2001 ASP 8

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This document relates to the Regulation of Care (Scotland) Act 2001 (asp 8)

REGULATION OF CARE (SCOTLAND) ACT

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EXPLANATORY NOTES

INTRODUCTION

1. These Explanatory Notes have been prepared by the Scottish Administration in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2. The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

SUMMARY

3. A consultation paper on Workforce Regulation and Education was published in November 1998. In March 1999 the Government published a White Paper on its proposals to modernise social work services in Scotland. Detailed proposals for new regulatory arrangements for care services and for the social services workforce were set out in a consultation paper published in December 1999. Following this consultation a policy position paper was published in July 2000 setting out proposals for legislation. Separate consultations were also carried out on the regulation of early education and childcare and private and voluntary healthcare.

4. Consultation papers on the first and second tranches of Draft National Care Standards were published in June 2000 and April 2001 respectively. The first set out proposals on care standards for older people, people with mental health problems and for children and young people; the second covered care at home, residential accommodation for people with learning disabilities, physical and sensory impairment and drug and alcohol problems, and in a separate paper - early education and childcare. A consultation paper on the future of care homes under the new legislative arrangements was published in April 2001.

5. The relevant documents are listed below:

• Modernising Social Work Services: A Consultation Paper on Workforce Regulation and Education, published in November 1998;

• Aiming for Excellence: Modernising Social Work Services in Scotland (Cm 4288), published in March 1999;

• Regulation of Early Education and Childcare, published in June 1999;

• Regulating Care and the Social Services Workforce: A Consultation Paper, published in December 1999;

• Regulating Private and Voluntary Healthcare, published in March 2000;

• Regulation of Early Education and Childcare: The Way Ahead, published in May 2000;

• Draft National Care Standards: First Tranche, published in June 2000;

• The Way Forward For Care, a policy position paper, published in July 2000;

• Regulating the Independent Healthcare Sector, a policy position paper, published in November 2000;

• Draft National Care Standards: Second Tranche, published in April 2001;

• The Future for Care Homes in Scotland: A Consultation Paper, published in April 2001;

• Early education and childcare: Draft National Care Standards consultation paper, published in June 2001.

All these publications are available on the Scottish Executive's Regulation of Care Project website http://www.scotland.gov.uk/government/rcp/

6. In summary this Act:

• establishes a new independent body to regulate care services in Scotland to be known as the Scottish Commission for the Regulation of Care ("The Commission");

• establishes a system of care regulation, encompassing the registration and inspection of care services against a set of national care standards and the taking of any enforcement action;

• establishes a new independent body, to be known as the Scottish Social Services Council ("The Council") to regulate social service workers and to promote and regulate their education and training; and

• makes a number of amendments and minor changes in related areas and legislation.

Regulation of care services

7. Regulation of care services is patchy at present. Many services are regulated under a range of legislation that is now largely outdated and some services are not regulated at all. The Act is intended to modernise and standardise the regulation of care services. Effective regulation of these services is essential if people using them and their families are to be confident that the services they receive are of high quality and are appropriate to their needs.

8. The Act will reform the regulatory system for care services in Scotland. Care services include care homes for adults, residential care for children, children's early education, day care and childminding, adoption and fostering services, adult placement services, agencies providing care at home (including care for children), nurse agencies, independent healthcare services, day care services for adults, housing support services, care and welfare in boarding schools and school hostels and care and welfare in accommodation for offenders.

9. The Act provides for an independent Scottish Commission for the Regulation of Care to undertake this regulatory function. The Commission will register and inspect all care services against national care standards. These standards will be taken into account when the Commission makes any decisions about registering and inspecting services and in considering whether, and at what level, enforcement action should be taken. For the first time, all local authority care services will be required to register and to meet the same standards as independent sector providers.

