Office of Public Sector Information
PART 1 continued
(1) If the Commission decides to grant unconditionally an application made under section 7 of this Act or to grant such application subject only to a condition which has been agreed in writing between the Commission and the applicant, it shall give the applicant notice of its decision.
(2) A notice under subsection (1) above shall state the agreed condition.
(3) If the Commission decides to implement a proposal in relation to which it has given a person a condition notice or a notice under section 15 of this Act, it shall give that person notice of the decision.
(4) A notice under subsection (3) above shall—
(a) explain the right of appeal conferred by section 20 of this Act; and
(b) in the case of a decision to implement a proposal—
(i) in relation to which a condition notice has been given, state the condition as varied, the condition which is removed or (as the case may be) the additional condition imposed; or
(ii) of which notice has been given under subsection (1)(a) of section 15 of this Act, state the condition subject to which the application is granted.
(5) Subject to subsection (6) below, a decision to implement a proposal in relation to which a condition notice has been given or of which notice has been given under subsection (1)(a) or (2) of the said section 15 shall not take effect—
(a) if no appeal is brought, until the period of fourteen days referred to in section 20(1) of this Act has elapsed; and
(b) if an appeal is brought, until that appeal is finally determined or is abandoned.
(6) Where the decision is to implement a proposal of which notice has been given under subsection (1)(a) of section 15 of this Act and the applicant notifies the Commission in writing, before the period of fourteen days referred to in section 20(1) of this Act has elapsed, that there will be no appeal, the decision shall take effect on receipt of that notification.
(1) The Commission may make summary application to the sheriff for an order—
(a) cancelling the registration under this Part of a care service;
(b) varying or removing any condition for the time being in force in relation to the registration; or
(c) imposing an additional condition in relation to the registration,
and if it appears to the sheriff that, unless the order is made, there will be a serious risk to some other person’s life, health or well-being the application may be granted.
(2) As soon as practicable after the Commission makes an application under subsection (1) above, it shall so notify the appropriate authorities.
(3) Where the order applied for is made, the Commission shall as soon as practicable thereafter give a copy of it to the person who provides the care service.
(4) For the purposes of this section the appropriate authorities are—
(a) each—
(i) local authority; and
(ii) health board,
within whose area the care service is provided; and
(b) any statutory authority not mentioned in paragraph (a) above whom the Commission thinks it appropriate to notify.
(5) In subsection (4)(b) above, “statutory authority” means a body established by or under an enactment.
Without prejudice to the generality of section 9(1), 13(1) or 18(1)(c) of this Act, a condition imposed under any of those provisions in relation to a care service may limit—
(a) in the case of—
(i) a care home service;
(ii) a school care accommodation service; or
(iii) a secure accommodation service,
the number of persons for whom the service may provide accommodation;
(b) in the case of an adult placement service, the number of persons whom the service may place;
(c) in the case of—
(i) a support service; or
(ii) an independent health care service,
the number of persons to whom the service may be provided;
(d) in the case of—
(i) child minding; or
(ii) day care of children,
the number of children for whom a person may act as a child minder or for whom day care may be provided; and
(e) in the case of a nurse agency, the number of persons for whom the agency may supply registered nurses, registered midwives or registered health visitors.
(1) A person given notice under section 17(3) of this Act of a decision to implement a proposal may, within fourteen days after that notice is given, appeal to the sheriff against the decision.
(2) The sheriff may, on appeal under subsection (1) above, confirm the decision or direct that it shall not have effect; and where the registration is not to be cancelled may (either or both)—
(a) vary or remove any condition for the time being in force in relation to the registration;
(b) impose an additional condition in relation to the registration.
(1) Any person who—
(a) provides a care service while it is not registered under this Part; or
(b) with intent to deceive, pretends that a care service is registered under this Part,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months or to both.
(2) Any person who fails to comply with section 9(4) of this Act shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.
