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Introduction
16. This section highlights the existing legislative framework for the regulation of care and sets out our proposals for the development of new primary legislation to improve the way that care is currently regulated. There are a number of aspects on which we would particularly welcome views. These are highlighted individually and summarised in Annex B.
17. The key functions of the Scottish Commission for the Regulation of Care will be registration, inspection, enforcement of standards and investigation of complaints for a range of care services.
18. The Commission will inspect against national care standards. Preparatory work on initial standards for residential care services is currently being undertaken by the National Care Standards Committee. Details are given in Annex A. The work of the Committee will be taken over by the Commission once it is operational.
19. It is anticipated that these standards will rise periodically in the light of findings from the inspections conducted by the Commission and other identification of good practice. The Commission will be required to consult relevant interests about the implications of any changes it proposes, including resource implications, and advise on these when making recommendations to the Scottish Executive. The standards will not be statutory but the requirement to meet them in order to be registered will be.
Existing regulation and legislation
20. The current system of care regulation is principally embodied in the Nursing Homes Registration (Scotland) Act 1938, the Social Work (Scotland) Act 1968, and the Children Act 1989, together with various regulations, circulars and guidance notes. The Nursing Homes Registration (Scotland) Act 1938 provides for the following:
21. The Social Work (Scotland) Act 1968 provides for the following:
22. The Children Act 1989 provides for the following:
23. The new legislation will replace the entire Nursing Homes Registration (Scotland) Act 1938, Sections 61-68 of the Social Work (Scotland) Act 1968 Act and Part X and Schedule 9 of the Children Act 1989, insofar as it applies to Scotland.
We would welcome views on problematic aspects of current legislation. In particular we would welcome views on:
Respondents need not resubmit views given in responses to the consultation paper Regulation of Early Years Education and Childcare.
Establishment of the Commission
24. Primary legislation will establish the Scottish Commission for the Regulation of Care and will set out the powers it requires to undertake its role. It will be independent from the services it regulates and in terms of day-to-day operations, but will be accountable for its overall performance to the Scottish Executive and in turn to the Scottish Parliament. Appointments to the Commission will be made in accordance with the Commissioner for Public Appointments’ Code of Practice.
25. We propose that the Commission should have between 17 and 21 members, plus a chairperson. The chairperson will be appointed for a term not exceeding 3 years and would be eligible for appointment for one further term only as chair. Other members would be appointed for a term not exceeding 3 years and eligible for appointment for one further term as a member. Members having served one or two terms would be eligible to become chair for a maximum of two further terms.
26. The involvement of people who use care services is central to our plans, as is the confidence of the general public in the work of the Commission. We therefore propose that at least one-half of the Commission membership will comprise people using services, their carers or their representatives. In appointing these members, Ministers will take account of the diversity of people using care services in terms of age, gender and ethnicity. The remainder of the members would be made up of relevant stakeholders. Relevant stakeholders will include representatives of care providers and purchasers; involved professions and staff bodies; a public interest or lay member and a nominee from the Scottish Social Services Council. Representatives from stakeholders may be officers, elected members or office bearers.
Views are sought on the size and format of the Commission, particularly in terms of the balance of members.
27. We propose that the legislation provides for the Commission to meet at least four times a year. The members of the Commission will oversee its work, including ensuring that statutory obligations are met and that the organisation is maintained on a sound financial footing. The legislation will contain a default power for the Scottish Executive to intervene if these requirements are not met. The Commission will be required to submit a corporate plan and an annual report to the Scottish Executive, which will be laid before the Scottish Parliament. Both of these reports will be made widely available in summary form.
28. The Commission will have powers to pay fees and allowances to its chairperson and members as Scottish Ministers may determine. It will be able to appoint staff and have discretion to carry out its functions directly or, subject to the necessary safeguards being in place, to contract out functions to other persons.
Committees
29. The Commission will have powers to establish committees and sub-committees to assist in the performance of its functions. This could include regional committees. It will have powers to make rules regarding the membership and proceedings of these committees. The Commission will be able to appoint members of committees as it thinks fit, but chairs of committees will be required to be members of the Commission.
