Section 10: Improvement notices

56. This section gives the Commission the power to serve an improvement notice on a care service. Such a notice will specify the improvements required to bring a care service up to the standards required and the timescale for meeting these standards.

57. For services registered under Part 1, subsection (1)(a) provides for the Commission to warn that if the necessary improvements are not made within the time allowed the Commission intends to begin procedures under section 12 to cancel a service's registration. Subsection (1)(b) provides for the Commission to warn that if improvement notices served on local authority adoption and fostering services and other services registered under Part 2 are not complied with the Commission intends to make a report to Scottish Ministers under section 41.

58. There may be cases where a voluntary or private sector service commissioned by a local authority is essential to the fulfilment of a local authority duty. Local authorities ought to have warning of the possibility of the registration of such services being cancelled. Subsection (2) therefore provides that when an improvement notice is given to a non-local authority service, the local authority should be informed.

59. Improvement notices do not form part of the urgent cancellation procedure set out in section 18.

Section 11: Special provision for certain care services provided by local authorities

60. This section adds to the provisions on improvement notices for local authority services registered under Part 1 to cover cases where the local authority considers that withdrawal of registration would place it in breach of a statutory duty.

61. Subsection (1) requires such a local authority to inform the Commission of its view within 14 days of receiving an improvement notice, giving the reasons. Subsection (2) requires the Commission then to copy the improvement notice to Ministers with the local authority's argument and their views on it. Subsection (3) requires Ministers to decide whether the local authority's view is justified. If it is, the care service is deemed to be registered under Part2 and the provisions in that Part in relation to enforcement would apply. If it is not, the normal Part 1 arrangements would apply.

Proposals and applications in relation to registered care services

Section 12: Cancellation of registration

62. This section gives the Commission the power to cancel the registration of a care service registered under Part 1 that, having been issued with an improvement notice under section 10, is still not meeting the relevant requirements. This could be concern about how effectively the care standards are being taken into account or that a condition of registration has been breached or where a relevant offence has been committed. Further grounds for cancelling registration may be prescribed by order.

63. Subsection (2)(a) provides that relevant offences for the purpose of section 12 are:

• an offence under this Act - for example, providing a care service while not being registered (section 21(1)(a)), knowingly making a false or misleading statement when applying for registration or variation or removal of a condition (21(1)(b)), failing to display a current certificate of registration (21(2)) or obstructing an inspector (section 25(13));

• an offence under regulations made under this Act (section 29(11)); or

• any other offence which in the Commission's view makes it

      appropriate to cancel a registration.

64. Registration can be formally cancelled even if a provider closes a care service before the cancellation process is complete. This will ensure that the provider's record accurately reflects the situation and the Commission will be aware of previous history in dealing with any future applications. Again, the Commission must take the national care standards and the Council's codes of practice into account in coming to its decisions.

65. Cancellation of registration would not normally be the first step in a formal enforcement action. It is only likely to be used where the service has not met conditions of registration over time and has ignored the serving of an improvement notice. If a care service provider is convicted of a relevant offence, such as obstructing an inspection and fails to remedy matters at fault, the Commission will be able to cancel registration. These cancellation of registration procedures are not part of the urgent cancellation procedure set out in section 18.

Section 13: Condition notices

66. This section empowers the Commission to impose a "condition notice" on a care service. This notice indicates an intention to vary or remove a condition of registration or impose an additional condition. Condition notices do not form part of the urgent cancellation procedure set out in section 18.

Section 14: Applications under Part 1 in respect of conditions

67. Subsection (1) enables a provider of a care service to apply for a change to their conditions of registration, for example to change the maximum number of people accommodated in a care home, or to apply voluntarily for the cancellation of registration, for example, if they plan to close or sell the business. Subsection (2) prevents a person voluntarily cancelling their registration if the Commission has given notice of intention to, or decided to, cancel registration. Subsection (3) provides that an application shall be accompanied by the fee and that regulations shall say how the application is to be made and what particulars are to be stated in it. Subsection (4) provides that if the Commission grants an application for a change of conditions it must give notice in writing and issue a new certificate of registration.

Section 15: Further provision as respects notice of proposals

68. Subsection (1) provides for the Commission to give notice of decisions it intends to take, in respect of applications for registration made under section 7, if it intends to grant an application subject to conditions or refuse it. For example, in the case of a person applying for registration for the first time, the notice of proposal will state the conditions subject to which the Commission proposes to grant the application.

