“Ultimately a regulation is a signal of design failure . . .” William McDonough
The default response by government and commentators to scandals, inquiries, and other problems within the NHS is almost universally to demand more or tougher “regulation,” and a consultation currently underway now proposes the extension of regulation to NHS managers.
The current consultation frames the question of managerial regulation within the context of three scandals: the Lucy Letby case; the Mid Staffs debacle; and the Infected Blood Inquiry. This creates a question of whether these are the correct bases for new regulation, or will these difficult cases only create bad law? What regulatory processes are already in place, and will more regulation make a positive difference? And what other consequences (positive and negative) could flow from the regulation of managers?
The consultation cites the role of managers in the Lucy Letby case The obvious observation here is that Letby was a member of a regulated body accredited to undertake her work when she committed her crimes the medical evidence for which is now highly contested. The same is true of GP Harold Shipman and convicted breast surgeon Ian Paterson. Being regulated was clearly no deterrent to them. Senior managers may have been deaf to the concerns that were being raised about Letby but it is not clear whether regulation would have changed their approach, nor has the Inquiry suggested it would.
The Mid Staffs Inquiry criticism was levelled not at individual mangers but, rather, at the Trust board as a whole for its collective failure to prioritise patient safety over the ambition to hit targets and achieve Foundation Trust status. The Inquiry’s key insight was that management is a team activity: it recognised that the “heroic” model of individual leadership is an anachronism, a view supported by research literature which is clear that if we wish to improve the quality of patient care then the focus should be on developing high performing teams. The Infected Blood scandal was primarily a Department of Health programme with little involvement from NHS Trusts or managers and, as such, has little relevance to the arguments made here.
The consultation identifies concern (amongst whom it is not specified) that poor managers rarely face accountability but subsequently ricochet around the system. This has been true in the past but, following the Kark (2019) and Messenger (2022) Reports, the Fit and Proper Persons Test (FPPT) was introduced and then further extended specifically to prevent this. It is not clear that this continues to be a major issue nor, indeed, that professional regulation would address it even if it was.
In addition to FPPT, there exists already a mass of other processes and sanctions to tackle managers’ poor behaviour or conduct. At employer level there are disciplinary processes; an organizational Duty of Candour as been introduced; there is a new Patient Safety Incident Reporting scheme, and there is the CQC inspection process. Managers are liable, as board members, to prosecution for Corporate Manslaughter and as individuals, for Misconduct in Public Office. Chief executives are directly accountable to their Chair, and to Parliament through the Secretary of State, and they sign up to the so-called Nolan Principles. All this is within a congested regulatory landscape with over 126 different organisations having some regulatory oversight of the NHS according to a 2019 study. One could reasonably conclude that if further regulation is the answer we may be asking the wrong question.
Indeed, there is a broader concern about the thinking underlying these proposals. Implicit in the notion of centralised regulation is the idea that a “Command and Control” approach, the government designing and implementing a set of rules backed by sanctions, will have a neat cause and effect reaction. This is based on a fundamental misunderstanding of how complex organisations such as the NHS work. Laws and rules centrally designed are often inappropriate to local circumstances, and are often clumsy, blunt tools. They require that government has both sufficient knowledge of local services and that those being regulated are motivated to comply, and both assertions can be contested.
Many of the issues are “decentred” from government. Local NHS services are complex (the result of many dynamic forces); fragmented (no-one actor has all the information); interdependent (there are many competing objectives in healthcare); and, with so much NHS care now outsourced, they intersect both the public and private sectors. Without some clarity around these issues, centre-led manager regulation seems at best fanciful, and at worst, impossible.
Building on this, a decentred understanding of regulation provides a different way of looking at the issue. There is, for example, the extent to which self-regulation and peer regulation (in a Foucauldian sense), occurs. No centralised system of regulation can create ethical leadership or address the complex, value-laden challenges of modern healthcare. This requires leaders with a moral compass which no amount of regulation can instil. But, by inverting from a centralised way of talking about regulation to one which is bottom-up, we could design more democratic, sustainable, and effective, processes for improving performance.
Regulation, in its broadest sense, is an under-evidenced area. “We regulate in an empirical void,” notes Brennan. This seems like a poor starting point for further regulation. Despite this, the likelihood is that some form of managerial licencing or accreditation will be imposed, appealing as it does both to the government’s authoritarian, centralizing impulses and its political need to be seen to “do something.”
Where will that leave the regulated chief executive? More empowered, or more vulnerable? Wes Streeting has already indicated his desire to tackle what he believes is poor NHS management. He has indicated that chief executives whose trusts are “failing” (as judged by league tables), will be removed, and has suggested that NHS professionals who express views about, for example, the genocide in Gaza (13)could be subject to regulatory investigation. So, whilst regulation is being sold ostensibly to improve patient care and safety, it operates as another tool of micro-management, with the primary purpose of managerial shaming and victim blaming, and to distract attention away from more fundamental issues, such as privatisation and NHS funding.
In Spring 2024, Wes Streeting used a visit to Singapore to challenge the NHS to “Get Rid of Stupid Stuff.” (14) Perhaps, when it comes to considering the results of his consultation on regulation, he should take some of his own advice.
About the author: Adrian Mercer is a former NHS manager in London and Manchester. Now based in Devon he writes about the ongoing privatisation of the NHS and is an occasional contributor to this blog, writing about the NHS and social care issues.
