CHAPTER 7 - FUNCTIONS UNDER THE CARE STANDARDS ACT 2000

Functions of CHAI and CSCI

Clause 99:     Transfer of functions to CHAI and CSCI

251.     The National Care Standards Commission ('NCSC') was established by the CSA 2000 to regulate specified types of social care and private and voluntary health care services in England. Its functions were set out in Parts 1 to 3 and Part 8 of the CSA.

252.     Regulation is dealt with in Part 2 of CSA. The types of service subject to regulation under Part 2 are collectively defined in the Act as "establishments and agencies". Persons wishing to carry on establishments and agencies of the types required to be regulated must apply to the NCSC in England and the National Assembly for Wales in Wales to be registered in respect of the establishment or agency which they wish to carry on. Under section 11 of the CSA, it is a criminal offence to carry on or manage an establishment or agency subject to registration requirements without having registered with the registration authority.

253.     Where an establishment or agency applies to register under the CSA, the NCSC inspects it to assess whether it meets the applicable regulatory requirements under the CSA or other legislation. In deciding this, the NCSC is obliged to take into account the requirements of any National Minimum Standards applying to the service in question issued by the Secretary of State under section 23 of the CSA. The NCSC may grant or refuse an application to register an establishment or agency or may register it subject to conditions. The establishment or agency may appeal to an independent tribunal against the refusal of registration or the imposition of conditions.

254.     The registration authority will periodically re-inspect the establishment or agency to ensure that appropriate standards continue to be maintained. Section 14 of the CSA provides that the registration authority may cancel registration in the circumstances set out in that section. Section 20 sets out an urgent cancellation procedure whereby the registration authority may apply to a justice of the peace for an order cancelling registration, or varying any conditions imposed as to registration.

255.     The types of establishment and agency currently regulated by the NCSC are as follows:

a)     residential and nursing homes,

b)     children's homes,

c)     private and voluntary hospitals and clinics,

d)     fostering agencies and

e)     independent medical agencies.

256.     Domiciliary care agencies, nurses agencies and residential family centres will be regulated by the NCSC from 1 April 2003. Voluntary adoption agencies will be regulated with effect from 30 June 2003. "Adoption support agencies will be regulated by the NCSC when the relevant provisions of the Adoption and Children Act 2002 are implemented, this is currently planned by the end of 2004.

257.     This clause transfers to the CHAI the responsibility for regulating independent hospitals, clinics and medical agencies, (defined in clause 100 as 'independent health services') and transfers to the CSCI the responsibility for regulating children's homes, residential and nursing homes, residential family centres, domiciliary care agencies, nurses agencies, fostering agencies, voluntary adoption agencies and adoption support agencies (defined in clause 101 of the Bill as 'registered social care services'). The NCSC is abolished by clause 39 of the Bill.

258.     Part 3 of the Care Standards Act gave the NCSC the function of inspecting local authority adoption and fostering services. These are defined as 'relevant services' by section 43 of the CSA. In carrying out such inspections, the NCSC is obliged to take account of national minimum standards issued under section 23 of that Act. This part of the CSA will be repealed in part (see schedule 12).

259.     Chapter 5, of this Bill, provides the CSCI with the general powers to inspect local authority social services. These powers will also allow the CSCI to inspect local authority adoption and fostering services. The elements of Part 3 which have been retained provide for the Secretary of State of State to make regulations with regard to relevant functions and also to make regulations prescribing the frequency with which relevant functions must be inspected.

Clause 102: Fees

260.     Fees are currently chargeable in respect of registered social care services and independent healthcare services under the CSA, however they are set out in regulations made by the Secretary of State. This clause amends section 113 of CSA 2000 so that instead of the Secretary of State, the CHAI and the CSCI may determine fees in respect of their respective functions under Part 2 of that Act. Both Commissions and the Secretary of State must consult appropriate persons before fees devised by them come into effect (subsections (5) and (6) of the new section 113A). Subsection (4) of the new section 113A provides that Secretary of State must approve any fees determined by either Commission before they come into effect

Miscellaneous

Clause 103: Meaning of "independent medical agency"

261.     Clause 103 amends section 2(4) of the CSA 2000 to make it clear (for the avoidance of doubt) that the term 'independent medical agency' neither includes independent clinics nor independent hospitals. The term "independent clinic" in the CSA 2000 refers to an establishment in which one or more medical practitioners provide services other than those that would render the establishment an independent hospital.

Clause 104: Children's homes providing secure accommodation

262.     The clause amends the CSA 2000 so that children's homes providing secure accommodation will require registration by the CSCI. Previously such combined services had to be registered with the NCSC to operate and with the Secretary of State to provide secure accommodation. Under the provisions in the Bill the CSCI will take on both the registration role of the NCSC and the Secretary of State's function of assessing suitability to provide secure accommodation.