69. Subsection (2) requires the Commission to give notice if it intends to cancel a registration other than under the emergency procedures set out in section 18(1). Subsection (3) requires the Commission to give notice if it decides to refuse an application for a variation of conditions made under section 14. Such notice must set out the reasons (subsection (4)). Section 15 does not apply where the Commission decides to grant an application for registration unconditionally, or subject to agreed conditions.

Section 16: Right to make representations to Commission as respects proposals under Part 1

70. This section states that a notice given under section 15 must indicate that the person can, if they so wish, make written representations to the Commission within a time limit of 14 days (subsection (1)). This ensures that the applicant has the opportunity to make their point of view known. Subsection (2) provides that the Commission may not implement the terms of the notice until the 14 day period has ended unless they receive representations during the 14 day period or the person notifies the Commission that they will not be making representations. Subsection (3) provides that this section does not apply in respect of condition notices given under section 35.

Section 17: Notice of Commission's decision under Part 1

71. Subsection (1) provides that the Commission should give notice when granting an application for registration unconditionally or subject to a condition that has been agreed in writing between the Commission and the applicant.

72. Subsections (3)-(6) deal with situations where the representations stage has been completed, requiring the Commission to serve a notice in writing of their decision on the applicant. The notice must explain the right of appeal conferred by section 20 and in the case of a decision to grant an application subject to conditions or to vary conditions, set out those conditions. A decision to cancel registration, to grant an application subject to conditions which are not agreed, or to change conditions will take effect only after the outcome of any appeal has been determined, or after 14 days if no appeal is brought. In the case of a decision to grant an application subject to conditions which are not agreed, if the applicant decides not to pursue an appeal the decision will take effect immediately.

Section 18: Urgent procedures for cancellation of registration etc.

73. This section provides that the Commission may apply to a sheriff for the immediate cancellation of registration or change in the conditions of registration of a care service. The sheriff may only make the order where it appears that unless the order is made there is a serious risk to a person's life, health or well-being. The conditions might include that no new clients are taken on by the service, or that the manager or a particular member of staff is replaced.

74. Subsection (2) requires the Commission to notify the local authority and health board as well as any other statutory authority it considers appropriate, of the making of an urgent application. This is necessary so that the local authority can comply with their statutory duties as required, for example to provide or arrange alternative care for the service users in accordance with their duties under section 12A of the Social Work (Scotland) Act 1968, and that the health board may consider whether to make provision for NHS services.

75. The Commission will be expected to inform such bodies as soon as possible in order that necessary arrangements can be made. The Commission will be expected to have agreed protocols with the Convention of Scottish Local Authorities (COSLA) and the NHS to deal with such situations should they arise. Subsection (5) defines a statutory authority for this purpose.

Section 19: Conditions as to numbers

76. This section provides that the Commission can limit the number of people using certain services or to whom certain services are provided either on initial registration, through a subsequent condition notice or in association with an improvement notice. For example it may be appropriate for a new provider to be restricted on numbers until they get fully established, or where a care provider is causing concern the power could be used as an alternative to enforcement action (i.e. withdrawing registration).

77. The services covered by this section are care homes, school care accommodation, secure accommodation, adult placement services, support services, independent health care, child minding, day care for children and nurse agencies

78. It is not appropriate to apply this condition where there is a statutory duty on the local authority to provide the service. This is why adoption and fostering services are not covered by this provision. Offender accommodation services and housing support services are also not covered by the provision. These are examples of where imposing a limit on numbers would mean there had to be a parallel limit on the local authorities' duty to provide such services.

Section 20: Appeal against decision to implement proposal

79. This section provides for an appeal against a decision on registration made by the Commission under section 17. The appeal must be made to a sheriff within 14 days of the notice of decision. Subsection (2) provides for the sheriff's powers on considering an appeal.

Section 21: Offences in relation to registration under Part 1

80. This section sets out offences under Part 1 of the Act. Subsection (1) makes it an offence for a person to describe any service as a care service for the purposes of this Act when it is not registered as such. This would catch, for example, an unscrupulous hotel owner who tried to pretend their hotel was a care home. If convicted of an offence under this subsection, the person would be liable to a fine not exceeding level 5 on the standard scale (£5000 at present) or up to three months imprisonment, or both.

