Enforcing the new care home regulations and standards

Two new independent bodies will regulate inspect monitor and set standards for all care homes in England and in Wales.[vi] Local authority health authority voluntary and private sector establishments will all be subject to the same regulatory regime.

Both the Care Standards Act  2000  and the associated Regulations constitute law and must therefore be adhered to by all parties. In contrast the National Minimum Standards are not law although the Care Standards Act states that they must be 'taken into account'[vii] in the making of any decision by the regulatory bodies under Part II of the Care Standards Act; in any proceedings before a JP in connection with the urgent cancellation of registration of a care home or the urgent variation or removal of a condition or imposition of an additional condition; in any proceedings for an offence under the Care Homes Regulations; and in any appeals in connection with any of these matters. As Part II covers all aspects of the registration and inspection process and also lists the various criminal offences that can be committed in respect of care homes it can be safely concluded that the National Minimum Standards will provide a key point of reference for every aspect of running and monitoring care homes from April 2002 even though it is the Act and the Regulations that provide the legal framework for their operations. 

What is the procedure for registration?

In order to operate lawfully under the Care Standards Act 2000 all care homes must from April 2002 be registered with the regulatory body relevant to their jurisdiction (referred to hereafter as the  'Commission').[viii] Under the Care Standards Act 2000[ix] a care home is an establishment providing accommodation together with nursing or personal care for any of the following:

persons who are or have been ill;

Note that there is no requirement that the home provides board in order to come within this definition nor is there any reference to age or to minimum numbers of residents. Also it is only necessary for the home to provide the accommodation for any of the above people if required not that every resident should actually be in one of the categories.

Any person who carries on or manages a care home without being registered in respect of it will be guilty of a criminal offence punishable with a fine of (up to) £5000 and for a repeat offence with imprisonment.[x]  Where the activities of a care home are carried on from two or more branches each of those branches will be treated as a separate agency for the purposes of registration.[xi]  

Care homes that on 1^st April 2002 are already registered with a local council health authority or approved by the DOH will  automatically be  registered with the  Commission subject to having completed a transfer of registration form before that date. The Commission will however inspect all these automatically registered care homes including local authority homes in the course of 2002-2003 to ensure that they comply with the Regulations [xii] and that they take account of the National Minimum Standards. Anne Parker Chair of the English  Commission has indicated that in the first year of its operation the Commission will focus upon finding out how people achieve outcomes not upon closing down homes.[xiii] She has also indicated that in cases where there is an initial marginal failure to meet the new Standards or Regulations in full a flexible approach is likely to be adopted. This will allow the care home time to rectify the problems if the inspectors are convinced from the evidence of the home’s previous record that they are likely to do so in a reasonable time frame. 

New care homes post 2002

Care homes seeking registration for the first time after April 2002 will be registered by the Commission only if they comply with the Regulations and show that they have  'taken into account' the National Minimum Standards.  These are therefore collectively the key instruments upon which the blueprint of all care homes should in future be based. Home owners and managers should  ensure that  they obtain copies of all the relevant Regulations and National Minimum Standards s a matter of urgency if they have not already done so.[xiv]

Who makes the application?

An organisation or a person (described as the 'responsible person') wishing to be registered must first fill out an application form seeking registration with the Commission. The application must be accompanied by a non-refundable fee set by the Secretary of State.[xv] In homes providing both residential care AND nursing care all aspects of registration are now covered in the single registration. The application must be made by each person seeking to be registered as:

An individual applicant is described as the responsible person. If the applicant is a partnership this includes each member of the partnership. In the case of an organisation they are described as the responsible individual and will be a director manager secretary or other officer of the organisation running the home[xvi] If the owner and the manager are different people they must both be registered in which case an additional £300 fee will be levied. This will also apply if the manager is the matron and may well extend to the chief administrator or any other senior person in a position of authority in a larger home. A person who carries on or manages or wishes to carry on or manage more than one establishment or agency must make a separate application in respect of each of them.[xvii]

What part does inspection play in registration?

The inspection process whilst providing important information to the regulatory process operates independently of that process even though carried out by the Commission. According to the Regulations the Commission will carry out inspections of all care homes a minimum of 2 times in every 12 month period.[xviii] In the past this has been a mixture of unannounced inspections and follow-up inspections.  The cycle runs from 1^st April-31^st March.  The  Commission may at any time require a person who carries on or manages a care home to provide it with any information relating to the care home which they consider it necessary or expedient to have for the purposes of fulfilling its inspection functions.[xix] To this end any person authorised by the Commission to act as an Inspector may at any time enter and inspect premises which are used or they have reasonable cause to believe are being used as a care home. These Inspectors will be trained through a common programme of national competencies over a period of time linked to a national award.[xx] The Inspectors are trying to achieve a common approach to inspection across all three sectors - public private and voluntary.

