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The regulation of care and the social services workforce
PURPOSE AND INTENDED EFFECT
Issue
1. Currently residential care homes, nursing homes, and day care and childminding for children are regulated by local authority and health board registration and inspection units under the provisions of the Nursing Homes Registration (Scotland) Act 1938, the Social Work (Scotland) Act 1968 and the Children Act 1989. Secure accommodation, and some adoption services for children, are approved by the Social Work Services Inspectorate. There is no existing regulation of the social services workforce, other than statutory requirements that certain post holders have particular qualifications.
2. The Scottish Executive is reviewing the arrangements for regulating care and the social services workforce as set out in the White Paper Aiming for Excellence: Modernising Social Work Services in Scotland. The proposed changes will affect care providers and individual social service workers.
Objectives
3. To create a Scottish Commission for the Regulation of Care as the independent regulator of social work services, whoever they are provided by; and a Scottish Social Services Council which will regulate the workforce. These new bodies will strengthen the protection of children and vulnerable adults, support a confident and competent workforce and ensure the availability of high quality services which meet people’s needs. Both bodies will be accountable to the Scottish Executive and the Scottish Parliament.
4. The Scottish Commission for the Regulation of Care will assume the registration, inspection and enforcement functions of local authorities and health boards in relation to all care facilities that are currently regulated, including nursing homes, residential care and day care. The Commission will also regulate forms of care not currently regulated, including care provided in the home.
5. The Scottish Social Services Council will publish codes of conduct and practice and register staff in certain key groups as a pre-condition before they can be employed or can continue in employment. The Council will also assume the functions of the Central Council for Education and Training in Social Work (CCETSW) in relation to social services education and training as part of regulating professional and vocational education.
Risk assessment
6. The central purpose of regulating care and the workforce is the protection of vulnerable adults and children. Without adequate regulation the health and well-being of those in care could be at risk, for example if they are subject to neglect, physical or mental abuse or simply given an inappropriate form of care. They might also suffer the embezzlement or theft of savings. At worst this could result in otherwise avoidable deaths. These risks are addressed to some extent by the existing system of regulation, but not for care services not covered by this regulation such as home care.
7. The new arrangements will widen the scope of regulation and should help reduce the level of risk by introducing integrated regulation that is both independent and consistent across Scotland.
OPTIONS
8. A number of regulatory options have been identified:
Option 1 Maintain the current system of regulation, but look to improve enforcement and staff training and qualifications by issuing voluntary codes of practice and guidance.
Option 2: Move to a self-regulatory system under which providers would be responsible for determining standards and establishing registration and inspection arrangements. The workforce could also be self-regulating.
Option 3: Establish a new system for regulating care and the social services workforce through the Scottish Commission for the Regulation of Care and the Scottish Social Services Council.
9. It has been possible to dismiss options 1 and 2 on grounds of both practicality and principle. The current regulatory system has been consistently criticised because it does not have set national standards or an integrated regulatory regime with, in certain circumstances, local authorities acting as both provider and regulator. Nor does it cover care provided to people at home. Voluntary guidance would not by itself resolve these fundamental concerns. Option 2 would not address these concerns either and would also lack any form of independent regulation. It is highly unlikely that either system would bring about the necessary improvements to the existing regulatory system or provide adequate reassurance to service users or social services workers.
10. Option 3 will provide centralised, independent regulation and will ensure that the proposed regulation is proportional.
Issues of equity and fairness
11. Most providers of care already pay fees for the registration and inspection services they receive from local authorities and health boards. The principle that providers of residential and some other forms of care should meet the reasonable cost of regulation is well established. It is intended that the cost of regulation in future should continue to be met by those who are regulated, whatever system of regulation is in place.
12. The Council will operate equitably across the staff in the statutory, private and voluntary sectors. It will set and regulate standards of conduct and practice in all settings. In regulating this workforce the Council will address the following issues of fairness:
BENEFITS
13. Option 1: would have the benefit, in principle, of stability. Of maintaining the current and well known regulatory arrangements. However, there are serious concerns over how effective these arrangements are and there would, in order to bring about the necessary improvements, need to be significant changes to current practice. Implementing these changes mean disruption not stability for local authorities and health boards.
14. Option 2: would have the benefit of enabling the private and voluntary sector and the social services workforce to establish their own regulatory standards and place responsibility for maintenance and enforcement on the industry itself.