(3) Subsection (1)(a) above does not apply as respects actings which—
(a) constitute an offence under section 11 of the Adoption (Scotland) Act 1978 (c. 28); or
(b) fall within the exception provided for in subsection (1) of that section.
Any person who, in an application—
(a) for registration under this Part; or
(b) for variation or removal of a condition in force in relation to a registration under this Part,
knowingly makes a statement which is false or misleading in a material respect shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Where an offence under this Part, or under regulations made under this Part, committed by—
(a) a body corporate other than a local authority, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—
(i) is a director, manager or secretary of the body corporate; or
(ii) purports to act in any such capacity;
(b) a local authority, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—
(i) is an officer or member of the authority; or
(ii) purports to act in any such capacity;
(c) a firm, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—
(i) is a partner in the firm; or
(ii) purports to act in that capacity;
(d) an unincorporated association other than a firm, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—
(i) is concerned in the management or control of the association; or
(ii) purports to act in the capacity of a person so concerned;
the person (as well as the body corporate or as the case may be the local authority, firm or association) is guilty of the offence and is liable to be proceeded against and punished accordingly.
(1) The Scottish Ministers, after consulting such persons, or groups of persons, as they consider appropriate on the potential effect of so prescribing on the services which the persons, or persons they represent, provide, may prescribe—
(a) maximum fees which may be imposed by the Commission under this section; and
(b) circumstances in which fees so imposed shall or shall not be payable.
(2) Subject to the provisions of this section, the Commission shall impose fees in respect of—
(a) any application made for registration under this Part or Part 2 of this Act or for cancellation of any such registration;
(b) the annual continuation of any such registration;
(c) any application made for the variation or removal of a condition for the time being in force in relation to any such registration;
(d) issuing to a person a new certificate of registration—
(i) at the instance of that person;
(ii) by virtue of any application under this Part or that Part by that person; or
(iii) by virtue of any new information provided by that person in pursuance of regulations under this Part or that Part.
(3) Without prejudice to subsection (1) above—
(a) the Commission shall, in fixing fees under this section, have regard to its reasonable expenses in carrying out its functions under this Act; but
(b) where it appears to the Commission to be appropriate it may charge a nominal fee, or remit the fee altogether.
(1) The Commission may at any time require a person providing a registered care service to supply it with any information relating to the service which it considers necessary or expedient to have for the purposes of its functions under this Act.
(2) A person authorised by the Commission (in this section and in sections 26 and 27 of this Act referred to as an “authorised person”) may—
(a) inspect any care service; and
(b) at any time enter and inspect premises which are used, or which the person has reasonable cause to believe are used, for the purpose of providing any such service.
(3) The Commission shall secure, in relation to the services mentioned in subsection (4) below—
(a) that the powers conferred by subsection (2)(a) above are exercised—
(i) at least twice in the period of twelve months which immediately follows registration; and
(ii) at least twice in each subsequent period of twelve months; and
(b) that at least one such exercise in each of those periods is without any prior notification.
(4) The services mentioned are—
(a) a care home service;
(b) a school care accommodation service;
(c) a secure accommodation service; and
(d) an independent health care service which provides overnight accommodation,
whether registered under this Part or Part 2 of this Act.
(5) The Commission shall secure, in relation to each service registered under this Part or Part 2 of this Act which is not a service mentioned in subsection (4) above—
(a) that the powers conferred by subsection (2)(a) above are exercised at least once in the period of twelve months which immediately follows registration; and
(b) that after an exercise of the powers so conferred no greater period than twelve months elapses before those powers are again exercised.
(6) The authorised person may—
(a) make any examination into and conduct any interview as regards—
(i) the state and management of the service or of such premises; and
(ii) the treatment of persons cared for by the service or cared for or accommodated in such premises,
which the authorised person thinks appropriate;
(b) inspect and take copies of any documents or records (other than medical records) which regulations under this Act, section 9 of the Adoption (Scotland) Act 1978 (c. 28) or section 1(3) of the Adoption (Intercountry Aspects) Act 1999 (c. 18) require to be kept;
(c) without prejudice to the generality of paragraph (a) above, interview in private—
(i) the manager of the service or of such premises;
(ii) the person providing the service;
(iii) any person employed by the service or in such premises; or
(iv) any person who is cared for by the service or cared for or accommodated in such premises and who consents to be interviewed.
