2014 Accountability hearing with the Health and Care Professions Council - Health Committee Contents

3  Regulation of social care workers

39.  The adult social care workforce in England has been estimated as numbering 1.63m individuals, with the majority working within the independent sector. 888,000 were estimated as working in locations regulated by the Care Quality Commission (CQC). The number of jobs in adult social care in England is projected to grow by between 24 per cent and 82 per cent between 2010 and 2025.[40]

40.  In 2011, the Department of Health announced that it would explore the scope for the HCPC 'to establish a voluntary register of [adult] social care workers [in England] by 2013'.[41] However, the HCPC argues that there are "significant shortcomings" to the proposed approach; instead, it has proposed the establishment of a 'negative registration scheme'. It outlines its position as follows:

    We have carefully considered this issue and concluded that there are significant shortcomings in a voluntary register being held by a statutory regulator. These are the lack of legal compulsion for individuals to be registered and the inability of the regulator to demand information or to compel witnesses when investigating fitness to practise allegations. Crucially, it also means that if someone was removed from a voluntary register they could continue to practise.

    We consider there is the potential for public confusion around the status of voluntary and statutory registers being held by the same organisation. We have also concluded that there would be considerable costs involved in establishing such a register and paying for its operating costs until it was self-financing.

    Recent estimates are that the adult social care workforce in England numbers 1.63m jobs. This is a large, low paid and often transitory workforce with significant numbers of part time workers. We have concluded that 'full statutory regulation' for this group is unlikely to be considered to be a proportionate or cost-effective response.

    We have instead proposed a 'negative registration scheme' and statutory regulation of CQC registered managers.

    A negative registration scheme would improve public protection because it would enable the regulator to deal effectively with the small number of individuals who are unsuitable to work in adult social care in England, without placing a disproportionate burden on the remainder of the workforce.[42]

41.  In oral evidence, the HCPC reiterated their opposition to opening a voluntary register:

    Essentially, our major issue is this: we were given powers in the last change to legislation to open voluntary registers. In fact, we were asked to open a voluntary register for the care workers, and we very firmly said no. The reason for that is that, first, there is no protection of title, so you cannot stop people using a title. Secondly, you cannot run fitness to practise, because you cannot demand witnesses to turn up and you cannot get hold of documentation. And, thirdly, if an individual drops off a voluntary register, you cannot take any action anyway. They are completely pointless in terms of what we do.

    We can say that because until the HCPC was set up, we had a system in the UK where you had physiotherapists who were SR-ed [statutorily regulated]—they would be regulated—and then people who called themselves physiotherapists who were not regulated. The public got very confused and then very angry when they went and were treated by a physiotherapist who they thought was statutorily regulated but was not. We think that does not make sense—that is quite clear. None of the statutory regulators have opened voluntary registers and, when the Law Commission publishes its draft legislation, I think it will be fascinating to see what will be done with this anomaly. But those groups should be statutorily regulated.[43]

42.  The HCPC's proposed model would work as follows:

    ·  A statutory code of conduct would be set for adult social care workers in England.

    ·  Employers would be expected to resolve low level complaints.

    ·  Those cases involving more serious complaints, particularly where service users were or would be placed at risk, would be reported to the regulator for investigation.

    ·  There would be no registration requirement. However, the adjudication process would enable those unfit to practise as adult social care workers in England to be prevented from doing so by being included on a 'negative register'.

    ·  It would be a criminal offence to engage in adult social care in England whilst the subject of negative registration.

    The 'negative registration' model draws upon a similar scheme which has been successfully operated by the New South Wales Health Care Complaints Commission for a number of years and is due to be extended to other states and territories.

    All providers registered by the CQC must have a registered manager for each of the 'regulated activities' they carry out. Some of these individuals will be from statutory regulated backgrounds, others will not. We have proposed that these managers should become statutory regulated. This will put them on the same footing as other regulated professions by having a binding code of conduct and ethics.

    We consider that these proposals might be more effective than relying on purely voluntary or self-regulatory arrangements alone. They would provide an important 'safety net' whilst building on other sector-led initiatives focused on assuring and improving quality in this sector.

    We have submitted these proposals to Government. If the Government considered that these proposals met its policy objectives, further development work would be required.[44]

43.  A policy statement published by the HCPC in February 2013 outlining the proposals gives a preliminary estimate that establishing a negative registration scheme would involve a one-off cost of approximately £3m, with ongoing costs of approximately £5-6m per annum.[45] In February 2013, Community Care reported that the HCPC had projected the potential costs of this model as follows:

    The HCPC estimates that the register would cost £3m to set up and £5-6m annually to run, plus around £1m per year in adjudication costs. This is based on a 500,000-strong workforce.

    It would require a government grant to cover the start up costs and, as no annual registration fee would be collected from individual social care workers, other funding arrangements would have to be considered for operating the scheme.

