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Changes to the fitness requirements for Providers, Managers and Employees in care services regulated by the Care Commission
A Consultation Paper

REGULATION OF CARE (SCOTLAND) ACT 2001

CHANGES TO THE FITNESS REQUIREMENTS FOR PROVIDERS, MANAGERS AND EMPLOYEES IN CARE SERVICES REGULATED BY THE CARE COMMISSION

Introduction

1. This paper proposes amendments to fitness requirements for providers, managers and employees of regulated care services and of limited registration services for adults with incapacity. Fitness requirements are set out in the Regulation of Care (Requirements as to Care Services (Scotland) Regulations 2002 ( SSI 2002/114), the Regulation of Care (Registration and Registers) (Scotland) 2002 ( SSI 2002/115) and the Regulation of Care (Requirements as to Limited Registration Services (Scotland) Regulations 2003 ( SSI 2003/150) respectively.

Background

2. The Care Commission was established on 1 April 2002 under the Regulation of Care (Scotland) Act 2001 (the Act) to regulate a wide range of care services as defined in Section 2 of the Act. Regulation of most of these services has now commenced with only the remainder of independent healthcare provision to be phased in.

3. A suite of subordinate legislation made under the Act applies to services regulated by the Care Commission.

• The Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002, SSI 2002/114 (as amended by SSIs 2003/149, 2003/572, 2004/94 and 2006/274 and SI 2003/1590), sets out the requirements which providers of all care services must comply with unless otherwise specified (either here or in subsequent regulations).
• The Regulation of Care (Registration and Registers) (Scotland) Regulations 2002 ( SSI 2002/115) (as amended by SSI 2003/148 and 2004/96) makes provision about the registration of care services by the Care Commission and specifies those who may not make an application to register and provide a care service.
• The Regulation of Care (Requirements as to Limited Registration Services) (Scotland) Regulations 2003 ( SSI 2003/150) set out the requirements for limited registration services for adults with incapacity. These broadly mirror the requirements in 2002/114.

4. The principal regulations as they were laid and the various amending regulations can be found on the Office of Public Sector Information website at http://www.opsi.gov.uk/legislation/scotland/about.htm

Proposed amendments to existing regulations

Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002

5. We propose to amend the following provisions of the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 with respect to fitness requirements for providers, managers and employees of registered care services.

Regulation 6 - Fitness of providers

6. Regulation 6(2) (b) currently states that:

' a person who has been convicted whether in the United Kingdom or elsewhere of any offence which is punishable by a period of imprisonment of not less than 3 months and has been sentenced to imprisonment (whether or not suspended or deferred) for any period without the option of a fine;'

The suggested revision inserts after " option of a fine;":

' and who is by reason of that conviction unfit to be a provider of a care service'

7. This would bring the convictions test into line with the Scottish Social Services Council's requirements regarding fitness. It would also give the Care Commission a degree of flexibility in deciding whether a prospective provider is unfit because of a particular conviction.

Regulation 7 - Fitness of managers

8. The intention is to align the fitness provisions of managers, providers and employees. The proposed replacement of paragraph 7(2)(b):

' (b) any person to whom regulation 6(2)(b) applies;'

with

' (b) a person who has been convicted and sentenced as described in regulation 6(2)(b) and who is, by reason of that conviction, unfit to be a manager in relation to a care service;'

is intended to have that effect.

Regulation 9 - Fitness of employees

9. Regulation 9(2) (as amended) as it currently stands, states:

' (2) The following persons are unfit to be employed in the provision of the care service:-

(a) a person who is not physically and mentally fit for the purposes of the work for which the person is employed in the care service;

(b) a person who does not have the qualifications skills and experience necessary for the work that the person is to perform; and

(c) any person to whom regulation 7(2)(e) applies.'

It is proposed this should be extended to include two further sub-paragraphs relating to fitness tests for employees as follows:

'(d) a person to whom regulation 6(2)(a) applies ; or

(e) a person who has been convicted and sentenced as described in regulation 6(2)(b) and who is, by reason of that conviction, unfit to be employed in the provision of a care service'

10. In the interests of consistency, extending these requirements to apply to employees brings them into line with the fitness requirements for providers and managers. Providers will be expected to take account of this in their recruitment practices. As part of its inspection methodology the Care Commission requires disclosure checks to be obtained by providers and managers to demonstrate compliance with this regulation. It is in the interests of vulnerable people and children that this should be extended to cover employees of care services too. Making this change should ensure that providers carry out the appropriate disclosure checks and generally improve their staff recruitment processes.

