|Care Standards Bill [H.L.] - continued||House of Commons|
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Clause 30 Inspections supplementary
109. Clause 30 allows a person (authorised to enter and inspect premises by virtue of clause 29) to remove any material etc. which could be used as evidence of possible non-compliance with requirements. Subsection (2) imposes a requirement to assist the authorised person and permits the authorised person to take such measurements and photographs and make such recordings as he considers necessary to enable him to exercise his powers under this clause. Subsection (5) requires the registration authority to prepare a report after carrying out an inspection under clause 29 and send a copy of the report to the registered persons. Subsection (6) provides that the registration authority must make the report available to the public. Subsection (8) provides that inspection reports shall be made available in the regional offices of the Commission in the region in which the premises are situated.
Clause 31 Annual Returns
110. Clause 31 enables the appropriate Minister to make regulations requiring the person carrying on an establishment or agency to provide him with an annual return to include whatever details and cover whatever period of time is prescribed.
Clause 32 Liquidators etc.
111. Clause 32 enables the appropriate Minister to make regulations such that if an establishment or agency to go into receivership or liquidation, the liquidator must inform the registration authority of his appointment. The regulations will require the liquidator to appoint a suitably qualified manager.
Clause 33 Death of registered person
112. Subsection (1) enables the appropriate Minister to make provision in regulations for what is to happen in a case where a person who was the only person registered in respect of the establishment or home dies. This might be the case if a person is carrying on a care home and is in control of its day to day running. The personal representatives will be required to notify the registration authority. Subsection (2) enables the regulations to specify the period during which the personal representatives will be allowed to carry on the business. The regulations will permit the registration authority to decide whether it is appropriate for a personal representative or relative to carry on running the establishment or agency for a further period.
Clause 34 Provision of copies of registers
113. Subsection (1) provides that copies of any register which it has to keep are available for inspection. A person may be provided with a copy or extracts of a register on request (subsection (2)). A charge may be made except where prescribed in regulations or the registration authority decides it should be provided free. However, it would not be acceptable to release some information contained in registers, for example a list of children's homes in a given area. Subsection (3) therefore enables regulations to be made providing that the register may not be inspected, or copies of the register or extracts are not to be made available, in such circumstances as the appropriate Minister may prescribe.
Clause 35 Service of documents
114. Clause 35 makes provisions about service of documents. They may be delivered personally or sent by registered letter or recorded delivery and service will be deemed to have been made on the third day after the day on which it is sent.
Clause 36 Transfers of staff under Part II
115. Clause 36 makes provision for the appropriate Minister to transfer eligible staff from Health Authority and local authority inspection units to the registration authority. Their existing contract of employment will have effect as if made between the designated members of staff and the registration authority (see notes to clauses 93 and 94).
Clause 37 Temporary extension of meaning of "nursing home"
116. Clause 37 makes interim provision for the regulation of dental practitioners using premises for the treatment of patients under general anaesthesia. The clause amends the existing exemptions under the Registered Homes Act 1984, which had previously excepted all premises used by dental practitioners for the treatment of their patients, unless the treatment involved the use of class 3B and 4 lasers.
Clause 38 Temporary extension of meaning of "children's home"
117. Clause 38 makes interim provision for the regulation of small private children's homes accommodating fewer than four children, which are not currently regulated. This clause amends the definition of "children's home" in section 63 of the Children Act 1989 so as to require small children's homes to be registered. This will have the effect of requiring these homes to be registered with local authorities until such time as the registration provisions in Part II are commenced.
Clause 39 Power to extend application of Part II
118. This clause makes provision, through regulations, for the future inspection and registration of other relevant services which are not covered on the face of the Bill. Relevant services are defined as being similar to those which local authorities provide in the exercise of their social services functions, or similar to those provided by certain NHS bodies. An example of such a local authority service would be day care for adults. NHS-type services to which this provision may apply include, for example, treatment provided in private patients' own homes through future developments in telecare and telemedicine.