    Options include an annual grant from government or a levy on service providers, for example through the Care Quality Commission's licensing fee.[46]

44.  The HCPC policy statement gives further information about its proposals for CQC registered managers:

    All providers registered by the CQC must have a registered manager for each of the 'regulated activities' they carry out. Although some registered managers may be statutory regulated professionals, others will not. There are 24,610 registered managers for the CQC regulated activities which are most directly related to social care.

    The CQC registration requirements ensure that individuals have the qualifications and experience necessary to manage the regulated activities but they do not put in place a binding code of conduct and ethics. The recent Winterbourne View Hospital serious case review acknowledged this, referring to establishing registered managers as a profession with a regulatory body to enforce standards.

    In addition to a negative register for the remainder of the workforce, we are proposing that CQC registered managers in adult social care in England should be statutory regulated. This would put them on the same footing as other regulated professions.

    The potential benefits of this approach are as follows.

    ·  The pivotal role that these particular managers play in influencing the standards, culture and behaviour of their employees would be recognised.

    ·  This approach would build-on the existing arrangements, increasing accountability by putting in place a binding and enforceable code of conduct and ethics.

    ·  This approach would be proportionate and targeted by registering those individuals with direct responsibility for CQC regulated activities, rather than all those with a managerial or supervisory role.[47]

45.  The PSA told us that it had not established a final position on either the proposal of negative registration, or of statutory regulation of managers of CQC registered providers, but in a note summarising its early thinking on this, it raised a number of issues.[48] The PSA says that, "with national vetting and barring schemes already in place, for example the Disclosure and Barring Service, it could be argued that there is already a system of negative registration in place for this particular group".[49] They go on to ask:

    The question is therefore what additional benefits would a negative register for adult social care workers offer service users, the public and employers, and what would it cost to deliver these benefits? A negative register would not stop an initial instance of harm to a service user or misconduct by a social care worker because action could only be taken after an event. The effectiveness of this model would rely upon the effectiveness of the complaints handling process that could lead to barring decision, keeping the worker and key witnesses engaged in the scheme's actions to secure a barring decision. This could be a lengthy process. We consider that there would be a number of issues and challenges that an initiative of this nature would need to address if it was to be successful in protecting the public and maintaining standards, for example:

    ·  How would negative registration prevent barred adult social care workers from working in other related occupations?

    ·  How would employers in adult social care be encouraged to make referrals and support the body holding the negative register through investigations and hearings?

    ·  How would service users and the public (including carers) be supported and encouraged to make complaints and act as witnesses through investigations and hearings?

    ·  How would service users working with personal budgets be prevented from using the services of a barred adult social care worker? Would it always be appropriate to do so?

    ·  How would healthcare employers be prevented from employing a barred adult social care worker? Would it always be appropriate to do so?

    ·  How would the negative register work with other approaches to registration and regulation of this group in other parts of the UK, and with vetting and barring schemes across the UK? Would it be clear under what circumstances an individual would be barred by the negative register and also by a vetting and barring scheme?[50]

46.  The PSA also point out that the costs associated with establishing and running a negative register would need to be ascertained:

    A large proportion of the costs associated with statutory health and care professional regulation are in fitness to practise. We would anticipate that these would be similar for a negative register as all complaints would need to be received, screened, investigated, heard and, if necessary appealed, within a framework that was lawful and compliant with human rights. The costs of running the negative register would not necessarily be borne by the occupational group as is the case with assured voluntary registers and statutory professional regulation. If this is the case, it is not clear who will pay for the barring scheme.[51]

47.  The Committee asked the HCPC what value their proposed system would add:

    In terms of what this contributes that the current system does not, clearly the delivery of safe and effective care is critical in this sector, and the many agencies involved are as concerned as we are about the issue of safety and effectiveness. In fact, the Cavendish review makes very strong and powerful recommendations about training, supervision and local mechanisms to ensure that care workers are delivering safe and appropriate care.

    As a regulator, we have obviously had many conversations with employers and those in the sector about this issue, and we are aware that there are a number of what you might call serial offenders—people who move from one care setting to another. If there has been an incident, they are either disciplined or asked to leave, and then they move on and find employment five miles down the road—or, more often, 50 miles down the road. What we would see as unacceptable behaviours then recur in another setting. There is currently no mechanism for holding those individuals to account.