15. Option 3: the benefits of placing responsibility for care regulation on the Commission would be the establishment of a single body with responsibility for regulating the full range of residential, nursing and domiciliary care and to provide a consistent regulatory approach across all sectors. The establishment of the Council will ensure we have a confident and competent workforce capable of delivering high quality services which meet people’s needs
Quantifying and valuing the benefits
16. It is difficult to quantify these benefits in financial terms. Many of the benefits to service users and the public will be in terms of peace of mind and reassurance which it is not possible to quantify precisely. The establishment of single care homes, for example, will help reduce the need for those with deteriorating health to move between homes. Such moves often distress those involved and can sometimes accelerate their decline and even death.
COMPLIANCE COSTS FOR BUSINESS, CHARITIES AND VOLUNTARY ORGANISATIONS
Business sectors affected
17. There will be no new fees involved for most private and voluntary sector providers of care services as they already pay fees for registration and inspection to their local authority and/or health board. They will continue to pay fees, but to the Commission which will take on responsibility for regulation.
18. The level of fees is kept under review and it is likely that once the Commission is established at least some registration and inspection fees will rise. Such fees, however, are and will remain a very small part of the total cost of providing a care service. We consider that any impact on individual people using services should be negligible.
19. The regulation of the workforce will mean that the public and users of services will have greater confidence in the practice and conduct of the workforce as education and qualifications are driven up.
Compliance costs for a typical business
20. Currently the fees that residential and nursing homes pay for registration and inspection are:
21. Providers offering day care for children and childminders pay annual fees for the registration and inspection services they receive from local authorities. Those providing full-time day care pay more than those that offer sessional day care only and childminders.
22. The fee structures are, however, kept under review and it is likely that fees will go up in future whatever form of regulation is in place. We are currently conducting a survey of all local authority and health board registration and inspection units, and the results will help us decide fee levels in future. The cost of regulation will continue to be met by those who are regulated regardless of who the regulator is. Whether the responsibility for regulation remains with local authorities and health boards, or is transferred to a self-regulatory body or the new Commission and Council, the fees that are charged will be linked to the cost of that regulation.
23. There will be compliance costs for those staff who will be registered by the Council. Initially these staff will be:
24. The annual fee is likely to be in the range from £12 (paid by nurses at present) and £15 (paid by teachers at present). There may be pressure for this to be passed on to employers, but the expectations in line with other professional groups is that this payment should be regarded as a normal part of being a professional worker.
Total compliance costs
25. For existing providers the total compliance cost will simply be the annual continuation fee multiplied by the number of beds they have. The current fee levels are £65 per bed for nursing homes and £40 per bed for residential homes. Fee levels will be reviewed following the current survey of registration and inspection units. New providers, and those wishing to change their registration will incur greater costs as appropriate.
26. The annual fees for those providing full-time day care are currently £110 for registration and £85 for inspection. Those offering sessional day care and child minders are charged £12.50 for registration and £10 for inspection.
OTHER COSTS
27. For option 1 there would be a cost to the Scottish Executive in drawing up the voluntary guidance and in publicising and distributing it. There would clearly be a cost in establishing the self-regulatory system proposed in option 2, the brunt of which would probably be borne by providers and their umbrella bodies. Under option 3 there will be a cost to the Scottish Executive of preparing the legislation and in making available start up funds to the Commission and the Council, including funding for accommodation and for the transfer of staff.
RESULTS OF CONSULTATIONS
28. Responses to the White Paper Aiming for Excellence helped in the preparation of this Regulatory Impact Assessment (RIA) as have the pilot results of a survey of all local authority and health board registration and inspection units. Further feedback was received at a consultation seminar, attended by over 60 different interest groups, which was run by the Scottish Executive to discuss the proposals. The consultation paper, of which this RIA is part, was seen in draft and commented upon by members of the Aiming for Excellence Reference Group. We have also met with a range of individuals and groups to discuss specific aspects of the proposals. Such meetings have and will help us work through the detail of the new legislation.
SUMMARY AND RECOMMENDATIONS
29. This assessment considers the implications of proposals for the new regulatory arrangements for care services, whoever they are provided by, and for the social services workforce. It sets out the purpose of the regulation, essentially for public protection and developing quality services, and a range of options for that regulation. It also offers the benefits and costs of each option. The option that we propose (in this consultation paper) to implement is option 3 — that the regulation of care should fall to the new Scottish Commission for the Regulation of Care and of the workforce to the Scottish Social Services Council.
ENFORCEMENT, SANCTIONS, MONITORING AND REVIEW
30. The new Commission and Council will have responsibility for the enforcement and monitoring of the new regulatory arrangements.
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