Clause 7 General duties of the Commission

53. Clause 7 sets out the general duties of the Commission, and applies only to England. The duties in subsections (1) to (7) relate to services that are subject to regulation under Part II, with the exception of private and voluntary healthcare. These services are collectively known as "Part II services". The duties include monitoring the availability and quality of such services, supporting consumers through the provision of information and encouraging the development of better services.

54. Subsection (1) provides that the Commission must keep the Secretary of State informed as to the provision, availability and quality of services of Part II services. This will include reporting on trends in the provision of long term care. Subsection (2) provides that the Commission will have the general duty of encouraging improvements in the quality of Part II services. It will do this by, for example, disseminating examples of good practice and giving advice to providers on how to meet the national minimum standards (see clause 22). Under subsection (3) the Commission is required to provide information about Part II services to the public. This might include information about the location and types of services available, as well as the results of its inspections of individual providers. Subsections (4) and (5) provide that Secretary of State may require advice or information from the Commission about any aspect of the provision of Part II services and for the Commission to advise the Secretary of State about changes to the national minimum standards with a view to seeking improvement in the quality of services. Subsection (6) provides for the Secretary of State to make regulations conferring additional functions on the Commission.

55. Subsection (9) places a duty on the Commission to secure improvements in the quality of healthcare in independent hospitals by contracting with the Commission for Health Improvement (CHI) to undertake its inspections of such establishments. Subsection (10) provides that the Commission must recover from the independent hospital the full cost of the inspection. Subsection (11) provides that the standards to be applied by CHI on such inspections shall be those it applies to comparable NHS hospitals. These provisions were introduced (via an opposition amendment) during Report stage in the House of Lords (see Hansard [Col. 674]). The Government may wish to revisit these provisions as the Bill proceeds through its remaining stages.

Clause 8 - General functions of the Assembly

56. Subsection (1) provides for the Assembly to have powers to charge for fees in connection with its regulatory duties. Subsection (2) provides for the Assembly to provide training in relation to the attainment of national standards. Equivalent powers for the Commission are in Schedule 1, which does not apply to the Assembly.

Clause 9 Inquiries with respect to the Commission

57. Subsection (1) enables the Secretary of State to act on any concerns over the Commission's exercise of its functions, by setting up an inquiry. Subsection (2) allows the Secretary of State to set up an inquiry into any matter connected with a regulated service. For example, if a consultant surgeon working in a private hospital was found to have unusually high death rates among his patients, the Secretary of State could set up an inquiry to investigate. Subsections (3) and (4) enable an inquiry to be held in private. This might be necessary to protect, for example, a victim of child abuse.

58. Subsection (5) provides for section 250 (2)-(5) of the Local Government Act 1972 to apply in relation to an inquiry. This will enable the person holding the inquiry to issue a summons requiring an individual to give evidence or produce any documents in their custody or under their control at a stated time and place. If that person fails to attend (for reasons other than not having the necessary expenses of their visit paid or tendered), they are liable to a fine or imprisonment.

59. Subsection (6) provides for the Assembly to have similar powers to those referred to in paragraph 58 above.

60. Subsection (8) requires that reports of inquiries set up under the powers in this section should be published unless the appropriate Minister considers it would be inappropriate to do so. Grounds for not publishing may include, for example, publication being prejudicial to ongoing criminal investigations or proceedings.

PART II ESTABLISHMENTS AND AGENCIES

61. Part II makes provision for registration, the registration procedure, regulations and standards, offences and miscellaneous provision. Clauses 10 to 19 set out the provision for registration and the regulatory procedures to be followed by the registration authority. Provision for a right of appeal against decisions of the registration authority is made in clause 20. Clause 21 provides regulation making powers for the appropriate Minister to make provision as respects management and staffing, fitness of premises and the conduct of any services regulated under Part II. Clause 21 will not apply to adoption agencies. The regulations governing their procedures will continue to be made under the Adoption Act 1976, as amended by the Bill to match the provisions of clause 21. Clause 22 enables the appropriate Minister to issue national minimum standards for England or Wales applicable to all regulated services. Any breach of these standards will not, of itself, be a breach of regulatory requirements, but shall be taken into account when determining whether a breach of the regulations has occurred.

