consultation paper
legal aspects of carers
(LRC CP 53-2009)
© Copyright
Law Reform Commission
FIRST PUBLISHED
July 2009
LAW REFORM COMMISSION’S ROLE
The Law
Reform Commission is an independent statutory body established by the Law
Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to
make proposals for reform, in particular by recommending the enactment of
legislation to clarify and modernize the law. Since it was established, the
Commission has published over 140 documents containing proposals for law reform
and these are all available at www.lawreform.ie. Most of these proposals have
led to reforming legislation.
The
Commission’s role is carried out primarily under a Programme of Law Reform. Its
Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad
consultation and discussion. In accordance with the 1975 Act, it was approved
by the Government in December 2007 and placed before both Houses of the
Oireachtas. The Commission also works on specific matters referred to it by the
Attorney General under the 1975 Act. Since 2006, the Commission’s role includes
two other areas of activity, Statute Law Restatement and the Legislation
Directory.
Statute Law
Restatement involves the administrative consolidation of all amendments to an
Act into a single text, making legislation more accessible. Under the Statute
Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on
as evidence of the law in question. The Legislation Directory - previously
called the Chronological Tables of the Statutes - is a searchable annotated
guide to legislative changes. After the Commission took over responsibility for
this important resource, it decided to change the name to Legislation Directory
to indicate its function more clearly.
Membership
The Law Reform Commission consists of a President, one
full-time Commissioner and three part-time Commissioners.
The Commissioners at present are:
President:
The
Hon Mrs Justice Catherine McGuinness
Former
Judge of the Supreme Court
Full-time
Commissioner:
Patricia
T. Rickard-Clarke, Solicitor
Part-time
Commissioner:
Professor
Finbarr McAuley
Part-time
Commissioner:
Marian
Shanley, Solicitor
Part-time
Commissioner:
Donal
O’Donnell, Senior Counsel
Law Reform Research Staff
Director
of Research:
Raymond
Byrne BCL, LLM (NUI),
Barrister-at-Law
Legal
Researchers:
Chris
Campbell B Corp, LLB Diop sa Gh (NUI)
Frances
Colclough BCL, LLM (NUI)
Siobhan
Drislane BCL, LLM (NUI)
Claire
Murray BCL (NUI), Barrister-at-Law
Gemma
Ní Chaoimh BCL, LLM (NUI)
Bríd
Nic Suibhne BA, LLB, LLM (TCD), Diop sa Gh (NUI)
Jane
O’Grady BCL LLB (NUI), LPC (College of Law)
Gerard
Sadlier BCL (NUI)
Joseph Spooner BCL (Law with French Law) (NUI),
Dip. French and European Law (Paris II), BCL (Oxon)
Ciara Staunton BCL LLM (NUI), Diop
sa Gh (NUI)
Statute
Law Restatement
Project
Manager for Restatement:
Alma
Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Legal
Researchers:
John
P. Byrne BCL, LLM (NUI), PhD (NUI), Barrister-at-Law
Elizabeth
Fitzgerald LLB, M.Sc. (Criminology & Criminal Justice), Barrister-at-Law
Catriona Moloney BCL (NUI), LLM
(Public Law)
Legislation
Directory
Project
Manager for Legislation Directory:
Heather
Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law
Legal
Researchers:
Margaret
Devaney LLB, LLM (TCD)
Rachel
Kemp BCL (Law and German), LLM (NUI)
Administration Staff
Head of Administration and Development:
Brian
Glynn
Executive
Officers:
Deirdre
Bell
Simon
Fallon
Darina
Moran
Peter
Trainor
Legal
Information Manager:
Conor
Kennedy BA, H Dip LIS
Cataloguer:
Eithne
Boland BA (Hons), HDip Ed, HDip LIS
Clerical Officers:
Ann Browne
Ann
Byrne
Liam
Dargan
Sabrina
Kelly
Principal legal researcher for this consultation
paper
Frances Colclough BCL, LLM (NUI)
CONTACT DETAILS
Further
information can be obtained from:
Head of Administration and Development
Law Reform Commission
35-39 Shelbourne Road
Ballsbridge
Dublin 4
Telephone:
+353 1 637 7600
Fax:
+353 1 637 7601
Email:
info@lawreform.ie
Website:
www.lawreform.ie
ACKNOWLEDGEMENTS
The
Commission would like to thank the following people who provided valuable
assistance:
Dr.