10. The current system of care service regulation is principally embodied in the Nursing Homes Registration (Scotland) Act 1938, the Nurses (Scotland) Act 1951, the Social Work (Scotland) Act 1968, and the Children Act 1989, together with various regulations, circulars and guidance notes. The new legislation will replace the entire 1938 and 1951 Acts, sections 60-68 of the 1968 Act and Part X and schedule 9 of the 1989 Act, insofar as it applies to Scotland. A number of other minor and consequential changes and repeals will also be made.

11. It is intended that the Commission should fulfil the recommendation of the Royal Commission on Long Term Care that there should be a National Care Commission to take a strategic overview of the care system and its funding and to steward the interests of older people. This role will not be limited to older people. The Commission will therefore have a statutory power to advise Scottish Ministers on trends in care provision generally.

Regulation of the workforce

12. There is no comprehensive regulation of the social services workforce at present. Nor is an appropriate framework in place to support and enhance the professionalism of the workforce.

13. The Act provides for the regulation of the social services workforce, by establishing the Scottish Social Services Council. The Council will regulate the education and training of social service workers and raise standards through the publication of codes of conduct and practice. For the first time a national register of social services staff will be set up and maintained by the Council. The Act also provides for the Central Council for Education and Training in Social Work (CCETSW) to cease its functions in Scotland. It currently regulates education and training in social work throughout the UK. CCETSW's functions will transfer to the Council, as will the functions of the Scottish arm of the National Training Organisation, the Training Organisation for the Personal Social Services.

14. The Act sets out the functions and powers of the Council. The Council's main functions will be to publish codes of practice and conduct, establish registers of particular groups in the workforce and to regulate their conduct, education and training.

Other provisions

15. Other provisions in the Act include:

• powers to enable local authorities to make grants in respect of child care and family support and in some care services, make direct payments to children;

• a power to enable local authorities in Scotland to employ nurses to provide nursing care in any residential accommodation they may provide;

• a power to enable Scottish Ministers to delegate a power to make grants and loans for social work;

• an amendment to section 29 of the Children (Scotland) Act 1995 dealing with local authority provision of after-care for children formerly looked after by local authorities;

• an increase to the age limit of children for whom local authorities may pay discretionary maintenance allowance to relatives or friends who look after them;

• a power to put beyond doubt that under a Child Protection Order granted under section 57 of the Children (Scotland) Act a child may be removed to a suitable place that is not medical premises; and

• powers dealing with the appointment and payment of fees and expenses for safeguarders and training for safeguarders and Children's Panel Advisory Committee members.

THE ACT

Overview

16. The Act is in seven Parts:

• Part 1 provides for the establishment of the Scottish Commission for the Regulation of Care and for the regulatory procedures, including inspections, that it will follow. Scottish Ministers are given a duty to issue national care standards applicable to all registered care services and powers to make regulations in relation to the care services regulated under this Part;

• Part 2 provides registration and enforcement procedures for local authority adoption and fostering services. Local authorities are under a statutory duty to provide adoption and fostering services which means that, unlike care services registered under Part 1, the Commission will not be able to take direct enforcement action. Part 2 also provides for other individual care services where non-registration or cancellation of registration would result in a local authority being in breach of a statutory duty;

• Part 3 provides for the establishment of the Scottish Social Services Council and sets out its functions and the procedures to be followed in the exercise of these functions;

• Part 4 sets out the "general principles" of the Act and provides that Ministers, the Commission and the Council should exercise their functions under the Act in accordance with these principles;

• Part 5 concerns provisions that are common to both the Commission and the Council, for example a power for Scottish Ministers to make grants to either body;

• Part 6 contains provisions relating to minor amendments and a number of other policy issues (as outlined in the previous paragraph); and

• Part 7 contains general provisions, including interpretation of terminology for the purposes of the Act and commencement powers.

17. The Act provides for the Council to have rule making powers on administrative and procedural matters in relation to the exercise of the functions granted to them by the Act. These will not be subject to Parliamentary scrutiny but the Act requires that all the rules made under Part 3 will require the consent of the Scottish Ministers. These are in contrast to the use of regulations for functions of the Commission. A measure of self-regulation is normal for professional bodies like the Council whereas the measures being implemented by the Commission will have a wider application and so need greater public scrutiny.

