Northern Ireland Assembly Flax Flower Logo

HEALTH AND PERSONAL SOCIAL SERVICES (QUALITY, IMPROVEMENT AND REGULATION) BILL

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION
  1. This Explanatory and Financial Memorandum relates to the Health and Personal Social Services (Quality, Improvement and Regulation) Bill. It has been prepared by the Department of Health, Social Services and Public Safety (DHSSPS) in order to assist the reader of the Bill and to help inform debate on it. The Memorandum does not form part of the Bill and has not been endorsed by the Assembly.
  2. The Memorandum needs to be read in conjunction with the Bill. It does not give, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
    3. PURPOSE
  3. In summary this Bill -
BACKGROUND AND POLICY OBJECTIVES
  1. The chapter on "Working for Healthier People" in the Executive's first Programme for Government, included a commitment to put in place a framework to raise the quality of services provided to the community and tackle issues of poor performance across the HPSS. As a first step in fulfilling this commitment, DHSSPS issued a consultation paper entitled "Best Practice - Best Care" in April 2001. The results of this consultation were published in June 2002. The purpose of this Bill is to put into effect those decisions, made following the conclusion of the consultation process, which require legislation.
  2. The relevant documents are listed below -
  1. The proposals contained in "Best Practice - Best Care" focused on:

    2. (a) developing and disseminating clear service standards for the HPSS;

    (b) securing accountability at local level for the delivery of services; and

    (c) improving monitoring & regulation of the services.

  2. The main focus of this Bill is on the implementation of arrangements covering (b) and (c) which require legislation although this legislation is linked in to other arrangements, for the development of standards and guidelines (a), which do not require primary legislation by the Assembly.
    3. CONSULTATION
  3. The Department consulted widely on these proposals in the "Best Practice - Best Care" consultation document. The results of this consultation exercise were published in June 2002 and showed widespread support for the introduction of a statutory duty of quality, clinical and social care governance arrangements for the HPSS and a new system of regulation of care services extended to cover a much wider range of services. The consultation showed different views on which body or bodies should inspect and regulate services. However, a common theme was that the system of regulation and inspection should be as streamlined as possible and not involve creating multiple new bodies. As part of this consultation DHSSPS invited consultees to put forward their views on the equality impact of the proposals, and also invited any further comment on the major policy objectives that have been brought forward in this Bill. There was almost universal support for the proposals and the equality aims of the Bill were broadly welcomed.
    4. OPTIONS
  4. The "Best Practice - Best Care" consultation document put forward different options for standards setting, for extending regulation to a wider range of services and for the inspection of quality in the HPSS. Consultees were also invited to put forward their own proposals if they had alternatives. The measures proposed in this Bill have been developed to take account of the original options in the consultation document, responses from consultees and subsequent developments with equivalent arrangements elsewhere.
    5. OVERVIEW
  5. The bill is in five Parts:
COMMENTARY ON CLAUSES

Part I

Clause 1 - The Regulation and Improvement Authority

Clause 1 establishes the Authority. Schedule 1 sets out detailed provisions regarding the Authority.

Under the provisions of Schedule 1 the Authority (subject to directions) may take any necessary or expedient action to fulfil its statutory duties (paragraph 2). The Department has powers to make regulations governing the procedures of the Authority and the appointment of members (paragraph 5). Paragraph 6 sets out provisions for the payment of remuneration and allowances (including pensions) to the Chairman and members of the Authority subject to the determination of the Department. The first chief executive will be appointed by the Department. The Authority will appoint subsequent chief executives itself, subject to the approval of the Department.

Paragraph 8 makes provision for the Authority to appoint staff subject to directions from the Department.

Paragraph 9 provides that the Authority may arrange for any of its functions to be carried out by a committee or member of staff of the Authority or by another person. Paragraph 10 makes provision to enable staff from other bodies, to be placed at the disposal of the Authority and vice versa. This will allow the Authority when reviewing or inspecting regional or more specialist services to call upon a wider pool of expertise either from within NI or elsewhere from bodies such as the Commission for Health Improvement.

Paragraph 12 requires the Authority to keep accounts and submit them to the Department and the Comptroller and Auditor General. The Authority's accounts will be audited by the Comptroller and Auditor General.

Clause 2 - General duties in relation to provision of services

Clause 2 specifies the remit of the Authority with regard to regulated services and with regard to the HPSS and its general duties with regard to quality.

Subsection (1) links the main role of the Authority to services regulated under Part II and to services provided by HSS Boards, HSS Trusts and special agencies.

Subsection (2) sets out the Authority's main functions of keeping the Department informed about the availability and quality of services. This will include reporting on trends in the provision of long term health and care services. The Authority's other main function is of encouraging improvement in the quality of these services. It will do this by, for example, disseminating examples of good practice and giving advice to service providers on how to meet minimum standards (see clause 37), the requirements of clinical and social care governance guidelines and the requirements arising from any other standards, guidance or guidelines which the Department may endorse as applying to the HPSS bodies and regulated services.

Clause 3 - Advice and information about services

Clause 3 makes provision for the Department to request advice and reports.

