The Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011
In accordance with section 78(5) they have consulted such persons or groups of persons as they consider appropriate.
In accordance with section 104(2) of that Act a draft of the instrument has been laid before, and approved by resolution of the Scottish Parliament.
Citation and commencement1.
These Regulations may be cited as the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 and come into force on 1st April 2011.
Interpretation2.
(1)
In these Regulations—
“the Act” means the Public Services Reform (Scotland) Act 2010;
“SCSWIS” means Social Care and Social Work Improvement Scotland;
“representative” means any person having legal authority, or the consent of the service user, to act on the service user’s behalf;
“service user” in relation to a care service means any person to whom that service is provided.
(2)
In these Regulations, references to employing a person include employing a person whether or not for payment and whether under a contract of service, a contract for services or otherwise than under a contract and allowing a person to work as a volunteer, and references to an employee or to a person being employed are to be construed accordingly.
(3)
Principles3.
A provider of a care service shall provide the service in a manner which promotes quality and safety and respects the independence of service users, and affords them choice in the way in which the service is provided to them.
Welfare of users4.
(1)
A provider must—
(a)
make proper provision for the health, welfare and safety of service users;
(b)
provide services in a manner which respects the privacy and dignity of service users;
(c)
ensure that no service user is subject to restraint, unless it is the only practicable means of securing the welfare and safety of that or any other service user and there are exceptional circumstances; and
(d)
where necessary, have appropriate procedures for the prevention and control of infection.
(2)
(3)
(4)
In this regulation, health care professional means—
(a)
a registered medical practitioner;
(b)
a registered dentist, or dental practitioner registered with the General Dental Council;
(c)
(d)
(e)
(f)
a person who is registered as a member of a profession to which the F1Health Professions Order 2001 extends;
(i)
a person registered under the Anaesthesia Associates and Physician Associates Order 2024.
Personal plans5.
(1)
Subject to paragraph (3) a provider must, after consultation with each service user and, where it appears to the provider to be appropriate, any representative of the service user, within 28 days of the date on which the service user first received the service prepare a written plan (“the personal plan”) which sets out how the service user’s health, welfare and safety needs are to be met.
(2)
Subject to paragraph (3) a provider of a care service must—
(a)
make the personal plan available to the service user and to any representative consulted under paragraph (1);
(b)
review the personal plan—
(i)
when requested to do so by the service user or any representative;
(ii)
when there is a significant change in a service user’s health, welfare or safety needs; and
(iii)
at least once in every six month period whilst the service user is in receipt of the service;
(c)
where appropriate, after any review mentioned in sub-paragraph (b), and after consultation with the service user and, where it appears to the provider to be appropriate, any representative, revise the personal plan; and
(d)
notify the service user and any representative consulted under paragraph (2)(c) of any such revision.
(3)
Paragraphs (1) and (2) do not apply to any adoption service or fostering service but the provider of such a service must, after consultation with each service user and, where it appears to the provider to be appropriate, any representative of the service user—
(a)
within one month of the date on which the service user first received the service prepare in writing a plan which confirms—
(i)
what the care service will provide over the next 12 months;
(ii)
who the service user is; and
(iii)
the intended outcome for that service user;
(b)
review that plan at least once in every 12 month period, whilst the service user is in receipt of the service,
(4)
In this regulation “representative” includes any person appearing to the provider to act on behalf of the service user or who has an interest in the welfare of the service user.
Fitness of providers6.
(1)
A person must not provide a care service unless the person is fit to do so.
(2)
The following persons are unfit to provide a care service:—
(a)
a person who is not of integrity and good character;
(b)
a person who has been convicted whether in the United Kingdom or elsewhere of any offence which is punishable by a period of imprisonment of not less than 3 months and has been sentenced to imprisonment (whether or not suspended or deferred) for any period without the option of a fine and who, in the reasonable opinion of SCSWIS is unsuitable to be a provider of a care service;
F4(c)
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F4(d)
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F4(e)
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F4(f)
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(g)
a person who has been—
(i)
(ii)
removed from the office of charity trustee or trustee for a charity by an order made by the Charity Commission for England and Wales or the High Court on the grounds of any misconduct or mismanagement in the administration of the charity for which the person was responsible or to which the person was privy, or which the person by that person’s conduct contributed to or facilitated;
(h)
(i)
a person who is subject to proceedings outside the United Kingdom which are equivalent to those listed at sub-paragraphs (b) to (h) above.