Commentary on sections

PART 1: THE COMMISSION AND CARE SERVICES

Section 1: Constitution of Scottish Commission for the Regulation of Care

18. Subsection (1) establishes the Scottish Commission for the Regulation of Care. It will be a statutory body corporate which will exercise the functions given to it by or under the Act or other relevant legislation. Subsection (1)(b) provides that as part of its function, the Commission will be expected to promote improvements in care services in Scotland.

19. The Commission will be a non-departmental public body. It will be independent in its day to day running, but will be accountable to Scottish Ministers through its corporate plan and management statement.

20. Subsection (2) provides that the Commission must, act in accordance with directions given to it by, and under the general guidance of, Scottish Ministers and encourage equal opportunities in exercising its functions under the Act. Subsection (3) gives effect to Schedule 1 which sets out the constitutional arrangements and general provisions for the establishment and operation of the Commission.

Section 2: Care services

21. Section 2 sets out the range of "care services" which will be regulated by the Commission and defines each of the services for the purposes of the Act. This section also provides that certain services can be excepted from these definitions by regulation.

22. Subsection (2) defines a support service. This definition includes services traditionally referred to as "home-care" or "domiciliary care"; services provided to people in their own homes or in supported accommodation, sheltered housing or elsewhere. It also includes those services traditionally referred to as "day care" whether they are provided in the home, in a care setting or elsewhere. It covers services provided or purchased by a local authority, services provided by health bodies which are not part of core NHS functions and other services independently provided which include an element of personal care or personal support, except for services provided by an individual through direct arrangements with the recipient (e.g. an informal family carer, a paid personal assistant). It will not include field social work services carried out by social workers in connection with their functions of assessment, care management, child protection, supervision of offenders etc. Such services will be excluded by regulation as required.

23. Services are included if they are provided because of a person's vulnerability or need, as defined in 2(28). Personal care is also defined for the purposes of the Act as being care related to day to day physical tasks and to mental processes connected with those tasks, for example eating and washing and remembering to eat and wash. It will not include domestic services which are not provided or purchased by a local authority or health body.

24. Subsection (3) defines a care home service. Such a service provides accommodation together with personal care, personal support or nursing for any person, including children, because of their vulnerability or need. Care homes provided by local authorities will be required to register, and section 72 allows them to employ nurses and to provide nursing care. The care and accommodation provided must be inextricably linked for a care service to be considered a care home. If this is not the case, the Commission will register and inspect the care being delivered as a support service under section 2(2). It will be for the Commission to interpret, on an individual basis, whether the care and accommodation provided by a service are inextricably linked and how that service should be registered. Scottish Ministers will issue guidance to assist the Commission with this.

25. This provision brings together the previously separate definitions of residential care homes and nursing homes under the single definition of care home.

26. Subsection (4) defines school care accommodation. This involves residential accommodation provided to a school pupil by a local authority or an independent or grant-aided school. This covers services provided to children boarding at an independent school, those staying in a school hostel provided by a local authority and special schools.

27. Subsection (7) defines a child care agency. Such a service either supplies child carers or introduces them to people using the service. The definition is sufficiently broad to include a range of services providing childcare, including nanny agencies and sitter services.

28. Subsection (8) defines a "child carer" for the purposes of subsection (7) of the Act. The definition refers to looking after a child wholly or mainly in the home of a child's parents. An agency providing child carers to others eg grandparents, guardians or foster carers will still be covered by regulation if some of their clients are parents.

29. Subsection (9) defines secure accommodation for children. This is residential accommodation approved by Scottish Ministers in accordance with regulations under section 29(9)(a) of the Act. These care services cater for some of the most vulnerable children and young people in Scotland. The Commission will regulate these services, but statutory approval of secure accommodation will remain with Scottish Ministers under section 29(9).