Lucia Carragher, Netwell
Centre
Mr.
Andrew Fagan, Health
Information and Quality Authority
Ms.
Geraldine Fitzpatrick, Department of Health and Children
Dr.
Maureen Gaffney, National
Economic and Social Forum
Ms. Ann
Marron, Netwell
Centre
Dr.
Anne-Marie McGauran, National
Economic and Social Forum
Mr.
Michael Murchan, Department
of Health and Children
Full
responsibility for this publication lies, however, with the Commission.
CHAPTER 1
Regulation of Professional home care
providers and reform options
B Professional Health Care
at Home
C Methods of Delivery of
Professional Home Care
(2) HSE Home Care Support Scheme
(3) Private commercial agencies
D Regulation of other care professionals
(1) Regulation of residential care
providers
(2) Health and Social Care Professionals
Act 2005
E Regulation of domiciliary
care providers
(2) Role of the Office of the Chief
Inspector of Social Services
(3) Ministerial regulation-making power
CHAPTER 2
Statutory regulations and standards
B Regulations and Standards:
Other Jurisdictions
C Standards in Ireland for
other sectors
B Care contract and public
standards
C Core provisions of the
care contract
(1) Competence of service provider
CHAPTER 4
Contracting arrangements
B Contracting arrangements:
who is the employer of the service provider?
D Some specific employment law
responsibilities
(1) General responsibilities under
employment law
(2) Safety and health responsibilities
E Mental capacity and
domiciliary care
(1) General authority to act on another’s
behalf
(3) Enduring power of attorney
B Current screening and
vetting arrangements for sensitive posts
(2) Abuse of vulnerable adults and elder
abuse
C Whistle-blowing protection
and protected disclosures
(1) Protection for Persons Reporting Child
Abuse Act 1998
(2) Protected disclosure in relation to
the care of vulnerable adults
D Safeguards in other
jurisdictions
E Screening of domiciliary
care professionals
(2) Registration and certification
CHAPTER 6
Summary of provisional
recommendations
|
RSBC 1996 |
BC |
|
|
Aged Care Act 1997 |
1997, No.112 |
Aus |
|
Canada Health Act 1984 |
1984, c.6 |
Can |
|
Care Standards Act 2000 |
2000, c.14 |
Eng |
|
Child Care Act 1991 |
1991, No.17 |
Irl |
|
Community Care and Assisted Living Act 2003 |
2003, c.75 |
BC |
|
Community Care and Assisted Living Act 2003 |
2003, c.75 |
BC |
|
Constitution Act 1867 |
1867, c.3 |
Can |
|
Data Protection (Amendment) Act 2003 |
2003, No. 6 |
Irl |
|
Data Protection Act 1988 |
1988, No.25 |
Irl |
|
Disability Act 2005 |
2005, No.14 |
Irl |
|
Education for Persons with Special Educational Needs Act 2004 |
2004, No. 30 |
Irl |
|
European Convention on Human Rights Act 2003 |
2003, No.20 |
Irl |
|
Health (Corporate Bodies) Act 1961 |
1961, No.27 |
Irl |
|
Health (Nursing Homes) Act 1990 |
1990, No.23 |
Irl |
|
Health (Nursing Homes)(Amendment) Act 2007 |
2007, No.1 |
Irl |
|
Health Act 1970 |
1970, No.1 |
Irl |
|
Health Act 2004 |
2004, No.42 |
Irl |
|
Health Act 2007 |
2007, No. 23 |
Irl |
|
Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 |
S.I. 2003 No. 431 (N.I.9) |
NI |
|
Health and Safety at Work Act 1974 |
1974 |
Eng and Wales |
|
Health and Social Care (Community, Health and Standards) Act 2003 |
2003, c.43 |
Eng |
|
Health and Social Care Professionals Act 2005 |
2005, No.27 |
Irl |
|
Human Rights Act 1998 |
1998 |
UK |
|
Interpretation Act 2005 |
2005, No.23 |
Irl |
|
Mental Capacity Act 2005 |
2005, c.9 |
Eng |
|
National Minimum Wage Act 2000 |
2000, No.5 |
Irl |
|
Nursing Homes Support Scheme Act 2009 |
2009, No.15 |
Irl |
|
Organisation and Working Time Act 1997 |