Clause 4 - Regulations and directions

This clause gives the Department the power to make regulations governing various aspects of the way in which the Authority discharges its duties.

Subsection (1) sets out the various matters with regard to which the Department can make regulations. In particular paragraphs (c) and (d) allow for regulations governing the publication of reports and summaries of reports by the Authority and govern to whom the Authority should provide advice, information and copies of reports.

Paragraph (e) enables the Department to provide for the recovery of expenses by the Authority from e.g. registrants.

Paragraph (f) makes provision for the Department to make regulations to set down the way in which the Authority should work collaboratively with other bodies particularly those bodies with a separate role in the inspection, review or monitoring of regulated services or of other services coming within the remit of the Authority.

Paragraph (g) provides for the Authority to have such additional functions in relation to the matters set out in this subsection as the Department may prescribe by regulations.

Subsection (2) provides that the Authority must, in the exercise of its functions, act in accordance with directions given to it by the Department.

Clause 5 - Annual report

Clause 5 requires the Authority to make an annual report to the Department, in which the Authority must set out the progress it has made during the year and the issues emerging from its work.

Part II

Clause 6 - Children's homes

Subsection (2) defines a children's home as an establishment which provides care and accommodation wholly or mainly for children. This will include statutory homes, voluntary homes and registered children's homes (including small private children's homes) as defined in the Children (NI) Order 1995 (the Children Order), and homes for disabled children. Subsection (3) excludes a place where a child is cared for by his parents, a relative, a person with parental responsibility for him or a foster parent. Subsection (4) excludes hospitals, schools and other institutions and gives the Department the power to make other exceptions in regulations. It is intended that regulations will be made to exempt, for example, homes where children take holidays or certain hostels set up by professionals to accommodate apprentices (such as footballers or jockeys). Subsection (5) clarifies the definition of foster parent for the purposes of this clause.

Clause 7 - Residential care homes

Clause 7 defines the various types of residential care homes which are to be regulated. These are residential homes including adult placements and small residential homes. This definition follows on from the definition in Part II of the Registered Homes (NI) Order 1992 except that some exceptions e.g. Trusts and small homes are no longer exempted.

Subsection (1) defines a residential care home as any home which provides or intends to provide, whether for reward or not, residential accommodation with both board and personal care for those in need of personal care by reason of old age and infirmity, disablement, past or present dependence on alcohol or drugs or past or present mental disorder. This definition includes HSS Trust managed homes, homes covered by Charters and Acts of Parliament and small homes.

Subsection (3) defines disablement and personal care. "Personal care" in the context of residential care homes includes assistance with bodily functions where such assistance is required. This may include, for instance, assistance with washing, bathing, toileting, dressing and eating for people who are unable to do these things without help. This means that an establishment is not defined as a residential care home unless that type of assistance is provided where required.

Homes which provide personal care and accommodation for disabled children are to be treated as children's homes and not care homes.

Clause 8 - Nursing homes

Clause 8 defines nursing homes. This definition follows on from the definition in Part III of the Registered Homes (NI) Order 1992 except that some exemptions are removed and other services previously included are defined as part of independent hospitals.

Subsection (1) defines a nursing home as any premises used or intended to be used for the reception of and the provision of nursing for, persons suffering from any illness, injury or infirmity. This definition includes Trust managed homes.

Subsection (2) excludes HPSS and private hospitals, children's homes, sanatoriums provided within educational establishments, first aid or treatment rooms, and premises used by GPs or dentists or for the provision of occupational health facilities.

Clause 9 - Independent hospitals etc.

Clause 9 sets out the range of independent healthcare services which are to be regulated. Subsection (2) excludes HPSS hospitals vested in the Department or managed by Trusts from the definition of independent hospitals and clinics.

Subsection (3) defines a hospital as any establishment which has as its main purpose the provision of psychiatric or medical treatment for illness or mental disorder (including palliative care) or which provides one or more of the services listed in subsection (7) ("listed services"), and any other establishment which provides treatment for people liable to be detained under the provisions of the Mental Health (NI) Order 1986. Subsection (6) provides that the definition of "people liable to be detained" does not include people who are on leave granted under Article 15 of that Order. This definition of "independent hospital" will encompass all those hospitals (and where appropriate nursing homes registered to take detained patients) which are currently regulated under Part II of the Registered Homes (NI) Order 1992 and any other private or voluntary hospitals which are currently not regulated - for example those run by bodies established by Royal Charter or constituted by statute.

Subsection (4) defines an independent clinic as a prescribed type of establishment (other than a hospital) where medical practitioners provide services (including services which are provided for the purpose of an independent clinic otherwise than on the clinic's premises, for example in a patient's home). The definition excludes an establishment in which medical practitioners provide HPSS services. This will bring private primary care premises, where prescribed, within the regulatory framework for the first time.

Subsection (5) defines an independent medical agency as an undertaking (which is not an independent clinic), which consists of or includes the provision of services for private patients by medical practitioners. It excludes any agency that provides HPSS services. This will bring wholly private GP call-out services within the regulatory framework.

