House of Lords - Explanatory Note
      
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Session 1999-2000
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Care Standards Bill [H.L.]


 

These notes refer to the Care Standards Bill [H.L.]
as introduced in the House of Lords on 2nd December 1999 [HL Bill 11]

Care Standards Bill [H.L.]

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EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Care Standards Bill [H.L.] as introduced in the House of Lords on 2nd December 1999. They have been prepared by the Department of Health, with assistance from the Wales Office and Department for Education and Employment, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not intended to be a comprehensive description of the Bill, so where a section or part of a section does not seem to require any comment, none is given.

SUMMARY

3.     In November 1998 and March 1999, the Government published two White Papers on its proposals for social services in England and Wales. Detailed proposals for the regulation of private and voluntary healthcare in England and for the regulation and inspection of social care and healthcare services in Wales were set out in consultation documents issued in 1999. The Government's proposals for the regulation of early years education and day care were set out in a consultation document issued in 1998. This Bill implements the main proposals in these documents that require primary legislation.

4.     The relevant documents are listed below -

  • Modernising Social Services (Cm 4169), published in November 1998

  • Building for the Future (Cm 4051), published in March 1999

  • Regulating Private and Voluntary Healthcare: A Consultation Document, published in England in June 1999

  • Regulation and Inspection of Social and Health Care Services in Wales - A Commission for Care Standards in Wales, published in July 1999

  • Regulating Private and Voluntary Healthcare in Wales, published in August 1999

  • The Regulation of Early Years Education and Day Care, published in March 1998

  • Review of the Regulation of Early Years Education and Day Care in Wales, published in August 1998.

5.     In summary this Bill -

  • establishes a new, independent regulatory body for social care and private and voluntary healthcare services ("care services") in England to be known as the National Care Standards Commission;

  • provides for an arm of the National Assembly for Wales to be the regulatory body for such services in Wales;

  • establishes new, independent Councils to register social care workers, set standards in social care work and regulate the education and training of social workers in England and Wales;

  • provides for the Secretary of State to maintain a list of individuals who are considered unsuitable to work with vulnerable adults;

  • reforms the regulation of childminders and day care provision for young children.

6.     The main purpose of the Bill is to reform the regulatory system for care services in England and Wales. Care services range from residential care homes and nursing homes, children's homes, domiciliary care agencies, fostering agencies and voluntary adoption agencies through to private and voluntary healthcare services (including private hospitals and clinics and private primary care premises). For the first time, local authorities will be required to meet the same standards as independent sector providers.

7.     In England the Bill provides for an independent National Care Standards Commission to undertake this regulatory function. In Wales this function will be carried out by a new arm of the National Assembly for Wales, which will be established as either a department or an agency of the National Assembly for Wales.

8.     These new arrangements will replace those set out in the Registered Homes Act 1984 (which will be repealed in its entirety) and those provisions in the Children Act 1989 which deal with the regulation of voluntary children's homes and registered children's homes. Community homes will now be regulated. The regulation of voluntary adoption societies will come under the umbrella of the new arrangements. Local authority fostering and adoption services will be subject to inspection, as will the welfare arrangements in all boarding schools and further education colleges which accommodate children.

9.     The Bill provides for the regulation of the social care workforce, by establishing a General Social Care Council (GSCC) for England, and a Care Council for Wales (CCW). These Councils will regulate the training of social workers and raise standards in social care through codes of conduct and practice and through other means. For the first time a register of social care staff will be set up and maintained by each of the Councils. The Bill makes provision for the abolition of the Central Council for Education and Training in Social Work (CCETSW), which currently regulates training in social work throughout the UK.

10.     The Bill imposes a duty on the Secretary of State to maintain a list of individuals who are considered unsuitable to work with vulnerable adults. A single list will be established for both England and Wales. It will operate in a similar way to the list established under the Protection of Children Act 1999. Specified care providers (care homes and domiciliary care agencies which must register with either the National Care Standards Commission or the National Assembly for Wales, and prescribed services within the NHS and independent health sector), and employment agencies and businesses which provide or supply individuals to work in care positions, will be under a duty to refer people to the list in certain circumstances. Care providers will also have to carry out checks of the list before offering employment to potential recruits in a care position working with vulnerable adults, and to refuse employment in such a position to any person included in the list.