Regulation of Care (Registration and Registers) (Scotland) 2002

11. In the Regulation of Care (Registration and Registers) (Scotland) Regulations 2002, it is proposed that regulation 4(1) should be replaced by:

' Fitness of applicants

4.- (1) A person shall not make an application for registration under Part 1 of the Act unless the person is fit to do so.

(2) The following persons are unfit to make an application for registration under Part 1 of the Act:-

(a) a person who has been convicted whether in the United Kingdom or elsewhere of any offence which is punishable by a period of imprisonment of not less than 3 months and has been sentenced to imprisonment (whether or not suspended or deferred) for any period without the option of a fine, and who by reason of that conviction is unfit to be a provider of a care service;

(b) a person whose estate has been sequestrated in Scotland or who has been adjudged bankrupt elsewhere than in Scotland or in relation to whose estate a judicial factor has been appointed or who has granted a trust deed for the benefit of the person's creditors:

Provided that-

(i) the unfitness attaching to a person whose estate has been sequestrated shall cease if and when-

(aa) the sequestration is recalled or reduced; or

(bb) the sequestration is discharged;

(ii) the unfitness attaching to a person by reason of having been adjudged bankrupt shall cease if and when-

(aa) the bankruptcy is annulled; or

(bb) the person is discharged;

(iii) the unfitness attaching to a person in relation to whose estate a judicial factor has been appointed shall cease if and when-

(aa) that appointment is recalled; or

(bb) the judicial factor is discharged; or

(iv) the unfitness attaching to a person who has granted a trust deed shall cease if and when the person pays the creditors in full or on the expiry of 5 years from the grant of the deed.",

and paragraph 4(2) shall be renumbered accordingly.'

Regulation of Care (Requirements as to Limited Registration Services) (Scotland) Regulations 2003

The amendments to the Regulation of Care (Registration and Registers) (Scotland) Regulations 2002 and the Regulation of Care (Requirements as to Limited Registration Services) (Scotland) Regulations 2003 mirror changes made to the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 and the changes are intended to provide consistency of language and intent across the suite of regulations.

In the Regulation of Care (Requirements as to Limited Registration Services) (Scotland) Regulations 2003, changes are proposed for regulation 4 as follows.

Regulation 4(a) will be amended by replacing each occurrence of ' not fit' with ' unfit'

Regulation 4(b) currently states:

' a person who has been convicted whether in the United Kingdom or elsewhere of any offence which is punishable by a period of imprisonment of not less than 3 months and has been sentenced to imprisonment (whether or not suspended or deferred) for any period without the option of a fine;'

The suggested revision inserts after " option of a fine":

' and who is by reason of that conviction unfit to be a provider of a care service'

In regulation 4(2)(c) it is proposed to delete the provisions from ' Provided that..' to '…grant of the deed' and substitute with:

' Provided that-

(i) the unfitness attaching to a person whose estate has been sequestrated shall cease if and when-

(aa) the sequestration is recalled or reduced; or

(bb) the sequestration is discharged;

(ii) the unfitness attaching to a person by reason of having been adjudged bankrupt shall cease if and when-

(aa) the bankruptcy is annulled; or

(bb) the person is discharged;

(iii) the unfitness attaching to a person in relation to whose estate a judicial factor has been appointed shall cease if and when-

(aa) that appointment is recalled; or

(bb) the judicial factor is discharged; or

(iv) the unfitness attaching to a person who has granted a trust deed shall cease if and when the person pays the creditor in full or on the expiry of 5 years from the date of the grant of deed.'.

Amendments to regulations 5(2) 6(2) and 7(2) replace ' not fit' with 'unfit'. In regulation 10(1)(b) ' is not a fit person' is replaced by ' is an unfit person'

Responding to this consultation paper

Responses to this consultation paper should be made using the questionnaire at Annex A, accompanied by the freedom of information disclosure information requested in Annex B. Please email your response to: standardsandsponsorship@scotland.gsi.gov.uk.

or alternatively post to:

Jane Martin
Care Standards and Sponsorship Branch
Community Care Division
Primary and Community Care Directorate

This is also the contact point for questions you may have relating to the consultation. The phone number is 0131 244 3515. All responses will be acknowledged. Please do not send duplicates of email responses by post.

This consultation, and all other SG consultation exercises, can be viewed online at http://www.scotland.gov.uk/consultations. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is.

Access to consultation responses

We will make all responses available to the public in the Scottish Government Library by Summer 2007 and a report will be published on the Scottish Government consultation web pages by the same date. All responses not marked confidential will be checked for potentially defamatory material before being logged in the library.

Care Standards and Sponsorship Branch

Primary and Community Care Directorate| Community Care Division
February 2008

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