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Act 1984 and attendant regulations was repealed and replaced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 it’s 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 it’s systems,
organising it’s 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 2004–05.
The CSCI’s annual report for that period contains a table
analysis of it’s 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 authorities’ 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)
|