1997, No. 20 |
Irl |
|
Payment of Wages Act 1991 |
1991, No.25 |
Irl |
|
Police Act 1997 |
1997, c.50 |
Eng |
|
Privacy Act 1988 |
1988, No.119 |
Aus |
|
Protection for Persons Reporting Child Abuse Act 1998 |
1998, No.49 |
Irl |
|
Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 |
SI 2003 No.417 (NI4) |
NI |
|
Protection of Persons in Care Act 2000 |
2000, c. P-29 |
Alta |
|
Protection of Persons in Care Act 2009 |
2009, c. P-29.1 |
Alta |
|
Protection of Vulnerable Groups (Scotland) Act 2007 |
2007, asp.14 |
Scot |
|
Regulation of Care (Scotland) Act 2001 |
2001, asp 8 |
Scot |
|
Safeguarding Vulnerable Groups Act 2006 |
2006, c.47 |
Eng |
|
Safety, Health and Welfare at Work Act 2005 |
2005, No. 10 |
Irl |
|
Sale of Goods and Supply of Services Act 1980 |
1980, No.16 |
Irl |
|
Social Welfare Consolidation Act 2005 |
No.26/2005 |
Irl |
|
Taxes Consolidation Act 1997 |
1997, No. 39 |
Irl |
|
Terms of Employment (Information) Act 1994 |
1994, No.5 |
Irl |
TABLE OF CASES
|
91 BMLR 22 |
Eng |
|
|
Henry Denny & Sons Ltd v. Minister for Social Welfare |
Irl |
|
|
R (Wright) v. Secretary of State for Health |
UK |
|
|
R. (A and B) v East Sussex County Council |
Eng |
1. This
Consultation Paper forms part of the Commission’s Third Programme of Law
Reform 2008-2014[1]
and involves an examination of the extent to which the law should be reformed
to ensure that appropriate legal standards are in place for professional
carers, in particular those engaged in the provision of care to vulnerable
persons in their home. The project follows on from previous work of the
Commission in the area of vulnerable adults.
2. In its
2006 Report on Vulnerable Adults and the Law[2]
the Commission recommended reform of the law on mental capacity as it affected
vulnerable adults. The Commission recommended that legislation be enacted on
mental capacity to include a presumption of capacity, and that specific
arrangements be put in place to provide for the appointment of assisted
decision-makers, to be called personal guardians, to maximise the autonomy of
all adults, including those whose capacity might be impaired. The Commission’s
recommendations have been accepted by the Government, with the publication in
2008 of the Scheme of a Mental Capacity Bill 2008.[3]
The Commission’s general approach in its 2006 Report, and reflected in the
Government’s 2008 Scheme, is to ensure that the law should provide all adults,
including those who may be vulnerable, with the maximum degree of autonomy
consistent with appropriate standards of protection.
B. The
demographic and legal setting for this project
3. It is
well known that the proportion of people living in Ireland who are aged over 65
has been increasing in recent years, and is projected to increase at an even
greater rate over the next few decades. It is also well known, and entirely
understandable, that the overwhelming majority of people aged over 65 wish to
continue living in their own homes for as long as possible. Ideally, most
people would prefer to continue to live, and ultimately to die, in their home
rather than in a hospital, nursing home or other health care facility. As the
Commission notes in detail in this Consultation Paper, the Government is
committed to supporting this clear preference, most clearly indicated by the
provision in recent years of home care support, primarily through the
Department of Health and the Health Service Executive (HSE). At the same time,
the home care provision by the State has been mirrored by the emergence of
commercial home care providers.