(3)
For the purposes of paragraph (2)(b) any conviction by or before a court outside the United Kingdom for an offence in respect of conduct which, if it had taken place in any part of the United Kingdom, would not have constituted an offence under the law in force in that part of the United Kingdom is to be disregarded.
(4)
Paragraph F5(2)(g) to (i) is to be disregarded if the provider is seeking to provide a child minding service.
(5)
A provider must inform SCSWIS immediately in writing where the provider becomes a person who is not fit to provide a care service in terms of this regulation.
F6Notification of insolvency event: companies6A.
(1)
A company (or any person appointed or nominated to act on behalf of that company at the time of an insolvency event) who is a provider of a care service must notify SCSWIS immediately of any insolvency event.
(2)
An “insolvency event” means any of the following events:—
(a)
the nominee in relation to a proposal for a voluntary arrangement under Part 1 of the Insolvency Act 1986 (“the 1986 Act”) submits a report to the court under section 2 (procedure where nominee is not the liquidator or administrator) of that Act which states that in the nominee’s opinion meetings of the company and its creditors should be summoned to consider the proposal;
(b)
the directors of the company lodge with the court documents and statements in accordance with paragraph 7(1) of Schedule A1 (moratorium where directors propose voluntary arrangement) to the 1986 Act;
(c)
an administrative receiver within the meaning of section 251 of the 1986 Act is appointed in relation to the company;
(d)
the company enters administration within the meaning of paragraph 1(2)(b) of Schedule B1 to the 1986 Act;
(e)
a resolution is passed for a voluntary winding up of the company without a declaration of solvency under section 89 of the 1986 Act;
(f)
a meeting of creditors is held in relation to the company under section 95 (creditors’ meeting which has the effect of converting a members’ voluntary winding up into a creditors’ voluntary winding up) of the 1986 Act;
(g)
an order for the winding up of the company is made by the court under Part 4 or 5 of the 1986 Act;
(h)
an administration order is made by the court in respect of the company by virtue of any enactment which applies Part 2 (administration orders) of the 1986 Act (with or without modification);
(i)
a notice from an administrator under paragraph 83(3) (moving from administration to creditors’ voluntary liquidation) of Schedule B1 to the 1986 Act in relation to the company is registered by the registrar of companies;
(j)
the company moves from administration to winding up pursuant to an order of the court under rule 2.132 (conversion of administration to winding up — power of court) of the Insolvency Rules 1986;
(k)
an administrator or liquidator of the company, being the nominee in relation to a proposal for a voluntary arrangement under Part 1 (company voluntary arrangements) of the 1986 Act, summons meetings of the company and of its creditors, to consider the proposal, in accordance with section 3(2) (summoning of meetings) of the 1986 Act.
Notification of insolvency event: individuals6B.
(1)
Subject to paragraph (3), a provider who is an individual must notify SCSWIS immediately of any insolvency event.
(2)
An “insolvency event” means any of the following events:—
(a)
the provider is adjudged bankrupt or sequestration of the provider’s estate has been awarded;
(b)
the nominee in relation to a proposal for a voluntary arrangement under Part 8 of the Insolvency Act 1986 submits a report to the court under section 256(1) or 256A(3) of that Act which states that in the nominee’s opinion a meeting of the provider’s creditors should be summoned to consider the debtor’s proposal;
F7(c)
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(d)
the provider executes a trust deed for the provider’s creditors or enters into a composition contract.
(3)
This regulation does not apply where the individual is the provider of a child minding service.
Notification of insolvency event: partnerships6C.
(1)
A partnership (or any person appointed or nominated to act on behalf of that partnership at the time of an insolvency event) who is a provider of a care service must notify SCSWIS immediately of any insolvency event.
(2)
An “insolvency event” means any of the following events:—
(a)
an order for the winding up of the partnership is made by the court under any provision of the Insolvency Act 1986 (“the 1986 Act”) (as applied by an order under section 420 (insolvent partnerships) of that Act);
(b)
sequestration is awarded on the estate of the partnership under section 12 of the Bankruptcy (Scotland) Act 1985 or the partnership grants a trust deed for its creditors;
(c)
the nominee in relation to a proposal for a voluntary arrangement under Part 1 of the 1986 Act (as applied by an order under section 420 of that Act) submits a report to the court under section 2 (procedure where nominee is not the liquidator or administrator) of that Act which states that in the nominee’s opinion meetings of the members of the partnership and the partnership’s creditors should be summoned to consider the proposal;
(d)
the members of the partnership lodge with the court documents and statements in accordance with paragraph 7(1) of Schedule A1 (moratorium where directors propose voluntary arrangement) to the 1986 Act (as applied by an order under section 420 of that Act);
(e)
the partnership enters administration within the meaning of paragraph 1(2)(b) of Schedule B1 to the 1986 Act (as applied by an order under section 420 of that Act).