(7) An interview is in private for the purposes of subsection (6)(c)(iv) above even if conducted in the presence of—
(a) a guardian, continuing attorney or welfare attorney of the person interviewed; or
(b) provided that the person interviewed so wishes and the authorised person does not object, some other person.
(8) The powers conferred by subsection (6)(b) above include—
(a) power to require—
(i) the manager of the service or of such premises; or
(ii) the person providing the service,
to produce any document or record, wherever kept, for inspection at an office of the service or on those premises; and
(b) in relation to records which are kept by electronic means, power to require a copy of the records to be produced in a form which is legible and can be taken away.
(9) Where the authorised person—
(a) is a medical practitioner or a registered nurse; and
(b) has reasonable cause to believe that a person cared for by the service or accommodated in such premises is not receiving proper care,
the authorised person may (either or both)—
(i) conduct in private an appropriate examination of, and with the consent of;
(ii) inspect any medical records relating to the treatment, by the service or in the premises, of,
the person so cared for or accommodated.
(10) Where the authorised person—
(a) is a registered dentist (as defined in section 53(1) of the Dentists Act 1984 (c. 24)); and
(b) has reasonable cause to believe that a person cared for by the service or accommodated in such premises is not receiving proper dental care,
the authorised person may (either or both)—
(i) conduct in private a dental examination of, and with the consent of;
(ii) inspect any dental records relating to the treatment, by the service or in the premises, of,
the person so cared for or accommodated.
(11) An examination is in private for the purposes of subsection (9)(i) or (10)(i) above even if conducted in the presence of a third party provided that—
(a) the person examined so wishes and the authorised person does not object; or
(b) the authorised person so wishes and the person examined consents,
to its being so conducted.
(12) A person who proposes to exercise any power of entry or inspection conferred by this section shall, if so required, produce some duly authenticated document showing that the Commission has given the requisite authority.
(13) Any person who—
(a) obstructs, intentionally, the exercise of any power conferred by this section or by section 27 of this Act; or
(b) fails, without reasonable excuse, to comply with any requirement imposed under this or that section,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(14) In—
(a) subsection (7)(a) above, “guardian”, “continuing attorney” and “welfare attorney” have the same meanings as in section 1(4)(c)(i) of the Adults with Incapacity (Scotland) Act 2000 (asp 4);
(b) subsection (9)(i) above, “appropriate examination” means, where the authorised person is—
(i) a medical practitioner, a medical examination (whether or not including a physical examination); or
(ii) a registered nurse, a physical examination; and
(c) subsections (9), (10) and (11)(b) above, “consent” means consent in so far as the person examined is capable of giving consent.
(1) The Commission and Her Majesty’s inspectors shall collaborate in matters relating to the regulation and inspection of such care services as are mentioned in paragraphs (a) to (c) of subsection (2) below.
(2) The care services are—
(a) a school care accommodation service;
(b) a secure accommodation service; and
(c) day care of children which is to any extent provided in the form of an educational activity.
(3) In subsection (1) above, “Her Majesty’s inspectors” has the same meaning as in the Education (Scotland) Act 1980 (c. 44).
(1) An authorised person who has reasonable grounds to believe that a document or other material or thing found in premises which, under section 25 of this Act, that person is entitled to enter and inspect may be evidence of a failure to comply with any condition or requirement imposed by or under this Act, may seize and remove that document, material or thing.
(2) An authorised person may—
(a) require any other person to afford such facilities and assistance with respect to matters within that other person’s control as are necessary to enable the authorised person to exercise powers under the said section 25 or this section; and
(b) take such measurements and photographs and make such recordings as the authorised person considers necessary for the exercise of those powers.
