denotes premium content | Jan 8 2009 Feature
posted 13 Sep 2000 in Volume 5 Issue 6
The Care Standards Act 2000
By Rebecca Gray
The Care Standards Act 2000, which
received royal assent on 20 July, represents a radical overhaul of the UK care
system. The Act could, if implemented effectively, have a major impact on the
quality of care provided to children and vulnerable adults, and could make the
system of regulation and inspection of care in particular simpler, more
transparent and navigable. It is particularly important to the Alzheimer’s
Society that the standard of care for older people in care homes and in the
community is improved significantly. People with dementia are major users of
services covered by the Act. It is estimated that almost three quarters of the
nursing and residential home population in the UK have some level of
dementia.
The
Act is wide ranging. In this article I have attempted only to give a broad
outline of the key provisions of the Act and to focus in more detail on those
aspects of the legislation which will have most impact on older people and those
who advise them.
The Act provides a framework for the regulation and inspection
arrangements of all care sectors including residential and nursing homes for
adults and children, fostering and adoption services, boarding schools,
domiciliary care agencies and private hospitals and clinics. Importantly, for
the first time, the Act removes unhelpful distinctions between care provided by
local authorities and by independent providers. All care including that provided
by local authorities falls within the scope of the Act.
The two principle pieces of
legislation which are significantly affected by the Act are the Registered Homes
Act 1984 and the Children Act 1989. The Registered Homes Act will be repealed in
its entirety.
Key provisions
The main purpose of the Act is to
reform the regulatory system for care services in England and Wales.
Its key provisions
are:
Reform of
the regulation of childminding and child day care provision. Responsibility for
this function will move from local authorities to a new arm of Ofsted. It will
bring together the regulation of childcare and early years education. A
Children’s Commissioner for Wales will be established, responsible for
regulating all the children’s services as set out in the Act including
children’s homes, boarding schools, adoption and fostering services and the
welfare aspects of childminding and day care services.
The Act goes some way to ensuring that
vulnerable adults are protected from abuse by imposing a new duty on the
Secretary of State to maintain a list of individual s considered unsuitable to
work with vulnerable adults. Specified care providers will have to check the
list prior to employing people to work in care positions and will be obliged to
refer people to this list in certain circumstances.
Care Services to be
regulated
Part one of the Act sets out the definitions of establishments to be
regulated. The range of services to be brought together for regulation by the
NCSC is very wide. Somewhat controversially it includes independent hospitals,
clinics and primary care facilities within its scope. These services include
‘any (independent) establishment which has as its main function the provision of
psychiatric or medical treatment for illness or mental disorder (including
palliative care).’
Section 3 of Part I of the Act provides a new definition of a care home
as any home which provides accommodation together with nursing or personal care
for any person who is or has been ill, is disabled or infirm, or who has a past
or present dependence on drugs or alcohol. Local authorities, previously
excluded from registration, will now have to register their care homes as will
NHS bodies which run residential homes.
It is particularly relevant for people
who deal with older people with dementia to note that the Act abolishes the term
‘mental nursing home’. Those who are seeking accommodation for a relative should
be able to ensure through examination of the registration conditions, whether or
not they are able to provide suitable care for someone with dementia. The Act
does not alter the framework for the detention of persons under the Mental
Health Act 1983.
Although original proposals only imposed the duty to register on
domiciliary care agencies which wished to provide services to local authorities,
after amendment, the final Act ensures that all agencies must be registered.
Domiciliary care agencies are defined as those agencies which supply staff who
provide personal care in their own homes for people who need assistance by
reason of illness, infirmity or disability.
The National Care Standards
Commission
The NCSC will be established as the registration body for England. In
Wales this function will be carried out by the National Assembly of Wales or an
agency of the Assembly. The Commission takes over the regulation and inspection
of a wide range of services, some of which are being regulated for the first
time (eg local authority care homes), from health authorities, local authorities
and the Department of Health.
It also has a number of
responsibilities outside of regulation. These include areas of work envisaged as
part of the NCSC role by the Royal Commission on Long Term Care for the Elderly
which reported in March 1999. The NCSC will be obliged to report to the
Secretary of State on trends in provision, to disseminate good practice, to
advise providers on how to meet minimum standards and to provide the public with
information about services including inspection reports.
Registration of establishments and
agencies
Part
II of the Act covers the registration of services covered by the Act. The Act
sets out in some detail a rigorous framework for registration by providers.
For care homes,
the Act begins the process, long flagged up by Government as its intention, to
end the distinction between residential and nursing homes. Each care home will
have published the conditions under which it is registered giving, in some
detail the type of care it is able and permitted to supply. These registration
conditions will be available to the public. The Commission is free to impose
specific conditions on particular care homes.
The Commission’s powers include the
ability to vary registration conditions, cancel registration if conditions are
not met adequately and to require registering homes or agencies to pay a
fee.