30. A key concern raised at the consultation seminar was that a national body might not be as accessible and relevant to local needs and interests as local registration and inspection units. The extent to which the work of local Advisory Committees and other aspects of good practice in local involvement can be taken forward will be considered in the development of the Bill. The Commission will be expected to ensure all policies and procedures are set out in a user-friendly way. Information technology will also be utilised to promote ready availability of information to all who require it.
Staffing
31. The Commission will be given the power to appoint a Chief Executive and staff and in addition will be able to co-opt or second specialists to deal with particular aspects of its work which may not justify full-time appointments.
32. The Scottish Executive is keen to ensure continuity of expertise and that existing staff are not unduly disadvantaged. It is expected that relevant staff from both local authority and health board registration and inspection units will transfer to the Commission. The transfer of staff will follow the principles contained in the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 1981 (as amended) which seek to ensure continuity of employment terms and conditions for employees required to transfer employment. It is expected, as with local government reorganisation, that existing staff will be given first opportunity to apply for jobs in the Commission. Only after this will jobs be advertised externally. There will be discussions with employers regarding those staff who do not wish to transfer.
33. We envisage the Commission adding to its staff numbers over time as it increases its operations and takes on the regulation of various care types. The transfer of staff will take place depending on the final phasing of regulation agreed and the completion of the necessary Parliamentary processes. A survey of local authority and health board registration and inspection units will assist in informing how best to address this important issue.
34. The survey outcomes will also cover the current participation of lay members of inspection teams (that is people who are not professionals working in the service area). Their role has been considered an important way of bringing the views of service users and their carers into the inspection process.
Views about staffing issues are invited, as are views on the future role of lay or public interest members of inspection teams.
Resources
35. The Scottish Executive will provide initial start-up funding to establish the Commission. In the longer-term, however, the aim is for the cost of regulation to be met by registration and inspection fees paid by regulated providers, as set out in the White Paper. The Scottish Executive will have powers to make regulations to set fee levels. Existing fee structures are under review, and it is likely that at least some fees will be increased from 1 April 2000.
36. The Commission will be able to generate income from fees from a wider range of care providers than at present since fees will be payable by all registered care providers, including local authorities. As now, it will be for providers and purchasers to consider whether fee costs should be reflected in charges made for providing care. Registration and inspection fees, however, represent a small proportion of the total cost of providing care services, so any impact on individual users from fees being reflected in charges should be negligible. It is expected that some reductions to the cost of regulation will be possible through economies of scale which the Commission should be able to achieve.
37. As the Commission will be assuming the registration and inspection responsibilities presently resting with local authorities and health boards some transfers of resources will be necessary. Work is presently being undertaken to clarify the appropriate extent of these transfers, including through a survey of registration and inspection units. The Accounts Commission for Scotland will also assist us in addressing resource issues. The transfer of resources will recognise that in the future local authorities will pay fees in relation to their own facilities and that they will retain responsibility for service development in their local areas.
38. The Commission will be required to keep proper accounts and records, prepare an annual statement of independently audited accounts and submit them to the Scottish Executive.
Registration
39. There will be a requirement for care services that provide people with a certain level, frequency or intensity of care to be registered with the Commission. There will also be a requirement on local authorities not to use unregistered provision, where a statutory requirement exists for that care service to be registered.
40. The legislation will have to include a definition of what we mean by care services. Our intention is that this should cover services where the principal aim is to provide care. For adults, we intend this to cover:
We would welcome comments on the broad terms of the definition of care services for adults.
41. Because of the need to protect all children in residential or day care, the definition would cover residential care, child minders, and day care services. As discussed further in paragraph 64, aspects of the scope of regulation of day care, such as age range, were the subject of recent consultation. Ministers will announce their conclusions shortly.
42. The legislation will also address the need to define a "fit person" to be registered and appropriate safeguards on management and staff. It will require that a resident’s GP (or any relative of the GP) must have no financial or other interest in a home. There will be a power to specify the qualifications of the person in charge of the facility and to set a time limit on operation without a fit person being in place. It will be the duty of the fit person to provide the level of care consistent with the needs of each resident.
43. The legislation will also define a "fit establishment" and the conduct of establishments, including fitness of premises, and that different premises under the same ownership should be treated individually. There will be a requirement to meet national care standards before registration and for continued registration. There will be a power for the Commission to grant registration subject to conditions, and provision for application for variation of conditions. The Commission will also be able to refuse registration if national standards are not met. Time scales for processing applications will be set down.