Registration

62. Clauses 10 to 19 set out the procedures which underpin the registration process, the registration authorities' day-to-day activities of considering applications for registration, conditions of registration, cancellation of registration and procedures for notifying applicants or providers of decisions. Clause 20 provides for rights of appeal. The establishments and agencies in respect of which registration is required are those defined in clauses 1 to 4. Since the Bill was introduced in the House of Lords, the Government has now decided to make it compulsory for all domiciliary care agencies to register with the Commission or Assembly as appropriate. (The position on introduction was that such registration would be voluntary).

Clause 10 Requirement to register

63. Subsection (1) provides that any person who carries on or manages an establishment or agency of any description must be registered, and it will be an offence to carry on or manage such an establishment without being registered in respect of it. The principle is that each establishment or agency should have a registered owner or proprietor (person who 'carries on' the business). If the person who carries on the business is not in day-to-day control of it, it is intended that the regulations (see clause 21) will require the appointment of a manager who must also be registered. Subsection (2) provides that an agency operating from several branches must register each branch separately.

64. Subsection (3) - registration is required in respect of voluntary adoption agencies under the provisions of Part II, but the relevant sanctions remain within section 11 of the Adoption Act 1976.

65. Subsection (4) enables the appropriate Minister to make provision about the keeping of registers.

66. Subsections (5) and (6) relate to offences. A person who carries on or manages an establishment or agency without being registered will be guilty of an offence and liable to a fine up to level 5 on the standard scale*. If the person continues to run an unregistered establishment or agency after having been convicted of this offence, or after their registration has been cancelled, then they will be guilty of an offence and liable to six months' imprisonment, or a fine, or both.

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* See paragraph 97 of these notes for definition of standard scale.

Clause 11 Applications for registration

67. This clause sets out the framework for applications for registration, with subsection (1) requiring that the application for registration must be made to the registration authority.

Clause 12 Grant or refusal of registration

68. Registration will only be granted if the registration authority is satisfied that the applicant has demonstrated that they have complied or will comply with all relevant requirements. The burden of proof is with the applicant rather than the registration authority.

69. Subsection (2) provides that if the registration authority is satisfied that the applicants are complying or will comply with any requirements set out in regulations under clause 21 and any other requirements of any other legislation which appears to the registration authority to be relevant, it must grant the application for registration, otherwise it must refuse it. If it grants the application, it must issue a certificate of registration (subsection (4)).

70. Subsection (3) provides that the registration authority will be able to grant an application either unconditionally or subject to such conditions as it thinks fit. Conditions may be generic or specific. For example, the Commission will be able to impose conditions on care homes specifying the categories of patients and the number of residents that may be accommodated. In some cases a specific condition may be required to take account of the circumstances in that individual home, centre, agency, private hospital or clinic. For example, there might be a condition that a particular door be kept locked to prevent confused residents from wandering directly on to a busy road.

71. Subsection (5) The registration authority may vary a condition of registration at any time or impose an additional condition.

Clause 13 Cancellation of registration

72. This clause gives the registration authority the power to cancel the registration of a person in respect of an establishment or agency, where a condition of registration has been breached, where a regulatory requirement has been breached or where a relevant offence has been committed. Further grounds for cancelling registration may be specified in regulations.

73. Relevant offences for the purposes of clause 13 are -

• failure to comply with conditions (clause 23);

• contravention of regulations (clause 24);

• holding out premises as an establishment or agency without registration (clause 25);

• failure to display a certificate of registration (clause 26);

• obstructing an inspector (clause 29);

• the offence of contravening regulations under section 9 (2) of the Adoption Act 1976;

• any offence under the Children Act 1989 or any regulations made under it;

• offences under regulations made under section 1(3) of the Adoption (Intercountry Aspects) Act 1999;

• offences under the Registered Homes Act 1984 or regulations made under it.