4. In terms
of regulation of the provision of care for older people, the Commission noted
in its 2006 Report on Vulnerable Adults and the Law[4]
that considerable developments had occurred concerning the legal regulation of
residential care in a nursing home setting. The Commission noted that, in 2006,
the Government proposed to establish the Health Information and Quality
Authority (HIQA) on a statutory basis. HIQA was established on a statutory
basis by the Health Act 2007. The 2007 Act specifies that HIQA is the
regulatory and standard-setting body for the residential nursing home setting.
In this respect, in 2009 HIQA published national standards for the residential
care setting.
5. The 2007
Act does not, however, empower HIQA to set comparable standards for the
provision of health care in the home setting, sometimes referred to as the
domiciliary care setting. The focus of this Consultation Paper is, therefore,
to address the absence of legislative regulation of those providing professional
care in the home, domiciliary, setting. As in the 2006 Report on Vulnerable
Adults and the Law, the Commission’s approach is predicated on maximising
the autonomy of persons who interact with professional carers in the home
setting, consistent with appropriate standards of protection.
C.
Outline of this Consultation Paper
6. The
Commission now proceeds to provide an overview of the Consultation Paper.
7. Chapter 1
provides an overview of the mechanisms currently in place to regulate providers
who care for vulnerable adults. The absence of a statutory framework for
regulating domiciliary care providers is highlighted, including the potential
that this has to expose vulnerable persons to risk in their own homes. The
potential role of the Health Information and Quality Authority (HIQA) and the
Office of the Chief Inspector of Social Services (SSI) is also discussed in
this context. The Commission then surveys the different approaches to regulation
of domiciliary care providers in other States.
8. Chapter 2
examines in detail the legislation and associated standards that have been
implemented in other States to regulate the provision of domiciliary care
services. The standards published by HIQA in relation to the residential care
sector are discussed for the purposes of identifying the key issues of
importance. The National Quality Home Care Support Guidelines, which were drawn
up by the HSE’s Expert Advisory and Governance Group, are also discussed.
9. Chapter 3
examines the concept of a care contract. This is a type of agreement between
the domiciliary care provider and the care recipient, which sets out the
various policies and procedures which are necessary to protect vulnerable
adults who receive domiciliary care services. Chapter 3 also examines the
various issues which should form the core provisions of this care contract. The
purpose of the care contract is to ensure that certain minimum requirements are
satisfied by the domiciliary care provider in providing the service.
10. Chapter 4
examines the different types of contractual arrangements that can be entered
into. The Commission discusses the distinction between a contract for services
(engaging a contractor for a fee) and a contract of service (engaging an
employee for a wage) in the context of domiciliary care. The different parties
that may enter into a contract for the provision of care are identified, and
the rights and responsibilities that attach as a result are discussed. The
issue of a lack of mental capacity, as it relates to an individual’s ability to
enter into a contract for the provision of care, is also discussed.
11. In Chapter 5,
the Commission discusses a number of protective measures to ensure high
standards of selection are in place for professional carers and to maximise the
protection of service recipients. The Commission discusses the proposed new
offence of ill treatment or wilful neglect in the Government’s Scheme of a
Mental Capacity Bill 2008. The Commission then discusses how to protect
those who disclose information about abuse or suspected abuse of a vulnerable
adult. The chapter concludes with a discussion of arrangements for the
screening and registration of professional domiciliary carers.
12. Chapter 6
contains a summary of the provisional recommendations in the Consultation
Paper, as well as issues on which the Commission invites submissions.
13. This
Consultation Paper is intended to form the basis for discussion and therefore
all the recommendations made are provisional in nature. The Commission will
make its final recommendations on professional carers in the domiciliary
setting following further consideration of the issues and consultation with interested
parties. Submissions on the provisional recommendations included in this
Consultation Paper are welcome. To enable the Commission to proceed with the
preparation of its final Report, those who wish to do so are requested to make
their submissions in writing by post to the Commission or by email to
info@lawreform.ie by 30 November 2009.
