Regulation of managers must be equitable as well as effective

‘Most NHS leaders are doing a fantastic job’ said health secretary Wes Streeting. He’s right and we agree with his plan to hold health service managers to the highest standards so that only ‘fit and proper people’ are running NHS services.

For the sake of patients and staff, it is right that there is a way to stop people who commit serious misconduct from leading NHS organisations. 

But this prompts a question: is that everything manager regulation should seek to achieve?

Disbarring

In its consultation response, the government says the primary purpose of manager regulation is “enabling the removal of unsuitable managers who have committed offences or who have been found to be unfit.” This is narrower than the framing in the consultation launch in November, which also spoke of an “opportunity” to further professionalise leaders by setting “clear and consistent standards”. 

We believe disbarring has its place, but must only be for cases where people whose conduct has endangered patient safety. This should come with consideration given to rehabilitation or restoration for less extreme cases. The government has said it will set out the criteria for disbarring, which are not yet clear – it is vital that the bar is very high. 

While disbarring may enable the removal of people who are unfit to lead, it is not a way of improving or developing NHS managers and leaders. Disbarring on its own cannot prevent failures of care or enhance the standard of NHS management.

Developing managers

So if there is an opportunity for regulation to strengthen NHS management, what else would be needed? 

We have argued consistently that any form of regulation should be positive: this could mean setting consistent standards and expectations of NHS managers, investing in leadership support and development, and ultimately increasing the trust and confidence of staff, patients and the public in the quality of NHS leadership. 

A positive system of full statutory regulation could have met this aim, but the government has stopped short of this for reasons of cost and regulatory burden. However, the pledge to work with stakeholders to look at how accreditation could be implemented gives grounds for encouragement as a potentially constructive way forward. Such a register could give due recognition to the many managers who do a great job. It may also give clarity about what is expected of managers, wherever they are in the service.

The important work being developed by NHS England setting professional standards, and the promised college of executive and clinical leadership, may also support a better balanced and more constructive approach. It is now very important to ensure that this work is properly aligned with disbarring, so there is a coherent overall approach ensuring thresholds for regulatory action align with the professional standards people are expected to meet.

Implementation

We also emphasised the importance of a fully independent regulatory body. The scheme must stand apart from assessments of organisational performance: the focus for manager regulation must be professional conduct. And, it should be completely separate from lines of political accountability, and fully independent of the secretary of state. The choice to run the system through the Health and Care Professions Council (HCPC) passes that test. 

However, it’s deeply worrying to see the government’s consultation response makes little reference to equity and equality. When we spoke to trust leaders as part of the engagement in the government’s consultation, a key issue that kept coming up was that the regulation system must be equitable – ethnic minority staff are more likely to face disciplinary action than white colleagues at present, and other professional regulatory systems entrench inequalities. The lack of attention given to this is troubling: there is a clear risk that existing inequities in how staff are treated will be replicated in the new system. This is a crucial consideration as plans are implemented. 

Much of what is being proposed through the disbarring scheme could have been achieved via the fit and proper person test: they are best understood as a pragmatic and low-burden way of making good on their manifesto pledge to bring in manager regulation. As it prepares to implement its plans, the government should work closely with NHS managers and leaders to ensure the system is fair, equitable, and workable, and to ensure appropriate sanctions are balanced with a positive support and development offer.

This article was first published in Health Service Journal