Clause 105: Information and inspection

263.     Subsection (2) of this clause amends section 31 of the CSA 2000 to give inspectors the power to require at any time, from a person who carries on or manages an establishment or agency, copies of any records or other documents insofar as is necessary to enable the registration authority - the CHAI or the CSCI in England, the Assembly in Wales - to discharge its functions. Where these documents or records are stored on a computer they must be produced in a legible form. Currently inspectors may only inspect such documents or records when they are already engaged in the inspection of an establishment or agency.

264.     Subsections (3)(a) and (4) amend section 31 to enable inspectors to inspect and take copies of medical records when inspecting a premises. Subsection 3(b) replaces the inspectors' power to interview anyone 'employed' at premises with a power to interview anyone working there. This will enable inspectors to interview temporary and agency staff contracted by a provider as well as permanent employees.

Clause 106: Assembly: duties relating to children

265.     Clause 106 amends the CSA 2000 so that the Assembly must have particular regard to the need to safeguard and promote the rights and welfare of children in the exercise of its regulatory functions under that Act.

CHAPTER 8 - OTHER FUNCTIONS OF CSCI

Clause 107: Boarding schools and colleges

266.     This clause transfers to the CSCI the existing responsibilities of the NCSC with respect to boarding schools and colleges. This means that the CSCI will have responsibility for inspecting such establishments.

Clause 108: Secure training centres

267.     Secure Training Centres (STCs) accommodate children aged under 18 who are sentenced to Detention and Training Orders under the Crime and Disorder Act 1998 section 73 (since consolidated into section 100 of the Powers of Criminal Courts (Sentencing) Act 2000), and children sentenced under sections 90 and 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (for 'grave crimes').The Home Office is responsible for STCs. This clause enables the CSCI to inspect STCs if they are asked to do so by the Home Secretary. The arrangements they may enter into with the Home Secretary may specify such things as frequency with which inspections must be carried out and the criteria that will be used in inspections.

CHAPTER 9 - COMPLAINTS

Health care complaints

Clause 109: Complaints about health care: English and cross-border bodies

268.     Clause 109 makes provision for the Secretary of State to make regulations to determine the NHS complaints procedure in relation to complaints made to English NHS bodies and cross-border SHAs.

269.     It is currently envisaged that regulations will provide that NHS bodies will remain responsible for seeking to investigate and resolve complaints made to them under the first "local resolution" stage of the complaints procedure. Where a complaint fails to be resolved by the local resolution stage, complainants and NHS bodies will be able to refer the matter for consideration by CHAI which will be responsible for the second "independent review" stage of the complaints procedure.

270.     The focus of the CHAI's role in relation to the second stage of the complaints procedure is likely to be to establish the facts pertinent to a complaint in order to identify how, and by whom, the complaint is most likely to be resolved to the satisfaction of the complainant and the body or persons complained about. Following the CHAI's assessment of an individual case, it is envisaged that it will decide what, if any, further action, and by whom, is appropriate. Options likely to be available to the CHAI include: making recommendations to the NHS body complained about in relation to further action that may be needed locally to resolve the complaint; full investigation by the CHAI, either by itself or by any independent panel or person established or engaged by the CHAI; referral for consideration by other agencies (for example, the National Clinical Assessment Authority); referral, subject to agreed criteria, for consideration by the Health Service Commissioner or no further action to be taken.

271.     Under subsection (6), regulations may provide that complaints referred by the CHAI to the Health Service Commissioner may be considered by her under the Health Service Commissioners Act 1993.

272.     Where it would not be possible owing to common law duties of confidentiality to disclose relevant information about a complaint to the body which is to consider it under the regulations, or to the body to which a complaint is to be referred for consideration under other provisions, subsection (9) allows for the regulations to make the disclosure lawful.

Clause 110: Complaints about health care: Welsh bodies

273.     Clause 110 provides for the Assembly to make regulations about the procedures to be followed where a complaint is made to a Welsh NHS body. It makes similar provision to the provision in clause 111 in relation to complaints to English NHS bodies and cross border SHAs.

Social care complaints

Clause 111: Complaints about social services: England

274.     Under clause 111, the Secretary of State may make regulations providing for a two-stage process for representations and complaints dealing with local authority social services. It is envisaged that the first stage will involve a representation (or complaint) being made to the local authority concerned, where an attempt will be made to resolve the matter informally. If this is not possible, the complaint may be followed up with a formal investigation and when this stage is not resolved satisfactorily, the second stage, involving the CSCI, will follow. Section 7B of the LASS Act, currently makes provision for regulations providing that local authorities must put in place procedures for dealing with representations. This is superseded by clause 111 and is repealed (see Schedule 5).

