PART I: Introductory |
15. Clause 1 defines children's homes. Clause
1 (4) enables regulations to be made to exclude certain establishments
from the definition of children's homes. This power replicates
an existing power in the Children Act in respect of registered
children's homes (see section 63(3) (b)). The regulations may
be made by the appropriate Minister (see clause 96(1) for the
definition of "regulations").
16. There will be some places where children
are provided with care and accommodation which it will not be
appropriate to register. This might include hostels for apprentices,
some of whom may be under 18 years of age, e.g. for jockeys or
trainee professional footballers. Other kinds of accommodation
where children are provided with care and accommodation may arise
in the future and might require an exception to be made from the
definition. Regulations will prove an easier means of doing this
than amending primary legislation.
17. Clause 2 (4) defines an independent
clinic as a prescribed establishment (which is not a hospital)
where medical practitioners provide services, other than NHS services.
It is intended for example to make regulations prescribing premises
such as walk in medical centres and private primary care premises
which are used for the purposes of consultation. There is a need
for flexibility here as premises currently outside the definition
may start to undertake procedures that may need to be registered.
18. Clause 2 (6) - premises in which listed services
are provided come within the definition of a hospital and will
be regulated by the registration authority. Subsection (6) defines
listed services and includes (clause 2(6)(g)) treatments using
prescribed techniques or prescribed technology. It is intended
to make regulations setting out prescribed techniques and prescribed
technologies used for treatment purposes. This might include treatments
or procedures involving class 3B and 4 lasers, which are currently
prescribed under section 21(4) of the 1984 Act.
19. Clause 2 (7)(a) enables the appropriate minister
through secondary legislation to except from regulation an establishment
described in subsections (2) to (4). By setting out this power
to except kinds of establishment through regulations, amendments
can be made more easily, than if the exceptions were set out in
primary legislation. This will enable the appropriate Minister
to respond to future changes in the delivery of healthcare services.
20. Clause 2 (7)(b) enables the appropriate minister
through secondary legislation to modify the services listed in
subsection (6). These listed services may be carried out in hospitals
or in clinics. Not all of these are for treatment or diagnosis,
for example, the delivery of babies and surgery for cosmetic reasons.
The power to modify the list of services in subsection (6) in
regulations will enable the legislation to be amended by the appropriate
Minister. This will ensure that legislation can reflect the changes
in the independent sector's delivery of healthcare and protect
the public without having to amend primary legislation.
21. Clause 3 (3) enables the appropriate Minister
to except in regulations certain establishments from the definition
of "care home". Classes of establishments such as schools,
further education colleges and universities will be excepted.
Consideration will also be given to excepting other establishments
through regulations. It will be important to retain the flexibility
to make further exceptions, as it is difficult to predict what
new kinds of establishment might develop in future which, if caught
by the definition under clause 3, it would be inappropriate to
register as care homes.
22. Clause 4 (5) makes provision for an
establishment, undertaking or agency to be excepted by regulations
from the definitions of "residential family centre",
"domiciliary care agency" or "fostering agency".
23. As with the delegated powers in clauses 1-
3 which allow establishments or agencies to be excepted through
regulations from the definitions of "children's home",
"independent hospital", "independent clinic",
or "care home", provision is also needed to ensure that
other types of undertakings, establishments or agencies are not
inappropriately caught by the definitions of "residential
family centre", "domiciliary care agency" or "fostering
agency". This is best achieved through regulations, which
will allow greater flexibility to respond to changing circumstances.
24. Clause 6 (2) (a) enables the Secretary of
State to give directions to the Commission as respects the exercise
of its functions. Directions will be writing. For example, the
Secretary of State may wish to ensure the continuing use of lay
assessors in the inspection process, and to do so he would need
to be able to direct the Commission accordingly. The direction
making power avoids unnecessary detail in the primary legislation
and allows the Secretary of State to respond to unforeseen circumstances
(see also paragraph 3 of Schedule 1).
25. Clause 6 (3) gives effect to Schedule 1 which
deals with the constitution, powers, etc. of the Commission and
English and Welsh Councils. The Schedule is considered at the
end of this memorandum.
26. Clause 7 (6) provides for the Secretary of
State to make regulations conferring additional functions on the
Commission in relation to services of the kind provided by persons
registered under Part II. The services concerned are those provided
by "establishments" and "agencies" defined
in clause 4 (9) and (10). In addition to promoting the quality
of services, and reporting and advising the Secretary of State
on the provision of registered services, the Commission will be
well placed to discharge other functions which stem from its role
in regulating care services. The Department is of the view that
providing for the Secretary of State to give the Commission further
functions through regulations, will provide the necessary flexibility
to react to future needs and developments in relation to social
care services without the need for primary legislation.