Learning from Failure: NESC Report on Regulating Residential Care for Older People

Policy failures often lead to regulatory reform. In a pathbreaking new study the National Economic and Social Council have published their evaluation of the regulatory regime over residential care homes for the elderly in Ireland, examining closely the regime put in place following the Leas Cross scandal of 2005. Serious failings both of provision and oversight at Leas Cross, uncovered in a RTE Prime Time investigation, led to considerable soul searching about the care of the elderly, and the establishment of a new independent regulator, the Health Information and Quality Authority.

The report makes for very interesting reading. Substantively it finds evidence of demanding standards being effectively applied both by providers across public, private and voluntary sectors, and by the regulator. It provides pointers as to how the regime might be further enhanced, but notes that confidence in the sector has already been significantly enhanced.  Of greater general signficance is an approach to the research which asks to what extent there is evidence of a search for continous improvement both in provision and regulation of services. Within this analysis regulation is no longer a zero sum game of government imposing costs on businesses. Rather it is a shared process of learning about what can and should be done.

The report is one of a number of reports which NESC is publishing on the regulation of human services in Ireland. Taken together they are likely to offer a sea change in the evaulation of regulatory governance, creating expectations that regulators should be responsive and smart and above all capable both of learning and supporting the learning of regulatees. The approach, developed from cutting edge regulatory research internationally, could usefully be applied across both economic and social regulation as starting point for effectively evaluating regulatory performance.

Author: Colin Scott

Colin Scott is Principal, UCD College of Social Sciences and Law and Professor of EU Regulation and Governance at UCD. He is a Co-Editor of Legal Studies (Wiley-Blackwell).

7 thoughts on “Learning from Failure: NESC Report on Regulating Residential Care for Older People”

  1. Just read the exec summary. Yes, this is certainly progress. I’m more in favour of the ‘community approach’ to elder care – and since the Harney era the ‘profit motive’ has entered all equations and the fact that 10 have been closed probably hightlights where this motive has superceded the motive of patient care.

    I’m looking forward to the report on ‘home care’ or ‘home help’ from NESC. Again the private sector has entered here – and I’m not sure that this is a good move. When carers are recruited from the local community – and where those being cared for probably know the carer – there are immense intangible values – newz on local issues – how GAA teams do, who is married, who has died, and scandals etc and I fail to see how this service could not be provided on a community basis with relevant training, the district nurse and a good administrator running the show. Again with private sector involved regulation becomes more pressing as a person centred, as distinct from commodified object profit source, approach needs to be stressed. The Economic benefits are well known, and I have seen how community based approaches can be highly successful and humanistic. Yet, this area is targetted for cuts ……………….!!

  2. @Roisín Shorthall

    Well done! Well said!

    @Colin Scott

    Continues to amaze me that posts on regulation receive such few contributions on this blog. Especially considerinig the lessons that must surely be learned from the lack of regulation in the past and more recent past. That said, keep up the good work.

  3. I think the lack of comments on this threat illustrates part of the problem of relying on regulation. Very few who are not in some way ‘insiders’ have insight and anything worth saying. Those who aren’t see an apparently competent attempt at regulation and of it looks vaguely plausible, they run with it.

    Things like reconciling residents who have to be effectively locked in with the most basic safeguard for them along with other residents – which is unannounced visits by friends and relatives – is key. Another is that staff, whether doctors, nurses, or caters all have the status of “professionals” and any complaint from a resident is automatically undermined to some extent by the fact that they do not have such a status. Very often complaints can be instantly undermined by “oh, his/her memory isn’t so good these days”.

    Concerns of relatives are often met by the question “are you medically trained?” and this line alone usually bats any complaint away for quite a while.

    People in the “industry” know that questions like these are what dictate where the power lies and they are not easily solvable by regulation.

  4. @grumpy
    I think these issues are well brought out by the NESC report, which emphasises that a hierarchical regulatory approach by itself is unlikely to deliver high quality caring environments and they found much in the HIQA strategy to praise in terms of drawing providers in to better understanding what they should be doing. Many who know about regulation would say that this is true for other social and economic sectors also.

  5. In most social and economic sectors what really matters is the attitudes, behaviour, principles and integrity of the people on the coal face.

    Quite a while ago I came across a situation where a private client of a stockbroker had been advised to sell up a diversified portfolio and invest the proceeds in a 10 year insurance bond, The client was in his seventies. The insurance product paid a high commission to the broker. The client incurred a significant GCT liability when the original portfolio was sold. The bonds in question have hefty early redemption penalties. I’m sure you can work it out.

    The broker’s colleagues found out about this and were outraged at a personal level. He was forced to return all the commission, the firm stood the CGT bill and his name was mud thereafter. He had breached no regulation.

    Five years later I came upon a similar example in an Irish bank. The bank baked its employee to the hilt.

    About seven years later there was a Primetime investigation into exactly this process. RTE journalists were amazed this was going on, but even then the regulator could not be summoned into confrontation with the banks and brokers who were doing this.

    In the first case, the presence and wording of regulations were completely irrelevant because of the integrity of the people involved. In the second and third, the only thing that mattered was whether, after proof of inappropriate advise had been established by complainants, there was any doubt at all in favour of those complained against – in which case the regulator would gladly back off.

  6. @grumpy

    Sadly, I have seen many instances like this in the financial services sector and older people are often the target, being sold totally inappropriate products such as the 10 year bond example you mention above.

    All the regulation in the world isn’t going to stop this actually happening (and in most cases, they have to be caught before anything does happen about it – and a lot don’t get caught) because you get some right sharks in suits drawn towards the world of so-called financial planning. Commission is partly to blame but so is recruitment, training and policing: not just by the FR but by the product providers too. It was a lot easier to control what an employed salesforce were doing but many have ditched that model now and rely on independent (?) brokers for their distribution… and providers are more interested in fawning over them than controlling them.

    I think the UK is moving the right way with RDR (retail distribution review) but I have my doubts whether vested interests will allow anything like that to happen here in the short term.

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