275.     Subsection (2) provides for regulations to be made to specify the complaints that may or may not be considered and the action to be taken once someone has made a complaint. Subsection (3) provides that the regulations made under subsection (2) may specify which complaints may be heard, who may make these complaints and the manner and time limits in which they may do so.

276.     Regulations made under subsection 2(c) may set down which persons or bodies can consider a complaint. Subsection (4) provides that these may be the local authority to which the complaint was made, the CSCI, or an independent panel. Subsection (5) provides for complaints to be referred to the local government ombudsman.

277.     Subsection (8) excludes from this section complaints and representations capable of being made under the Children Act procedure (see clause 108).

278.     Subsection (9) makes the same provision in respect of disclosure notwithstanding common law duties of confidentiality as clause 109(9) does in relation to health care complaints.

Clause 112: Complaints about social services: Wales

279.     Clause 112 provides for the Assembly to make regulations about the procedures to be followed where a complaint is made to a local authority in Wales. It makes similar provision to the provision in clause 111 in relation to complaints about social services in England.

Clause 113: Complaints under the Children Act 1989

280.     Subsection (1) inserts a new section, 26ZA, after section 26 of the Children Act 1989 ('the 1989 Act'). Sections 24D and 26 of the 1989 Act, as amended by the Adoption and Children Act 2002, provide that local authorities must establish a procedure for considering representations (including complaints) made to them by:

a)     persons specified in section 24D(1) (care leavers and others) about the discharge by a local authority of their functions under Part 3 in relation to that person; and

b)     persons specified in section 26(3) about the discharge by a local authority of qualifying functions in relation to a child. Qualifying functions mean functions under Part 3 (local authority support for children and families) and, such functions under Parts 4 (care and supervision) and 5 (protection for children) as may be specified in regulations.

c)     Regulations under section 26ZA(2) may provide for the CSCI to refer the representation back to the local authority to whom it was originally made, to the local government ombudsman, or to an independent panel.

281.     Subsection (2) of the clause amends section 26A of the Children Act 1989 to make it clear that the duty of local authorities to provide assistance to those making representations under sections 24D and 26 also extends to the making of representations under the procedure contained in regulations under section 26ZA.

Clause 114: complaints about handling of complaints

282.     Clause 114 amends the 1993 Act to enable the Commissioner to consider complaints from individuals who are dissatisfied with the way in which a complaint has been handled by the CHAI or an independent panel under the regulations made under clause 109, or by an independent lay person or panel under the regulations made under clause 110.

Complaints: supplementary

Clause 115: Complaints: data protection

283.     This clause makes the CHAI, the CSCI, the Assembly, and other persons charged under the regulations with consideration of complaints, exempt from the subject access provisions of the Data Protection Act 1988 to the extent to which application of those provisions would be likely to prejudice the proper discharge of its functions.

CHAPTER 10 - SUPPLEMENTARY AND GENERAL

Joint working

Clause 116: Co-operation etc between CHAI and CSCI

284.     Clause 116 places a duty on both the CHAI and the CSCI to co-operate with one another where it seems appropriate to do so for the efficient and effective discharge of their respective functions. This will in particular allow the CHAI and the CSCI to co-ordinate their work programmes. Subsection (2) provides for regulations to prescribe circumstances where the CHAI and the CSCI must consult each other in relation to the proposed exercise of their functions. Subsection (3) gives the CHAI and the CSCI the power to delegate their functions to one another. Subsection (4) allows for the CHAI and the CSCI to enter budget-pooling arrangements, subject to prescribed conditions. It is anticipated that these conditions will relate to the requirement to keep matters such as proper accounts in respect of pooled funds.

Clause 117: Joint reviews and investigations: CHAI and CSCI

285.     Subsection (1) provides for the CHAI and the CSCI to conduct joint reviews and investigations with one another. This will allow for the joint inspection of bodies such as NHS Care Trusts.

286.     Subsection (2) with subsection (6) provides that, without prejudice to any other powers (which they may have, for example by virtue of their general power to do anything which appears to them necessary or expedient in connection with the exercise of their respective functions) the CHAI may conduct a joint review, investigation or study with any other body (for example Audit Commission or the Housing Commission) that is carrying out a review or investigation relating to the functions of an NHS body. Subsection (3) makes the same provision for the CSCI where another body is conducting a review, investigation or study of the functions of a local authority. Following a joint review, investigation or study, the CHAI and the CSCI may publish, under subsections (5) and (6) a report in conjunction with the body they worked with.

Clause 118: Power to assist

287.     Clause 118 provides for the CHAI or the CSCI to assist other UK public bodies with the exercise of their functions. This will allow for the CHAI or the CSCI to provide assistance to each other, or to other bodies, for example, OFSTED, the Audit Commission or the Probation Service. Assistance would include seconding employees.