Premises in which "listed services" are provided come within the definition of a hospital. Subsection (7) defines the listed services as medical treatment under anaesthesia or sedation, dental treatment under anesthesia or sedation, obstetric services and medical services in connection with childbirth and cosmetic surgery. The category of dental treatment under anaesthesia will, by means of regulations, apply to wholly private dentistry only. It also provides for the Department to specify other treatments involving the use of prescribed techniques or technologies. These would be treatments which pose a particular risk to persons.

Subsection (8) gives the Department power to make regulations excepting establishments from the requirement to be regulated and amending the list of "listed services" by adding or removing services.

Clause 10 - Other regulated establishments and agencies and general interpretation

Clause 10 defines the range of other regulated establishments and agencies.

Subsection (2) defines residential family centres. Such centres provide residential support for children and families including assessment, services, guidance, counselling, advice and practical help. They could include specific accommodation for teenage mothers and their babies. They may be operated by HSS Trusts, voluntary organisations or private agencies. At present they are not regulated, but in future all residential family centres will be required to register with the Authority.

Subsection (3) defines a day care setting as a place providing assessment, rehabilitation or counselling but without board or accommodation. They may be operated by Trusts, voluntary organisations or private agencies.

Subsection (4) defines domiciliary care agencies. These agencies supply staff who provide prescribed care for people in their own homes. The definition encompasses any agency that arranges the provision of these prescribed services for people who need assistance on the basis of assessed need, by reason of illness, frailty, infirmity, disability or family circumstances.

Subsection (5) defines fostering agencies. The definition is intended to include both independent agencies which provide a fostering agency service to HSS Trusts, and voluntary organisations (such as Barnardos) who operate in their own right. Both types of fostering agency recruit and train foster parents and place children with them. Agencies falling within paragraph (a) make placements under powers delegated to them by HSS Trusts, and they may or may not be voluntary organisations. Agencies falling within paragraph (b) are voluntary organisations which place children with foster parents in their own right.

Subsection (6) defines nursing agencies. These will now be subject to registration by the Authority. In addition, the Nursing Homes and Nursing Agencies Act (NI) 1971 (c. 32) will be repealed, and nursing agencies will also be subject to the provisions of the Employment (Miscellaneous Provisions) (NI) Order 1981 (NI 20).

Subsection (8) defines a voluntary adoption agency as an adoption society within the meaning of the Adoption (NI) Order 1987 (NI 22), which is a voluntary organisation. An "adoption society" is defined in that Order as a body of persons whose functions consist of or include making arrangements for adoption.

Subsections (9) and (10) group the various regulated services under the headings of either being an establishment or an agency and these concepts pertain to the rest of the Bill.

Clause 11 - Requirement to register

Subsection (1) provides that any person who carries on or manages an establishment or agency of any description must be registered, and it will be an offence to carry on or manage such an establishment without being registered in respect of it. The principle is that each establishment or agency should have a registered owner or proprietor (person who 'carries on' the business). If the person who carries on the business is not in day-to-day control of it, it is intended that the regulations will require the appointment of a manager who must also be registered by the Authority (see clause 22).

Subsection (2) states that registration is required in respect of voluntary adoption agencies under the provisions of Part II, but the relevant sanctions remain within the Adoption (Northern Ireland) Order 1987 (NI 22).

Subsections (4) and (5) relate to offences. A person who carries on or manages an establishment or agency without being registered will be guilty of an offence and liable to a fine up to level 5 on the standard scale (£5,000). If the person continues to run an unregistered establishment or agency after having been convicted of this offence, or after their registration has been cancelled, then they will be guilty of an offence and liable to six months' imprisonment, or a fine, or both.

Clause 12 - Applications for registration

This clause sets out the framework for applications for registration, with subsection (1) requiring that the application for registration must be made to the Authority. Subsection (2) sets out the requirement that the applicant must supply whatever information is prescribed or the Authority requires as part of their application. Subsection (3) requires that a person applying for registration as a manager of an establishment or agency must be an individual, and not other types of legal 'person', such as a limited company. Subsection (4) requires that the applicant must make separate applications with regard to each establishment or agency which the applicant wishes to carry on or manage.

Clause 13 - Grant or refusal of registration

Registration will only be granted if the Authority is satisfied that the applicant has demonstrated that he has complied or will comply with all relevant requirements. The burden of proof is with the applicant rather than the Authority.

Subsection (2) provides that if the Authority is satisfied that the applicant is complying or will comply with any requirements set out in regulations under clause 22 and the requirements of any other legislation which appears to the Authority to be relevant, it must grant the application for registration, otherwise it must refuse it. If it grants the application, it must issue a certificate of registration (Subsection (4)).

Subsection (3) provides that the Authority will be able to grant an application either unconditionally or subject to such conditions as it thinks fit. Conditions may be generic or specific. For example, the Authority will be able to impose conditions on homes specifying the categories of patients and the number of residents that may be accommodated. In some cases a specific condition may be required to take account of the circumstances in that individual home, centre, agency, private hospital or clinic. For example, there might be a specific condition in relation to the safe management of a resident with severe dementia or who presents challenging behaviour.

Subsection (5) provides that the Authority may vary or remove a condition of registration at any time or impose an additional condition.