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by Adrian Mercer Feb 6, 2025“Ultimately a regulation is a signal of design failure . . .” William McDonough
The default response by government and commentators to scandals, inquiries, and other problems within the NHS is almost universally to demand more or tougher “regulation,” and a consultation currently underway now proposes the extension of regulation to NHS managers.
The current consultation frames the question of managerial regulation within the context of three scandals: the Lucy Letby case; the Mid Staffs debacle; and the Infected Blood Inquiry. This creates a question of whether these are the correct bases for new regulation, or will these difficult cases only create bad law? What regulatory processes are already in place, and will more regulation make a positive difference? And what other consequences (positive and negative) could flow from the regulation of managers?
The consultation cites the role of managers in the Lucy Letby case The obvious observation here is that Letby was a member of a regulated body accredited to undertake her work when she committed her crimes the medical evidence for which is now highly contested. The same is true of GP Harold Shipman and convicted breast surgeon Ian Paterson. Being regulated was clearly no deterrent to them. Senior managers may have been deaf to the concerns that were being raised about Letby but it is not clear whether regulation would have changed their approach, nor has the Inquiry suggested it would.
The Mid Staffs Inquiry criticism was levelled not at individual mangers but, rather, at the Trust board as a whole for its collective failure to prioritise patient safety over the ambition to hit targets and achieve Foundation Trust status. The Inquiry’s key insight was that management is a team activity: it recognised that the “heroic” model of individual leadership is an anachronism, a view supported by research literature which is clear that if we wish to improve the quality of patient care then the focus should be on developing high performing teams. The Infected Blood scandal was primarily a Department of Health programme with little involvement from NHS Trusts or managers and, as such, has little relevance to the arguments made here.
The consultation identifies concern (amongst whom it is not specified) that poor managers rarely face accountability but subsequently ricochet around the system. This has been true in the past but, following the Kark (2019) and Messenger (2022) Reports, the Fit and Proper Persons Test (FPPT) was introduced and then further extended specifically to prevent this. It is not clear that this continues to be a major issue nor, indeed, that professional regulation would address it even if it was.
In addition to FPPT, there exists already a mass of other processes and sanctions to tackle managers’ poor behaviour or conduct. At employer level there are disciplinary processes; an organizational Duty of Candour as been introduced; there is a new Patient Safety Incident Reporting scheme, and there is the CQC inspection process. Managers are liable, as board members, to prosecution for Corporate Manslaughter and as individuals, for Misconduct in Public Office. Chief executives are directly accountable to their Chair, and to Parliament through the Secretary of State, and they sign up to the so-called Nolan Principles. All this is within a congested regulatory landscape with over 126 different organisations having some regulatory oversight of the NHS according to a 2019 study. One could reasonably conclude that if further regulation is the answer we may be asking the wrong question.
Indeed, there is a broader concern about the thinking underlying these proposals. Implicit in the notion of centralised regulation is the idea that a “Command and Control” approach, the government designing and implementing a set of rules backed by sanctions, will have a neat cause and effect reaction. This is based on a fundamental misunderstanding of how complex organisations such as the NHS work. Laws and rules centrally designed are often inappropriate to local circumstances, and are often clumsy, blunt tools. They require that government has both sufficient knowledge of local services and that those being regulated are motivated to comply, and both assertions can be contested.
Many of the issues are “decentred” from government. Local NHS services are complex (the result of many dynamic forces); fragmented (no-one actor has all the information); interdependent (there are many competing objectives in healthcare); and, with so much NHS care now outsourced, they intersect both the public and private sectors. Without some clarity around these issues, centre-led manager regulation seems at best fanciful, and at worst, impossible.
Building on this, a decentred understanding of regulation provides a different way of looking at the issue. There is, for example, the extent to which self-regulation and peer regulation (in a Foucauldian sense), occurs. No centralised system of regulation can create ethical leadership or address the complex, value-laden challenges of modern healthcare. This requires leaders with a moral compass which no amount of regulation can instil. But, by inverting from a centralised way of talking about regulation to one which is bottom-up, we could design more democratic, sustainable, and effective, processes for improving performance.
Regulation, in its broadest sense, is an under-evidenced area. “We regulate in an empirical void,” notes Brennan. This seems like a poor starting point for further regulation. Despite this, the likelihood is that some form of managerial licencing or accreditation will be imposed, appealing as it does both to the government’s authoritarian, centralizing impulses and its political need to be seen to “do something.”
Where will that leave the regulated chief executive? More empowered, or more vulnerable? Wes Streeting has already indicated his desire to tackle what he believes is poor NHS management. He has indicated that chief executives whose trusts are “failing” (as judged by league tables), will be removed, and has suggested that NHS professionals who express views about, for example, the genocide in Gaza (13)could be subject to regulatory investigation. So, whilst regulation is being sold ostensibly to improve patient care and safety, it operates as another tool of micro-management, with the primary purpose of managerial shaming and victim blaming, and to distract attention away from more fundamental issues, such as privatisation and NHS funding.
In Spring 2024, Wes Streeting used a visit to Singapore to challenge the NHS to “Get Rid of Stupid Stuff.” (14) Perhaps, when it comes to considering the results of his consultation on regulation, he should take some of his own advice.
About the author: Adrian Mercer is a former NHS manager in London and Manchester. Now based in Devon he writes about the ongoing privatisation of the NHS and is an occasional contributor to this blog, writing about the NHS and social care issues.