Health and Social Care Bill
This update is devoted entirely to the Health and Social Care Bill. The Bill—which is a government Bill and thus likely to be passed—was introduced into Parliament on 15 November 2007. If passed and enacted, the Bill would repeal, in relation to , the regulatory provisions of the Care Standards Act 2000 (CSA 2000). In its place, a new regulator for adult social and health care in —the Care Quality Commission (the commission)—would be established. In many respects, the new regulatory framework under the Bill would mirror that currently provided for by CSA 2000.
In other respects, however, significant changes can be expected, particularly as regards the range of care activity that is subject to registration and the enforcement process in respect of deficient care settings.
The Bill also makes some piecemeal, but significant changes to the legislation governing the provision of community care services.
Organisational changes: care standards
Under the Bill, the Commission for Social Care Inspection (CSCI) and the Commission for Healthcare Audit and Inspection (CHAI, also known as the Healthcare Commission) would be abolished. A single successor body, the commission, would, in general terms, inherit the functions and staff of both the CSCI and the CHAI. In other words, a single body would be responsible for maintaining standards across both social care and health care in .
So far as is concerned, under the Bill as introduced, current arrangements are unaltered. The regulatory provisions of CSA 2000 will remain in place in and so the Welsh ministers (Welsh central government) will continue to act as the registration authority for social care and independent health care in .
The Mental Health Act Commission
Under the Bill, the independent Mental Health Act 1983 watchdog, the Mental Health Act Commission, would be abolished. The Care Quality Commission will inherit those of its functions which relate to and the Welsh ministers will inherit those that relate to .
The regulatory net
Under the Bill, the regulatory net in could be cast more widely than at present. Clause 4 permits the secretary of state by regulations to define categories of “regulated activity”, the providers of which must be registered.
On the social care side, any activity that involves the provision of personal care or “other practical assistance” provided by virtue of certain characteristics of an individual, such as disability or dependency on alcohol or drugs, is potentially registrable. It seems clear, therefore, that supported housing projects, for example, that currently fall outside CSA 2000, could be brought within the ambit of the Bill (if the secretary of state makes regulations to that effect). On the health care side, the biggest change is that regulations may bring NHS provision within the registration scheme. The official explanatory notes to the Bill state that “the intention is that all providers, including, for the first time, NHS providers, will be brought within the ambit of registration”.
Proportionate enforcement activity
The Bill extends the enforcement “tool kit” with a view to equipping the commission with the means to ensure that enforcement activity is proportionate to the risks posed by a particular regulatory deficiency.
Clause 2 sets out a list of matters to which the commission must have regard in exercising its functions. As well as “the need to safeguard and promote the rights and welfare of children and vulnerable adults”, there is “the need to ensure that action by the Commission…is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed”. Clause 25 provides for warning notices to be given as a prelude to enforcement action and cl 80 would empower the commission to issue fixed penalty notices, a power not available to the current registration authorities. The Bill’s explanatory notes say that: “The commission might, for example, issue a penalty notice where the commission becomes aware of an offence that has been committed in the past (such as failure by someone to comply with one of the conditions of their registration) but is satisfied that the offence was relatively minor and that they are now complying with the condition in question. In those circumstances, the person may pay the penalty specified in the penalty notice as recognition of the offence and the commission would then take no further action in relation to that offence. If, however, that person subsequently breached the same condition of their registration then they would be liable to be prosecuted for the offence.”
Finally on the subject of enforcement, cl 82 requires the commission to publish guidance as to how it will exercise its enforcement powers.
Regulations and conditions of registration
For each type of regulated activity, there will, as at present, be a set of regulations. Breach of the regulations can have two consequences:
It is a legal basis for enforcement activity, such as a decision to cancel a registration; and
for many of the provisions of the regulations, breach is a criminal offence. The maximum fine for breach is massively increased under the Bill. Presently, the maximum fine is level 4 on the “standard scale” (£2,500). Under the Bill, however, it could be as much as £50,000. Similarly, the maximum fine for breach of a condition of registration goes up to £50,000.
The end of national minimum standards?
CSA 2000 provides for central government to issue national minimum standards (NMS) applicable to the various care settings registrable under that Act. The NMS must be taken into account by the registration authorities when making registration and enforcement decisions, as well as by the Care Standards Tribunal when hearing appeals against decisions of the registration authorities.
The Bill makes no mention of NMS. Instead, cl 19 requires the commission to issue guidance about compliance with the regulations applicable to a particular care setting. The guidance may itself operate by reference to another document so it is possible that the current NMS could be referenced in cl 19 guidance.
This change is to be welcomed. Under CSA 2000, there has been some misunderstanding as to the exact legal nature of the NMS. Some have assumed that they incorporate free-standing requirements whereas others have held that their purpose is to throw light on the provisions of the various regulations, eg to elaborate on what is required in order to comply with the provision of the Care Homes Regulations 2001 (SI 2001/3965) which state that a care home must make “proper provision for the health and welfare of service users”. It is now, however, generally accepted that the NMS are not free-standing legal instruments.