44. Any application for registration must be accompanied by a fee. There will be a power to set annual or other fees by regulation. The legislation will set out the grounds for cancellation of registration. We are also considering including a power to access premises where it is suspected unregistered care (of a type required to be registered) is taking place.
45. Under the Adults with Incapacity (Scotland) Bill currently before the Scottish Parliament, managers of supported accommodation (who do not have to register at present) will be able to register for the purpose of managing residents’ funds only. This registration function will also be taken over by the Commission.
We would welcome comments on the proposed requirements for registration.
Inspection
46. Once a care service is registered it will be subject to an annual inspection by the Commission and may be inspected unannounced at any time. Inspections will check whether registration standards continue to be met. They may involve a variety of methods, such as scrutiny of records, interviews with staff and sample interviews with users. The legislation will allow Commission staff to enter premises for the purposes of undertaking these inspections. The Commission will also have the power to inspect specified records held by those registered, including those held on computer subject to the Data Protection Act 1998.
47. Registered care services will also be required to complete a self-evaluation form every six months, the contents of which will initially be set by the Scottish Executive based on the work of the National Care Standards Committee. This self-evaluation form will be available to the public, as will formal reports from inspections. Certain aspects may, however, need to be confidential to protect users, such as whether there was 24 hour staff cover at facilities. The information would be available on the Internet. There would be penalties for deliberately falsifying any self-evaluation return.
48. We are considering making it mandatory for the self-evaluation forms to be submitted electronically, with an allowance that in special circumstances paper copies could be submitted (by self-employed child minders for example). Self-evaluation will not replace inspections by the Commission but will be an additional safeguard and means of raising quality. In addition the legislation will prescribe those serious incidents which must be reported to the Commission (ie serious accidents or abuse).
We would welcome views on this approach to ensuring quality of care through inspection.
Enforcement of standards
49. The Commission will have the power to report serious cases of abuse or malpractice to the Procurator Fiscal and where necessary de-register or refuse registration to providers. There will be provision for emergency removal of service users and in some cases removal of a staff member who places people using services at risk or abuses them. There will be a procedure for suspension and urgent cancellation of registration, and emergency de-registration. There will be a power for independent medical examination of people where required. There will also be a power for the Commission to instruct arrangements to be made with other service providers to assume management of a facility.
50. There will be a need for the Commission to co-operate with similar bodies in England, Wales and Northern Ireland about providers who are currently subject to enforcement procedures or who have been closed down so that information can be shared in the public interest.
We would welcome views on how enforcement of standards should be dealt with.
Appeals
51. Applicants who are refused registration, or have their registration cancelled, or are unsatisfied with any requirement imposed by condition, will be able to appeal to the Commission to have a decision reviewed. One option is to use a form of arbitration, chaired by a senior member of the Commission staff and involving a lay or public interest member. Alternatively an independent panel could be formed along the lines of the current Consultative Panel on the Registration of Nursing Homes and Independent Hospitals.
52. Applicants unhappy with such arbitration would have a further right of appeal. Following the current approach such appeals would be handled by an Appeals Tribunal convened by Scottish Ministers for the purpose from a standing panel of experts and chaired by a Sheriff Principal (or direct to the Sheriff if an appeal under the Children Act). We are currently considering as to how this process can be speeded up and simplified, bearing in mind the European Convention on Human Rights.
We would welcome any views you may have on appeals procedures.
Investigation of complaints
53. An effective complaints system will be an essential part of raising quality and ensuring standards are met. An effective complaints mechanism will therefore be a part of the legislation to establish the Commission. It is envisaged that the powers of the Commission related to complaints will involve the following:
54. Experience has shown, however, that many complaints can be easily resolved at local level. Any complaints system established by the Commission would therefore need to ensure that initial complaints were made to providers or purchasers of care, unless there were particular reasons why this was not appropriate. The Commission may wish to establish a confidential hotline to ensure that people using social services have ready access to the complaints system.
55. We are aware that local authority registration and inspections units often deal with a wide range of complaints about social work services generally. This function will not pass to the Commission.