    The sector very much supports a statutory code of conduct. Skills for Care has carefully developed a code of conduct for care workers, but there are no legal powers to enforce it. We are proposing a statutory code that would allow us to investigate serious complaints about individuals who are not delivering appropriate care.[52]

48.  The Committee also asked the HCPC how their proposals would fit in with the Disclosure and Barring Service. Dr van der Gaag said that

    …we would see it as very much complementing but playing a different role from the DBS, because that scheme has a higher threshold. We know that because we regularly make referrals for our own cases to the DBS, and to date in only 36% of them has the system then acknowledged that the individual should be barred. For example, in cases where there has been physical or sexual assault, or sexually inappropriate behaviour towards vulnerable individuals, those individuals have not been barred by the scheme. There is a different threshold.[53]

49.  The HCPC argued however that the need for other local mechanisms would remain:

    Our contention is that there needs to be a safety net—a way of holding individuals to account against a statutory code. However, that does not in any way diminish the importance of other local mechanisms—local training, local support, local supervision and good employment practices—for what I would call the low-level complaints and the capability issues that are currently dealt with by employers.[54]

50.  They went on to give further detail of their discussions about this issue with stakeholders:

    Our understanding from discussions with stakeholders is that they are concerned that there is no protection at the current moment in time. They cannot do anything, and they are very frustrated. But if there is a system in which they know that that standards they can trust from an independent regulator will apply, they will take account of it, because they can differentiate themselves from other organisations that do not put those services in place. [55]

51.  They also told us that in their view, providers "would certainly say that there is no business incentive to encourage membership of a voluntary registration scheme, but there is a business incentive for them, because of the reputational reassurance it would give, as you say, and the fact that there is a statutory mechanism that they can rely on."[56] In reference to costs, Marc Seale conceded that "the big problem with our scheme is that there is no register, and therefore you cannot charge individuals. Therefore, it may have to be funded by the Government, which is obviously a big negative thing... If the Government does not pay for it, the alternative in a licensing scheme is, for example, if you are licensing care homes, to charge a levy on the care homes to pay for the negative licensing.[57]

52.  When asked if should there be a graduated series of standards within the negative register, the HCPC responded that in their view that would "be very much worth considering". They also reported that that the Welsh administration is currently consulting on proposals for a negative register, and that Scotland are now introducing one.[58]

53.  The issue of ensuring standards for social care workers is crucial to delivering safe, high quality care for patients. The HCPC have told us they are opposed to running a voluntary register for social care workers, and have argued instead for the establishment of a 'negative register' for social care workers. In their view, although this would have cost implications, it would offer far greater public protection than a voluntary register, and they argue that it would supplement rather than duplicate the existing Disclosure and Barring Service, which in the HCPC's view has too high a threshold.

54.  The Committee is concerned by the most recent in a series of reports of abuse by social care workers. In 2011 the Government proposed a voluntary register, but no progress has been made since then and we agree with the HCPC that in any event voluntary registration would not be effective. We recommend that, as a first step to improve regulation in this sector, the Government should publish plans for the implementation of the HCPC's proposals for a negative register. The legislation that would be required to enable the establishment of such a negative register is contained in the Law Commission's draft Bill on the regulation of health and social care professions[59]. Beyond the establishment of a negative register, we recommend that the Government, working with the PSA and the HCPC, develop further proposals for more effective regulation to provide proper safeguards in this area.

55.  The Committee had expected that the Law Commission's draft Bill would form part of the Government's plans for the final year of this Parliament, but it was not referred to in the Queen's Speech. During the Queen's Speech debate, the Minister of State at the Department of Health said that the Government would do what it could through secondary legislation to implement some of the changes sought by professional regulatory bodies.[60] We ask the Department of Health to set out in response to this report what changes it proposes to make to the powers of regulatory bodies by secondary legislation during this session of Parliament, and when it anticipates that they will be brought forward.

40   HCPC policy statement, Proposal for regulating adult social care workers in England, February 2013, para 3.1 Back

41   HCPC (HCP 0001), para 3.2 Back

42   HCPC (HCP 0001), para 3.2-3.7 Back

43   Q35 Back

44   HCPC (HCP 0001) paras 3.8-3.12 Back

45   HCPC policy statement, Proposal for regulating adult social care workers in England, February 2013, para 4.12 Back

46   "Regulator could gain powers to issue public warnings about care staff", Community Care, 1st February 2013. Back

47   HCPC policy statement, Proposal for regulating adult social care workers in England, February 2013, para 5.1-5.4 Back

48   Professional Standards Authority supplementary evidence (HCP0011) , para 1 Back

49   Professional Standards Authority supplementary evidence (HCP0011), para 2  Back

50   Professional Standards Authority supplementary evidence (HCP0011), para 2  Back

51   Professional Standards Authority supplementary evidence (HCP0011), para 2.4  Back

52   Q24 Back

53   Q24 Back

54   Q24 Back

55   Q25 Back

56   Q28 Back

57   Q27 Back

58   Q25 Back

59   Law Commission, Regulation of Health Care Professionals Regulation of Social Care Professionals in England, Law Com No 345, April 2014 Back

60   HC Deb, 9 June 2014, col 350. Back

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Prepared 18 June 2014