The authors of this book have drawn on a wealth of research (and practical) experience to address the nature of regulatory governance. Over the years, they have scrutinised regulatory practices in such diverse areas as coal-mine safety, corporate crime, nursing-home regulation, and tax avoidance and evasion. In this book, they have drawn on the aged-care literature together with their own extensive studies of nursing-home provision in Australia, England and the United States, to test the appropriateness of regulatory regimes in terms of the quality of care provided to frail older people in institutional settings. They are concerned to promote a regulatory regime that enhances quality and assists empowerment of both residents and care staff, i.e. a regenerative culture.
The central theoretical concern focuses on the idea of regulatory ritualism and its key role in regulatory capitalism. The authors argue that regulatory capitalism seems the right name for ‘an enhanced role for markets (and) also for regulation’ (p. 74). Richard Nixon, Margaret Thatcher and John Howard are all examples of government leaders who have introduced ‘more capitalism, more regulation’ (p. 219). Regulatory ritualism draws on Merton's (1908) ideas to show how institutions adapt to a normative order. Of five modes of adaptation, ritualism refers to the ‘acceptance of institutionalised means for securing regulatory goals while losing all focus on achieving the goals or outcomes themselves’ (p. 7). The authors seek to address the challenge of regulatory ritualism by going beyond the forced imposition of solutions, such as adherence to fixed standards. They put forward a plausible case for ‘a new strengths-building pyramid of regulation to complement the old problem-fixing pyramid’ (ibid.). A strengths-based campaign is ‘where informal praise rather than formal fines (is) the key regulatory tool’ (p. 86). At the core of this argument is Valerie Braithwaite's idea of a motivational posture, that is, commitment to the regulatory order, which could underpin a challenge to the prevalence of regulatory ritualism in the care of frail older people.
The book has two parts. ‘Nursing home inspection observed’ summarises the data on nursing-home regulation in the three countries under scrutiny; and ‘Rethinking regulation and governance’ addresses the theme of the pathology of regulatory ritualism, whilst acknowledging that individual providers, as well as advocacy groups, can transcend ritualism and transform the quality of care. The penultimate chapter uses the notion of motivational postures to develop a response to regulatory ritualism, whilst the final chapter outlines the idea of a pyramid of support to complement a pyramid of sanctions, such that a network of different types of control is created. Three of the six chapters in Part I focus on the United States. They recount the familiar story of scandals and abuses from the 1950s to the 1970s, followed by the imposition of stringent regulation and inspection systems. The Braithwaites themselves undertook extensive studies of the US nursing-home industry between the mid-1980s and the mid-2000s, and concluded that there had been improvements over time, such as the reduced use of physical restraint, but the quality of life was still a matter of great concern. The response by managers and staff to frequent inspections was more capitulation then commitment. Records were at times falsified to try to reflect a ‘better’ level of care. From an analysis of regulatory strategies in the US, however, the authors found evidence of positive practices that had enhanced the quality of care, going beyond ritualism to identify outcome-oriented endeavours. Some inspectors were characterised as acting as street-level bureaucrats to address problems of care quality.
The chapter on English nursing-home regulation provides a marked contrast. Whilst the amount of primary research has been less than in the US and although some of the key investigations were undertaken in the late 1980s and early 1990s, nevertheless the contrast between hierarchical enforcement in the US and the extent of individual inspectorial discretion in England is clearly described. Responsive regulatory principles were deployed. The authors comment that some quality standards were not followed in the rigorous manner that would be the case in the US (food was one example), but they assert that they ‘would rather end up in the English nursing homes we visited … than the Australian homes and, even more so, most of the US homes we saw’ (p. 167). However, they are scornful of the ‘crazy British history of constant restructuring of the inspectorates’ (ibid.), which resulted in the street-level inspectors continuing to keep things under local control ‘in more or less the way they always had been’ (p. 161). Yet another story unfolds in the chapter on Australia. A standards monitoring system run at federal government level took over from state-run practices in 1987, and a decade later an accreditation system was introduced after a change in government. It focused on continuous improvement (CI) as a strengths-based regulatory strategy. The authors concluded that professional ‘pride’ delivers CI in most cases but professional ‘shame’ has to be deployed (a problem-based strategy) where no CI can be demonstrated over time.
Part II addresses ritualism in regulatory capitalism and how it could be overcome. Chapter 7 identifies 10 forms of ritualism, one of which – market ritualism – is the theme of Chapter 8. Several kinds of regulatory ritualism can be found in any one example, emphasising appearances of control rather than the substance. ‘More rules are the dominant path of regulatory growth … the Illinois code for nursing homes included over 5,000 quality-of-care regulations in the 1980s’ (pp. 222–3). The application of 31 broad and vague Australian standards was seen as producing better resident-centred outcomes, reflecting the seven quality of life principles of the standards: health-care, social independence, freedom of choice, homelike environment, privacy and dignity, variety of experience and safety. So the authors comment that standards for nursing homes would be more reliable if they were broad, simple principles and few. The Commission for Social Care Inspection in England can arguably be seen to be moving in this direction in the ‘Inspecting for Better Lives’ initiative (see http://www.csci.org.uk/). Chapter 8 examines creative compliance in market ritualism, such as attitudes to league tables or to systems of rewards. Chapter 9, ‘Transcending ritualism’, examines the potential through deliberative fora for actors to take active responsibility rather than just to be held accountable for the quality of care: ‘Commitment is the antithesis of ritualism’ (p. 294).
The last chapter summarises the literature that develops the case that trust, praise and non-threatening advice and guidance lead organisations to improve compliance with standards rather than systems of deterrence or punishment, such as fines or deregistration, and that shows that the engagement of third parties, such as advocacy organisations or relatives of residents, is also influential. These form active multi-dimensional interventions in a networked society, so multiple strategies can be layered into a pyramid. A regulatory pyramid moves from persuasion at the base to coercion at the top, but a networked pyramid addresses enforcement ‘by widening their networks to the regulatory capabilities of other actors, progressively enrolled at escalating layers of their pyramid’ (p. 315). This networked pyramid can turn into a strengths-based pyramid by focusing on praise and incentives rather than sanctions. Thus, it is argued that a dual pyramid solution of both sanctions and rewards is required. The outcome is ‘a considerable departure from existing regulatory practices in all three countries’ (p. 319). Practice, however, can be ahead of theory in laying a foundation for strengths-based and risk-based pyramids that are linked at their bases.
The conclusion of the last chapter takes the argument further by saying that the focus on a strengths-based pyramid as well as a problem-fixing enforcement pyramid provides grounds for the empowerment of residents and the transformation of the traditionally low-status workforce. For the US, the authors call for ‘a redemptive politics for the feminized working poor’ (p. 326). Improvements in the working conditions and status of nursing-home staff would benefit frail residents, and the latter could ‘mentor and encourage the staff’ (p. 327) in a way that would support a move to enhanced staff status. This roller-coaster of a book argues for a combination of hierarchical sanctions and networked incentives to improve quality of life for both residents and staff in nursing homes. To achieve this requires the application of a few broad standards rather than a host of detailed regulations. In addition, homes need to be smaller rather than larger, which must be one reason why the authors would prefer to end up in an English nursing home rather than one in Australia or the United States.