11.     Arrangements for the regulation of child minding and day care provision for young children will also be reformed. Responsibility for the regulatory function in England will transfer from local authorities to Her Majesty's Chief Inspector of Schools for England (HMCIS) under a new arm of Ofsted. This new arm will bring together the regulation of childcare and early years education. In Wales, these functions will transfer to the new regulatory body for care services to be established as part of the National Assembly for Wales. Early years education in Wales will continue to be inspected by Her Majesty's Chief Inspector of Schools for Wales, through Estyn (the Welsh equivalent of Ofsted). Under the revised arrangements in both England and Wales, regulation will be carried out to new national standards. In addition, those working with or coming into contact with older children will be required to demonstrate that they are suitable to do so.

12.     The Bill provides for a right of appeal against the decisions of the new regulatory authorities and Councils established under the Bill, decisions of HMCIS in England in connection with the regulation of child minding and day care and decisions of the Secretary of State regarding the vulnerable adults protection list. Appeals will lie to the Tribunal established under the Protection of Children Act 1999 (which will cover both England and Wales).

13.     Other provisions in the Bill include -

  • changes to the regulation of nurses' agencies in England and Wales, removing the nurses agencies' exemption from the Employment Agencies Act 1973 and the repeal of the Nurses Agencies Act 1957. This will harmonise the arrangements for nurses agencies with those of other employment agencies;

  • the exemption on the requirement to register in the case of small private children's homes (which provide care and accommodation for fewer than 4 children) is to be removed. Such homes will be registered by local authorities until responsibility passes to the National Care Standards Commission and National Assembly for Wales;

  • the Registered Homes Act 1984 is to be amended to require the registration under Part II of that Act of all dentists' premises where dental treatment is given under general anaesthesia. Responsibility for the registration of such premises will pass from the Health Authority to the National Care Standards Commission and the National Assembly for Wales;

  • minor amendments are made to the Protection of Children Act 1999 to modify its application to employment businesses and to extend the scope of the Act to cover persons disqualified from working in independent schools on the grounds of their unsuitability to work with children.

BACKGROUND

14.     This section provides a brief description of the current legislative framework for the regulation, registration and inspection of the care services covered by this Bill. The two principal pieces of current legislation concerned with residential care are the Registered Homes Act 1984 and the Children Act 1989. For more detail about the legislation see Annex 1 to these Notes.

The Registered Homes Act 1984

15.     The Registered Homes Act 1984 covers independent residential care homes, nursing homes and mental nursing homes and private hospitals. Residential care homes, which provide residential accommodation with both board and personal care (but not nursing or mental nursing care) are registered under Part I. Homes which provide nursing or mental nursing care are registered under Part II. The definition of nursing home in Part II embraces a wide spectrum of provision from traditional nursing homes and mental nursing homes through to clinics, acute hospitals and psychiatric hospitals. There are exemptions from the requirement to register. Exemptions include children's homes as defined in the Children Act 1989, NHS hospitals and residential homes provided by local authorities under Part III of the National Assistance Act 1948. Homes may be dually registered under Parts I and II.

The Children Act 1989

16.     The Children Act provides for three types of children's home: community homes (which include controlled and assisted community homes), voluntary homes and registered homes:

  • Community homes (Part VI of the Children Act) are provided by, or partly financed by, local authorities. Homes provided and financed by local authorities are known as maintained community homes. Homes provided by a voluntary organisation and partly funded by local authorities are known as controlled or assisted community homes. Community homes are not required to register but are inspected by local authorities.

  • Voluntary homes (Part VII of the Children Act) are provided by charities or other not-for-profit organisations (voluntary organisations). They are regulated by the Secretary of State.