Clause 14 - Cancellation of registration

This clause gives the Authority the power to cancel the registration of a person in respect of an establishment or agency, where a condition of registration has been breached, where a regulatory requirement has been breached or where a relevant offence has been committed. Further grounds for cancelling registration may be specified in regulations. Registration can be formally cancelled, even if an owner closes the establishment or agency before the cancellation process has been completed. This will ensure that the owner's record accurately reflects the situation, and he will not be able to open a new home elsewhere without the Authority being aware of the previous history.

Relevant offences for the purposes of clause 14 include offences under legislation, such as the Registered Homes (NI) Order 1992, which is being repealed or amended by this Bill. This allows for the continued possibility that offences which occurred prior to the commencement of this Bill may not come to light or may not be dealt with until a date after this Bill comes into effect and previous legislation is repealed or amended. The offences relevant to this part are -

Cancellation of registration would not normally be the first step in a formal enforcement action. It is more likely to be used where other actions such as prosecution have failed to ensure compliance by the establishment or agency. If a registered person is convicted of a relevant offence, such as breaching a condition of registration (an offence under clause 23), and still fails to remedy the breach, the Authority will be able to consider cancellation of the person's registration.

Clause 15 - Applications by registered persons

Subsection (1) enables the registered person to apply for a change to his conditions of registration (for example to change the number of people accommodated in the home) or to apply voluntarily for the cancellation of registration, for example, if he plans to close or sell the business. Subsection (2) prevents a person voluntarily cancelling his registration if the Authority has given notice of intention to, or decided to, cancel registration. Subsection (3) enables the Department to make regulations specifying the particulars to accompany an application for registration. Subsection (4) provides that if the Authority grants the application it must give notice in writing and issue a new certificate of registration.

Clause 16 - Regulations about registration

Clause 16 provides for regulation-making powers with respect to registration. Regulations covering applications for registration (subsection (1)(a)) will deal with matters such as the information that should be provided in the application. Regulations made under subsection (1)(b) may require certificates of registration to include, for example, the conditions of registration for that person in respect of that establishment or agency e.g. the categories of person which a home may accommodate.

Subsection (2) concerns fostering and voluntary adoption agencies. The Department will be able to make regulations to provide that fostering agencies or voluntary adoption agencies which are unincorporated bodies are ineligible to apply to be registered.

Subsection (3) enables regulations to be made requiring registered persons to pay an annual fee. Decisions will be made about the level and structuring of fees at a later date. Subsection (4) provides that unpaid fees may be recovered as a civil debt.

Clause 17 - Notice of proposals

This clause provides for the Authority to give notice of decisions it intends to take ("notice of proposal") with respect to applications for registration, cancellation of registration or any change to the conditions of registration. Notice must be given to the applicant or registered person and must set out the reasons (Subsection (6)). For example, in the case of a person applying for registration for the first time, the notice of proposal will state whether or not the Authority proposes to register them, and if so, the conditions subject to which they propose to grant the application. Clause 17 does not apply where the Authority decides to grant an application for registration unconditionally, or subject to agreed conditions.

Clause 18 - Right to make representations

This clause states that a notice given under clause 17 must indicate that the person can, if he so wishes, make written representations to the Authority within a time limit of 28 days (subsection (1)). This ensures that the applicant has the opportunity to make their point of view known. Subsection (2) provides that the Authority may not make a decision until the 28 day period has ended unless they receive representations during the 28 day period or the person notifies the Authority that he will not be making representations.

Clause 19 - Notice of decisions

Once the representations stage has been completed, clause 19 requires the Authority to serve a notice in writing of their decision on the applicant (subsection 1). The notice must explain the right of appeal conferred by clause 21 (subsection 4) and in the case of a decision to grant an application subject to conditions or to vary conditions, set out those conditions (subsection 2). A decision to cancel registration, to grant an application subject to conditions which are not agreed, or to change conditions will take effect only after the outcome of any appeal has been determined, or after 28 days if no appeal is brought (subsection 5). In the case of a decision to grant an application subject to conditions which are not agreed, if the applicant decides not to pursue his appeal the decision will take effect immediately.

Clause 20 - Urgent procedure for cancellation etc

This clause provides that the Authority may apply to a justice of the peace for the immediate cancellation of registration or change in the conditions of registration of an establishment or agency (subsection 1). The justice may only make the order where it appears to him that unless the order is made there is a serious risk to a person's life, health or well-being. An order made under this clause has immediate effect. It is intended to provide for a fast track procedure for appeals to the Tribunal against orders made under this clause (see clause 21).

Subsection (3) requires the Authority to notify the Department and the appropriate authorities (HSS Boards and Trusts), of the making of an urgent application. This is necessary so that the relevant body can comply with its statutory duties as required, for example to provide or arrange alternative care for the service users.

Clause 21 - Appeals to the Care Tribunal

Clause 21 provides for an appeal against a decision of the Authority under Part II. The appeal is to a new "Care Tribunal" established under this Bill (Schedule 2). This Tribunal replaces the Registered Homes Tribunal which was established under the Registered Homes Order. Subsections (3), (4) and (5) set out the powers and decision making ability of the Tribunal hearing the appeal.

