Scottish Government

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Regulation of Care (Scotland) Act 2001

Commencement of Regulation of Adult Placement Services by The Scottish Commission for the Regulation of Care from April 2006

Draft Subordinate Legislation

Purpose

1. This paper proposes commencing Section 2(16) of the Regulation of Care (Scotland) Act 2001 (the Act) which will allow adult placement services to be regulated by the Scottish Commission for the Regulation of Care (the Care Commission) from 1 April 2006.

Introduction

2. The Care Commission was established under the Regulation of Care (Scotland) Act 2001 (the Act) to regulate the wide range of care services defined in section 2 of that Act. Regulation began on 1 April 2002 and most of the definitions in section 2 have now been commenced. Regulation of the remainder continues to be phased in, allowing the Commission to take on the additional work gradually rather than all at once.

3. Adult placement services are defined in the Act as:

a service which consists of, or includes, arranging for the provision of accommodation for an adult (that is to say for a person who has attained the age of eighteen years), together with -

(a) personal care;
(b) personal support; or
(c) counselling, or other help, provided other than as part of a planned programme of care,

by reason of the person's vulnerability or need by placing the person with a family or individual; but a service may be excepted from this definition by regulations.

4. The adult placement service recruits people living in the community and approves them as adult placement carers. Once approved the adult placement carer will take the vulnerable adult into their home where they will be part of the household. The types of placements are set out in the National Care Standards for Adult Placement Services. These set out what a service user can expect from the provider. They can be viewed on line at http://www.scotland.gov.uk/Topics/Health/care/17652/9826 or hard copies can be ordered from

0131 622 8283 or 0131 622 8258
business.edinburgh@blackwell.co.uk

The Standards are free of charge.

Proposals

5. The proposal is that adult placement services will be regulated by the Care Commission from 1 April 2006.

Transitional arrangements

6. If the proposal were to become law, all services which fall within the definition at paragraph 3 above would be required to register with the Care Commission from 1 April 2006. And from that date it would become an offence to provide an adult placement service while not registered as such with the Care Commission or to fail to display (a copy of) the relevant registration certificate in the premises from which the service is provided. However, it will not be possible for all existing adult placement services to apply, have their applications processed and have registration granted (or not, as the case may be) by 1 April 2006. It will therefore be necessary to make transitional arrangements for pre-existing adult placement services operating from that date.

7. The proposal is that those adult placement services in existence immediately before 1 April 2006 would be treated as if they were registered on 1 April 2006. The service would cease to be treated as registered at the latest on 30 September 2007 provided that an application for registration of the service is made before 31 December 2006. If no such application is made then the service would cease to be treated as registered at the latest on 31 December 2006. This would give existing providers a reasonable length of time to submit an application to the Care Commission and a reasonable length of time for the Care Commission to process, and take decisions on, the applications. During this period the registration could cease (a) if the Care Commission were to refuse the application for registration or to cancel the registration on the provider's request and in either case no appeal is made, (b) if an appeal is made against such a decision and the appeal is refused or abandoned, (c) a sheriff grants an application from the Care Commission for cancellation of the registration or (d) the provider ceases to provide the adult placement service.

8. Once a service was no longer to be treated as registered, the provider would be committing an offence under section 21 of the Act by continuing to provide it.

9. Those intending to provide a new adult placement service after 1 April 2006 would need to submit an initial application for registration for consideration by the Care Commission and registration would have to be granted by the Care Commission before the service could operate.

10. This proposal is similar to the transitional arrangements for school care accommodation services for which regulation commenced on 1 April 2005. These provisions can be found in the Regulation of Care (Scotland) Act 2001 (transitional Provisions) Order 2005 ( SSI 2005/98).

Amendments to existing Regulations and Orders

A suite of legislation already applies to services currently regulated by the Care Commission .

The Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002
( SSI 2002/114 as amended by SSI 2003/149, 2003/572 and 2004/94)

11. These Regulations, made under Section 29 of the Act, set out the requirements which providers of all care services must comply with (unless otherwise specified). A copy is attached at Annex A. Some provisions have been disapplied for some services through subsequent Amendment Regulations. We are proposing that the following paragraphs should not apply to adult placement services:

• Regulation 4(1) (d), requirement for infection control procedures and the management of clinical waste
• Regulation 19(3)(h), record keeping of deposit of money or valuables by those employed in giving the service
• Regulation 19(3)(j), record keeping in relation to medicines for service users kept on the premises
• Regulation 19(3)(k), record keeping in relation to instances where medication has been administered without the service user's consent or the consent of the person authorised to give consent on behalf of the service user
• Regulation 20 (which relates to yearly returns to the Care Commission of instances of when medication has been administered without consent), if Regulation 19(3)(k) does not apply
• Regulation 26 so far as it provides that failure to comply with Regulation 4(3) and Regulation 14 are offences, since the provisions only relate to other care services.