1.01
This chapter describes the current arrangements for providing home care
in Ireland. In Part B, the Commission outlines the demographic background
against which home care arrangements are in place in Ireland. In Part C, the
Commission describes the different delivery methods for home care packages
currently available, both those made available by the State (primarily through
the Department of Health and the Health Service Executive) and those available
through private health care providers. Part D examines the regulation of
residential care providers, as well as the impact of the Health and Social
Care Professionals Act 2005 on the regulation of
other care professionals. The current legislation regulating home (domiciliary)
care in Ireland is examined in Part E, which concludes that there is currently
limited regulation in this area. In Part F, the Commission draws on the
experience of models in other jurisdictions. In Part G, the Commission draws
some conclusions and examines some general reform options.
1.02
Most people prefer to
live in their own home rather than, for example, in a health facility such as a
hospital or nursing home. The desire to live at home[5]
may become even more important as people grow older. This was confirmed in a
2001 study by the National Council on Ageing and Older People (NCAOP), which
found that a large majority of older people expressed the desire to continue to
live in their own homes.[6]
Since then, the Government has adopted, as part of its national health policy,
the principle that older people in particular should be enabled to be
maintained in their home for as long as possible.
1.03
The 2006 Social
Partnership Agreement Towards 2016[7] commits
the Government to enable “older people to maintain their health and
well-being...in an independent way in their own homes and communities for as
long as possible.” In order to achieve this objective, the Government and
social partners are committed to ensuring that “every older person would have
adequate support to enable them to remain living independently in their own
homes for as long as possible.”
1.04
It is important to examine the general and demographic background
against which the preference of older people to stay at home and the stated
Government policy to support it should be considered. For the foreseeable
future Ireland will have, in common with most European States, an ageing
population. How – and where – they are cared for is an important policy matter.
For older people with limited means, health care is provided by the State
through its expenditure on health care from general taxation. For older people
with greater income, health care may also be provided from their own funding
arrangements, possibly supplemented by some State provision. The commitments in
the 2006 Social Partnership Agreement Towards 2016 indicate a clear
Government policy in which health care provision in large purpose-built care
settings, such as hospitals and nursing homes, is supplemented by – and
possibly in some cases supplanted by – health care provision in the home
setting. This policy not only supports the preferences of most people –
including older people – but may also be motivated by cost factors: it is
sometimes argued that care at home is less expensive than care in hospitals or
nursing homes. These policy matters are, strictly speaking, outside the scope of
this project. Whatever the policy debates, the Commission’s primary focus is on
the legislative arrangements concerning health care in the private home
setting.
1.05
In terms of the number of older people – those over 65 – that might be
involved in health care provision at home, the 2006 National Census[8]
found that there were about 470,000 – 11% of the population - aged 65 years or
over in the State. The Central Statistics Office (CSO) estimates that the number
of people over 65 will almost double in every region of the State by 2026, with
people aged 80 and over projected to more than double. The CSO projects that by
2026 there will be 909,000 older people – 25% of the total projected population
– living in the State.[9] No doubt, many
of these over 65s will be healthy and living at home – and also many of them
will be working, whether part-time or full-time. On the other hand, a certain
percentage of them will also require health care provision, whether in a
hospital, nursing home or in their own home.
1.06
An ageing population is likely to bring a greater demand for health care
provision in Ireland in the future. Combined with the wish of a large majority
of older people to remain in their own homes, this clearly highlights, in the
Commission’s view, the need to regulate the provision of health care providers
in the home. At present, there is no clear legislative scheme for regulating
what is sometimes called the domiciliary care sector, whether provided by the
public sector or private sector. As later discussed, the care provided in the
institutional setting of hospitals and nursing homes is subject to a clear legislative
scheme under the standard-setting auspices of the Health Information and
Quality Authority (HIQA), operating under the Health Act 2007. There are currently no
comparable arrangements for the regulation of professional care providers in
the home setting. Thus, service provision in this area is not regulated in the
State.