  • Registered Children's Homes (Part VIII of the Children Act) are provided by private individuals or companies for profit. They are registered by the local authority. Small private children's homes which accommodate fewer than four children, are not required to register at present and are not inspected.

Other Relevant Legislation

17.     Other services covered by this Bill are provided for either in these or other pieces of legislation. Local authorities provide fostering and adoption services under the Children Act 1989 and the Adoption Act 1976 respectively. Nurses agencies are subject to the Nurses Agencies Act 1957. Matters relating to the regulation of training for social workers are dealt with under the Health and Social Services and Social Security Adjudications Act 1983 ("the HASSASSA Act").

18.     Legislation relating to child minding and day care provision in England and Wales is set out in Part X of the Children Act 1989, which places a duty on local authorities to keep a register of childminders and day care providers, and to require providers to meet reasonable standards. The legislation governing nursery education inspections is in the School Standards and Framework Act 1998, and applies to both England and Wales.

19.     The Protection of Children Act 1999 provides for the Secretary of State to maintain a list of persons unsuitable to work with children. Childcare organisations are required in certain circumstances to refer individuals for inclusion on the list, and to check whether an individual is included on the list before offering them work in a child care position. They are prohibited from taking the person on if he is listed. An independent tribunal is established by section 9 to hear appeals against inclusion on the list. The Act amends Part V of the Police Act 1997 to allow information about inclusion on the list to be available where appropriate from the Criminal Records Bureau (CRB) as part of a criminal record certificate or an enhanced criminal record certificate. Until such time as the CRB takes on its functions under Part V of the Police Act 1997, those who must make inquiries under the Act about the inclusion or otherwise of an individual in the list will be entitled to the information from the Secretary of State.

20.     A more detailed analysis of all the relevant legislation is given at Annex 1.

THE BILL

21.     The Bill is in eight Parts:

  • Part I provides for the establishment of the National Care Standards Commission in England and establishes the National Assembly for Wales as the equivalent registration authority in Wales. Part I also contains definitions for the purposes of the Bill;

  • Part II makes provision for the regulatory procedures to be followed by the National Care Standards Commission in England and the National Assembly for Wales. The Secretary of State and National Assembly for Wales are given powers to make regulations governing the conduct etc. of services regulated under this Part of the Bill and to issue national minimum standards applicable to all the services to which the registration authorities and providers must have regard;

  • Part III provides for the inspection of local authority fostering and adoption services by the National Care Standards Commission and the National Assembly for Wales;

  • Part IV concerns the functions and procedures to be followed by the General Social Care Council and the Care Council for Wales;

  • Part V provides for the regulation of child minding and day care services for young children and provides for checks on the suitability of persons working with older children;

  • Part VI imposes a duty on the Secretary of State to maintain a list of individuals who are considered unsuitable to work with vulnerable adults, and makes minor amendments to the Protection of Children Act 1999;

  • Part VII makes provision about children in boarding schools and further education colleges and makes new arrangements for the regulation of nurses agencies; and

  • Part VIII contains supplementary provisions.

COMMENTARY ON CLAUSES

22.     Throughout the Bill, clauses have been drafted such that they apply to both England and Wales where possible. Unless otherwise stated, "the registration authority" means in England the National Care Standards Commission, and in Wales the National Assembly for Wales. "The Council" means in England the General Social Care Council and in Wales to the Care Council for Wales. The "appropriate Minister" means the Secretary of State in relation to England and the National Assembly for Wales.

PART I INTRODUCTORY

23.     Part I defines children's homes, independent hospitals and clinics, care homes, residential family centres, domiciliary care agencies, fostering agencies and voluntary adoption agencies (all of the services which are to be regulated) and other terms for the purposes of the Bill. Clause 6 establishes the National Care Standards Commission ("the Commission") as the registration authority in England. Clause 7 sets out general duties of the Commission, which include monitoring the provision and quality of registered social care services, informing and advising the Secretary of State, supporting consumers through the provision of information, and encouraging the development of better services. Clause 5 identifies the National Assembly for Wales as the equivalent registration authority in Wales.