Fitness of managers7.
(1)
A person must not act as a manager in relation to a care service unless the person is fit to do so.
(2)
The following persons are unfit to act as a manager in relation to a care service:—
(a)
any person to whom regulation 6(2)(a) applies;
(b)
any person who has been convicted whether in the United Kingdom or elsewhere of any offence which is punishable by a period of imprisonment of not less than 3 months and has been sentenced to imprisonment (whether or not suspended or deferred) for any period without the option of a fine and who, in the reasonable opinion of the provider of the care service having regard to the circumstances of the conviction is unsuitable to be a manager in relation to a care service;
(c)
a person who does not have the skills, knowledge and experience necessary for managing the care service; and
(d)
a person who, in order to perform the duties for which the person is employed in the care service, is required by any enactment to be registered with any person or body and is not so registered.
Notification of unfitness of manager8.
(1)
Where a provider of a care service is or becomes aware that a person acting as a manager in relation to the care service has been convicted of any criminal offence, whether in the United Kingdom or elsewhere, the provider must immediately give notice to SCSWIS of—
(a)
the date and place of conviction;
(b)
the offence in respect of which the manager was convicted; and
(c)
the penalty imposed in respect of the offence.
(2)
Where a provider of a care service is or becomes aware that a person acting as manager in relation to that service is unfit to do so in terms of regulation 7, the provider must immediately notify SCSWIS in writing of that fact.
Fitness of employees9.
(1)
A provider must not employ any person in the provision of a care service unless that person is fit to be so employed.
(2)
The following persons are unfit to be employed in the provision of a care service:—
(a)
any person who has been convicted whether in the United Kingdom or elsewhere of any offence which is punishable by a period of imprisonment of not less than 3 months and has been sentenced to imprisonment (whether or not suspended or deferred) for any period without the option of a fine and who, in the reasonable opinion of the manager of the care service having regard to the circumstances of the conviction, is unsuitable to work in a care service;
(b)
a person who does not have the qualifications, skills and experience necessary for the work that the person is to perform; and
(c)
any person to whom regulations 6(2)(a) or 7(2)(d) apply.
Fitness of premises10.
(1)
A provider must not use premises for the provision of a care service unless they are fit to be so used.
(2)
Premises are not fit to be used for the provision of a care service unless they—
(a)
are suitable for the purpose of achieving the aims and objectives of the care service as set out in the aims and objectives of the care service;
(b)
are of sound construction and kept in a good state of repair externally and internally;
(c)
have adequate and suitable ventilation, heating and lighting; and
(d)
are decorated and maintained to a standard appropriate for the care service.
(3)
Accommodation must not be provided and used for the purpose of restricting the liberty of children in any residential premises where care services are provided unless such provision and use have been approved by the Scottish Ministers.
Fitness in relation to adult placement services11.
(1)
A provider of an adult placement service must not place any service user in premises in which there is any person living who is unfit to be in the proximity of the service user.
(2)
Child minding12.
(1)
A provider of child minding must not permit any person who is unfit to be in the proximity of children to live at the premises which are used for the provision of the service.
(2)
A provider of child minding must give notice to SCSWIS immediately where a person living at the premises used for the provision of the service—
(a)
becomes 16 years of age;
(b)
ceases to live at the premises; or
(c)
is convicted of an offence.
(3)
A provider of child minding must give notice to SCSWIS immediately when another person begins to live at the premises which are used for the provision of the service.
(4)
Without prejudice to the generality of paragraph 1, a person who is unfit to be in the proximity of children includes a person who is listed in the children’s list in the Protection of Vulnerable Groups (Scotland) Act 2007.
Protection of vulnerable groups listings13.
(1)
A person who is listed in the children’s list in the Protection of Vulnerable Groups (Scotland) Act 2007 must not provide, manage or be employed in a care service for children.