An Inspector has the powers to  examine the state and management of the premises   and the treatment of residents; to  inspect and take copies of any documents or records to seize and remove any document or other material or thing found in the course of the inspection he or she reasonably believes may constitute evidence of a failure to comply with any condition or requirement of the Act or the Regulations (other than medical records). They may  interview in private the manager or the registered provider any person employed there and any resident who consents to be interviewed. If the Inspector is either a medical practitioner or a registered nurse and they have reasonable cause to believe that a patient or a person accommodated or cared for there is not receiving proper care they may with the consent of that person examine them in private and inspect any medical records relating to their treatment in that establishment. These powers may be exercised in relation to a person who is incapable of giving consent without that person’s consent. Finally they may take any such measurement and photographs and make any such recordings as they consider necessary to exercise their powers.[xxi]

Once the Inspectors have completed their investigation they must prepare a report on the matters inspected and send a copy of the report to the Registered Provider without delay.[xxii] In addition the Commission must make copies of the inspection report available at its offices for any person to read at any reasonable time and must provide a copy of the report with or without reasonable charge to any person who requests a copy.[xxiii] The Commission may also take any other steps to publicise a report where it considers such a step to be appropriate.

What is the relationship between  registration and inspection?

A close reading of the Care Standards Act and its associated Regulations leads to the following conclusions:

The key feature of the process is undoubtedly the decision to register a home. The burden of proof in establishing that the care home should be registered (i.e. that it largely complies with all the Regulations and takes account of the national Minimum Standards) lies with the applicant not the Commission. The registration process is not explicitly linked to the inspection process. It therefore follows that most homes already registered prior to April 2002 will effectively receive their new registration without inspection as registration takes effect from April 2002. All that the registration Regulations require is that having received the written application to register the home the Commission must examine the documentation interview the persons seeking registration and determine whether the applicant is fit to carry on or manage the home. Inspection will operate as a parallel not as an intrinsically linked process.

Registration will be either unconditional or conditional. No time limits on the length of registration are specified in the Regulations. Everything therefore hinges on the views of the registering Commission which is structured on a regional administrative basis [xxiv] although the intention is to avoid variations of approach between the regions thereby dispelling current suspicions that such regional variations of approach do in fact exist. Registration once achieved can only be subsequently cancelled in very precise circumstances[xxv] i.e. if the registered person or some other relevant person has been convicted of a criminal offence in connection with the home or if the home is not carrying on its business in accordance with the 'relevant requirements' which presumably includes adherence to the Regulations and the National Minimum Standards.[xxvi] However even where registration is unconditional the Commission can at any time impose a new condition that must be adhered to for registration to continue.[xxvii]

If registration is made conditional for example upon the care home manager employing sufficient staff to comply with the requirements of National Minimum Standards 27-30 or developing suitable links between residents and the local community under National Minimum Standard 13 it is likely that compliance with the conditions will form a key component of the subsequent inspection visits. Failure to comply with a condition will not however automatically lead to cancellation it will simply be a factor in determining the overall outcome of each inspection.

  Registered persons can at any time apply to the Commission for the removal or variation of any condition imposed upon the care home either at the time of registration or subsequently.[xxviii] This is a welcome development that is designed to encourage a more flexible relationship between the regulator and the regulated. A fee will however be charged for such a request.[xxix]

More worrying to the care home owner or manager must be the threat of criminal sanctions contained in the Care Standards Act 2000 in connection with a failure to comply with a condition or with a breach of one of the Regulations. Although in the year 1999-2000 only 30 prosecutions were initiated against care home managers [xxx] the threat remains a real one as the number of regulatory offences has increased. Arguably a failure to comply with a Regulation is far more serious than a failure to meet a Standard due to the stronger legal status of a Regulation over a Standard. This is notwithstanding the fact that there is in practice significant overlap between the matters covered in some of the Standards and the Regulations to the extent that they are in places indistinguishable. If a Registered Provider fails without reasonable excuse to comply with any condition for the time being in force in respect of the care home they will be guilty of an offence and liable on summary conviction to a fine not exceeding £5000. [xxxi]  Contravention of or failure to comply with specific identified Regulations is also an offence.[xxxii] A person guilty of such an offence is liable on summary conviction to a fine not exceeding £2500.[xxxiii] Note that the Commission cannot however bring proceedings for contravention of a Regulation unless it has first served on the registered person a notice specifying the nature of the alleged breach what action is needed to remedy it and the time required for compliance which must not exceed three months and the period specified in the notice has expired and the person has contravened or failed to comply with any of the provisions of the Regulation mentioned in the notice.[xxxiv] 