1.07
By contrast, the domiciliary care sector is regulated in the United
Kingdom. The Commission notes that some UK-based – and hence regulated –
commercial providers have begun to provide such services in Ireland, whether as
a HSE-approved service provider or by direct private contract with an Irish
client or on behalf of HSE. To that extent, the UK standards have, in part,
informed the informal standards on which some service provision occurs in
Ireland. In the absence of a statutory framework, it is at least arguable that
some service providers may not meet such standards[10]
and that, indeed, those who aspire to meet them may be at a competitive
disadvantage by comparison with those who do not.
1.08
Where professional home care providers are not regulated, this may lead
to inconsistencies in terms of service quality and delivery and the potential
for abuse, including financial and physical abuse, as well as neglect. In 2008,
the HSE dealt with over 1,800 cases of alleged abuse of older people, of which
85% occurred in the home.[11] Of course, as already mentioned, most
people prefer to be at home and are not being abused at all times while at
home. Nonetheless, where abuse occurs at home, there is a particular private
aspect to its occurrence which makes abuse of a vulnerable adult difficult to
detect and combat.[12]
In the United Kingdom, where the home care setting has been regulated, the
Commission agrees with the views expressed by the English Department of Health
that the regulation of domiciliary care providers is an effective method of
augmenting standards and of providing the best protection for service
recipients.[13]
1.09
It has been suggested
that the regulation of the home care sector could have negative consequences
for care workers, by restricting their ability to perform certain duties beyond
their job description and might detract from the element of companionship that
exists between care workers and care recipients.[14] In the Commission’s view, however, a
balance must be struck between protecting vulnerable older persons and
maintaining the unique relationship that can exist between the care worker and
the service recipient. The regulation of care
at home is an essential part of making sure that as many people as possible are
supported and protected in their own home.
1.10
Professional home care
is provided in many different forms and by many different care providers,
public sector and private sector. It is important for this discussion to
identify the different methods of delivery of professional home care, in
particular for older people.
1.11
Home help services are provided by the HSE in order to assist people to
remain in their own home and to avoid the necessity of entering institutional
care. It should be noted that home help services have no statutory basis. In
practice, the HSE either provides the home help service directly or make
arrangements with voluntary organisations to provide them. The service is
generally free to medical card holders. Home helps usually assist people with
normal household tasks although they may also help with personal care. In some
cases, the service recipient may have to pay all of the costs involved. Where a
person can afford to pay the costs of the home help service, then he or she can
make an arrangement with the HSE in which the HSE is the employer and the
service recipient pays the costs.
1.12
The Home Care Support Scheme (also known as a Home Care Support
Package) is a non-statutory scheme operated by the HSE. The scheme is aimed
mainly at those requiring medium to high caring support to continue to live at
home independently. This Scheme evolved from a range of pilot programmes but it
is not currently (July 2009) a national scheme.[15] The
Commission understands that national Guidelines for the Scheme are currently
being developed. This would be a great advancement because, in their absence,
the Commission understands that some HSE Local Health Offices (LHO) have drawn
up local guidelines for implementation which differ from area to area. Some
areas apply a means-test, others do not, and the means-tests that are enforced
differ greatly. National guidelines would mean that the application of the
Scheme does not depend on the place where a person happens to live.
1.13
Where a support package is provided, it is tailored to the needs of the
individual. Broadly speaking, a package may include the services of nurses,
home care attendants, home helps and the various therapies including
physiotherapy services and occupational therapy services.[16]
The packages vary according to the medical condition of the service recipient
and the level of care required. Services may be provided by the HSE directly, or
by voluntary and community organisations on behalf of the HSE. In some
instances, a home care package will provide a cash grant to an individual or a
member of his or her family in order to enable them to purchase a range of
services or supports privately.[17] Where this
occurs there is a danger that the individual may be considered to be the
employer of the care provider and as an employer; he or she will have certain
duties and obligations.[18]
1.14
In recent years, home care packages have also been provided by
commercial providers. This arises in two ways. In some instances, the HSE
engages commercial providers to deliver the services under the Home Care
Support Scheme already discussed, while in other instances an individual
engages the commercial provider on a private contractual basis. As with the
position where the HSE provides the home care directly, there is currently no
legislative framework for the regulation of the service provision through these
commercial providers.