Preliminary

24.     Clauses 1-4 define the services which are to be regulated by the registration authorities. The services are children's homes, independent hospitals and clinics, care homes, residential family centres, domiciliary care agencies, fostering agencies and voluntary adoption agencies.

Clause 1 Children's homes

25.     Subsection (2) defines a children's home as an establishment which provides care and accommodation wholly or mainly for children. This will catch community homes, voluntary homes and registered children's homes (including small private children's homes) as defined in the Children Act 1989, and homes for disabled children. Subsection (3) excludes a place where a child is cared for by his parents or a relative or other person with parental responsibility for him. Subsection (4) excludes NHS hospitals, independent hospitals and clinics, schools and other institutions and gives the appropriate Minister the power to make other exceptions in regulations. It is intended that regulations will be made to except, for example, homes where children take holidays or certain hostels set up by professionals to accommodate apprentices (such as footballers or jockeys). Small private children's homes, accommodating fewer than four children, are not required to register under the Children Act 1989. However, clause 38 will amend the Children Act to require the registration of such homes by local authorities in the interim.

Clause 2 Independent hospitals etc.

26.     Clause 2 sets out the range of independent healthcare services which are to be regulated. Subsection (2) excludes NHS hospitals from the definition of independent hospitals and clinics.

27.     Subsection (3) defines independent hospitals as any establishment which has as its main purpose the provision of medical or psychiatric treatment for illness or which provides one or more of the services listed in subsection (6) ("listed services") and any other establishment which provides treatment for people liable to be detained under the provisions of the 1983 Act. Subsection (5) provides that the definition of "people liable to be detained" does not include people who are on leave granted under section 17 of the Mental Health Act. This definition of "independent hospital" will encompass all those hospitals and mental nursing homes registered to take detained patients which are currently regulated under Part II of the Registered Homes Act 1984 and other private or voluntary hospitals which are currently not regulated - for example those run by bodies established by Royal Charter or by special Act of Parliament.

28.     Subsection (4) defines an independent clinic as a prescribed establishment where medical practitioners provide services other than NHS services. This will bring private primary care premises, where prescribed, within the regulatory framework for the first time.

29.     Premises in which "listed services" are provided come within the definition of a hospital. Subsection (6) defines the listed services as medical treatment under anaesthesia or sedation, dental treatment under general anaesthesia, obstetric services and medical services in connection with childbirth, termination of pregnancies, cosmetic surgery or palliative care. It also provides for the appropriate Minister to specify other treatments involving the use of prescribed techniques or technologies. These would be treatments which pose a particular risk to patients. For example, at present regulations made under the Registered Homes Act 1984 prescribe treatment with Class 3B and Class 4 lasers as such treatment.

30.     Subsection (7) gives the appropriate Minister power to make regulations excepting establishments from the requirement to be regulated and to amend the list of "listed services" by adding or removing services.

Clause 3 Care homes

31.     Clause 3 defines a care home as any home which provides accommodation together with nursing or personal care for any person who is or has been suffering from illness (including mental disorder), persons suffering from disability or infirmity, or is or has been suffering from dependence on drugs or alcohol. The definition is intended to include residential care homes and nursing homes. The Commission will be able to impose conditions on care homes as to the categories of person they can accommodate. Residential care homes run by NHS bodies will be required to be registered under this definition of care homes as the provision of residential (as against nursing) homes is not a core NHS function as such. Local authority provision under Part III of the National Assistance Act 1948 will be required to be registered.

32.     "Personal care" includes assistance with the activities of daily living such as bathing, dressing and eating for people who are unable to do these things without assistance and extends to advice and encouragement - see clause 96(3). It is intended to include direct physical assistance as well as psychological support, for instance reminding someone to carry out daily activities such as washing and eating.

33.     Subsection (3) excludes NHS hospitals and private hospitals and clinics, including establishments which receive patients liable to be detained under the Mental Health Act 1983 (see paragraph 27 above), and gives the appropriate Minister power to make other exceptions in regulations. (Homes which take patients on section 17 leave under the 1983 Act but do not take detained patients will need to be registered as a care home not as a hospital).

