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The Way Forward for Care

Chapter 5 How the Commission will regulate

65. We intend that the Commission will develop an effective and efficient process of regulation focused on ensuring that the needs of service users are met.

National care standards

66. The legislation will give Scottish Ministers the power to publish national care standards, after consultation with relevant interests. These standards are already being prepared by the National Care Standards Committee. Draft standards for residential care for older people, people with mental health problems and children are being consulted on at present. Work is about to begin on standards for home care, on residential care for groups not already covered and on early education and childcare. Further standards will be produced in due course, including for housing support services.

67. The Commission will regulate services against the care standards. New services will have to show that they will be able to meet the care standards when they are operational, before being registered for the first time, and will thereafter have to meet the standards. Existing services which will be required to be registered for the first time and services which were previously regulated by local authorities or health boards will also be expected to meet the care standards. Where this is not practicable immediately, the Commission will be able to register the service for up to a maximum of 5 years, agreeing with the service provider steps which will be taken over that period to bring it into line with the standards.

68. In addition, the Commission will consider in registering and inspecting services whether the manager and staff are adhering appropriately to the Scottish Social Services Council's Codes of Conduct and Practice.

69. It is essential that the Commission and those who purchase or commission care at a local level be clear about their respective roles and responsibilities. It is for purchasers and commissioners to set their own expectations for the care they buy through the contracting process. It is for the Commission to ensure standards are in place to ensure quality and protection for service users.

"Fit Person" considerations

70. Responses to the consultation paper highlighted that the current approach to ensuring a "fit person" is in place for each service is often problematic.

71. The care standards will include the provision that the manager of the service (who may also be the owner of the service) should be a fit person to manage that service. This will be added to the standards out for consultation at present. In assessing whether the manager is a fit person when the service is registered for the first time or the manager changes, the Commission will:

• check that the manager has registered with the Scottish Social Services Council if this is required;
• if the manager is either not required to register with the Council or registered more than 3 years previously, seek a SCRO check on the individual;
• if the manager was not previously involved in managing a registered service and is not being employed by a local authority, voluntary or private sector organisation which carries out its own employment checks, the Commission will seek references from their last employer where appropriate or from character referees where not;
• as at present, childminders will be expected to furnish evidence regarding suitability of themselves and adults in their home and the Commission will ensure accuracy through checks with SCRO.

72. Managers will be expected to ensure that all staff are suitable to work with children or vulnerable adults as appropriate. When Part V of the Police Act 1997 is brought into force criminal record information will be available including enhanced criminal record certificates in respect of those who will have unsupervised access to children or vulnerable adults. It is also intended that employers in regulated children's service be required to check prospective employees who will have access to children against the proposed index of adults unsuitable to work with children as discussed in paragraph 129. The intended index of adults unsuitable to work with children should in time be extended to deal with persons unsuitable to work with vulnerable adults and at that point employers of those who will have access to vulnerable adults would then be required to check with such an index.

73. The care standards will also require services to be operated on a sound financial footing. Where the service is owned by the manager, the manager will have to demonstrate that s/he is not bankrupt and has the resources or financial backing to run the service on a stable basis. Where the service is owned by a voluntary or private organisation, the service will have to satisfy the Commission as part of the registration process that adequate arrangements are in place to ensure that sufficient funding is available to enable the service to operate appropriately.

74. The legislation will provide that no medical practitioner providing medical care to a resident of a care home for adults or children should have a financial interest in that home.

Certificate of registration

75. In regulating a care service, there will be a legislative requirement for the Commission to issue a certificate of registration, which will contain any conditions on the registration, including conditions as to improvements to be made and by when. This will be agreed with the service manager in advance. The certificates will also indicate when the service has to report changes in circumstance to the Commission, for example a change in manager. The Commission will be able to refuse to grant a certificate and there will be a right of appeal in place where this is the case.

76. For care homes for adults, the certificate will indicate the maximum number of residents to be accommodated in the care home, the staffing agreed as appropriate for the mix of residents and how this may be varied, so that the care standards can be met. The Commission will be expected by Scottish Ministers as one of its first tasks to draw up guidelines as to the ways in which it will generally expect managers of care homes to respond to changes in the needs of residents.