81. Subsection (2) makes it an offence not to display a certificate of registration in a prominent place. The penalty on summary conviction is a fine not exceeding level 2 on the standard scale (£500 at present).

82. Subsection (3) provides that an individual or body, other than an adoption agency, making arrangements for the adoption of a child would be prosecuted under the Adoption (Scotland) Act 1978 rather than this Act. This will ensure that there is not duplication of powers under this Act and the Adoption Act.

Section 22: False statements in applications under Part 1

83. This section makes it an offence to knowingly give information which is false or misleading in a material respect when making an application for registration, or for variation or removal of a condition. The penalty is a fine not exceeding level 4 on the standard scale (£2500 at present).

Section 23: Offences by bodies corporate etc.

84. This section provides that if an offence under Part 1 is committed with the consent or connivance of an officer of a body corporate, a local authority, a partnership, or an unincorporated association, or if that officer has turned a blind eye or been negligent, then the officer as well as the organisation are guilty of the offence. Individual officers of a body corporate, partners of a partnership, or persons managing or controlling an unincorporated association who are complicit in an offence under the Part will not be able to escape prosecution simply because the organisation is liable: both they and it may be liable to prosecution.

Section 24: Registration fees

85. This section sets out the fees which are payable to the Commission. Subsection (1) gives Scottish Ministers power to prescribe maximum levels of fees which may be imposed (following consultation with those who will or may be affected by the fees or their potential effect) and to determine whether or not a fee is payable by order. Subsection (2) sets out the activities for which the Commission is able to impose fees.

86. Subsection (3) gives power to the Commission to have regard to its own expenses in setting particular fees within the maxima set by Scottish Ministers. This subsection also allows the Commission to waive fees, for example in the situation described under section 7 where a person operates more than one care service. Detailed guidance will be issued to the Commission on the circumstances when it may be appropriate to reduce or waive fees.

Section 25: Inspections

87. Subsection (1) provides that the Commission may require a person who provides a care service registered under the Act to supply it with any information to enable the Commission to discharge its functions. This may include such aspects as pre-inspection questionnaires or other information.

88. Subsection (2) enables inspection at any time of a care service and in particular allows an inspector authorised by the Commission to enter and inspect premises at any time if they are used or are believed to be used in connection with a care service. These powers are necessary to ensure compliance with the regulatory framework. However, inspectors are not authorised to enter the home of a person receiving a support service in their own home.

89. Subsections (3) and (4) provide that all care services offering 24 hour care away from home should be subject to a minimum of two inspections per year, and that one (or both) of these inspections should be unannounced. Unannounced inspections are an important part of the current regulatory system. The services subject to two inspections per year are care homes, school care accommodation, secure accommodation and those independent health care services which offer 24 hour care.

90. Subsection (5) requires the Commission to ensure that all other care services are subject to a minimum of one inspection every twelve months. It is likely that the Commission will inspect new services and services about which there are concerns more frequently. Inspections by the Commission can be planned in advance with the provider or carried out unannounced at any time.

91. Subsections (6), (7) and (8) provide that inspectors may also require relevant records or other documents to be produced for inspection on the premises wherever they may be kept. Where they are stored on computer they should be produced in a legible, not encrypted, form. Inspectors will be able to conduct any interviews about the running of a service or the treatment of service users as they consider appropriate. They will also be able to copy or remove relevant records (other than medical records), and will be able to interview, in private, the manager, employees, or any persons accommodated or cared for by the service who consent to be interviewed, including with family, carers or other representative where appropriate.

92. Subsection (9) allows an inspector who is a medical practitioner or registered nurse to examine in private, with their consent, a patient or resident, or their medical records, where they believe that the person may not be receiving proper care. Subsection (10) makes the same provision in respect of dentists. When any other inspector has such concerns, they would arrange for a medical practitioner, nurse or dentist to examine the individual as appropriate. The person may choose to be examined in the presence of, say, a friend or member of their family where appropriate. Subsection (11) defines an appropriate examination and consent for the purposes of these sections.

93. Subsection (13) makes it an offence for a person to intentionally obstruct an inspection under this section or section 27. The penalty on summary conviction is a fine not exceeding level 4 on the standard scale (£2500 at present).

