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What Might Be Required for Inspections to Be Considered Fair?; Lies Behind Successful Regulation? A Qualitative Evaluation of Pilot Implementation of Kenya’s Health Facility Inspection Reforms”

Tama et al. offer us an interesting analysis of a piloted regulatory reform that introduced a Joint Health Inspections system in three Kenyan counties. The study highlights key factors facilitating or hindering the implementation of the reform. In this commentary we reflect on the concept of fairness, which is one of the topics that is discussed in the study. We describe four important dimensions of fairness in the context of inspections: expectation clarity, consistency of assessment, consistency of enforcement, and fairness to patients. We argue that all four dimensions are important in the regulatory design, in order for the inspection to be perceived as fair.

external reviews are being employed in order to strengthen governance and improve quality and safety for patients. 2 Though there are many different varieties of such frameworks, most include components of standard-setting, information-gathering, and behavior-modification, as described in a study by Hood and collegues. 3 Tama et al.'s 4 study of the pilot implementations of the Joint Health Inspection (JHI) in Kenyan health facilities offers a perspective that should be welcomed by the research community as a valuable addition to the literature on inspections. If we are to understand how, why, and when regulatory interventions work, we need to understand the contexts they operate within. 5 The existing literature on regulation from resource limited countries has been sparse, and a vast majority of research on external reviews has been carried out in Western Europe, USA, and Australia. We therefore clearly need more studies that can shed light on how inspections work in low-and middle-income countries (LMCIs), and especially ones that account for barriers and constraints particular to the LMCIs. Furthermore, our ideas of how inspections work likely rest on taken-for-granted assumptions regarding the health systems and societies that inspections take place in. By producing accounts that can be compared to those from higher-income settings, studies of inspections in LMCIs can bring deeper insight into the phenomenon of inspections in itself and help us better understand which factors that are important in order to design more effective inspections.
Seeking to identify factors that facilitate or hinder implementation, Tama et al. interviewed staff from national, county, and facility level who had been involved in the JHI. Fairness in the inspection process emerges as one of the central themes of their study. Fairness was emphasized in the design of the JHI, and the staff reported that they generally felt the inspections to be fair, and more so than the previous inspection system.
In and of itself, fairness is a laudable objective. Fairness is also important for the functioning of regulatory work. Unfairness is a common complaint whenever regulatory efforts are criticized, and the perception that inspections are unfair can preclude, among other things, voluntary compliance. 6 But how should we think about fairness in the context of inspection work, and what does it take for inspections to be considered fair? Fairness is a complex and multifaceted concept. We take as our starting point that fairness requires acting impartially and that fair actions and judgements should adhere to the formal principle of equality: Differential treatment is only permissible when cases differ in ways relevant to the situation. 7 Now deciding what is relevant to the situation can of course be both difficult and contentious.
As a practical contribution to moral reasoning and analysis in the context of inspections, we outline four dimensions of fairness. These dimensions are related to each of the three components of standard-setting, information-gathering, and behavior-modification. 3 Additionally, recognizing that a main objective of inspections is the protection and improvement of public health and safety, we include fairness to the patients as a fourth

Four Dimensions of Fairness
One important dimension of fairness is expectation clarity. This is related to the component of standard-setting. The "rules of the game", standards, responsibilities, and penalties should be clearly stated. 8 The inspected organizations should know beforehand what criteria they might be judged against. This does not mean that the inspection criteria should be set in stone. The inspection authorities should be free to prioritize the theme of the inspection. If the inspection authorities always choose the same criteria or indicators, there is an increased risk of "gaming", where the inspected organizations artificially boost the indicators prior to inspection either through directly falsification of numbers or through deliberate, often shortterm, increased action that results in temporarily improved indicators that do not reflect an actual improvement in the overall care for the patients. 9 However, the criteria chosen by the inspection authorities should be related to the stated goals for the sector, and these goals should be clearly communicated to the inspected organizations.
Another dimension, this one related to information-gathering, is consistency of assessments. Moreover, sometimes there will be side effects of inspections that disadvantage the patients.
Herein lies some potentially vexing dilemmas for the inspection authorities. In some instances, regulatory requirements need to take priority over the immediate interests of patients. A case in point is the potential negative impact of closure on access, which was one of the issues raised in Tama et al.'s study. A shutdown of a facility will mean the discontinuation of services for their patients. If they have no alternative to this facility, this could result in an unfair outcome for those patients even if all other aspects of the inspection have been conducted fairly.