PART III LOCAL AUTHORITY SERVICES
119. Part III concerns local authority fostering and adoption services. The principle behind these provisions is that all such services, whoever provides them, should be required to meet the same standards. The registration authority will inspect these services, using powers in clauses 41 and 42, applying equivalent standards as for voluntary adoption agencies and independent fostering agencies registered under Part II. Local authority provision will not be registered, but where an authority is found to be failing in England the National Care Standards Commission must report the authority to the Secretary of State. In Wales, the registration authority will report the matter to the relevant part of the National Assembly for Wales, which will take appropriate action.
Clause 40 Introductory
120. This clause defines the functions that are subject to inspection by the registration authority. In respect of adoption, the relevant functions are those of making or participating in arrangements for the adoption of children. These are the local authority functions with respect to which regulations may be made by virtue of section 9(3) of the Adoption Act 1976, and which are also carried out by voluntary adoption agencies (which will be regulated under Part II of this Bill). The relevant functions cover, in particular, the approval of prospective adopters, the preparation of children for adoption and the making of adoptive placements.
121. In respect of fostering, the relevant functions are those which are capable of being delegated to other bodies by virtue of regulations made under paragraph 12(g) of Schedule 2 to the Children Act 1989. They include the approval of foster parents, the placement of children on behalf of the local authority, and the supervision of the placement. Bodies which act for local authorities under delegated powers are to be regulated as fostering agencies under Part II of this Bill. Relevant functions for these purposes do not extend to any of the local authority's discretionary duties in respect of children it is looking after, for example to safeguard and promote welfare, to decide on the type of placement and to review their cases. Such duties may not be delegated.
Clauses 41 and 42 Inspection of relevant adoption and fostering services
122. These clauses provide for the inspection of relevant adoption and fostering services. To a large extent these provisions mirror those in clauses 29 and 30, which provide for similar powers to be exercised in relation to the regulation of independent fostering agencies and voluntary adoption agencies. The powers in these two clauses are wide and are exercisable by a person so authorised by the registration authority.
Clause 41 Inspection by registration authority of adoption and fostering services
123. Clause 41 relates closely to clause 29. Subsection (1)(a) obliges an authority to provide whatever information the authorised person requires and subsection (1)(b) provides for the entry and inspection of premises used by the authority in the discharge of relevant adoption and foster care functions. Subsections (2) and (3) make provision about access to records including computer records and provides for an authorised person to interview in private any employee of the authority. If records are stored on a computer they must be produced in a legible, not encrypted, form. Subsection (4) provides for a regulation making power to determine the frequency of inspections.
124. Subsection (5) applies clause 29(8) and (9), which provide for the proper identification of a person exercising powers of entry and inspection on behalf of the registration authority, and for offences. Obstruction or a failure to comply with inspection requirements without reasonable excuse is a summary offence, punishable by a fine at level 4 on the standard scale.
Clause 42 Inspections: supplementary
125. Clause 42 relates closely to clause 30. Subsection (1) permits an authorised person to remove any document or other material on the premises as evidence of possible non-compliance with the regulatory requirements (as defined by subsection (7)). Subsection (2) imposes a requirement to assist the authorised person, and permits the authorised person to take measurements and photographs and make recordings, for example, a tape or video recording, in the exercise of his inspection powers. Subsection (3) provides that the Commission may require a local authority to produce any records for inspection, wherever they are kept, and that where they are stored on computer that they are produced in a legible, not encrypted, form.
126. Subsection (4) requires the registration authority to prepare a report after carrying out an inspection under this Part, and to send a copy of this report to the local authority as soon as possible. Subsections (5) and (6) provide that the registration authority must make the report available to the public.
127. Subsection (7) identifies the regulatory requirements that apply under this Part. These are:
128. Subsection (8) provides that inspection reports shall be made available in the regional offices of the Commission in the region in which the relevant local authority is situated.
Clause 43 Action following inspection
129. This clause deals with the action to be taken by the Commission following inspection of a local authority in England. By subsection (1) the Commission must notify the Secretary of State at any time if it considers that a local authority does not satisfy the regulatory requirements, where the failure is substantial.
