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The Way Forward for Care

Chapter 6 Enforcement and appeals

86. 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. This concern has to be balanced against the need to ensure adequate safeguards for service providers.

87. It is proposed that the following enforcement arrangements would apply. If the Commission considers that a care service is no longer meeting the requirements for registration or has failed to meet a condition on its registration, it should be empowered to do either or both of the following:

• require the service not to accept further admissions/new clients; and/or
• issue an improvement notice, setting out the changes required and the deadlines for the changes to be made.

88. Where the conditions of the improvement notice are not met, the Commission would have the power to require the replacement of the manager of the service and/or members of staff as appropriate. Where this would not be appropriate or sufficient, the Commission would be able to cancel the registration so that the service would have to close.

89. Before taking any of the above action, the Commission would be required to consult with the service provider. The service provider would have the opportunity to comment on the proposal and the Commission would have to consider these views before finalising its decision. The Commission would be expected to facilitate independent arbitration in cases of dispute. Where the service provider remained unhappy with the decision, there would be a right of appeal to a sheriff.

90. Where the Commission considers the users of the service are at risk of serious harm, the Commission should have the power to require the replacement of the manager of the service/or members of staff or to cancel the registration with immediate effect. The Commission would not be required to serve an improvement notice first in such circumstances, although this would be possible. There would be a right of appeal to a sheriff, but this would only take effect after the implementation of the Commission's decision.

91. The Commission would have a duty to report serious cases of abuse and malpractice to the Procurator Fiscal. The Commission would also have a duty to inform the Scottish Social Services Council of the cancellation of the registration of any service managed by a person registered with them or the requirement to replace a manager or member of staff registered with the Council.

92. The Commission will be required to establish a protocol with CoSLA and the NHS to cover arrangements for providing emergency cover for services where there is a breakdown in care.

93. Care providers should be required to inform the Commission within 24 hours of the death of a service user in sudden or unusual circumstances, a serious accident involving a service user, where there is an allegation of abuse or certain other serious events affecting service users. The Commission will have the power to arrange for an independent medical examination of service users subject to their agreement.

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