When I did my thesis, I discovered that the main purpose of regulation, the reason for its existence is improvement. In addition, I discovered that there is much more in common between regulation and improvement, than I expected.
‘What, but, but, but…?‘ all the biases in my head kept saying, ‘regulation stops us improving, this cannot possibly be true. Deming said, ‘cease dependence on inspection‘ (1984)‘. Yet, as I have written before, Deming was a lot more nuanced about the need for inspection within high risk services like healthcare, and indicated that inspection would probably still be needed (and for clarity, regulation is much more than inspection).
Regulation can be defined as ‘a third party wanting to influence the behaviour of organisations in the public interest‘ (Selznick, 1985). Thus, national bodies, or regional not-for-profits or even centralised improvement teams (aka self-regulating teams), and what they do: policies, inspections, training programmes, 1-1 visits, award ceremonies, newsletters, case studies, tool-kits and hands-on facilitation and support, can all be described as forms of third parties trying to influence organisational behaviours to ensure improvement. Therefore, you don’t have to have legal regulations in place to enforce to be a regulator; you can be a regulator by being an improver.* Thus, it seems to me, that ‘us’ improvers can learn a thing or two from regulation.
In many ways regulatory theory brings together the different elements of quality management systems, described in the quality trilogy by Juran (1985) as: quality planning, quality assurance and quality improvement. In regulatory theory, the three elements are akin to: direction, detection and enforcement (Walshe, 2003).
In particular, I have been thinking about the responsive regulatory pyramid (Ayres and Braithwaite, 1995). The pyramid, combines deterrence and compliance regulatory models (a bit like sticks: sanctions, warning notices, removal of the board etc.; and carrots: help, resources, training, education) into a framework, by accepting both are needed in different circumstances: known as ‘responsive regulation’. Enacting a responsive regulatory model then becomes about how to identify the circumstances accurately and how to ensure enough ‘carrots or sticks’, and the most appropriate sort, to respond in line with those circumstances. To work well, some thought about what to do when some or all of that goes a bit awry, or a bit too slowly or even too assertively, is needed. In addition, dissimilar organisations might be offered the same support (possibly inappropriately) because that assessment of performance and improvement capability hasn’t been consistent or done so well.
In a responsive regulatory model, when organisations or teams are performing ok, and seem to have their work safely under control, then there is probably little need for any regulatory input other than routine monitoring, but as risks grow and work appears to become out of control and performance suffers then there is more need for regulatory input and this need escalates upwards through the pyramid (or de-escalates if things improve). The pyramid tries to show visually that there should be less organisations and teams at the top, than at the bottom, as it is narrower. If designed well, few organisation should reach punitive levels of regulatory enforcement.
How might this learning help us in improvement?
Historically, some organisational, regional and national ‘improvement frameworks’, intentionally or otherwise, seem to me, to have acted more as a ‘directory of services’ loosely organised around a number of themes, conditions or domains. A kind of ‘greengrocers’ of improvement support offers, positioned on a scaffolding frame of a market stand. With some improvement offers being marketed and branded better than others, regardless of product quality, or if they are really a different product at all. (Mostly, to my mind, frameworks of improvement offers tend to offer many different varieties of carrots, some more heritage and organic, than Tesco value, but still carrots all the same). In this kind of approach, organisations and teams choose what help and improvement support they need (or even have items suggested to them, by grocery/field-based staff). This, to me, seems to assume that organisations and field-based staff:
1) know they need to go shopping and help is required
2) know what is on the shopping list, and
3) can always access all items on the stand, and know the full offer of items available on the stand
4) the items on the stand are the ‘right’ items to begin with
Therefore, using the same analogy, what happens if you haven’t realised you need to shop, you have no shopping list or it’s in another language, you need some specialist stuff (e.g. special diets) and you don’t know how to combine the ingredients (ie. know how to cook different carrot based recipes) or there is not enough money to pay for the items? Or if actually, what you really want are apples or chocolate or a deckchair?
Whereas, it seems to me, given that there is much in common between regulation and improvement (aka self-regulation), that an improvement framework could work rather more like a responsive regulation pyramid. Rather than universal improvement offers, free to all; graded layers of support offers could be designed contingent on organisation performance, local circumstances and improvement capability (Furnival, 2017). I argue that should an organisation have insufficient performance and improvement capability (however defined), then provide a carefully curated responsive improvement support offer; if performance is not so great, but improvement capability is growing; let them be, learn for themselves, etc. Meaning that all improvement support offers are not necessarily free to all, standardised, universally accessible or equally available to organisations regardless of need, performance, improvement capability or circumstances. In my research, I found that Monitor’s Single Oversight Framework (SOF), back in 2014, indicated that it was trying to enact this kind of segmentation of organisational performance and then matching that to ‘support’, although there was little robust assessment of improvement capability. (Monitor was (is?) a regulator of Foundation Trusts in England).
To make something like a responsive improvement framework work, understanding an organisation’s performance and improvement capability then becomes pretty critical. The understanding is needed to ensure the most appropriate mix of support offers, to help an organisation, who might not know what help they need, get the best combination for their unique situation. This means that relational skills, knowledge of improvement support offers and improvement intervention design and execution skills, and the roles of the people working in the field with organisations to make an assessment and judgement about local improvement capability, becomes pretty sentinel. Else, the wrong support offer or mix of offers, might be deployed, perhaps at the wrong time using up scarce resources and risking harm rather than improvement.
We have created an industry in assessing performance in healthcare over the past couple of decades, so we have some capacity to assess performance. But, imho, to be more proactive in our decisions on the deployment of improvement support offers, it might also be helpful to assess improvement capability better too. Assessing improvement capability better might give an earlier view of future performance trajectories rather than having to wait until performance dips in order to react with an improvement support offer. To my mind, this would be as helpful to internal improvement teams, wanting to improve and evaluate what they do; as it would regional or national improvement teams and organisations. In my thesis, I found that national bodies didn’t always assess improvement capability as they intended, and there is a wide array of mostly unreliable assessment instruments. Thus, to improve performance trajectories proactively, we might need to be able to assess improvement capability better than we do now, and agree what we mean by improvement capability.
That is why I am very excited about the #Qexchange funded project looking at how that might be done, is really getting going. Have a look here if you want to know more and want to get involved.
* 5 years on, and I am still getting over this. I don’t think I’m the only one who struggles with the identity of being an improver being shared with that of being a regulator. Given how many people I have observed stating in events and workshops that they ‘are nothing to do with the regulation bit of the organisation they work for‘, really trying to distance themselves, I don’t think I am alone.