Section 26: Integrated inspections

94. This section requires the Commission and Her Majesty's Inspectorate of Schools to collaborate in the regulation and inspection of care services which include an educational element. The care services in question are set out in subsection (2). They are school care accommodation; secure accommodation and day care of children. Scottish Ministers will back up these provisions with detailed directions about integrated inspections.

Section 27: Further provision as regards inspections

95. This section allows an inspector (authorised to enter and inspect premises by virtue of section 25) to remove any material which could be used as evidence of possible non-compliance with requirements. Subsection (2) imposes a requirement on owners, managers and employees to assist the inspector and permits the inspector to take such measurements and photographs and make such recordings as considered necessary to enable him or her to exercise powers under this section.

96. Subsection (5) requires the Commission to prepare a report after carrying out an inspection under section 25 and send a copy of the report to the registered person, and subsection (6) provides that the Commission should give that person an opportunity to comment on a draft of that report. Subsection (7) provides that the Commission must make the report available to the public. Subsection (9) requires the Commission to make these reports available in any form (for example Braille) that may reasonably be requested.

Section 28: Regulations relating to the Commission, to registration and to registers

97. Subsection (1)(a) gives Scottish Ministers the power to make regulations conferring additional functions on the Commission. Providing for Scottish Ministers to give the Commission further functions through regulations will give it the necessary flexibility to react to future needs of service users and developments in care service provision without the need for primary legislation.

98. Subsection (1)(b) provides for Scottish Ministers to make regulations about how the Commission should maintain registers. Subsection (1)(c) allows regulations to be made about the information that should be provided in an application under Part 1 and Part 2 and what certificates of registration should include, for example the conditions of registration of a care service. Subsection (1)(c)(iii) provides for regulations specifying types of applicants who cannot make certain kinds of applications.

99. Subsections (1)(d) and (e) allow regulations to be made that define the circumstances and conditions, including the payment of a fee, under which the Commission should provide access to its registers. Subsection (2) allows for regulations to be made setting out when fees should not be payable and provides that the Commission can give access free of charge. These regulations would be, for example, to prevent unrestricted access to the names and addresses of services, such as children's services, where there might be a consequent risk to children. The regulations could contain a requirement for someone to show they had a legitimate interest before they could be granted access to certain registers.

Section 29: Regulations relating to care services

100. This section provides regulation-making powers which will cover the management, staff, premises and conduct of care services. It also provides for regulations to be made regarding the health and welfare of service users.

101. Subsection (1) provides a general power to make regulations imposing any requirements the Scottish Ministers see fit. Subsection (2) allows regulations to be made to ensure that care services are suitably managed, staffed and equipped and that premises are fit for their purpose.

102. Subsections (2)(e) and (6) provide powers to make regulations regarding the welfare of persons provided with care services. Subsection (6) allows for regulations under subsection (2)(e) to specifically make provision about promoting and protecting people's health and about the control and restraint of service users where necessary.

103. Subsection (2)(j) provides that people acting as a GP, or another professional capacity to be specified by regulation, for persons at a care service should not have a financial interest in that service.

104. Subsection (3) in conjunction with 29(2)(l)(i) provides that Scottish Ministers may make regulations requiring any receiver or liquidator of a company, a trustee of an individual registered as an owner of a care service or a supervisor/administrator of a company appointed under the Insolvency Act 1986 to notify the Commission of their appointment. 29(2)(l)(ii) provides for regulations to be made requiring that such a person appoint a person to manage the care service in question. The Commission will need to know if another individual has taken over managing of a care service because of financial difficulty. The replacement manager will have to meet the registration requirements set out in regulations.

105. Subsections (4) and (5) provide that regulations may be made prohibiting a person's appointment as manager of, or employment in, a care service unless they are on a register of social care workers, maintained by the Scottish Social Services Council.

106. Subsection (7) gives the Scottish Ministers power to regulate how the provision of a care service should be conducted, including the provision of facilities and services, record keeping, notification of events, arrangements for dealing with complaints and in relation to independent hospitals and clinics, the arrangements to be made to secure that any medical or psychiatric treatment or listed services meet appropriate standards.

