REGULAR Getting in Line
With new CQC Regulations now in force, Richard Bates, Partner and Head of the Later Life team at Rix & Kay Solicitors, outlines what care providers need to do to make sure their services are ship shape.
On the 1st April 2015 the new Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 came into force. Generically known and referred to here as the CQC Regulations, these new rules have serious implications for those providing services in the care sector.
Am I caught by
the CQC Regulations? It should first be noted that the CQC Regulations relate to ‘Regulated Activities’ that are undertaken in England. Regulated Activities in the context of this article comprise, in general, the provision of:
• nursing or personal care
• accommodation for people who require nursing or personal care
What are the requirements on me as an individual,
partner or employer? Regulation 4 deals with fitness requirements where a service provider is either an individual or in a partnership. In this provision there is a requirement that either the individual or each of the partners:
• is ‘fit’ to undertake regulated activities
• is of good character
• is able by reason of their health (after reasonable adjustments) to properly perform tasks intrinsic to their job, or if in a partnership, their role within the organisation
• has the qualifications, competence, skills and experience necessary
Under Regulation 6, where a service provider is not an individual or a partnership, e.g. a limited company, the CQC must be notified with the
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details of a ‘nominated individual’. This nominated individual must be a director, secretary or manager and be responsible for the supervision and management of the services provided by the company. In such a case, reasonable steps must be taken to ensure that that person satisfies the requirements.
Who is ‘fit’ to undertake
Regulated Activities? In terms of ‘fitness’ a person is not fit if they are declared bankrupt or are subject to a formal arrangement in respect of debts. They cannot be on the children’s or adults’ barred list (section 2 of the Safeguarding Vulnerable Groups Act 2006), nor can they be precluded from acting, by virtue of any other statute. The ‘Unfit Person Test’ can be found in Schedule 4, Part 1 of the CQC Regulations.
What constitutes ‘good
character’? ‘Good character’ is also defined in the CQC Regulations, in Part 2 of Schedule 4. A person would not be of ‘good character’ if they had previously been removed from a professional register or been convicted of any offence in the UK. In addition, if they are convicted of an offence overseas that would constitute an offence in the UK, notwithstanding the lack of a local conviction, they will not be ‘of good character’.
That said there is no definition of ‘offence’ in the CQC Regulations and, on the face of it, would appear to risk catching a large number of people. One must therefore look to the Care Quality Commission’s Guidance. In it, it says:
“It is not possible to outline every character trait that a person should have, but we would expect to see that the processes followed take account of a person’s honesty, trustworthiness, reliability and respectfulness. If a provider discovers information that suggests a person is not of good character after they have been appointed to a role, the provider must take appropriate and timely action to investigate and rectify the matter. Where a provider considers the individual to be suitable, despite existence of information relevant to issues identified in Schedule 4, Part 2, the provider’s reasons should be recorded for future reference and made available.”
One might therefore assume that if an offence was related to dishonesty or personal harm it would be more readily caught. In addition though, the CQC is clearly expecting to see robust processes being implemented and used to help demonstrate the service provider’s approach to ensuring compliance with the CQC Regulations.
What constitutes the ‘qualifications, competence, skills and
experience necessary’? Where good character and fitness are formally defined, things start to become a lot more subjective as we look at a person’s competence. As above, it is most important to be able to demonstrate a person’s competency but also the processes in place to check and monitor.
Under Regulations 4 and 6, a person employed or appointed in the context of regulated activities
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