Clause 22 - Regulations relating to establishments and agencies

This clause provides for regulation-making powers which will cover the management, staff, premises and conduct of establishments and agencies (other than voluntary adoption agencies). It also provides for regulations to be made regarding the health and welfare of service users.

Subsection (1) provides a general power to make regulations imposing any requirements the Department thinks fit. Subsection (2) amplifies this, providing for regulations to be made that will be key to the registration and subsequent inspection of establishments and agencies. It will be essential that the Authority can ensure establishments and agencies are carried on or managed by persons who are fit to do so. This subsection allows regulations to be made to ensure that establishments and agencies are suitably managed, staffed and equipped and that premises are fit for their purpose.

Subsection (2)(d) provides powers to make regulations regarding the welfare of persons accommodated in establishments or provided with services by them, or who use the services of an independent medical agency or domiciliary care agency. Subsection (2) (e) provides similar powers to make regulations to secure the welfare of children placed by a fostering agency.

Subsections (3) and (4) provide that regulations may be made prohibiting a person's appointment as manager of, or employment in, an establishment or agency unless he is on a register e.g. of social care workers, maintained under section 3 of the Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3).

Subsections (5) and (6) provide that the welfare regulation making powers in subsection (2)(d) and (e) may cover the protection and promotion of health, the control and restraint of adults, and the control and restraint and discipline of children. This will enable regulations to set out what is acceptable behaviour management for adults and children.

Subsection (7) gives the Department power to make provision as to the conduct of an establishment or agency, including the provision of facilities and services, quality of care, record keeping, notification of incidents, arrangements for dealing with complaints and in relation to independent hospitals and clinics, the arrangements to be made to secure that any medical or psychiatric treatment or listed services meet appropriate standards.

Subsections (7)(h) and (i). Just as it will be important for the Authority to be made aware of a change in the person managing a home or branch of an agency, so will it be important to have notice of changes in the ownership or the officers of a company which was registered in respect of a service. Fit person checks of company officers have a cost, and so in order to satisfy itself that the officers of the company taking over are fit persons, the Authority would need to carry out these checks and be able to charge for this.

Subsection (8) concerns regulations made in respect of secure accommodation for children, which may cover both its provision and its use, and facilities for religious instruction in children's homes.

Subsection (9) requires the Department to consult such persons as it considers appropriate before making or significantly amending regulations under the powers in this clause.

Subsection (10) excepts voluntary adoption agencies from the regulation-making powers set out in this clause.

Clause 23 - Failure to comply with conditions

It is an offence for a person registered in respect of an establishment or agency to fail to comply with the conditions of registration without reasonable excuse.

Clause 24 - Contravention of regulations

Subsection (1) provides that regulations made under this Part may provide that a failure to comply with the regulations will be an offence. It is intended that the regulations will provide that the Authority may serve a notice in respect of a breach of a regulatory requirement, requiring it to be remedied within a specified period. If at the end of that period the breach has not been remedied, the person shall be guilty of an offence. Subsection (2) provides the fine shall not exceed level 4 on the standard scale (£2,500).

Clause 25 - False descriptions of establishments and agencies

Clause 25 makes it an offence for a person to describe any premises as a particular kind of establishment or agency when it is not registered as such. This would catch, for example, an unscrupulous hotel proprietor who tried to represent his hotel as a residential care or nursing home. It would also catch registered persons who misrepresent the nature of their establishment, by claiming it is suitable for a particular category of resident when it is not. The penalty on summary conviction is a fine not exceeding level 5 on the standard scale (£5,000).

Clause 26 - False statements in applications

This clause makes it an offence for an applicant knowingly to make a false or misleading statement in applications to the Authority. The penalty will be a fine of up to level 4 on the standard scale (£2,500).

Clause 27 - Failure to display certification of registration

Clause 27 makes it an offence not to display a certificate of registration. The penalty on summary conviction is a fine not exceeding level 2 (£500) on the standard scale.

Clause 28 - Proceedings for offences

Clause 28 provides that proceedings in respect of offences under Part II may not be taken by any person, without the consent of the Attorney General (Subject to the commencement of section 41(2) of the Justice (Northern Ireland) Act, this will become the Director of Public Prosecutions for Northern Ireland), other than the Authority. Subsection (2) extends the time allowed for proceedings to be brought in respect of offences under this Part. The usual limit for the prosecution of summary offences is six months after the offence is committed. However, in some cases, offences may only come to light after an inspection or whistle blowing. Subsection (2) therefore provides for a six month time limit from when the offence comes to light, with an overall time limit of three years from the commission of the offence.

Clause 29 - Annual Returns

Clause 29 enables the Department to make regulations requiring the person carrying on an establishment or agency to provide the Authority with an annual return to include whatever details and cover whatever period of time is prescribed.

Clause 30 - Liquidators etc.

Clause 30 enables the Department to make regulations such that if an establishment or agency were to go into receivership or liquidation, the liquidator must inform the Authority of his appointment. The regulations will require the liquidator to appoint a suitably qualified manager.