30. Subsection (10) defines an offender accommodation service. These services, traditionally referred to as residential accommodation for offenders, provide advice, guidance and assistance to people who are subject to specified supervision orders or have recently been released from prison or other detention. They are provided under Section 27 of the Social Work (Scotland) Act 1968.

31. Subsection (11) defines an adoption service. Such a service is provided by either a local authority (under section 1(1) of the Adoption (Scotland) Act 1978) or by other persons whether or not provided as part of the Scottish Adoption Service. Section 7(6) provides that a person (other than a local authority) who provides an adoption service must be a voluntary organisation. Subsection (12) provides that where the proposed adopter is a relative of the child this is not a matter for the Commission's regulatory regime.

32. Subsection (14) defines a fostering service. By subsection (14)(a) a fostering service is either a public fostering service (that is to say, a fostering service provided by a local authority under paragraph (a) of section 26(1) of the Children (Scotland) Act 1995 or by a person on behalf of a local authority) or it is a private fostering service (that is to say, a fostering service provided by a local authority securing, under sections 3 and 8 to 10 of the Foster Children (Scotland) Act 1984, the welfare of privately fostered children).

33. Subsection (16) defines an adult placement service. This is a service which provides accommodation for adults, together with personal care and personal support, by reason of their vulnerability or need in the homes of specially recruited individuals to enable them to live in the community.

34. Subsections (17) and (21)(a) define child minding. This involves looking after one or more children on domestic premises for a minimum of two hours per day, for reward. Subsections (18) and (19) provide exceptions to this, for example for care provided by parents or relatives of children and care provided in the parent's home.

35. Subsections (20) and (21)(b) define day care of children. Such a service provides care for children for more than two hours a day on premises other than domestic premises. Subsections (22)-(25) provide exceptions to this definition, for example medical treatment in hospitals (24) and care for children of school age provided in and managed by schools (25).

36. Subsection (27) defines a housing support service. This is a service that provides support, assistance, advice or counselling to people to help them live at home. It is provided that certain services relating to accommodation which is "excepted accommodation" for the purposes of the Housing Act 2001 are outwith the scope of this definition. These services will be provided under the Supporting People initiative and will be targeted on, for example, homeless or potentially homeless people, people fleeing domestic abuse and ex-offenders. The services will provide general support, for example assistance with life skills such as budgeting, minor repairs, security and the use of electrical appliances.

Section 3: Power to amend the definition of "care service"

37. This section enables Scottish Ministers, following consultation, to amend by order the definition of care service. This allows Scottish Ministers to respond to any future changes in the delivery or focus of care services by adding additional services to the regulatory remit of the Commission as and when appropriate. Amendments consequential on amending the definition would be made under Section 80(2).

Section 4: Information and advice

38. Subsection (1) provides that the Commission must make available to the public information on the availability and quality of care services. Subsection (2) provides that this information should be made available in any format that may reasonably be requested. Information provided might include details about the location and types of services available as well as the results of the Commission's inspections of individual care services. This will help members of the public to decide which care services they wish to use.

39. Subsection (3)(a) allows the Commission to provide advice to Scottish Ministers at any time, and requires it to do so in response to a request by Scottish Ministers. Subsection (3)(b) requires the Commission to provide advice to service users and carers and their representatives, local authorities, health boards, care service providers or prospective providers, and any other bodies set out in regulations, about any aspect of its work. For example, the Commission might offer advice to service providers on how to meet the national care standards.

40. The Commission should also provide information to Scottish Ministers under this section about trends in care provision to fulfil the role recommended by the Royal Commission on Long Term Care. Subsection (4) allows the Commission to charge a reasonable fee for any advice, forms or documents it provides in connection with its obligations under subsection (3)(b).

National care standards

Section 5: National care standards

41. Section 5 gives Scottish Ministers a duty to prepare and publish national care standards applicable to all care services. These will specify the standards applicable to care services. Subsection (3) and (4) provide that these standards and the Council's codes of practice must be taken into account by the Commission when making any decisions related to registration, inspection and enforcement in respect of care services, whether registered under Part 1 or Part 2 of the Act. This section also ensures that consultation must be undertaken prior to any amending of the care standards. The standards will be focussed on the needs of people using the services, and are being devised by working groups under the auspices of the National Care Standards Committee.