130. The Commission must also report to the Secretary of State following the exercise of its powers of inspection, and at the expiry of any time limit for improvement specified in a notice given to the local authority under subsection (5) (see below). At such times, the Secretary of State must be notified whether a local authority satisfies the regulatory requirements, or fails to do so. Alternatively, the Commission may, if it considers appropriate, give the local authority a notice under subsection (5) and inform the Secretary of State that it has done so. A notice under subsection (5) specifies those areas or issues in which the authority fails to satisfy the regulatory requirements and what action it should take to remedy the failure. The notice also imposes time constraints within which a failure should be remedied. At the end of the period specified in any notice, the Commission must notify the Secretary of State whether or not the local authority now satisfies the regulatory requirements.
131. Where the Commission has made a report to the Secretary of State to the effect that a local authority is not meeting regulatory requirements, subsection (6) applies so that the Commission is relieved of its duty of inspection until the Secretary of State notifies the Commission that subsection (6) ceases to apply. The purpose of this provision is to avoid duplication of powers and duties in the event that the Secretary of State decides to take enforcement action in respect of the local authority.
132. These powers do not apply in Wales since the National Assembly for Wales will both undertake regulatory responsibility and have enforcement powers in respect of the local authority.
Clause 44 Regulation of the exercise of relevant fostering functions
133. This clause provides for regulations imposing requirements concerning the exercise of a local authority's relevant fostering functions as defined by clause 40(3)(b). Parallel provision is made in respect of "relevant adoption functions" by amendment to section 9(3) of the Adoption Act 1976 (paragraph 2(6)(c) of Schedule 3; paragraph 250 of these notes). The powers mirror, with necessary adjustments, those in clause 21 with the intention that similar standards should apply to both local authority and independent sector services. Regulations may provide for the fitness of workers, the suitability of premises; management and control of operations; numbers and types of workers and their management and training. By clause 48 the regulations may provide that breach of a specified provision is a summary offence, punishable by a fine not exceeding level 4. The equivalent power in the Adoption Act 1976 is in section 9(4).
Clause 45 National minimum standards
134. This clause empowers the appropriate Minister to prepare and publish national minimum standards applicable to relevant local authority adoption and fostering functions, mirroring the provision in Part II for voluntary adoption agencies and fostering agencies. As provided for in Part II, a failure to comply with the national minimum standards will be taken into account by the registration authority in deciding whether a local authority has met the regulatory requirements.
Clause 46 Annual Returns
135. This clause, which mirrors clause 31, makes provision about annual returns of information to be made by the local authority in respect of its relevant adoption and fostering functions.
Clause 47 Annual fee
136. Regulations may be made requiring an annual fee of a prescribed amount to be payable to the registration authority by the local authority. Unpaid fees may be recovered in the Magistrates' court.
Clause 48 Contravention of regulations
137. In parallel with Part II, regulations made under this Part may create offences.
Clause 49 Offences: general provisions
138. This clause applies clauses 27 (proceedings for offences) and 28 (offences by bodies corporate) to this Part.
PART IV: SOCIAL CARE WORKERS
139. Part IV concerns the functions and procedures of the General Social Care Council (GSCC) and Care Council for Wales (CCW) (Cyngor Gofal Cymru), known collectively as "the Councils". Clauses 50 and 51 set out the definitions relevant to this part of the Bill. The Councils will maintain registers of social care workers, and the procedures for this are set out in clauses 52 to 56. Clause 57 enables the title of "social worker" to be protected, by making it an offence to describe oneself as a social worker with intent to deceive, if not registered as a social worker with one of the Councils. Clause 58 concerns the Councils' responsibilities to develop and promulgate codes of practice for social care work. Clauses 59 to 62 set out the Councils' functions with regard to regulating the education and training of social workers, including requirements in respect of applicants with qualifications gained outside England and Wales.