1.15
In the absence of a legislative framework, the HSE engaged in a public
national tender process for home care providers, with a view to drawing up a
preferred provider list, which included a requirement that any successful
tendering provider would meet certain stated standards. While the Commission
acknowledges the value of this process, it remains the position that there is
currently no external set of standards applicable to this method of home care
service provision by which to determine whether the commercial providers meet
these contractual standards.
1.16
Where an individual contracts directly with a commercial service
provider, the Commission is aware that some contracts set out clearly the
content of the particular service and the standards expected. The Commission
notes, however, that in common with the other methods of service delivery,
there is no statutory framework for this.
1.17
There are approximately
160,000 informal carers in Ireland, often relatives and neighbours who provide
more than 3 million hours of home-based care every week. It is estimated that,
if this informal care was to be provided on a professional basis, the cost
would amount to more than €2.5 billion every year.[19] The State has recognised, to some
extent, the important value of this care through the Carers’ Grant,
administered by the Department of Social and Family Affairs under the Social
Welfare Consolidation Act 2005. The National Partnership
Agreement Towards 2016 contained a commitment to develop a National
Carers’ Strategy.[20] The Strategy
was to set out the Government’s vision for family and informal carers and would
have established a set of goals and actions in relation to informal carers. In
March 2009, the Minister for Social Welfare and Family Affairs stated that the
Government was not proceeding with the publication of a National Carers’
Strategy.[21] As already
noted, this project does not concern the informal carers with which the
Strategy would be connected.
1.18
It is important, in the
context of this project, to have a clear understanding of the different types
of home care that are available in Ireland. The provision of professional home
care is complex and is provided in different forms by different providers. The
provision of Home Care Support Packages represents a significant increase in
funding for home care of older people. The emerging role of commercial
domiciliary care providers presents some interesting issues, in terms of
regulation and monitoring. This will be discussed later in this chapter. The
role of informal carers is, strictly speaking, outside the scope of this
project, but it is clear that the Home Care Support Schemes – and other
community-based support schemes – often operate as a form of respite assistance
for informal carers. To that extent, this project has an indirect connection to
the role of informal carers.
1.19
There is a clear lack
of regulation of the domiciliary care sector in Ireland but it is useful to
examine the measures in place to regulate care provision in nursing homes. The Health
and Social Care Professionals Act 2005 is also discussed, in relation to
how it regulates specific care professionals.
1.20
As already noted, there is currently no statutory framework for
professional domiciliary care providers. The statutory regulation of health care
provision in a nursing home setting has, however, undergone considerable change
in recent years. The Health (Nursing Homes) Act 1990 sets out the legislative framework for care
standards in private nursing homes. The Health Act 2007, which
established the Health Information and Quality Authority (HIQA), sets out a
framework to set standards for both private residential care providers,
including nursing homes, and also for the first time for public residential
care providers including those provided through the HSE. HIQA is also the
national inspection authority for all such residential care providers, public
sector and private sector, the Commission now turns to provide an overview of
this legislative framework, which may provide a useful reference point for the
future regulation of professional home care providers.
1.21
As mentioned the Health (Nursing Homes) Act 1990, as amended,[22]
sets out the legislative framework for monitoring standards in private nursing
homes. Section 2(1) of the 1990 Act defines a “nursing home” as “an institution
for the care and maintenance of more than two dependent persons.” The 1990 Act
states that it does not extend to the regulation or inspection of public
nursing homes,[23] institutions
for the care and maintenance of persons with limited mental capacity[24]
or institutions in which children are maintained,[25]
but these are now covered by the Health Act 2007, discussed below. The
1990 Act also stated that maintenance provided by a person to a spouse or other
relative was to be disregarded insofar as the definition of nursing home was
concerned.[26]
1.22
Under the 1990 Act, the HSE, as successor to the health boards, was the
licensing and inspecting authority for private nursing homes.[27]
The 1990 Act also empowered the HSE to set standards for private nursing homes.