Clause 119: Arrangements with Ministers etc: CHAI

288.     Clause 119 enables a Minister of the Crown to arrange for the CHAI to carry out any of its functions in relation to health schemes for which the Minister is responsible. For example, arrangements may be made between the CHAI and the Secretary of State for Defence in respect of provision of health care to the armed forces, and between the CHAI and the Home Secretary in respect of prison health care. Subsection (2) provides for the CHAI to also enter into similar arrangements with a Northern Ireland Minister for the Northern Irish health service.

Clause 120: Arrangements with Ministers etc: CSCI

289.     This clause enables a Minister of the Crown, to arrange for the CSCI for the CSCI to advise him with respect to services that are similar to English local authority social services. Subsection 1(b) also allows a Minister to request that the CSCI review, or conduct inspections in relation to social care services. For example, arrangements may be made between the CSCI and the Secretary of State for Defence in respect of provision of social care to members of the Armed Forces and their families stationed abroad. Subsection (2) provides for the CSCI to provide advice and assistance to a Northern Ireland Minister in respect of the provision of social services in Northern Ireland.

Annual reports

Clause 121: Annual reports: CHAI

290.     This clause places a duty on the CHAI to produce a report on the way it has exercised its functions during the financial year, and on the provision of health care by and for NHS bodies in England and Wales. As the Assembly will, under the Bill, be conducting reviews of Welsh NHS bodies, subsection (2) provides that the report may include information provided by the Assembly.

291.     Subsections (3) and (4) make it clear that this report must be laid before Parliament, and a copy sent to the Secretary of State and the Assembly.

Clause 122: Annual reports: CSCI

292.     This clause places a duty on the CHAI to produce a report on the way it has exercised its functions during the financial year, and on what it has found in the course of exercising its functions during the year. Subsections (3) and (4) make it clear that this report must be laid before Parliament and a copy sent to the Secretary of State.

293.     The CSCI must also provide other additional reports and information on the exercise of its functions as the Secretary of State may request during the year.

Inquiries

Clause 123: Inquiries: CHAI

294.     Clause 123 provides for the Secretary of State or the Assembly to initiate a public or private inquiry into any matter concerning the exercise of any of the CHAI's functions. Subsection (7) provides that the Secretary of State may initiate an inquiry in respect of the exercise of functions relating to the provision of health care by or for an English NHS body or cross-border SHA and the Assembly may do likewise in respect of Welsh NHS bodies.

295.     Subsection (2) gives the Secretary of State or the Assembly the power to make the inquiry wholly private, but where no such direction is given, subsection (3) enables the person holding the inquiry to make it wholly or partly private; this might be necessary, for example, to protect patient confidentiality.

296.     Subsection (4) provides for section 250 (2) to (5) of the Local Government Act 1972 to apply in relation to an inquiry undertaken in England or Wales. 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 may be liable to a fine or imprisonment.

297.     Subsections (5) and (6) require that reports of inquiries set up under the powers in this clause should be published unless the Secretary of State or Assembly, as appropriate, decides, for good reason, that publication would be inappropriate. Grounds for not publishing might include, for example, publication being prejudicial to any ongoing criminal investigation.

Clause 124: Inquiries: CSCI

298.     This clause makes the same provision for CSCI as clause 123 does for CHAI, with the exception that it does not allow the Assembly to initiate a public inquiry into the exercise of CSCI's functions.

Information

Clause 125: Disclosure of information obtained by CHAI and Clause 126: Section 125: defence

299.     Clause 125(2) makes it a criminal offence for any person, including a member or employee of the CHAI, to knowingly or recklessly disclose confidential information which relates to or identifies an individual.

300.     Subsections (1) to (3) of clause 126 set out a defence to the offence in clause 125. It is a defence to prove that any of the circumstances listed in subsection (2) applied or that the person charged reasonably believed that they applied. It is also a defence to prove that the disclosure was made for a purpose in subsection (3). One of the circumstances in subsection (2) is where the disclosure is made in a form in which the individual to which the information relates is not identified. Subsection (4) sets out when an individual is to be regarded as identified for the purposes of this defence.

Clause 127: Information obtained by CHAI: supplementary

301.     Subject to the provisions outlined in this clause, the CHAI may use any information it obtains or is provided with during the course of its functions, for the purposes of any of its other functions, for example information obtained in relation to NHS care provided by an independent hospital could be taken into account when dealing with issues relating to the registration of that hospital under the CSA 2000.

Clause 128: Information obtained by the CSCI: Supplementary

302.     This clause provides that the CSCI may use any information it obtains or is provided with during the course of its functions for the purposes of any of its other functions. For example, where the CSCI obtains information as a result of inspecting a children's home in exercise of its functions under Part II of the CSA 2000, that a child placed there may have suffered harm it may use this information to evaluate the performance of the local authority that placed the child there.

Wales: Supplementary