The role of cl 19 guidance is to set out what the commission thinks is required in order for the requirements of regulations to be satisfied. This is no more than an opinion, but it is an opinion with a special status because it must be taken into account when any decision is taken about compliance with regulatory requirements, eg by the Care Standards Tribunal on an appeal against a decision of the commission. The Bill goes on expressly to state that a failure to observe the guidance does not “of itself make a person liable to any criminal or civil proceedings”, ie it has effect only for the purposes of considering whether a person is liable for breach of regulations. This clearly identifies the regulations as the dominant instrument which is to shape the conduct of a registrable care setting.
Protection of confidential information
Clause 70 creates a new criminal offence of misuse of confidential personal information held by the commission as a result of the exercise of its functions. The maximum penalty for commission of the offence would be two years’ imprisonment.
Direct payments
Clause 134 tackles what has been one of the biggest obstacles to take-up of direct payments— cash payments in place of direct provision of local authority community care services, which the recipient then uses to buy the required care service on the open market. That obstacle is s 57(1) of the Health and Social Care Act 2001, which provides that a direct payment may only be paid to a person who consents to receive such payments. As a matter of general law, a “consent” to some act is ineffective if it is given by a person without the requisite mental capacity to consent to the act in question. This is one reason why many service users with learning disabilities or in poor mental health have been unable to access direct payments. Clause 134 (which applies to both and ) permits regulations to be made to avoid the consent difficulties that have to date hampered take-up of direct payments. Under the regulations, direct payments would be paid to a third party subject to a condition that they are used to purchase services to meet a service user’s assessed needs.
Consent
Consent will not disappear under the new arrangements. Under the proposals, the person to whom the payments are to be made will always have to consent to receiving them. Matters will be relatively straightforward where the service user in question does not have a deputy or attorney appointed under the Mental Capacity Act 2005. In such a case, only the consent of the recipient is required (who must themselves of course have the requisite mental capacity to give consent). Where a deputy or attorney is in existence, matters become more complicated. If the deputy or attorney is of a type to be specified in regulations (called a “surrogate” by the Bill), he must also give consent.
The re is also however, an additional complication. There are rules about who can act as a recipient. These rules also have an impact on the giving of consent.
A proposed recipient may only give a valid consent if he is a “suitable person” within the meaning given to that term by the Bill. The rules appear quite involved, but, in summary, matters will be simplest where the service user in question (the person for whose ultimate benefit the payments are proposed) has no deputy or attorney. Here it will simply be the relevant local authority which decides whether or not a person is suitable to be a recipient of direct payments. Where deputies and attorneys are involved, matters will be more complicated. In some cases, certain deputies and attorneys will automatically count as suitable. Where they do not (or do not wish to act as recipient), often both the local authority and any surrogate will have to agree that a recipient is suitable. Regulations will be able to provide for obligations to be placed upon recipients. If breached, the recipient could be required to repay the direct payment, eg if it was not spent for the benefit of the service user. The Bill has also been designed so that regulations can effectively cater for the case of a service user with fluctuating mental capacity.
Abolition of liable relatives’ rules
Clause 135 is the long-awaited abolition of local authorities’ powers to seek liable relatives’ payments under the National Assistance Act 1948 (NAA 1948), eg in respect of the relatives of people placed in care homes.
Changes to ordinary residence rules
The “ordinary residence” rules are important because place of ordinary residence determines which local authority is responsible for providing a person’s community care services. Clause 136 would make three changes to the rules about fixing a person’s ordinary residence for community care purposes.
(i) Section 24 of NAA 1948 currently provides that a period in an NHS hospital does not affect ordinary residence—the patient remains ordinarily resident in the area in which he was so resident prior to hospitalisation. The Bill extends this rule to apply where other accommodation, eg a place in a nursing home, is provided by a NHS body.
(ii) A new procedure would be established for determining cross-border (England-Wales) ordinary residence disputes under NAA 1948, eg a dispute as to who is required to fund a care home place under that Act.
Currently, a dispute between authorities both situated in is determined by the secretary of state and, where both authorities are in , the dispute is determined by the Welsh ministers. But there is some uncertainty as to who should resolve a dispute where one authority is in and the other in . The Bill aims to rectify this. It gives the secretary of state and the Welsh ministers the power to make and publish arrangements for determining which cases are to be dealt with by the secretary of state and which are to be dealt with by the Welsh ministers. The arrangements can include provision for the determination of cross-border ordinary residence disputes between English and Welsh local authorities.
(iii) The Bill would also, for the first time, make provision for determination of ordinary residence disputes for the purposes of s 2 of the Chronically Sick and Disabled Persons Act 1970. Section 2 creates a duty upon local authorities, in certain circumstances, to secure the provision of non-residential community care services, such as practical assistance in the home. The Bill provides that any ordinary residence disputes under s 2 are referred to the secretary of state or the Welsh ministers for resolution (in accordance with the arrangements made and published under NAA 1948).