Complaints

Section 6: Complaints about care services

42. Subsection (1) requires the Commission to establish suitable procedures for dealing with any complaints made to it about regulated care services by users, their relatives or advocates or staff. Subsection (3) requires that, before establishing such procedures, the Commission will be required to consult local authorities, health bodies and such other persons or groups of persons it considers appropriate and that it should submit proposals to Scottish Ministers for approval.

43. While local resolution of complaints by the provider will be the norm there should be no requirement for a user of a service to go through the provider's own system before approaching the Commission. Any procedures developed must be kept under review by the Commission. The Commission must also ensure that the established procedure is given the appropriate publicity.

Registration

Section 7: Applications for registration under Part 1

44. This section sets out the framework for applications for registration. Subsection (1) requires that the application for registration must be made to the Commission. Subsection (2) sets out what an application must include. For the purposes of the Act "person" does not only mean an individual but includes, for example, a company or firm.

45. Subsection (3) requires a person providing more than one care service to apply for registration for both services. This would mean, for example, that someone who provides a care home and a separate home care service would have to make a separate application for each. But someone who provides a care home which includes some day care provision might only need to apply once. Scottish Ministers will issue detailed guidance to the Commission on how to register different branches of care services, but it will be for the Commission to decide on receipt of applications whether services could be registered as one or not.

46. Subsections (4) and (5) require that where a person is providing a care service from two or more settings, each setting must be registered as a separate service ie a provider who has more than one care home has to register each. This is to cover situations whereby an organisation or business operates a number of care services but effectively manages them each individually on a day to day basis.

47. Subsection (7) provides that section 7 does not apply to local authority adoption and fostering services and any other care services registered under Part 2 of the Act.

Section 8: Limited registration

48. Subsection (1) provides for the Commission to register on a limited basis residential accommodation which does not require to be registered as a care service, for the sole purpose of permitting the manager to apply to manage the finances of an adult with incapacity under the provisions of the Adults with Incapacity (Scotland) Act 2000. Applications so granted will be considered limited registrations.

49. Subsection (2) provides that the information to be supplied with such an application should be the same as for a care service seeking registration under Part 1. Subsections (3) and (4) provide that various registration, inspection and enforcement provisions which apply to care services should also apply to those granted limited registration.

Section 9: Grant or refusal of registration under Part 1

50. Registration will only be granted if the Commission is satisfied that the applicant has demonstrated that they have complied with or will comply with the relevant standards and other relevant requirements. The burden of proof is with the applicant rather than the Commission.

51. Subsection (1) provides that an application under section 7 can be granted either unconditionally or subject to any conditions the Commission sees fit to impose. Specific conditions may be required to take account of the circumstances in an individual service, for example, a condition that a particular door is kept locked to prevent children from wandering directly onto a busy road, or that a particular ratio or skill mix of staff is needed.

52. Subsection (2) provides that if the Commission is satisfied that the applicant is complying with, or will comply with, all relevant requirements set out in the care standards and in regulations under section 29, and the requirements of any other legislation that it considers relevant, it should give the applicant notice of its decision to grant registration either unconditionally under section 17(1) or subject to conditions under section 15(1)(a). Otherwise, it will give notice of its refusal of registration under section 15(1)(b).

53. If the Commission grants the application, it must issue a certificate of registration (subsection (3)), which the service provider must display in a prominent position (subsection (4)), either in the premises where the care service is operated from, and if there is a separate management office, in that office too.

54. In making a decision under this section, the Commission must take the national care standards and the Council's codes of practice into account.

Improvement Notices

55. There has been considerable concern that the present statutory arrangements for enforcement are inflexible and resource intensive and do not lend themselves to swift action to protect service users. The legislation therefore enables the Commission to take swift action when appropriate (particularly under section 18) whilst also ensuring that there are adequate safeguards for service providers.