All other requirements of these 2002 Regulations would be valid for these services.

12. Adult placement services seek to place service users in a homely environment and generally only one service user would be placed with each adult placement carer. We consider it appropriate to introduce a new requirement that would limit the maximum number of individuals who can be placed with any single adult placement carer at any one time.

13. We would welcome your views on: whether the disapplication of the requirements set out at paragraph 11 above are appropriate; whether there are any other requirements that you consider should be disapplied; whether a new requirement as set out at paragraph 12 above would be appropriate; and if you think that such a new requirement would be appropriate, what you think the maximum number of individuals to be placed with any single adult placement carer at any one time should be.

The Regulation of Care (Applications and Provision of Advice) (Scotland) Order 2002
( SSI 2002/113 as amended by SSI 2003/151, 2003/570 and 2004/95)

14. The Regulation of Care (Applications and Provision of Advice) (Scotland) Order 2002 was made under sections 4(3), 7(2)(a), 14(3), and 33(2) of the Act and sets out the information to be provided by a person who makes an application for registration of any care service under the Act. A copy is attached at Annex B. Some provisions have been disapplied for some services through subsequent Amendment Orders.

15. The Schedule to the 2002 Order sets out the particulars to be included in an application for registration.

16. We consider the provisions of these Regulations should apply in full to adult placement services. We would welcome your views on that and on whether there are any other provisions relevant to the application process that should be included.

Regulation of Care (Registration and Registers) (Scotland) Regulations 2002
( SSI 2002/115 as amended by SSI 2003/148 and 2004/96)

17. These Regulations, made under section 28(1)(b), (c), (d) and (20) of the Act, make provision about registration of care services by the Care Commission, including what is to be included in the registers and the registration certificate. They also specify the persons who are disqualified from making an application for registration under the Act. A copy is attached at Annex C.

18. We consider the provisions of these Regulations should apply in full to adult placement services. Your views on that and on whether there are any other provisions relevant to the registration process or certificate for adult placement services that should be included

Regulatory Fees

19. Section 24(2) of the Act requires the Care Commission to impose fees for the following:

• Initial applications for registration;
• Annual continuation of registration
• Applications for variation or removal of a condition or registration; and
• New certificates of registration.

Section 24(1) of the Act allows the Scottish Ministers to specify the maximum fees to be applied by the Care Commission, and the Scottish Ministers normally exercise this power at the start of each financial year. The last such Order was the Regulation of Care (Fees) (Scotland) Order 2005 ( SSI 2005/97).

20. Maximum fees for adult placement services from 1 April 2006 will be set at the same time as fees for all the other regulated services. Fees proposals will be set out in a consultation paper which will be issued soon. The maximum fee level is therefore outwith the scope of this consultation paper.

Responding to this consultation paper

21. We are inviting email or written responses to this consultation paper by 3 February 2006. Please send your response to:

standardsandsponsorship@scotland.gsi.gov.uk or

Please complete the form at Annex E to indicate how you wish your response to be handled.

22. If you have any questions, please contact Jane Martin on 0131 244 3515.

23. This consultation, and all other SE consultation exercises, can be viewed online at http://www.scotland.gov.uk/consultations . You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is.

24. The Scottish Executive now has an email alert system for SE consultations ( SEconsult). This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new consultations (including web links). This complements, but in no way replaces, SE distribution lists. It is designed to allow stakeholders to keep up to date with all SE consultation activity, and to be alerted at the earliest opportunity to those of most interest. We would encourage you to register.

Access to consultation responses

25. We will make all responses available to the public in the Scottish Executive Library by Spring 2006 and on the Scottish Executive consultation web pages by the same date, unless confidentiality is requested. All responses not marked confidential will be checked for potentially defamatory material before being logged in the library.

Care Standards and Sponsorship Branch
Community Care Division
Scottish Executive Health Department
November 2005

Annex A
Annex B
Annex C
Annex D
Annex E