(3) An authorised person is entitled to have access to, and to check the operation of, any computer and any associated apparatus which is or has been in use in connection with records which the authorised person is entitled to inspect.
(4) The reference in section 25 of this Act to a person providing a care service includes, in the case of a service which is provided by a body corporate, a reference to a director, manager, secretary or other similar officer of the body.
(5) Where a care service has been inspected under section 25(2) of this Act, the Commission—
(a) shall prepare a report on the matters inspected; and
(b) shall without delay send a copy of that report to the person providing that service.
(6) Before finalising a report prepared under subsection (5) above, the Commission shall give the person providing the service inspected an opportunity of commenting on a draft of the report.
(7) The Commission shall make copies of any report prepared under subsection (5) above available for inspection at its offices by any person at any reasonable time; and it shall take such other steps as it considers appropriate for publicising any such report.
(8) A person who asks the Commission for a copy of any such report shall be entitled to have one on payment of a reasonable fee determined by the Commission; but nothing in this subsection prevents the Commission from providing a copy free of charge if it considers that to do so would be appropriate.
(9) Copies of any report made available for inspection by a person at the Commission’s offices under subsection (7) above, or provided to a person under subsection (8) above, shall be made available or provided in such a form as the person may reasonably request.
(1) Regulations may—
(a) confer additional functions on the Commission;
(b) make provision about the keeping of registers by the Commission;
(c) make provision about registration under this Part or Part 2 of this Act and in particular about—
(i) the making of applications for such registration;
(ii) the content of certificates of registration; or
(iii) categories of applicant who cannot competently make certain applications;
(d) require the Commission to secure that, on such conditions, in such circumstances and, subject to subsection (2) below, on the payment of such fees as may be specified in the regulations, any person shall be afforded access to, and provided with a copy of an entry in or with an extract from, a register kept by the Commission; or
(e) except such part of a register as may be specified in the regulations from any requirement made by virtue of paragraph (d) above.
(2) Regulations under paragraph (d) of subsection (1) above may specify circumstances in which the fees mentioned in that paragraph shall not be payable; and the fees shall in any event not be payable in any case where the Commission considers it appropriate to provide the copy or extract in question free of charge.
(3) Before the Scottish Ministers make regulations under subsection (1) above, they shall consult such persons, or groups of persons, as they consider appropriate.
(1) Regulations may impose, in relation to care services, any requirements which the Scottish Ministers think fit for the purposes of this Act and may in particular make any provision such as is mentioned in subsection (2), (7) or (9) below.
(2) Without prejudice to the generality of subsection (1) above, regulations may—
(a) make provision as to the persons who are fit to provide, or act as manager in relation to, a care service;
(b) make provision as to the persons who are fit to be employed in the provision of a care service;
(c) make provision as to the fitness of premises to be used for the provision of a care service;
(d) in relation to child minding, require that no person lives, or is likely to live, at the domestic premises to be used for the provision of the service who is not fit to be in the proximity of children;
(e) make provision for securing the welfare of persons provided with a care service;
(f) make provision as to the management and control of operations carried out in the course of providing a care service;
(g) make provision as to the numbers of persons, or persons of any particular category, working at premises where a care service is provided or for the purposes of an agency providing such a service;
(h) make provision as to the management and training of such persons as are mentioned in paragraph (g) above;
(i) impose requirements as to the financial position of a provider of care services;
(j) require that a person acting as a medical practitioner, or in such other professional capacity as may be specified in the regulations, for persons provided with a care service shall not have a financial interest in that service;
(k) require the provider of a care service to appoint a manager in such circumstances as may be specified in the regulations; or
(l) require any person to whom subsection (3) below applies—
(i) to notify the Commission accordingly; and
(ii) to appoint a person to manage the care service in question.