107. Subsection (7)(d) gives the power to make regulations that a person providing a care service must produce reports to the Commission, while (e) sets out what should be in reports and the timing of their submission. Subsection (7)(f) provides for regulations to require care service providers to notify the Commission of events arising in relation to care services. It will be necessary to inform the Commission of events such as accidents, fires or death.

108. Subsection (7)(m) deals with notice of changes in the ownership or the officers of a company which was registered in respect of a service. Subsection (7)(k) sets out when notice is required, while (l) sets out arrangements for when the provider of a care service dies.

109. Subsection (7)(o) allows Scottish Ministers, through regulations, to require owners or managers of independent health care services to put in place policies and procedures to secure that the quality and standards of healthcare are appropriate. Subsection (7)(o)(i) requires that these are in place for medical or psychiatric treatments. Subsections (7)(o)(ii) and (8) allow regulations to specify other types of treatment or technology that should also be covered.

110. The regulations might specify what policies and procedures are required and, where necessary, how they should be managed and recorded. The regulations might say, for example, how a critical incident should be dealt with, what must be recorded and what needs to be reported and to whom. By setting these requirements out in secondary legislation, policies and procedures can be modified to respond to changes in safety procedures and other aspects of healthcare delivery, without having to amend primary legislation.

111. Subsection (9) concerns regulations made in respect of secure accommodation for children, which may cover both its provision and its use.

112. Subsection (10) provides that regulations made under subsections (1), (2), (7) or (9) may make it an offence to fail to comply with specific provisions within the regulations, or with a condition of registration. Subsection (11) provides that a person guilty of such an offence would be liable to a fine not exceeding level 5 on the standard scale (£5000 at present).

113. Subsection (12) requires the Scottish Ministers to consult such persons as they consider appropriate before making regulations under the powers in subsections (1) (2) and (7) and (9) of this section. Subsection (13) provides that any such regulations may make different provision for different purposes. This will enable certain regulatory requirements to be imposed on a limited number of services, for example regulations may be very different in relation to a childminder as to a large care provider. Regulations under 29(2)(i) may not, for example, require the Commission to look at the financial position of childminders, but they would require it to assess this in respect of those providing care home services.

Section 30: Transfer of staff

114. This section provides that schemes must be made for the transfer of staff to the Commission bodies, provided that prescribed requirements for consultation have been met in respect of every individual to be transferred.

115. All transfers made under the Act will reflect the Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981 No 1794) (TUPE) principle that staff transferred will do so on their existing terms and conditions. In addition, the new bodies may make provision for occupational pensions and compensation for loss of employment.

116. Subsection (4) provides that under a scheme an employee's existing contract of employment would not be terminated, but would transfer to the new employer and be treated as having effect from the date it was originally made.

117. Subsections (6) and (7) provide that an employee may object to transferring to a new employer, and that their contract of employment can be terminated before the date of transfer. This would not be treated as a dismissal.

118. Subsection (8) provides that these arrangements will not affect the right of an employee to terminate his or her contract if their working conditions were to suffer a significant change which was to their detriment.

Miscellaneous

Section 31: Arrangements entered into by local authority or health body: services to be registered

119. This section makes it clear that, although a service commissioned by the body in question need not exist as a registered care service at the time the contract is entered into, the service must be a registered one by the time it is actually provided.

Section 32: Giving of notice

120. This section deals with the serving of notice on a care service provider or a person seeking to be a care service provider, and sets out when notice is deemed to have been delivered.

PART 2: LOCAL AUTHORITY ADOPTION AND FOSTERING SERVICES ETC

121. Local authorities are under a statutory duty to provide adoption and fostering services which means that, unlike most care services, the Commission will not be able to take direct enforcement action against authorities. It would not be appropriate for the Commission to de-register a local authority's adoption service, for example, since that would prevent the authority from fulfilling its statutory duty. There may also be some other individual care services where non-registration or cancellation of registration would result in a local authority being in breach of a statutory duty. Instead the Commission will prepare a report to Ministers who will then decide what action should be taken against the local authority.

122. These services cannot therefore be covered by the registration and enforcement provisions in Part 1 of the Act. Part 2 therefore provides similar requirements and rights that will apply to local authorities providing adoption and fostering services and other services needed so as to fulfil a statutory duty. The substantive difference is the role of Scottish Ministers in being informed of improvement notices and being empowered to take default action where they consider that the provision of these services is unsatisfactory.