We would welcome views on how the Commission should deal with both complaints against providers and its own operations.
Development work
56. Through our survey of registration and inspection units we are seeking views on the level of development work currently undertaken. Our initial view is that the Commission will be expected to offer a short period of advice prior to registration, recognising that the provision of such advice is a strength of the current system. This would involve care providers being able to seek early views on specific proposals in principle, particularly in terms of new or innovative forms of provision, and facilitating the best possible service for people using the service. The Commission may wish to facilitate training sessions or similar for potential new providers on a fee basis or may wish to resource other agencies to do quality development work. Occasionally, the Commission will wish to initiate research into the regulation of care to inform its operations.
57. Local authorities will remain responsible for monitoring the overall provision and pattern of care facilities in their area, including encouraging new provision and the development of quality in existing provision. This was discussed in respect to day care for children in the consultation paper Regulation of Early Years Education and Childcare. It is expected that the Commission will issue guidance notes to applicants on its role as a provider of advice and development work.
We would welcome views on the role of the Commission in pre-registration work and development advice.
Types of care services to be regulated
Care homes for adults and children
58. Currently there are two forms of care homes: residential care homes operated by local authorities, voluntary organisations and the private sector; and nursing homes operated by the private and voluntary sector. At present private and voluntary residential homes are regulated by local authorities and nursing homes by health boards and some are jointly registered. Local authority inspection units have a duty under the NHS and Community Care Act 1990 to inspect local authority homes and there is an expectation that these are operated to registration standards. In the future the registration, inspection and enforcement of standards in all care homes, including those run by local authorities, will be undertaken by the Commission. Local authorities and health boards will, therefore, cease to have responsibility for these functions.
59. We propose to establish a single regulatory framework for all care homes for adults and children. This will mean that adults and children needing long term residential care will experience the least disruption to their lives and will most probably only have to move once. This will avoid the known damaging effects of relocation, where an adult or child living in a residential care home develops a need for 24 hour nursing care which can currently be met in a nursing home only. Under our proposals, appropriate care could be provided in future either by the care home employing suitably qualified staff or from the community nursing service.
60. This will necessitate multi-disciplinary team working in inspection and enforcement, and may require staff to be seconded to the Commission to deal with specialist issues in some cases.
61. There will be one set of standards against which all care homes will be regulated. Homes will be expected to deliver or arrange appropriate care to meet the changing needs of their residents. Regulation will be on the basis of providers having the appropriate staff, skills and facilities in place to provide care to the standards required for the planned resident numbers, taking full account of the level and type of their needs. These requirements will be defined in national standards. For example, the standards will set out what is required when care is provided to those needing nursing care, children with severe physical disabilities, people with dementia, people requiring palliative care etc.
62. Already registered residential care and nursing homes will continue to be registered provided the care they offer continues to meet the needs of their residents.
We would welcome comments on the proposal to establish a single regulatory framework for care homes.
63. At present some supported housing projects (including very sheltered housing) are registered as care homes. In most cases in the future the Commission will not register such projects, instead the home care provided to residents will be regulated, as opposed to the project. However, we are concerned to ensure that this approach does not lead to increased vulnerability for certain groups of people and it may be that limited numbers of projects remain registered to protect such people.
It would be helpful to have views on this approach to regulating care in supported housing (including very sheltered housing), particularly in terms of the effect on vulnerable people.
Day care for children
64. Local authorities currently regulate child minding and day care for children under 8. This includes nurseries, playgroups, playschemes, after school care and crèches. Aiming for Excellence noted that the arguments for a Commission having responsibility for carrying out regulation apply equally to day care for children. It is important to achieve consistently high standards across the variety and diversity of facilities which exist across Scotland. A separate consultation was carried out (Regulation of Early Years Education and Childcare) addressing the coverage of regulation and standards to be applied. Scottish Ministers will soon announce their proposals on this, including the age range to be covered by regulation.
