requirements of the Bailiwick, to ensure appropriate separation.

This Assembly supported that policy letter and the proposals in front of members today support that key aim as well as being a priority of the Policy & Resource Plan.

The current system of regulation is fragmented and has evolved over many years. What we are seeking to do is not destroy it and put in a huge great regulatory structure in its place, but build on it and develop a more robust independent regime. There are areas where there is a lack of professional regulation such as in domiciliary care, lack of systems regulation – such as for the majority of States services, a lack of flexibility to respond to evolutions in health care provision, insufficient emphasis on safeguarding and a lack of regulatory independence. These are what we are seeking to address.

As Prof Dickon Weir-Hughes states in his report for the Committee, the subject of regulation in any sector often gives rise to concerns about cost and proportionality, especially amongst taxpayers. However, as he says, ‘one of the key benefits of providing health and social care in a relatively contained island community that is not burdened by the bureaucracy of larger jurisdictions is the opportunity to develop regulatory approaches that are both world leading and proportionate.’

Now, when we say world leading, we don’t mean gold or platinum plated. It is not about how much money you throw at it and how complex you make it, but how effective it is. Those are not necessarily the same thing as the 2008 financial crash showed.

Fundamentally, the Committee was determined that such regulation should be appropriate and proportionate to the size of the Bailiwick. What does that mean?

Well we did not believe that replicating the regulatory system for the financial services industry would be appropriate and neither did we believe adopting the hugely complex system in the UK would be proportionate. Ultimately we need to consider proportionality in terms of risk.

And in doing so, we don’t want to reinvent the wheel. There are a wide range of internationally accredited schemes, such as CHKS for GP practices and Magnet for hospital services that exist around the world. We will evaluate those that make sense for our community and adopt where necessary. Where there are no ready-made schemes seen to appropriate we will set our own, again taking an appropriate and proportionate approach.

We are proposing that regulation will be the responsibility of an independent commission. This is important to ensure there is no political interference and it can equally hold the public and private sector to account. But, perhaps more importantly, having that independent function will support continual improvement.

We are not proposing that the Commission will have a heavy inspection system but one that ensures compliance with standards and schemes, but that it will have the power to step in and inspect or take other action where concerns have been highlighted. Neither are we proposing it will employ a large team of people. The complexity of the system would not justify it. Instead, there will be a core team that will bring in expertise as, and when, required.

The aim will be to develop an Enabling Law to establish the Commission and give power to the States by Ordinance to prescribe or authorise adoption of designated accreditation schemes or local standards and other appropriate regulatory measures.

After that, the individual standards will then be set and approved by the States, with a focus on those with the highest priority, being the unregulated domiciliary care workforce and acute hospital services.

We have been working closely with Jersey in the development of this policy letter, and whilst they wish to adopt a more heavy inspection system and have other priority areas in terms of regulation, we both believe there is an opportunity to share the Commissioner function and will continue to work with them if this policy letter is approved to ensure that our Enabling Law makes a shared Commissioning function possible and how we can put it into practice.

No one really likes regulation. And I have stood up in this place more than once raising my concerns. Most recently on Data Protection. But, it does seem to me that there are some who, possibly understandably given the extent of regulation that has grown over the years, lost sight of a core purpose – to protect people from harm – be it financial, social, environmental, physical or mental. Surely nowhere is regulation more justified than in matters of life and death. 

I’d ask those who think this is just another piece of unnecessary regulation, are they happy that anyone, without any police check or any qualification, can enter the home of their frail and vulnerable mother or father to provide very personal care? Are they happy that their 14 year old daughter can get their eye lids lifted or lips botoxed from a hotel room? Are they happy that their depressed wife or husband can get self-styled counselling from someone with no recognised qualifications?

There are some who think we don’t need it for ‘an island of our size’. Does that mean we don’t need finance regulation too? Or is money more important than our people? An island of our size wouldn’t have a general hospital the size of the PEH. Are those same people saying we ought to close it down? To those who believe a priority should be a sound foundation for health and later life care’, I would say, it is difficult to think of a sounder foundation than ensuring appropriate standards  through professional and systems regulation in the health and care sector.

Now, we estimate the total costs will be around £368k, although not all the costs are new. How this will be paid for and how much those who will be licenced will have to pay will be the subject of further engagement but I would point out to those who believe this is too much to spend on regulation, it pales into comparison with the extra £800k members supported for another regulator only a few months ago – the Data Protection Authority and represents 0.2% if the total health and care spend.

It’s also worth pointing out that the lack of an independent regulatory regime was a stated concern of the NMC when they undertook their review in 2014 and with whom our nurses and midwives are registered. They expect that their members to be working in a regulated environment. Were it to be decided today that we do not a proportionate and appropriate system of regulation, that we are happy not to protect our workforce then at the very least, it will not be looked on favourably, at worst, they may consider nurses may not be revalidated whilst working here. Not only that, it could mean that we are no longer able to provide on-island training of our nursing workforce. These are very real risks.

Let’s also not forget that this is also welcomed by those in the health and care sector, with whom we have had extensive engagement. Regulation may be seen to just add to bureaucracy but it can have benefits. And one particular area is in terms of post-Brexit preparedness with the European Commission, having recently published a report on the increasingly important role of health care assistants and with it, the importance of having an overview of the knowledge, skills and competencies they need. As they say, such an overview can help patient safety while at the same time facilitating professionals’ mobility.

So, sir.

I understand those who say, not more regulation. But let me ask those naysayers, if you had a list of all those areas that are currently regulated, would you say care regulation is less important than all of them? If you do think this is one piece of regulation too many, then is it not better to repeal those pieces of regulation that you believe are unnecessary red tape?

Appropriate and proportionate care regulation is about the Bailiwick being a mature, credible and economically attractive jurisdiction. 

It’s about people getting the service they need not stifled by bureaucracy or wary of punishment so they don’t innovate.

It’s about people knowing what to expect and what is expected of them.

It’s about promoting quality, minimising harm and strengthening trust in the health and care service.

Our proposals are innovative, cost effective, sustainable and most importantly, have the potential to improve health and care across the Bailiwick.

For all those reasons I ask members to support this policy letter.



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