(2)
A person who is listed in the adults’ list in the Protection of Vulnerable Groups (Scotland) Act 2007 must not provide, manage or be employed in a care service for adults.
Facilities in care homes14.
A provider of a care home service must, having regard to the size of the service, the statement of aims and objectives and the number and needs of service users—
(a)
provide sufficient and suitable kitchen equipment, crockery, cutlery and utensils, and adequate facilities for the preparation and storage of food;
(b)
provide such other equipment for the general use of service users as is suitable and sufficient having regard to their health and personal care needs;
(c)
provide adequate facilities for service users to prepare their own food and ensure that such facilities are fit for use by service users;
(d)
ensure that there are provided at appropriate places in the premises from which the service is provided sufficient numbers of lavatories, and of wash-basins, baths and showers fitted with a hot and cold water supply; and
(e)
provide a place where the money and valuables of service users may be deposited for safe keeping, and make arrangements for service users to acknowledge deposit and return to them of any money or valuables so deposited, at the request of the service user or the service user’s representative.
StaffingF815.
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Medical practitioners in care homes16.
A person having a financial interest in a care home service must not act as a medical practitioner for any user of that service.
Appointment of manager17.
(1)
A provider who—
(a)
is not an individual;
(b)
is unfit to act as a manager in relation to a care service in terms of regulation 7(2); or
(c)
is not, or does not intend to be, in full-time day-to-day charge of the care service,
must appoint an individual to be the manager of the care service.
(2)
Where a provider appoints a person to manage the care service, the provider must immediately give notice to SCSWIS of—
(a)
the name of the person so appointed; and
(b)
the date on which the appointment is to take effect.
Complaints18.
(1)
A provider must establish a procedure (“the complaints procedure”) for considering complaints made to the provider.
(2)
The complaints procedure must be appropriate to the needs of service users.
(3)
The provider must ensure that any complaint made under the complaints procedure is fully investigated.
(4)
The provider must, within 20 working days after the date on which the complaint is made, or such shorter period as may be reasonable in the circumstances, inform the complainant of the action (if any) that is to be taken.
(5)
The provider must supply a written copy of the complaints procedure to every service user and to any representative if that representative so requests.
(6)
The written copy of the complaints procedure must include—
(a)
the name and address of SCSWIS; and
(b)
the procedure (if any) that has been notified by SCSWIS to the provider for the making of complaints to SCSWIS relating to the care service.
(7)
The provider must supply to SCSWIS at its request a statement containing a summary of the complaints made during the preceding 12 months and the action that was taken in respect of each complaint.
(8)
In this regulation, “address” includes both a postal address and where available an electronic mail address but an electronic mail address may not be substituted for a postal address.
Offences19.
(1)
Subject to paragraph 2 it is an offence to contravene or fail to comply with regulations 4(3), 6(1), 7(1), 9(1) and 16.
(2)
Failure to comply with regulation 6(2)(a) does not constitute an offence.
St Andrew’s House,
Edinburgh
These Regulations set out requirements which must be complied with by providers of care services under Part 5 of the Public Services Reform (Scotland) Act 2010. A care service must be provided in accordance with the general principles set out in regulation 3. Regulation 4 imposes requirements on providers which relate to the welfare of service users. In accordance with regulation 5, the provider is required to prepare a personal plan for each service user setting out how the service user’s health, welfare and safety needs will be met.
The Regulations specify persons who are not fit to provide (regulation 6), manage (regulation 7) or be employed in a care service (regulation 9). They also make provision as to fitness of premises (regulation 10) and fitness in relation to adult placement services (regulation 11). A provider of child minding is required by regulation 12 not to allow persons unfit to be in the proximity of children to live on the premises and requires notification to SCSWIS of certain changes to persons living at the premises.
Regulation 13 concerns the impact of a listing in the children’s or adults’ list in the Protection of Vulnerable Groups Act 2007. Regulation 14 makes provision as to the facilities required in care homes and regulation 15 concerns the staffing in care services.
Regulation 16 imposes a prohibition on any person having a financial interest in a care home from acting as a medical practitioner for any user of that service.
Regulation 17 makes provision as to the appointment of a manager of a care service and regulation 18 obliges a care service to establish and operate a complaints procedure. Regulation 19 provides that contravening or failing to comply with certain provisions of the Regulations is an offence. A person who commits an offence under these Regulations is liable on summary conviction to a fine not exceeding level 5 on the standard scale.