65. While the Commission will take responsibility for regulating day care for children, we want to ensure that there is no unnecessary duplication of inspection. Some day care providers in the private and voluntary sector are commissioned by local authorities to provide pre-school education. They are therefore subject to inspection by Her Majesty’s Inspectors of Schools (HMI). Specific requirements will continue to be appropriate for pre-school education but we aim to identify a common body of performance indicators for all provision for 3-5 year olds and to co-ordinate inspection arrangements. It will also be important for the Commission to recognise and support other national initiatives on childcare - such as the development by local authorities of comprehensive childcare information services for parents and the general public. The Commission’s powers in relation to data about care providers will be designed to help with this, and to avoid unnecessary duplication of data collection.
Adoption and fostering
66. Local authorities and voluntary agencies provide a range of services in relation to adoption. These include recruitment, assessment and approval of adopters; functioning of adoption panels; matching children with prospective adopters; and monitoring, review and support for adopters and children placed for adoption both prior to and, as appropriate, post adoption. They also provide counselling services for adults who have been adopted, their adopters and their birth relatives. The standards of local authority services are not subject to independent scrutiny. Voluntary adoption agencies which provide similar services to local authorities are inspected by the Social Work Services Inspectorate (SWSI) and approved by Scottish Ministers. In order to ensure consistency across sectors it is proposed that the Commission should be responsible for registration and inspection of all services provided in relation to adoption.
67. In relation to fostering, registration and inspection would cover services which recruit, assess, approve and support foster carers; match children to carers; and support and monitor placements, including private fostering arrangements. The decision-making procedures of foster panels with regard to recommending approval of foster carers, or in a wider remit in relation to linking and placement, would also be regulated. Currently there is no registration and inspection of foster carers themselves and this will remain the case. The Commission will, however, assume responsibility for regulation of fostering services provided by local authorities and the voluntary sector. Regulation will also apply to private fostering agencies, should this approach be used in Scotland.
Secure accommodation facilities for children
68. All secure accommodation facilities for children are subject to approval by Scottish Ministers. Those operated by local authorities are also subject to authorities’ own internal inspection procedures. Secure accommodation provided by independent organisations is registered by Scottish Ministers on the basis of SWSI and HMI inspections.
69. Our proposal is that statutory approval of secure accommodation would be retained by Scottish Ministers on the basis of a review every 3 years by SWSI and HMI, but all registration and inspection responsibilities, including those currently exercised by the Scottish Ministers, should transfer to the Commission. The detail of respective roles of the Commission, SWSI and HMI will be developed as work on the implementation of the Commission proceeds.
Day care for adults
70. Local authorities are responsible for the registration of day care for adults in the private and voluntary sectors. Registration and inspection units will also often inspect local authority facilities. Day care is an important service for many community care groups, including older people and people with learning disabilities. We consider that people using day care services would benefit from a more consistent national regulation framework. The Commission will, therefore, regulate day care for adults provided by local authorities as well as the private and voluntary sector. Such regulation will not apply to social activities such as lunch clubs.
Care at home
71. Providing care to enable people to remain in their own homes is what most people want and is a central part of community care. Regulation of an expanding home care service will give assurance and certainty to people using the service while maintaining principles of choice and independence. Regulation of home care will be based on registering those organisations providing care services which meet required criteria and standards. It is our view that such an approach will allow the sector to be flexible and responsive to people’s needs.
72. Regulation will focus on the provision of personal and physical care services. Organisations and individuals providing services of a purely household nature, such as cleaning, cooking or shopping, will not be regulated by the Commission. Regulation will, in due course, also cover self-employed individuals offering personal care services in the home.
73. As noted in paragraph 63 in some areas supported housing projects have been registered as residential care homes depending on the intensity and frequency of the care services provided. In the future, regulation of any domiciliary care provided to residents will, in most cases, be more appropriate. The determinant should be the nature of the services: whether they are provided directly by the project itself; and the degree of control exerted over them by the resident.
We would welcome views on how care provided for people in their own homes should be regulated.
Specialist residential accommodation for offenders
74. Specialist facilities, such as residential hostels, which include a care element will be subject to regulation by the Commission. This includes supported accommodation, some of which is currently registered with local authorities. National standards will be developed in due course.
Boarding schools
75. The White Paper proposed that regulation of the care and welfare provisions in boarding schools and hostels attached to schools should not fall to the Commission at this stage. However, the situation is being kept under review and we would welcome views on the issue.
We therefore invite views on whether care and welfare provision for children in boarding schools and hostels should be regulated by the Commission.