34.     Homes which provide personal care and accommodation for disabled children are to be treated as children's homes and not care homes.

Clause 4 Other basic definitions

35.     Subsection (2) defines residential family centres. Such centres undertake monitoring and/or an assessment of parenting capacity on a residential basis where there is concern that parents may be unable to respond appropriately to the needs of their children. This could include specific accommodation for teenage mothers and their babies. They may be operated by local authorities, voluntary organisations or private agencies. At present they are not regulated, but in future all residential family centres will be required to register with the registration authority.

36.     Subsection (3) defines domiciliary care agencies. These agencies supply staff who provide personal care for people in their own homes. The definition encompasses any agency that arranges the provision of personal care for people who need assistance by reason of illness, infirmity or disability. Individual care workers are therefore not included unless they themselves carry on or manage the agency.

37.     Subsection (4) defines fostering agencies. The definition is intended to include both independent agencies which provide a fostering agency service to local authorities, and voluntary organisations (such as Barnardos) who operate in their own right. Both types of fostering agency recruit and train foster parents and place children with them. Agencies defined by subsection (4)(a) make placements under powers delegated to them by local authorities, and they may or may not be voluntary organisations. Agencies defined by subsection (4)(b) are voluntary organisations which place children with foster parents in their own right.

38.     Subsection (6) defines a voluntary adoption agency as an adoption society within the meaning of the Adoption Act 1976 which is a voluntary organisation. An "adoption society" is defined in that Act as a body of persons whose functions consist of or include making arrangements for adoption.

39.     Subsections (7) and (8) clarify what is meant by a person 'carrying on' an establishment or agency. In particular, the term includes persons running a not-for- profit organisation such as local authorities and voluntary organisations.

Registration authorities

Clauses 5 and 6 and Schedule 1 Registration authorities

40.     These clauses establish the National Care Standards Commission as the registration authority in England, and for the registration authority in Wales, which is to be part of the National Assembly for Wales.

Clause 6 National Care Standards Commission

41.     Clause 6 establishes the National Care Standards Commission. It is a statutory body corporate which will exercise in England the functions conferred upon it by or under this Bill or other legislation. The constitutional arrangements and general provisions for the Commission are set out in Schedule 1, which makes provision for the Commission, the General Social Care Council and the Care Council for Wales (see notes on clause 50 below).

42.     Subsection (2) provides that the Commission must, in the exercise of its functions, act in accordance with directions given to it by, and under the general guidance of, the Secretary of State.

43.     The Commission will be responsible for the regulation of the whole range of care services from care homes for the elderly, children's homes, domiciliary care, fostering and adoption agencies through to private hospitals and clinics. It will take on the regulation and inspection functions that are currently split between local authorities, Health Authorities and the Department of Health centrally. Some services will be regulated for the first time - these include local authorities' own care homes and children's homes and domiciliary care agencies.

44.     Under the provisions of Schedule 1 the Commission (subject to directions) may take any necessary or expedient action to fulfil its statutory duties, (paragraph 3). The Secretary of State has powers to make regulations governing the procedures of the Commission, and the appointment of members (paragraph (6)) and for the appointment of a chief officer and other staff (paragraphs 8 and 11). The first chief officer will be appointed by the Secretary of State. The Commission will appoint subsequent chief officers itself, subject to the approval of Secretary of State. The following paragraphs are worthy of additional comment:

45.     Paragraph 9: The Secretary of State will be able to direct the Commission to appoint regional directors. In line with the White Paper, Modernising Social Services, it is intended that these regions will be based upon the regions of the NHS Executive.

46.     Paragraph 10 provides that the Commission must appoint a member of staff as a children's rights director, whose role will be prescribed in regulations. The intention is that he should ensure that the work of the Commission in regulating children's services takes full account of children's rights and welfare.

47.     Paragraph 13 makes provision to enable staff from other statutory bodies, such as Health Authorities and the Commission for Health Improvement, to be placed at the disposal of the Commission and vice versa.

 
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