140. The Councils will both be established as non-departmental public bodies, with the GSCC being sponsored by the Department of Health, and the CCW being sponsored by the National Assembly for Wales. The Councils will operate according to rules, which they will draw up and which will need the approval of the Secretary of State for the GSCC in England, and the National Assembly for Wales for the CCW in Wales. Individuals will have a right of appeal against the Councils' decisions not to register them or to remove them from the register.
141. In the remainder of these notes, a reference to 'the Council' means, in relation to England, the GSCC, and in relation to Wales, the CCW.
Clause 50 and Schedule 1: Care Councils
142. Clause 50 establishes the GSCC for England and the CCW for Wales. The constitution of the Councils is set out in Schedule 1, which as indicated in paragraph 44 of these notes is a combined schedule setting out the arrangements for the National Care Standards Commission in England in addition to both of the Councils. The following points in Schedule 1 are of particular note with respect to the councils:
143. Paragraph 3: General powers. This paragraph gives the Councils general powers, which can be directed by Ministers. These include an express power for the Councils to co-operate with other public authorities in the United Kingdom. If the Councils are to undertake their functions properly and protect the public the English and Welsh Councils must be able to co-operate with each other, and also with equivalent bodies that might be established in Scotland and Northern Ireland. The sort of area in which the Councils would be expected to co-operate would be in exchanging information about people who had been refused registration, removed from a register or allowed qualified registration. Co-operation will be especially important where a person dealt with by one Council moves to another part of the UK. The power to co-operate with other public authorities will also give the Councils scope to co-operate with public regulatory bodies on other fields, such as the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (the UKCC), where this can further the performance of their functions.
144. Paragraph 5: Membership The appropriate Minister will appoint the Chairman and members of each Council. In England, for example, it is intended that the GSCC will be only as big as is needed to secure the cost-effective discharge of its business, and is unlikely to exceed 25 people. The intention is that the Council will be composed of people representing all the key interests. Members will be appointed so that service users and lay members will be the majority of the Council. Appointments will be made after consultation with service user interests and by inviting applications from members of the public.
145. Paragraph 7: Remuneration and allowances. Remuneration and allowances for each Council will be matters for appropriate Minister. For the GSCC, for example, it is intended to remunerate the chairman only. All members will be entitled to travel expenses and other costs associated with membership of the Council. It is not intended to make provision for pensions for the chairmen or members of the Council.
146. Paragraph 8: Chief Officer. The appropriate Minister will appoint the first chief officer of the Council as this post will be filled ahead of the organisations being fully established to allow the first chief officers to assist their Chairmen with preparatory work including appointments of key staff. The Council will appoint future chief officers itself.
147. Paragraph 13: Delegation of functions. This gives the Council flexibility to discharge its business in the most efficient way, through the Council itself, its staff or others brought in for the purpose. Examples of outside assistance the Councils might use are contracting with suitable outside bodies, using consultants or temporary staff on fixed term contracts depending on the work to be done.
148. Paragraph 16: Payments to authorities. The appropriate Minister can fund each Council from public money. Both Councils will be funded wholly through this route initially, although in time it is intended that once the registers of social care staff are established fees from registration will contribute to the cost of the registration function, taking into account a suitable registration fee to charge a generally low paid workforce.
Clause 51 Interpretation
149. This clause introduces terms used in this part of the Bill. It provides a definition of "social care worker" for the purposes of the GSCC, and allows for regulations to be made to include certain other classes of persons in this description. Social care worker is used as a generic term encompassing the majority of people who are employed in social care work.
150. The clause also defines "relevant social work", introduces the term social worker and provides a definition of a day centre. (See also notes on Part II - Registration).
Clause 52 The register
151. This clause provides for the Council to establish and maintain a register of social care workers. Registration with the Council must be designed to meet the needs of a large, diverse and mainly unqualified workforce. This sector has approximately 1 million staff in England and Wales, 80% of whom hold no relevant qualifications. A simple list of the workforce would offer no added protection for the public. Registration with the Council, therefore, will normally be based on the satisfactory completion of training in accordance with the Council's requirements, to provide the skills and knowledge necessary for safe, effective and lawful practice in any job and at any level in social care. Applicants will also have to demonstrate that they are 'fit persons' to undertake social care work.