If so, the Commission would work closely with HMI in their role inspecting educational provision in schools.
Nursing agencies
76. At present nursing agencies are regulated by health boards under the Nurses (Scotland) Act 1951. One future option is for such agencies to be regulated by the Commission in a similar way to home care agencies.
We would welcome views on whether the Commission should regulate nursing agencies.
Private and voluntary healthcare
77. The issues surrounding the regulation of private and voluntary healthcare will be explored in a forthcoming consultation paper, expected to be issued in January 2000. One option is for such healthcare to be regulated by a division of the Commission. The consultation paper on regulating private and voluntary healthcare will be distributed widely, including to all recipients of this paper.
Extension of care regime
78. It is our view that the Commission should not regulate the following types of care provision:
79. In addition the consultation paper on Regulation of Early Years Education and Childcare issued in March 1999 suggested that regulation should not be extended to au pairs, nannies or informal unpaid childcare. Scottish Ministers will announce their conclusions on this shortly.
80. The proposed legislation will, however, be sufficiently flexible to allow the scope of regulation to be extended by the Scottish Executive through use of regulations if there is a need to do so.
Comments are sought on types of care to be regulated (and those excluded), and in particular the priorities for initial regulation by the Commission.
Links with Scottish Social Services Council
81. The legislation will specify a duty to co-operate with the Scottish Social Services Council. It is vital the Commission and the Council work together to maximise use of resources and eliminate any possible duplication of effort. Arrangements will be put in place to ensure forward planning and progress against plans is regularly monitored.
82. The Commission will also be required to share information with the Council and vice versa. In particular they will share information about whether behaviour or practice of providers or individuals, which might be considered detrimental to the public interest, might lead to an entry on the statutory Index of unsuitable adults (see paragraph 15), or disciplinary action by the Council.
83. The codes of conduct and practice for the workforce and codes of practice for employers, which will be published by the Council, will be monitored and enforced by the Commission.
Information
84. As a modern organisation the Commission would be expected to make maximum use of information technology. This will ensure that its operations are as effective as possible and that information is available as freely as possible to members of the public, such as the self-evaluation forms regulated providers would be required to submit, and inspection reports. This would allow the Commission to play an important public information role in giving the public access to information on the care facilities they may require to use. The Commission would be expected to promote this role to members of the public.
85. As a national body the Commission will be in a position to collect, assemble and report on performance data about care facilities and services within its remit. Such consistently collected data will be of value to the Commission, the Scottish Executive, care providers and purchasers and, importantly, people currently using or seeking to use care services. In order to facilitate the use of such data the Scottish Executive (and in particular the Chief Inspector of Social Work Services) will be able to access the data of the Commission, subject to the provisions of the Data Protection Act 1998.
Transitional arrangements
86. Following the introduction into the Scottish Parliament of the legislation to establish the Commission, a shadow body will be set up to begin the implementation of the Commission. At this point the shadow body will be able to rent or lease premises, recruit and employ staff, enter into contracts, incur necessary expenditure and plan for the full operation of the Commission.
Royal Commission on Long Term Care: Recommendation that there should be a National Care Commission
87. The report of the Royal Commission on Long Term Care, chaired by Sir Stewart Sutherland, recommended that there should be a UK wide National Care Commission (NCC) to take a strategic overview of the care system and its funding and steward the interests of older people. The NCC would monitor trends, represent the consumer, provide national benchmarks and encourage the development of better services.
88. In a debate in the Scottish Parliament on 2 December 1999, the Deputy Minister for Community Care, Iain Gray, indicated that the Scottish Executive accepted the recommendation and indicated that it would be fulfilled in Scotland through the establishment of the Scottish Commission for the Regulation of Care.
89. The Commission will be responsible for ensuring that all social care is provided to national standards. As part of this, it will be creating a national database of care services and will be able to use this, together with demographic and resource data collected by the Scottish Executive, to advise on trends. It will have the power to investigate complaints about care services and report on them. It will advise on changes needed to the national care standards. It will also provide advice to those offering services on how to meet the standards and improve the service they provide.
We would welcome views on the proposal that the Commission would fulfil the role envisaged by the Royal Commission report for a National Care Commission in Scotland.
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