74. Cancellation of registration would not normally be the first step in a formal enforcement action. It is more likely to be used where other actions such as prosecution have failed to ensure compliance by the establishment or agency. If a registered person is convicted of a relevant offence, such as breaching a condition of registration (an offence under clause 23), and still fails to remedy the breach, the registration authority will be able to consider cancellation of the person's registration.

Clause 14 Applications by registered persons

75. Subsection (1) enables the registered person to apply for a change to their conditions of registration (for example to change the number of people accommodated in the home) or to apply voluntarily for the cancellation of registration, for example, if they plan to close or sell the business. Subsection (2) prevents a person voluntarily cancelling his registration if the registration authority have given notice of intention to, or decided to, cancel registration. Subsection (3) enables the appropriate Minister to make regulations specifying the particulars to accompany such an application, including provision for a prescribed fee. Subsection (4) provides that if the registration authority grant the application they must give notice in writing and issue a new certificate of registration.

Clause 15 Regulations about registration

76. Clause 15 provides for regulation-making powers with respect to registration. Regulations covering applications for registration (subsection (1)(a)) will deal with matters such as the information that should be provided in the application. Regulations made under subsection (1)(b) will require certificates of registration to include, for example, the conditions of registration for that person in respect of that establishment or agency eg the categories of person a care home may accommodate.

77. Subsection (2) concerns fostering and adoption agencies. The appropriate Minister will be able to make regulations to provide that fostering agencies or voluntary adoption agencies which are unincorporated bodies are ineligible to apply to be registered. This provision restates section 9(1) of the Adoption Act in respect of voluntary adoption societies (which is to be repealed) and applies it to fostering agencies.

78. Subsection (3) enables regulations to be made requiring registered persons to pay an annual fee. These may be set at different levels or on a different basis for different types of organisation. Decisions will be made about the level and structuring of fees at a later date. Subsection (4) provides that unpaid fees may be recovered in the magistrates court.

Registration procedure

Clauses 16 to 18 Notices and right to make representations

79. Clause 16 provides for the registration authority to give notice of decisions it intends to take ("notice of proposal") with respect to applications for registration, cancellation of registration or any change to the conditions of registration. Notice must be given to the applicant or registered person and must set out the reasons (subsection (6)). For example, in the case of a person applying for registration for the first time, the notice of proposal will state whether or not the registration authority proposes to register them, and if so, the conditions subject to which they propose to grant the application. Clause 16 does not apply where the registration authority decides to grant an application for registration unconditionally, or subject to agreed conditions.

80. Clause 17 states that a notice given under clause 16 must indicate that the person can, if they so wish, make written representations to the registration authority within a time limit of 28 days (subsection (1)). This stage ensures that the applicant has the opportunity to make their point of view known. Subsection (2) provides that the registration authority may not make a decision until the 28 day period has ended unless they receive representations during the 28 day period or the person notifies the registration authority that he will not be making representations.

81. Once the representations stage has been completed, clause 18 requires the registration authority to serve a notice in writing of their decision on the applicant. The notice must explain the right of appeal conferred by clause 20 and in the case of a decision to grant an application subject to conditions or to vary conditions, set out those conditions. A decision to cancel registration to grant an application subject to conditions which are not agreed or to or change conditions will take effect only after the outcome of any appeal has been determined, or after 28 days if no appeal is brought. In the case of a decision to grant an application subject to conditions which are not agreed, if the applicant decides not to pursue his appeal the decision will take effect immediately.

Clause 19 Urgent procedure for cancellation etc.

82. This clause provides that the registration authority may apply to a justice of the peace for the immediate cancellation of registration or change in the conditions of registration of an establishment or agency. The justice may only make the order where it appears to him that unless the order is made there is a serious risk to a person's life, health or well-being. An order made under this section has immediate effect. It is intended to provide for a fast track procedure for appeals to the Tribunal against orders made under this section (see clause 20).