Clause 31 - Death of registered person

Subsection (1) enables the Department to make provision in regulations for what is to happen in a case where a person who was the only person registered in respect an establishment or agency dies. This might be the case if a person carrying on a home is also in control of its day to day running. The personal representatives will be required to notify the Authority. Subsection (2) enables the regulations to specify the period during which the personal representatives will be allowed to carry on the business. The regulations will permit the Authority to decide whether it is appropriate for a personal representative or relative to carry on running the establishment or agency for a further period.

Clause 32 - Provision of copies of registers

Subsection (1) provides that copies of any register which it has to keep are available for inspection. A person may be provided with a copy or extracts of a register on request (subsection (2)). A charge may be made except where prescribed in regulations or the Authority decides it should be provided free. However, it would not be acceptable to release some information contained in registers, for example a list of children's homes in a given area. Subsection (3) therefore enables regulations to be made providing that the register may not be inspected, or copies of the register or extracts are not to be made available, in such circumstances as the Department may prescribe.

Part III

Clause 33 - Duty of quality

Clause 33 introduces a statutory duty of quality which will apply to Boards and Trusts with regard to the services which they provide (subsection (1)) including arrangements relating to the environment in which health and care services are provided.

Subsection (2) enables the Department to extend the duty of quality to special agencies.

Clause 34 - Role of the Regulation and Improvement Authority

Clause 34 sets out the main functions of the Authority with regard to reviewing, inspecting and carrying out investigations into HPSS services and their clinical and social care governance arrangements (subsection (1)). These functions link to the general duties listed under Part I. The functions set out at subsection (1)(a), 1(c) and 1(e) relate to different types of review of quality or provision of services or of any other matter which may be prescribed.

This clause sets out the Authority's five core functions:

Subsection (1)(a) provides for the Authority to conduct reviews of the implementation and adequacy of arrangements to monitor and improve the quality of health and care which is the responsibility of the HPSS. It is intended that the Authority should review every HSS Board, HSS Trust and specified special agency at least once every 3 to 4 years. During these reviews, the Authority will be expected to look for evidence that the arrangements are working and that they are consistent with established standards. Regulations under subsection (2) will set out how these reviews are to be conducted. The Authority will also be able to look at the actions of these bodies (and local health and social care groups) in the course of a review if it considers that their actions (for example, as commissioners of the services under review) are related to the issues it is examining. It is intended that the Authority's findings will identify both areas of good practice and areas for improvement. The findings will be reported to the bodies concerned and the Department intends to make appropriate provision as to their publication.

Subsection (1)(b) provides for the Authority to investigate and report on specific matters relating to the delivery and management of health and care. Regulations will provide that this may be at the invitation of health service bodies such as HSS Boards, HSS Trusts, or at the direction of the Department, when concerns have been raised about the quality of the health and care they provide. It is anticipated that the Authority's investigation will focus on clinical and care issues but it may also have regard to management and other issues if it considers that problems in these areas lie behind the matter under investigation. During an investigation the Department would be able to request that the Authority considers such matters as it thinks appropriate.

When the Authority has conducted an investigation, or a local review, follow-up action will be the responsibility of the HPSS body in question, overseen by the Department and/or HSS Board. It is intended that the bodies concerned will share their action plans for addressing the Authority's recommendations with the Authority, and the Authority might be involved in follow-up action at local request. The expectation is that the body concerned would act on the Authority's recommendations, but if necessary the Department will be able to direct the body concerned to do so (using existing powers).

Subsection (1)(c) provides for the Authority to conduct reviews on topics relating to health and care provided by the HPSS as requested by the Department. These topics will include the implementation of service development frameworks and of guidance issued by the Department.

Subsection (1)(b) provides for the Authority to undertake a specific investigation of services e.g. where concern is raised about the quality of a service or about a particular event while subsection (1)(d) provides for a function to carry out routine inspections of services.

Subsection (3) sets out the circumstances under which the Authority is specifically required to make a report to the Department, while subsections 4 and 5 respectively set out what such a report should cover and the option for the Authority to recommend that the Department take special measures to address problems.

The functions set out here cover review, investigation and inspection including of governance arrangements relevant to both services provided and services commissioned by these bodies.

Part IV

Clause 35 - Provision of information & Clause 36 - Annual returns

HSS Boards and Trusts currently have responsibilities, set out in the Children Order 1995 and the Adoption (NI) Order 1987 (amending legislation contained in the Health and Personal Social Services (NI) Order 1994) to deliver a range of fostering and adoption services. A different approach is therefore needed to the regulation of these services. The approach to the regulation of these services (delivered by Local Authorities) in Scotland and in England and Wales under equivalent legislation has also been handled separately for similar reasons.

Part IX of the Children Order sets out a system for the regulation of a range of child minding and day care services by Boards and Trusts. These functions will not transfer to the Authority.

The provisions at clause 35 and 36 will require HSS Boards and Trusts to provide information and annual returns to the Authority covering the way in which they exercise their functions and responsibilities with regard to delivering fostering and adoption services and also covering the way HSS Boards and Trusts exercise their functions with regard to the regulation of day care and child minding. It is the intention that this information and these returns should be such that they will involve HSS Boards and Trusts providing the same type of information as would be the case if these services were regulated under Part II of this Bill. It is also intended that the new Authority will inspect the way in which these fostering and adoption services and the regulation of day care and child minding by Boards and Trusts under the powers set out at clause 34 (1)(d).

