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The Uk's Healthcare Law Service



THE CARE STANDARDS ACT 2000

Up-Dated Nov. 2005  Go straight to up-date

In April 2002 the previous raft of legislation regulating residential and nursing homes The Registered homes Act 1984 and attendant regulations was repealed and replaced by the Care Standards Act ("CSA" ).

The CSA is a far more broad ranging piece of legislation than the 1984 Act. It attempts to grasp control of the whole concept of care, in all its forms, and to regulate those who provide it virtually in all settings and circumstances.

Those services previously regulated, including residential care homes for adults, nursing homes and children's homes continue to be registered and inspected but the powers of registration and inspection were removed from local and health authorities and passed over to a new national public authority called the Commission for Social Care Inspection.

For the first time previously unregulated care services will be brought under the regulatory umbrella including:

Domiciliary social care providers
Independent fostering agencies
Residential family centres
Boarding schools
Another aspect in which the old and new contrast is the prescriptive nature of the new provisions. The 1984 Act left a great deal of room for manoeuvre. Words such as "adequate , "sufficient and "suitable proliferated enabling home owners and Registration Authorities to negotiate over particular standards in particular geographical areas and circumstances. Much of this flexibility and, it has to be said, ambiguity is sought to be swept away by the new order. In providing for detailed Minimum Standards, applying nationally rather than locally, thereby also attempting to dispense with variations we have encountered between different registration areas hitherto.

Greater certainty and less ambiguity is to be welcomed but home owners have found that the legislation severely curtails their rights and, essentially decides many areas of potential dissent in advance but against them by giving absolute power to the new regulatory body, the Commission 
for Social Care Inspection ("CSCI").

Homeowners who felt inspection officers were too powerful before have  discovered that, although the description "omnipotence" may be going too far, their regulatory armoury is far greater than before and their hand is evident in drafting much of the Act and, of course, the standards themselves.

The CSA creates many notable new powers for inspectors, some of which caused a few raised eyebrows. For example:


"S.31(1) The registration authority may at any time require a person who caries on or manages an establishment or agency to provide it with any information relating to the establishment or agency which the registration authority considers it necessary or expedient to have for the purposes of its functions under this Part."

and .......

"(3) A person authorized by virtue of this section to enter and inspect premises may:
          a) Make any examination into the state and management of the premises and treatment of patients or persons accommodated or cared for there which he thinks appropriate
          b) Inspect and take copies of any documents or records (other than medical records) required to be kept in accordance with regulations under this part section 9(2) the Adoption Act 1976, section 23 (2)(a) or 59(2) of the 1989 Act or section 1(3) of the Adoption (Intercounty Aspects) Act 1999.
          c) Interview in private the manager or the person carrying on the establishment or agency."
and even

"(6) The person so authorised may, with the consent of the person mentioned in subsection (5)(b) examine him in private and inspect any medical records relating to his treatment in the establishment The powers conferred by this subsection may be exercised in relation to a person who is incapable of giving consent with or without the person's consent."

further

"S32(2) A person so authorised may require any person to afford him such facilities and assistance with respect to matters within the person's control as are necessary to enable him to exercise his powers under section 31 or this section."

and

"(3) A person authorised by virtue of section 31 to inspect any records shall be entitled to have access to, and to check the operation of; any computer and any associated apparatus which is or has been in use in connection with the records in question."

The minimum standards were settled some time ago.

Legal Minimum Standards for care providers are an innovation. Previously local "guidelines" or the like did not have any force of law so that they were all capable of challenge. This is a very important aspect of the new legislation in that it provides a whole raft of new legislative provisions with which care providers must comply or risk prosecution or cancellation proceedings.

The CSA dawns a new age in care. It is right that this should happen now given the demographic outlook over the next 30 years but the central question remains - will funding be sufficient to provide for the excellence to which we all aspire?

An Up-date:

The new legislation got off to a slow start. By the time it arrived on the statute books care had become a political "hot potato" as a result of the systematic targeting of the sector for legislative reform over the previous 10 years causing the loss of hundreds, if not thousands, of beds and threatening to bring the industry to itís knees.

Finally realising the importance of the sector, the government appeared to decree a softly softly approach to the new regulator, extolling it to adopt a conciliatory attitude and "work in partnership" with care homes whilst they worked towards compliance with the new rules.

This, coupled with the major tasks of setting up itís systems, organising itís resources and bringing on board a number of other, previously unregulated, services kept CSCI busy in the early years and little regulatory action seems to have been taken.

Contrast this with the year 2004Ė05.
The CSCIís annual report for that period contains a table analysis of itís regulatory activity that year which is reproduced below:

 

Statutory notices

Requirement notices

Urgent
action

Prosecution

Adults

306

4,483

4,240

3

Children

29

218

248

5

Total

335

4,701

4,488

8

The report also produces a graph showing the numbers of complaints received against registered services and, of the total 20,914 complaints, staffing and care practice attracted 25% each with "abuse" being the next biggest area of concern.

17% of the complaints were anonymous. A staggering 61% of these were not upheld, unresolved or withdrawn.

In our experience, unsubstantiated complaints are one of the greatest threats to care home businesses and the manner in which the authoritiesí address them is a major factor in the damage that they can cause. Click here to read our article on this subject.


Robert T. Campbell
November 2005
(Updated from an article first published in July 2001)

 

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