83. Subsection (3) requires the registration authority to notify the local authority and Health Authority as well as any other statutory authority it considers appropriate, of the making of an urgent application. This is necessary so that the local authority can provide or arrange alternative care for the service users where appropriate and in accordance with their duties under section 47(1) of the National Health Service and Community Care Act 1990, and that the Health Authority may consider whether to make provision for NHS services. It will be important that all statutory bodies that may be affected by the cancellation of a provider's registration have as much notice as possible to make any necessary arrangements. Subsection (7) defines a statutory authority for this purpose.

Clause 20 Appeals to the Tribunal

84. Clause 20 provides for an appeal against a decision of the registration authority under Part II. The appeal is to the Tribunal established under section 9 of the Protection of Children Act 1999. Subsections (3) to (5) provide for the Tribunal's powers on considering an appeal.

Regulations and standards

85. Clause 21 provides regulation-making powers which will cover the management, staff, premises and conduct of establishments and agencies (other than voluntary adoption agencies). It also provides for regulations to be made regarding the welfare of service users. Clause 22 gives the appropriate Minister the power to publish statements of national minimum standards with which establishments and agencies are expected to comply. They are to be taken into account as stated in subsection (3). For example, a regulation made under clause 21 might state that suitable and nutritious food should be provided to all residents in a home. The national minimum standards would set out what registered providers are expected to provide in terms of the number of meals per day and their nutritional content.

86. Different services will have different sets of regulations and standards which will be appropriate to the type of service.

Clause 21 Regulation of establishments or agencies

87. Subsection (2) provides for regulations to be made that will be key to the registration of establishments and agencies. It will be essential that the registration authority can ensure establishments and agencies are carried on or managed by persons who are fit to do so. This subsection allows regulations to be made to ensure that establishments and agencies are suitably managed, staffed and equipped and that premises are fit for their purpose.

88. Subsection (2) (d) provides powers to make regulations regarding the welfare of persons accommodated in establishments or provided with services by them, or who use the services of an independent medical agency or domiciliary care agency. Subsection (2) (e) provides similar powers to make regulations to secure the welfare of children placed by independent fostering agencies.

89. Subsection (3) provides that regulations may be made prohibiting a person's employment in an establishment or agency unless they are on a register of social care workers, maintained under clause 52.

90. Subsections (4) and (5) provide that the welfare regulation making powers in 21 (2) (d) and (e) may cover the protection and promotion of health, the control and restraint of adults, and the control and restraint and discipline of children. This will enable regulations to set out what is acceptable behaviour management for adults and children.

91. Subsection (6) gives the appropriate Minister power to make provision as to the conduct of an establishment or agency, including the provision of facilities and services, record keeping, notification of events, arrangements for dealing with complaints and in relation to independent hospitals and clinics, the arrangements to be made to secure that any medical or psychiatric treatment or listed services meet appropriate standards.

92. Subsections (6)(h) and (i). Just as it will be important for the registration authority to be made aware of a change in the person managing a home or branch of an agency, so will it be important to have notice of changes in the ownership or the officers of a company which was registered in respect of a service. Fit person checks of company officers have a cost, and so in order to satisfy itself that the officers of the company taking over are fit persons, the registration authority would need to carry out these checks and be able to charge for this.

93. Subsection (7) concerns regulations made in respect of secure accommodation for children, which may cover both its provision and its use.

94. Subsection (8) Voluntary adoption agencies are being excepted from the regulation-making powers set out in this clause as equivalent provision is being made for them through amendments to the Adoption Act 1976 (see Schedule 3, paragraph 2(6)(b)).

Clause 22 National minimum standards

95. Clause 22 provides for the appropriate Minister to prepare and publish national minimum standards applicable to establishments and agencies. These will specify the standards applicable to the services and to which, as subsection (3) makes clear, must be taken into account by a registration authority when making any decision, or in any proceedings for an offence under regulations under Part II. Aspects of the GSCC codes of conduct and practice for employers of social care staff (see note to clause 58), may be included in the national minimum standards.

Offences

96. Clauses 23 to 28 set out the offences under this Part of the Bill. The registration authority will be the prosecuting authority in respect of these offences, using the powers of entry and inspection under clause 29 and clause 30 to gather evidence.