Part V

Clause 37 - Statements of minimum standards

Clause 37 enables the Department to issue minimum standards for Northern Ireland applicable to all services including regulated services (subsection (1)). These minimum standards are essential to the arrangements for regulating and inspecting these services. However the Department will also be able to issue minimum standards for non-regulated services.

The Department is establishing a Standards and Guidelines Unit which will have a key role in the development and dissemination of standards and guidelines both for regulated and non-regulated services. The unit will itself lead the work of developing many standards and guidelines, however, much of the work may be undertaken by arrangement with existing standards and guidelines setting bodies.

Any breach of these standards will not, of itself, be a breach of regulatory requirements, but the standards shall be taken into account when determining whether a breach of the regulations has occurred. For example, a regulation might state that suitable and nutritious food should be provided to all residents in a home. The minimum standards would set out what registered providers are expected to provide in terms of the number of meals per day and their nutritional content.

Different services will have different sets of regulations and standards which will be appropriate to the type of service. Standards will also be developed to apply to non-regulated HPSS services.

Clause 38 - Improvement notices

Clause 38 applies to all services at Part II, and all HPSS bodies in respect of any service for which the Department issues a statement of minimum standards.

The Authority can issue an improvement notice to an establishment, agency or HPSS body which the Authority judges is failing to meet a minimum standard. As part of this improvement notice the Authority must recommend what improvements it considers necessary (subsection (2)(b)). However, failure to comply with an improvement notice does not constitute an offence in itself.

Clause 39 - Power to require information from establishments and agencies and power of entry and inspection

Clauses 39 and 40 are very similar. They set out the main powers of inspection and entry, which the new Authority will have. Subsection (1) provides that the Authority may require a person who carries on or manages an establishment or agency to provide it with any information to enable the Authority to discharge its functions. Subsection (2) enables a person authorised by the Authority to enter and inspect premises at any time if they are used or he believes them to be used as an establishment or for the purposes of an agency. These powers are necessary to ensure compliance with the regulatory framework.

Inspectors may also require relevant records or other documents to be produced for inspection on the premises wherever they may be kept, and where they are stored on computer, that they are produced in a legible, not encrypted, form. Inspectors will also be able to copy or remove relevant records and will be able to interview, in private, the manager, employees, or any patients or persons accommodated or cared for there who consent to be interviewed (subsections (3) and (4)).

Subsections (5) and (6) allow a medical practitioner or registered nurse to examine in private, with their consent, a patient or resident, or their records, where they believe that the person may not be receiving proper care. If the person is incapable of giving their consent, a medical practitioner or registered nurse may still examine them and/or their records if they believe they have not been receiving proper care.

Subsection (7) provides for a regulation-making power to determine the minimum frequency of inspections of premises by the Authority.

Clause 40 - Power to require information from inspections relating to Boards and HSS Trusts and power of entry and inspection

This clause gives the Authority powers to inspect services provided by the HPSS which are very similar to the powers with regard to inspecting regulated services (Part II).

This power extends to service providers which for the purposes of this Bill includes persons who provide Part VI services within the meaning of the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14) i.e. general medical services, general dental services, general ophthalmic services and pharmaceutical services.

In the context of reviews (clauses 34(1)(a), (c) and (e)), the Authority is required to give reasonable notice when exercising these powers (subsection (3)).

Clause 41 - Inspections: provisions supplementary to sections 39 and 40

This clause sets out miscellaneous provisions with regard to the powers of inspection etc. Subsection (1) requires inspectors to produce appropriate documentation showing their right to enter and inspect the premises if required so to do.

Subsection (2) makes it an offence for a person to intentionally obstruct the exercise of the powers under clause 39 or clause 40. The penalty on summary conviction is a fine not exceeding level 4 on the standard scale (£2,500).

Subsection (3) allows a person (authorised to enter and inspect premises by virtue of Clauses 39 or 40) to remove any material etc. which could be used as evidence of possible non-compliance with requirements. Subsection (4) imposes a requirement to assist the authorised person and permits the authorised person to take such measurements and photographs and make such recordings as he considers necessary to enable him to exercise his powers under this clause. Subsection (5) enables an inspector to inspect the operation of any computer etc. which has been used in connection with records.

Subsection (7) requires the Authority to prepare a report after carrying out an inspection under clause 39 and send a copy of the report to the registered persons.

Clause 42 - Restrictions on disclosure of information under section 39 or 40

Clause 42 places restrictions (subsections (1), (3) and (4)) on the disclosure to the Authority of confidential information i.e. information which is held subject to a duty of confidence and includes an accessible record within the meaning of section 68 of the Data Protection Act 1998 (c. 29) (subsection (5)).

Subsection (2) sets out circumstances when the restrictions at subsection (1) do not apply. It lists three conditions all of which must be met for this exemption to apply.

Subsection (3) enables the Authority to require that in cases where the restrictions apply the person holding the information must still provide it but in an anonymised form.