Homes and
agencies could be subject to a range of conditions some set at national level
such a national minimum standards, others specific to their area or to their
specific establishment. The Act contains a range of offences for which managers
or proprietors can be prosecuted including failure to comply with conditions,
false description and obstruction of an inspector.
Within the regulation making powers of
the Secretary of State set out in the Act, specific powers to regulate in order
to protect the welfare and promote to health or adults and children are
provided. Specific reference is made to the regulation of the control and
restraint of adults and children in order that behaviour management falls within
acceptable boundaries in care homes. Regulations to ensure that vulnerable
adults are not inappropriately restrained are very welcome. Pressure to ensure
that all methods of constraint including the extensive use of neuroleptic drugs
in care homes are restricted will be placed on Government over the next
year.
In relation
to proposed cancellation of registration or appeals against the registration
conditions set, it is expected that the process of appeal will be considerably
speeded up through the introduction of the Act. The Registered Homes Tribunal
will now be abolished. A single tribunal set up under the Protection of Children
Act 1999 will deal with all jurisdiction in relation to health and social care
issues.
National Minimum Standards
One of the sections of the Care
Standards Act which attracted most debate within Parliament and most publicity
is the intention by Government to set national minimum standards for care
services. Section 23 of the Act enables the Secretary of State to publish
standards. The first set of standards under this section will be those relating
to residential and nursing homes for older people. These are based on proposed
standards from the Centre for Policy on Ageing issued by the Department of
Health in ‘Fit for the Future’ last year. Initial standards relating to minimum
room sizes have already been announced, further standards will be published in
autumn 2000. Standards for domiciliary care agencies are in development.
Inspection
A new framework for
inspection is set out in the Act. Inspectors will have clear powers to enter
establishments, interview staff and residents, see paper and computer held
records. Sections also enable registered nurses and medical practitioners to
enter homes in order to examine residents if they believe that the person may
not be receive proper care.
The minimum frequency of inspections
will be laid down in regulations. The NCSC has the power to inspect at any time.
Inspection reports will be made available to the public. In England the reports
will be available through the eight regional offices of the NCSC. The role of
inspection is enhanced through the Act. It is likely that the NCSC will seek to
recruit inspectors from both existing inspection units and from wider range of
interested and experienced groups. Organisations such as the Alzheimer’s Society
are working towards ensuring that carers and former carer can play in
increasingly important role in the inspection of care facilities.
Impact on social care
workforce
One
of the criteria, on which the Care Standards Act can be measured in future
years, will be the impact its provisions will have on standards within the
social care workforce.
Currently 80% of the social care workforce have no qualifications at
all. Morale and standards in many areas of social care are widely acknowledged
as low.
The Act
for the first time protects the term ‘social worker’. It will be an offence
under the Act to use the title social worker if not registered as such. It
established the General Social Care Council for England and Care Council for
Wales which will maintain registers of social workers and other social care
workers, develop and set codes of practice for social care and set out the
regulations and training of the social care workforce.
The registration and qualification of
the entire workforce is recognised as a massive task. It is expected that this
work will be incremental over a number of years. The Council and Secretary of
State will set out which groups of workers will be registered over a given
period of time. For example, in England, priority has been given to residential
child care workers.
The Protection of Vulnerable adults
A register, to be maintained by the
Secretary of State, of persons considered unsuitable to work with vulnerable
adults will be established.
Providers of all care services will be
required to check this list prior to employment, refuse employment to those on
the list and refer persons to the list where appropriate. Reference to the list
will have very serious implications for individuals. Some criticism has been
levelled at the strength of these provisions of the Act, however, organisations
representing older people have argued in favour of a much more rigorous system
of protection.
These provisions bring the protection of vulnerable adults more closely
in line with the protection afforded to children under the Children Act
1989.
Powers
of the Secretary of State
The Care Standards Act allows the
Secretary of State a great deal of freedom to fill in detail around the new
framework set up in the Act. The Secretary of State is granted wide powers to
issue directions, to make regulations and issue statutory guidance. The use of
some of these powers, for example to create binding minimum standards, will
continue to be controversial. The Act gives the Secretary of State the power to
extend the Act to services not covered on the face of the Act. The issue of the
regulation of day centres for adults gave rise to many amendments for debate in
Parliament. Although the Government did not agree during the passage of the bill
to the inclusion of day centres, it is likely that one of the first areas, not
covered by the Act, to be regulated is day care for adults.
Another important power granted to the
Secretary of State in the Act to create binding statutory guidance on local
authority charging practice. Guidance is expected within the next six months.
This provision illustrates the nature of the Care Standards Act and the
expectation that its provision will develop considerably over time.
Conclusion
The Care Standards Act has been widely welcomed by those who represent
the interests of vulnerable older people at a major step towards better
care.
Although
much of what has been promised will be the result of secondary legislation,
standards and codes not contained in the face of the Bill, the next two years
should demonstrate how services will be effected.
The Act should provide, in particular
for vulnerable older people, a framework for greater protection, increased
transparency of provision and the law regulating provision of care and most
importantly improved quality of care.
Rebecca Gray