The Regulations now require each care home to produce a written guide to the care home known as a Service User's Guide which must include a copy of the most recent inspection report.[xxxv] This effectively closes the loop between the inspection service the care home resident and their friends and relatives and will be of particular importance at the point of entry when decisions are being made by prospective residents as to the general quality and suitability of the home.

[i] Regulation of Care (Scotland) Act 2001.

[ii]Scottish Commission for the Regulation of Care [http://www.scotland.gov.uk/government/rcp/comm_team.asp].

[iii] Wales is introducing its own set of Regulations and Standards through the Welsh Assembly.

[iv] The Care Homes Regulations 2001; The National Care Standards Commission (Registration) Regulations 2001; The National Care Standards Commission (Fees and Frequency of Inspections) Regulations 2001; The Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.

[v] DOH: Care Homes for Older People: National Minimum Standards. London: The Stationery Office 2001.

[vi] The responsible body for England is the National Care Standards Commission [http://www.doh.gov.uk/ncsc] .  The responsible body for Wales is the Care Standards Inspectorate for Wales http://www.wales.gov.uk/subisocialpolicycarestandards/.

[vii]  s 23 (4) Care Standards Act  2000 (cited hereafter as CSA).

[viii] See Endnotes ii and vi.

[ix] s. 3 CSA.

[x] s. 11 (1) CSA.

[xi]s.11 (2) CSA.

[xii] See Endnote iv.

[xiii] Quoted in Community Care 25-31 October 2001 p.14.

[xiv] See Endnotes iv and v for full details. All these documents are available for downloading free of charge from the Department of Health website www.doh.gov.uk. The Care Standards Act is available in the same way at www.hmso.gov.uk.

[xv] See The National Care Standards Commission (Fees and Frequency of Inspections) Regulations 2001. The fee for 2002-3 is to be £300 for homes with less than 4 registered places and £1100 for all other homes. In addition care homes will be charged thereafter an annual fee of £150 plus £50 per approved place over 3.

[xvi] Registration Regulation 2 (1) a-c.

[xvii] s.  12 (4) CSA.

[xiii] The National Care Standards Commission (Fees and Frequency of Inspections) Regulations 200 Regulation 6 (1) and (5).

[xix]  s. 31 CSA.

[xx] The registration and inspection officers who will have responsibility for these tasks are all trained according to the National Occupational Standards for Regulators of Social and Health Care for Adults and Children. The first qualification for inspectors of health and social care was launched by the General Social Care Council in October 2001 and comes  into effect in March 2002.

[xxi] s. 32 CSA.

[xxii]s. 32 (5) CSA.

[xxiii]s. 35 (6) (7) CSA.

[xxiv] In England there will be 8 regions plus a central office in Newcastle.

[xxv] Unless the application to cancel is to a JP in urgent circumstances where there is a serious risk to a person's life health or well-being:  s 20 CSA.

[xxvi]s. 14 CSA.

[xxvii] s. 13   CSA.

[xxviii] s 15 CSA.

[xxix] Currently £50 if the variation being very minor can be agreed without a site visit otherwise £550 in the case of an application by a registered provider £300 if by a registered manager.

 [xxx] Frequency of Inspection and Regulatory Fees: a Consultation Paper. DOH 2001 p.30.

[xxxi]  s. 24 CSA.

[xxxii] The Regulations covered by these provisions are as follows: Care Homes Regulations 4 5 11-26 37-40.

[xxxiii] s. 25 CSA.

[xxxiv]Care Homes  Regulation 43.

[xxxv] Care Homes Regulation 5.

Professor Jeremy Cooper is Chief Training  Consultant on Health and Social Care to Wessex Interactive Ltd 2A Brickmakers Rd Colden Common Winchester SO21 1TT E Mail: Wessexlaw@aol.com Tel: 023 8076 7365. His book The Care Homes Legal Handbook will be published in March 2002 by Jessica Kingsley Publishers.