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
|