(3) This subsection applies to any person appointed as—
(a) a receiver of the property of a company which is a person providing a service registered under this Part;
(b) the liquidator or provisional liquidator of such a company;
(c) the supervisor of a voluntary arrangement of such a company under Part I of the Insolvency Act 1986 (c. 45) or the administrator of such a company appointed under Part II of that Act; or
(d) the permanent trustee or interim trustee (within the meaning of the Bankruptcy (Scotland) Act 1985 (c. 66)) appointed in respect of a person providing a service registered under this Part.
(4) Regulations under paragraph (a) of subsection (2) above may, in particular, make provision for prohibiting a person from acting as manager unless registered in, or in a particular part of, a register maintained by the Scottish Social Services Council.
(5) Regulations under paragraph (b) of that subsection may, in particular, make provision for prohibiting a person from working, in the provision of a care service, in any such position as may be specified in the regulations unless registered as is mentioned in subsection (4) above.
(6) Regulations under paragraph (e) of that subsection may, in particular, make provision—
(a) as to—
(i) the promotion; and
(ii) the protection,
of the health of the persons in question;
(b) for making available in premises where a care service is provided any service provided under or by virtue of the National Health Service (Scotland) Act 1978 (c. 29); and
(c) as to the control and restraint of such persons.
(7) Regulations may make provision as to how the provision of care services is to be conducted, and such regulations may in particular—
(a) make provision as to facilities and particular services to be provided;
(b) make provision as to the keeping of accounts;
(c) make provision as to the keeping of documents and records;
(d) require a person providing a care service to make returns to the Commission at such intervals as may be specified in the regulations;
(e) make provision as to the contents of a return made by virtue of paragraph (d) above and the period in respect of which and date by which the return is to be made;
(f) make provision as to the notification of any event—
(i) arising out of or in the course of; or
(ii) occurring in relation to,
the provision of a care service;
(g) require the giving of notice by the person providing a care service of any period during which the manager of the service proposes to be absent;
(h) specify the information to be supplied in giving such notice as is mentioned in paragraph (g) above;
(i) provide for the making of adequate arrangements for the running of a care service during any period when the manager is absent;
(j) require the person providing a care service to give notice of any change in the identity of the manager;
(k) without prejudice to paragraph (m) below, require—
(i) the person providing a care service to give notice of any intended change which will result in the service being provided, instead, by a different person; or
(ii) where an unforeseen change has had the result mentioned in sub-paragraph (i) above, the person who in consequence of that change is providing a care service to give notice accordingly;
(l) where an individual who has been providing a care service dies and no other person is providing the service, require the personal representatives of the individual to give notice of the death;
(m) require the person providing a care service, if that person is—
(i) a body corporate, to give notice of any change in the ownership of the body or of the identity of its officers; or
(ii) a firm, to give notice of any change in the identity of the persons who are its partners;
(n) require—
(i) arrangements to be made, by the person providing, or managing the provision of, a care service, for dealing with complaints made by or on behalf of those provided with, or seeking to be provided with, that service; and
(ii) that person to take steps to publicise such arrangements; or
(o) require a person who provides, or manages, an independent health care service, to make arrangements for securing that—
(i) any medical or psychiatric treatments; or
(ii) services such as are mentioned in subsection (8) below,
provided in or for the purposes of the hospital or clinic or (as the case may be) for the purposes of the agency, are of appropriate quality and meet appropriate standards.
(8) For the purposes of subsection (7)(o)(ii) above, the services are—
(a) medical treatment under—
(i) anaesthesia; or
(ii) sedation;
(b) dental treatment under—
(i) general anaesthesia; or
(ii) sedation;
(c) palliative care;
(d) obstetric services and, in connection with childbirth, medical services;
(e) termination of pregnancies;
(f) cosmetic surgery; and
(g) treatment using such—
(i) techniques; or
(ii) technology,
as may be specified in the regulations.
Regulation of Care (Scotland) Act 2001