152. With the low levels of qualifications in the workforce it is envisaged that registration will be incremental, by occupational group. Professional social workers, virtually all of whom are qualified, will be the first group of staff to be registered. In England the Government is funding the training of residential child care workers, as a priority group, to National Vocational Qualification (NVQ) level 3 to ensure that they are among the early registrants with the GSCC.
Clauses 53 Applications for registration
153. Clause 53 provides for the Council to make rules governing how applications to its register shall be made. The appropriate Minister will have to approve all rules made by the Council (see clause 67(2).
Clause 54 Grant or refusal of registration
154. Clause 54 lists the conditions an applicant must satisfy in order to be registered with the Council. These conditions are based on approving applicants who are considered competent and safe to practise. The Council must therefore refuse an application for registration if it is not satisfied an applicant meets the conditions. The Councils must also be satisfied as to an applicants good character and that he is physically and mentally fit to perform the whole or part of the work of persons registered in the part of the register to which his application refers.
Clause 55 Removal etc from the register
155. This Bill provides for the Council to make rules as to removing or suspending a registered person from any part of the register (clause 55). The clause makes provision for the procedure to be followed and as to rules of evidence in proceedings, which may be in public, by which the matter can be determined.
Clause 56 Rules about registration
156. Clause 56 provides a power for the Council to make rules governing registration. It is intended that the rules will cover evidence to be produced in support of an application for registration, the length of the registration period and renewal. It also provides for a registration fee to be charged, and for the period that any such charge should cover. The intention is that these fees will contribute to the cost of the Council operating the registration function.
Clause 57 Use of title "social worker" etc
157. Clause 57 provides for protection of the title "social worker" by the creation of an offence, punishable by a fine up to level 5 on the standard scale for a person who is not registered as a social worker to use that title or hold himself out as a registered social worker with an intention to deceive. An individual will not be guilty of an offence if they are registered with an equivalent regulatory body in another part of the UK. Registration as a social worker with the Council will give a stamp of approval to an individual as a professional and can give access to vulnerable people. This provision will be brought into force when the appropriate Minister thinks the time is right for it to add to the protection of the public.
Codes of Practice
Clause 58 Codes of Practice
158. These codes of good practice for employers of such staff. No such nationally agreed codes exist at present. It is intended that drawing up and promulgating these codes will be the first task for the Council. Social care is a fast developing field. The codes, therefore, will not be static. The Council will be obliged to keep them under review and amend them where it thinks necessary, consulting representatives of social care workers. The appropriate Minister may incorporate relevant parts of them into the national minimum standards described in clause 22 that will apply to services registered with the registration authorities.
Clauses 59 Approval of courses etc
159. The Council will take over the regulation of professional social work training from the Central Council for Education and Training in Social Work (CCETSW). Clause 59 gives wide powers to the Council to make rules about the approval of courses with the intention of ensuring the consistency and quality of the education to be provided.
160. It is essential that all social care training is appropriately regulated if standards in social care work are to be improved. This is part of the main intention behind the establishment of the Councils. CCETSW has the statutory duty to regulate professional social work training only. The new bodies will have functions in respect of training for all social care work. When CCETSW, which is a UK body, ceases to exercise its functions in relation to England and Wales, the regulation of professional social work training in England will be transferred to the GSCC, and training in Wales will be transferred to the CCW as the most appropriate bodies. Scotland and Northern Ireland will legislate separately to create new arrangements for CCETSW's functions.
161. National Vocational Qualifications (NVQs), the qualifications for the non-professional social care staff, are already regulated by the Qualifications and Curriculum Authority. It would not be sensible to remove social care NVQs from these overall arrangements for NVQs for separate regulation. The Council's function in respect of this type of training will be to make completion of particular NVQ courses a requirement to registration. An example in England may be the registration of residential childcare workers, which would be likely to require qualification at NVQ level 3, as discussed in paragraph 152 of these notes.
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