97. The registration authority will have two possible routes for enforcement action where a provider is not fulfilling their obligations: they can prosecute, or they can take action that may ultimately lead to cancellation of registration (see clauses 13 and 19). It is intended that both courses of action could be pursued at the same time, if necessary. If convicted of an offence under this Part the registered person would be liable to the prescribed fine, as per the standard scale*, or in some cases, imprisonment. Similar provisions for offences, including those with regard to proceedings and offences by bodies corporate, were made under the Registered Homes Act 1984 in Part IV (sections 46 to 53).

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* There are five levels to the standard scale for fines as defined in section 75 of the Criminal Justice Act 1982. A court may impose a fine up to the maximum for the prescribed level. Currently the levels are: level 1 = £200; level 2 = £500; level 3 = £1,000; level 4 = £2,500 and level 5 = £5,000.

Clause 23 Failure to comply with conditions

98. Where the conditions of registration are not adhered to, the registration authority may prosecute.

Clause 24 Contravention of regulations

99. Subsection (1) provides that regulations made under this Part may provide that a failure to comply with the regulations will be an offence. It is intended that the regulations will provide that the registration authority may serve a notice in respect of a breach of a regulatory requirement, requiring it to be remedied within a specified period. If at the end of that period the breach has not been remedied, the person shall be guilty of an offence. Subsection (2) provides the fine shall not exceed level 4 on the standard scale.

Clause 25 Holding out premises as an establishment or agency

100. Clause 25 makes it an offence for a person to describe an establishment as a particular kind of home, centre or (as the case may be), an agency when it is not. This would catch, for example, an unscrupulous hotel proprietor who tried to pretend his hotel was a nursing home. It would also catch registered persons who misrepresent the nature of their establishment, by claiming it is suitable for a particular category of resident when it is not. The penalty on summary conviction is a fine not exceeding level 5 on the standard scale.

Clause 26 Failure to display certification of registration

101. Clause 26 makes it an offence not to display a certificate of registration. The penalty on summary conviction is a fine not exceeding level 2 on the standard scale. There is no longer to be any provision for the imposition of a daily fine.

Clause 27 Proceedings for offences

102. Clause 27 provides that proceedings in respect of offences under Part II may not be taken by any person, without the consent of the Attorney General, other than the Commission or, in the context of his default powers the Secretary of State, or the National Assembly for Wales.

Clause 28 Offences by bodies corporate

103. Subsection (2) provides that if an offence under Part II is proved to have been committed with the consent of an officer of a body corporate then he as well as the company are guilty of the offence. Individual officers of a body corporate who are complicit in an offence under this Part of the Bill, will not be able to escape prosecution simply because the body corporate is liable: both will be liable to prosecution.

Miscellaneous and Supplemental

Clause 29 Inspections by persons authorised by the registration authority

104. Subsection (1) provides that the registration authority may require a person who carries on or manages an establishment or agency to provide it with any information to enable the registration authority to discharge its functions. Subsection (2) enables a person authorised by the registration authority to enter and inspect premises at any time if they are used or he believes them to be used as an establishment or for the purposes of an agency. These powers are necessary to ensure compliance with the regulatory framework.

105. Inspectors may also require relevant records to be produced for inspection on the premises wherever they may be kept, and where they are stored on computer, that they are produced in a legible, not encrypted, form. Inspectors will also be able to copy or remove relevant records (other than medical records), and will be able to interview, in private, the manager, employees, or any patients or persons accommodated or cared for there who consent to be interviewed (subsections (3) and (4)).

106. Subsections (5) and (6) allow a medical practitioner or registered nurse to examine in private, with their consent, a patient or resident, or their medical records, where they believe that the person may not be receiving proper care. If the person is incapable of giving their consent, a medical practitioner or registered nurse may still examine them if they believe they have not been receiving proper care.

107. Subsection (7) provides for a regulation-making power to determine the minimum frequency of inspections of premises by a registration authority.

108. Subsection (8) makes it an offence for a person to intentionally obstruct the exercise of the powers under this clause or clause 30. The penalty on summary conviction is a fine not exceeding level 4 on the standard scale.