Clause 43 - The Care Tribunal

This clause along with Schedule 2 sets out provisions for the right of appeal to a tribunal. Under clause 21 there is a right of appeal against decisions by the Authority, in respect of registration, (for example, a decision not to register an establishment or agency or to remove it from the register or to impose conditions on registration). Such decisions could affect an individual's ability to secure employment or the agency or establishment's ability to operate as a profitable business.

The Tribunal replaces Registered Homes Tribunals which were set up by the Registered Homes (Northern Ireland) Order 1992, and renamed by section 15 of the Health and Personal Social Services Act (Northern Ireland) 2001 as Social Care Tribunals. This Tribunal is to be known as the Care Tribunal reflecting the wider range of services for which a tribunal panel may be required to hear an appeal. This new tribunal will also hear appeals under the terms of the HPSS Act (Northern Ireland) 2001 and also under the terms of the Protection of Children and Vulnerable Adults Bill which is currently under the consideration of the Assembly.

The Department will have the power to make regulations covering the work of the Tribunal (subsection (3)). Under subsection (5) it is an offence to fail to co-operate with the Tribunal (Level 3 fines). Appeals against the findings of the Tribunal may be made to the High Court on a point of law (subsection (6)).

Schedule 2 sets out provisions for appointments to the Tribunal and to individual panels. These are similar to the existing provisions covering Registered Homes Tribunals. A panel of persons who may serve as chairmen of the Care Tribunal will be appointed by the First Minister and Deputy First Minister. Chairmen must be barristers or solicitors of at least ten years standing. The First Minister and Deputy First Minister will also select the chairman for each panel from this list of panel members.

The Department will select members of a lay (non-legal) persons panel. The Department will also appoint from this panel the two remaining members of each Tribunal.

The remaining provisions of Schedule 2 cover staff support to the tribunal as well as remuneration, expenses and allowances payable to the tribunal members.

Clause 44 - Interpretation

Subsection (1) defines certain terms used in this Bill.

Clause 45 - Transitional provisions and savings

This clause along with Schedule 3 details transitional provisions and savings. Subsection (1) brings the transitional provisions and savings at Schedule 3 into effect. Subsection (2) allows additional transitional provisions and savings to be included in commencement orders under clause 47.

Limited transitional provision has been made in Schedule 3 for fostering agencies and voluntary adoption agencies. This Schedule preserves certain amendments made by the Registered Homes (Northern Ireland) Order 1992 (NI 20) notwithstanding the repeal of that Order.

Clause 46 - Amendments and repeals

This clause along with Schedules 4 and 5 makes amendments and repeals of other legislation in consequence of the provisions of the Bill.

Clause 47 - Commencement

The provisions of the Bill will come into force on one or more dates.

Clause 48 - Short title

The short title for this Bill shall be the "Health and Personal Social Services (Quality, Improvement and Regulation) Act (Northern Ireland) 2002".

SCHEDULES

Schedule 1 - The Northern Ireland Health and Personal Social Services Regulation and Improvement Authority.

Schedule 2 - The Care Tribunal.

Schedule 3 - Transitional Provisions and Savings.

Schedule 4 - Amendments.

Schedule 5 - Repeals.

FINANCIAL EFFECTS OF THE BILL
  1. It is anticipated that the costs of running the new Authority will be £5,600,000 per annum offset against £2,000,000 current expenditure and potential income estimated at £800,000 from services to which regulation is extended.
  2. Under the existing system of regulation many providers (e.g. nursing homes) are already paying registration and inspection fees to HSS Board Registration and Inspection Units or to HSS Trusts. An impact on business and the HPSS will arise from both the levels of fees and charges applied by the Authority and the minimum standards of care which are applied to their service. The level of fees and charges has not yet been determined and minimum standards for each of the regulated services have not yet been developed.
  3. Proposals on the level of fees charged for registration and inspection under this new system as well as proposals on the minimum standards of care set for each service will be subject to extensive consultation. They will also be subject to regulatory impact assessments.
    4. HUMAN RIGHtS ISSUES
  4. In relation to human rights, the Bill will have a positive impact in protecting the rights of vulnerable groups. No adverse impact to human rights has been identified.
    5. EQUALITY IMPACT ASSESSMENT
  5. There has been considerable consultation on the proposals with widespread support for the proposals contained in "Best Practice - Best Care". The proposed legislation is intended to improve safeguards and the quality of services for all service users. It will have the positive effect of putting in place a system designed to promote and ensure equality of access to the same quality of service. It would have no adverse effect on any group mentioned in section 75 of the Northern Ireland Act 1998. There may well be equality issues arising out of the standards which will be set. As individual sets of standards are developed and agreed for regulated and non-regulated services, the equality issues will have to be addressed.
    6. SECRETARY OF STATE'S CONSENT
  6. The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.
    7. LEGISLATIVE COMPETENCE
  7. At Introduction the Minister of Health, Social Services and Public Safety had made the following statement under section 9 of the Northern Ireland Act 1998:

    "In my view the Health and Personal Social Services (Quality, Improvement and Regulation) Bill would be within the legislative competence of the Northern Ireland Assembly."