A review of the initial phase of regulation

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The best thing about HIQA inspecting services is that they will not accept situations that nobody should ever have to put up with.  Before HIQA some people thought it was okay to work on the basis that “while it mightn’t be right, it’s the best that can be done given what we’ve got.”  Not anymore.
A not so good thing about the regulations is that they don’t allow HIQA look at situations in the round.  Whether what’s in place adds up to a good life for the person seems less important than making sure that things are done in a particular way.  The assumption is that if things are done in line with regulations that this must add up to a good life.  This is far away from being the case.  Indeed, if used very rigidly, these regulations could damage some of the best work that has been done in recent years.

The most welcome feature of regulation is its zero tolerance of what should not be tolerated. A comprehensive 18-outcome inspection immediately surfaces all of the legacy issues which have accumulated and compacted over years – the kind of arrangements which everybody knew were inappropriate, unacceptable; arrangements often euphemistically described as “not being ideal” or “sub-optimal.”

HIQA do not buy into compromises along the lines of isn’t it the best that could be done, given the available resources.  This introduces a powerful and positive dynamic. It tackles head-on the But sure what can be done? brand of inertia and disengagement which has benighted the sector in the past.

How this dynamic is eventually going to play out remains unclear – the necessary corrective action in many cases will require additional resources.  Whether the political commitment exists to provide these resources is not evident.

Regulation has also directed a necessary spotlight on the denial and restriction of the rights of service users.  Inspectors take rights very seriously, in contrast to pre-regulation times when rights were more often the focus of rhetorical genuflection and lip service. Moreover, the consciousness of restrictive practices among families, providers and staff has been hugely enhanced by the emphasis which inspectors bring to bear on this issue.

The grouping together of individuals with significantly different needs and how this impacts on denial of rights (including psychological and physical abuse by service users of one another) has also emerged as a major theme.

A particular feature of the Health Act 2007’s approach to regulation is its detailed prescriptiveness about how services should operate.  This approach to regulation and inspection runs the danger of forcing an exclusive preoccupation with risk assessment, complaints management and recurring cycles of audit, leaving little room for the real work of building ordinary lives.  How many of us direct our own lives or those of family members in this way?

The positive impact of regulation is often compromised by certain shortcomings:

  • tendency to focus in an isolated fashion on a series of individual regulations divorced from a balanced judgement of the overall impact on service users’ lives of the totality of what is being offered;
  • lack of balance (and fair comment) where an accumulation of substantial positive evidence can be nullified by the identification of a single or uncharacteristic failing in an aspect of the “outcome” under review;
  • preoccupation with the details of risk assessment formats and processes, at the expense of a more rounded consideration of the adequacy of risk-control measures;
  • Using language in reports that fails to properly discriminate between the really serious and the not quite as serious – strong or extreme language should be reserved for extreme failings;
  • An overshadowing from the nursing home sector on to the very different ground of supporting individuals to lead regular lives in ordinary homes in community settings.

The particular model of regulation, which has been introduced in Ireland, is based very much on an auditor’s view of the world. Auditors are comfortable with straight lines, standard operating procedures, mechanistic processes – well-polished professional systems. While this works well where the focus is on defending one’s actions in retrospect, it may not be the best way of going about supporting individuals to live life on their own terms.

It also places a huge emphasis on documentation.  The governing preoccupation becomes that of explicitly demonstrating fidelity to process and procedure in delivering services in a professional manner rather than ensuring that the person has a meaningful and fulfilling life. The underlying belief is that if one faithfully goes through the motions of one’s processes and procedures, the desired outcomes will inevitably follow. (In reality, well-oiled bureaucratic carousels are much more likely to lead one round and round rather than onwards and upwards). A huge proportion of staff time and attention is invested in generating the documentary evidence of compliance, which the auditor requires rather than directly working with the person on what really matters to him or her. One of our community offices has recorded an 8-times increase in the volume of paper being bought and used since regulation went live in November 2013!

HIQA indicate that they adopt a triangulated methodology of “what we hear, what we observe, and what is documented.”  Our overwhelming experience is that documentation trumps any other modality of evidence.  Absence of documentation seems never to be off-set by the existence of other forms of evidence.

The commitment to the belief that upgrading the processes and procedures of the conventional model of delivering services to citizens with an intellectual disability will assist people to access self-directed, inclusive lives, is naïve. The evidence base confirms that the conventional model of service delivery drives outcomes that lock people into a parallel world of serviceland. If we tighten the nuts and bolts of the existing model and better oil its moving parts, surely we will get an even more watertight version of what we already know that we need to get away from?

Vision, imagination, personal commitment, an investment in fostering deep relationship, fusing formal and informal modes of action, are the real drivers of impact and positive outcomes. None of these critical success factors lend themselves to standard operating procedures or neat tick-box assurances.

There is a real threat that the current approach to regulation will undermine and unravel many of the models of individualised supports developed in recent years. What would be the capacity of the current regulatory regime to recognise good work / good support pursued by non-traditional and innovative means? 

This is not an argument for returning to a world without regulation – rather, we need to develop a model of regulation that is fit-for-purpose, that is aligned with and can drive the commitment set out in national policy to build self-directed and inclusive futures for persons with disability; a model that is neither primarily focused on reinforcing the service system’s ability to justify and defend its actions, nor embedded in a deeply paternalistic concept of duty of care.

Brendan Broderick is CEO of Muiriosa Foundation, Moore Abbey, Monasterevin, Co. Kildare

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