Recommendation 137

Commissioners powers of intervention

Rejected
Commissioners should have powers of intervention where substandard or unsafe services are being provided, including the substitution of staff or other measures necessary to protect the patients from the risk of harm. In the provision of commissioned services, such powers should be aligned with similar powers of the regulators so that both commissioners and regulators can act jointly, but with the proviso that either can act alone if the other declines to do so. The powers should include the ability to order a provider to stop the provision of a service.

The respective roles of commissioners and regulators in their relationships with providers are different and must be distinct. Commissioners arrange the provision of high quality services to meet the needs of the people they are responsible for, and can take direct action with providers when they are not delivering to contractual specifications.  The regulators are charged to ensure that providers meet set standards, and to give regulators and commissioners equivalent powers of intervention would blur the distinction of these roles and risk causing confusion in the system, resulting in inaction because of assumptions that another body is intervening to address a problem.

The NHS Standard Contract enables commissioners to intervene where substandard or unsafe services are being provided.  In extremis, under the terms of the standard contract, the commissioners can suspend services, or elements of them, and terminate contracts.

Enforcement action, which may entail the substitution of staff, is properly the role of the regulators: the Care Quality Commission will retain all of its existing enforcement powers and will not be constrained from taking swift and decisive action if patients are at immediate risk of harm.

Where there is no immediate risk of harm to patients but concerns exist, the Care Quality Commission will normally look to Monitor or the NHS Trust Development Authority to exercise their powers to take enforcement action at NHS trusts and foundation trusts.

In determining the potential benefits of an intervention, Monitor will consider whether the best outcome for health care service users can be achieved by acting themselves or acting together with another organisation, or whether another organisation such as the Care Quality Commission, NHS Trust Development Authority or NHS England has tools that could tackle an issue more effectively, or is already taking steps that are likely to address the potential harm. However any enforcement activity by the Care Quality Commission does not preclude Monitor from exercising its enforcement powers if relevant to do so, and vice versa.

Where Health Education England has concerns about the quality of clinical placements or training being provided by a provider it will take action to remedy this. If necessary, Health Education England will withdraw clinical placements or training programmes from a provider until they are able to demonstrate the required level of improvement and ensure a safe training environment for patients, students and trainees

In Patients First and Foremost the Department of Health agreed that, ‘…regulators and commissioners should ensure that they have a shared picture of provider performance…’  NHS England, clinical commissioning groups, the Care Quality Commission, Monitor, the NHS Trust Development Authority, Health Education England and the professional regulators (General Medical Council and Nursing and Midwifery Council) can align their powers of intervention by means of Quality Surveillance Groups.

NHS England has rolled Quality Surveillance Groups out across England in each area and region. These are all actively engaged in sharing information and intelligence between commissioners, regulators and other organisations on the quality of care being delivered.

If commissioners have concerns about whether providers are meeting the essential standards of quality and safety, Quality Surveillance Groups are one of the mechanisms through which they can raise their concerns with the Care Quality Commission, Monitor and with any other parts of the system with an interest. This includes concerns individual commissioners have about providers from whom they do not commission services, but with whom they interact (for example, clinical commissioning groups and primary care providers).

The National Quality Board is currently conducting a review of how the Quality Surveillance Group network is operating, and what support it needs to be as effective as possible.  It will publish revised guidance and support materials by the end of 2013 to support all Quality Surveillance Groups in reaching their full potential.

Update

Revised provisions relating to commissioners’ rights to suspend the provision of services were published in December 2013 as part of the NHS Standard Contract for 2014-15.

In March 2014 the National Quality Board published new guidance to support and share good practice amongst Quality Surveillance Groups as they develop. A Quality Dashboard supports Quality Surveillance Groups in analysing data on quality. The indicators within it have been aligned to those used by the Care Quality Commission in their Intelligent Monitoring System.

NHS England, Monitor, the Care Quality Commission and the NHS Trust Development Agency plan to develop a common dataset for quality for use by commissioners and regulators as soon as possible.