77. Similar conditions should apply to care homes for children. Certificates should also state the maximum number of children who should be accommodated, the staffing agreed appropriate for the functions and objectives of the home and how this may be varied to meet the care standards. This may need to stipulate the gender of staff. Reviews should occur if the age pattern of the accommodated children varies and the staff ratio may need to be varied according to the personal needs of the children. In early education and childcare certificates will deal with matters such as capacity and staff numbers. The Commission will be expected to require minimum adult:child ratios as determined by Ministers but will be able to require a tighter ratio in appropriate circumstances. The Commission will be required to have a transparent approach on when it is likely to require tighter ratios, eg relating to premises or provision for children with special needs.

78. Scottish Ministers will set administrative timescales within which services should be registered. These will be set out as targets against which the Commission's performance will be monitored.

79. The Commission will be able to provide advice to potential new providers. A protocol would be agreed with the Convention of Scottish Local Authorities (CoSLA) setting out respective roles. Where the Commission runs a training event or similar it would be able to charge a reasonable fee.

Inspections

80. All care services regulated by the Commission will be subject to inspection. At present, there is no statutory requirement for how often community care services registered by local authorities are inspected, although almost all local authorities achieve 2 inspections per year. For nursing homes, there is a statutory requirement of 2 inspections and for child care a statutory requirement of at least one inspection per year. The consultation paper proposed an annual inspection together with the power to inspect at any time. It also proposed that services should be required to complete a self-evaluation every 6 months. Consultees' views varied considerably on the number and frequency of inspections which should be required, and the relative merits of announced and unannounced inspections.

81. The consultation paper asked about the future role of lay inspectors in the work of the Commission. Such inspectors have been used by a number of registration and inspection units. Respondents to the consultation generally welcomed the use of lay inspectors, particularly as they bring a greater degree of confidence and transparency for service users and the public. Many commenting, however, stressed that proper training would be required for such inspectors in order for them to perform their role effectively.

82. We have considered carefully what the requirements for inspection should be. If the principal aim is to "catch" rogue services, then clearly the power to make unannounced inspections to no regular pattern is necessary. But it is not sufficient. Inspections cannot in themselves provide assurance that users are being protected. They cannot be relied on as a means of spotting unacceptable situations as soon as they occur. In addition what is needed to ensure the protection of the users of services as far as possible is an effective system for users, carers and staff to report concerns or complaints. While most complaints should be resolved by providers there will be a complaints system operated by the Commission. Further details are given in Chapter 7.

83. If inspections are to be used as a tool to benefit the vast majority of service providers who will wish to work with the Commission to ensure that their services are as good as they can be, then there must also be a system of planned and announced inspections. The need for such inspections will vary by service, and circumstance. For example, regular inspections in the first year of a new service or after a change of manager have been shown to be very effective both in supporting new providers and in identifying those services which are not focused on the needs of their users.

84. There is a balance to be struck between requiring regular inspections to ensure that all services are supported and continue to improve, and leaving sufficient scope for the Commission to focus on those services which require most attention. We propose the following:

• the Commission will make a statutory minimum of one inspection per annum;
• the Commission will have the power to make unannounced inspections at any time, including the power of entry to premises where care is being provided and the management offices of home care, nurse, fostering and adoption agencies;
• the Commission will be expected to draw up plans for its forthcoming inspection programme, including in relation to unannounced inspections, and include these in its Corporate Plan to be approved by Scottish Ministers;
• service providers will have a statutory duty to provide the Commission with whatever information it requires about the service, in whatever form;
• the Commission will also be expected to decide how it wants to get information from service providers, the use it will make of self-evaluation in the regulatory process, and the extent to which such information should be made publicly available;
• the Commission will be expected to make full use of lay inspectors and provide necessary support to allow them to undertake their role effectively;
• inspections will involve the views of users and their advocates and will particularly ensure that care providers have robust complaints systems in place to ensure that service users feel confident that most complaints can be satisfactorily resolved by providers; and
• finalised inspection reports, that is after the service provider has had the chance to comment, will be made widely available.

85. The Commission will thus be able to tailor its work to focus on new services and providers, and services which have had problems in the past. It will also be expected to cover all services appropriately, and will have to convince Ministers on an annual basis that its plans will ensure both the protection of people using services and an improvement in quality. Service providers will know that they can be subject to an unannounced inspection at any time, but will also be able to see from the Corporate Plan what the frequency of inspection for their type of service will be. As noted above, where HMI inspect early education and childcare facilities the Commission will not be required to inspect in the same year, although it will be able to do so if there is particular cause.

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