Under the Health Act 2007, discussed below, these functions have been
transferred to HIQA.
1.23
The Nursing Homes (Care and Welfare) Regulations 1993,[28]
(the 1993 Regulations), made under section 6 of the Health (Nursing Homes)
Act 1990,[29] set out
specific requirements for the standards in the nursing home. These include
requirements concerning: general welfare, high standards of nursing and medical
care and privacy;[30] a contract
of care;[31] staffing
levels;[32] standards of
accommodation and facilities;[33] hygiene and
sanitary facilities;[34] nutrition;[35]
fire safety;[36] a register of information and record keeping generally.[37]
As they were made under the 1990 Act, the 1993 Regulations apply to private
nursing homes only and do not extend to care provided in other settings.
1.24
The 1993 Regulations provided for inspection of private nursing homes by
the HSE[38] and also set
out a complaints procedure under which a dependent person being maintained in a
nursing home may make a complaint to the HSE.[39]
These functions have been transferred to HIQA under the Health Act 2007.
1.25
While the 1993 Regulations set out some important statutory care
standards, they did not, however, deal with the safety of dependent persons in
nursing homes. Nor did they provide sufficient standards and procedures for
preventing and investigating abuse. Following a TV documentary broadcast on RTE
which indicated significant non-compliance with the standards in the 1993 Regulations
at a registered nursing home, Leas Cross, the HSE commissioned a review of the
matter. The subsequent 2006 report, A review of the deaths at Leas-Cross
Nursing Home 2002-2005 (O’Neill Report),[40]
concluded that a lack of resources meant that inspections under the 1993
Regulations were not conducted frequently.[41]
The Report also concluded that the practice of conducting inspections under the
1993 Regulations on the basis of prior notice was inappropriate. The findings
in the Report contributed to the enactment of a comprehensive and independent
inspection system in the Health Act 2007.
1.26
As indicated, the Health
Act 2007 established the Health Information and Quality Authority (HIQA)[42] as an independent inspectorate with
responsibility for regulating and inspecting both public and private nursing
homes. The main object of HIQA is to “promote safety and quality in the
provision of health and personal social services for the benefit of the health
and welfare of the public.”[43]
1.27
HIQA is empowered by
the 2007 Act to publish standards on safety and quality in relation to health
care services provided by the HSE in institutional care settings and by private
service providers in nursing homes. HIQA is also required to monitor compliance
with these standards[44]
and undertake an investigation as to the safety, quality and standards of the
services if it believes on reasonable grounds that there has been a serious
risk to the health or welfare of a person receiving those services.[45]
1.28
Using these
standard-setting powers, HIQA has published a number of standards on safety and
quality in relation to health care services generally.[46] In the context of the scope of the
Commission’s focus on professional health care at home, HIQA has published Standards
for Residential Care Settings for Older People (2007)[47] and National Quality Standards:
Residential Services for People with Disabilities (2009).[48]
1.29
The Health and Social
Care Professionals Council (the Council) was established by the Health and
Social Care Professionals Act 2005[49] to promote
high standards of professional conduct and professional education, training and
competence among registrants of designated professionals. The Council’s
functions include the monitoring and co-ordination of the activities of
registration boards, the enforcement of standards of practice for registrants
of the designated professions, the establishment of committees of inquiry into
complaints and the making of decisions and the giving of directions relating to
the imposition of disciplinary sanctions on registrants of the designated
professions.[50] The
designated professions are clinical biochemists; dieticians; medical
scientists; occupational therapists; orthoptists; physiotherapists;
podiatrists; psychologists; radiographers; social care workers; social workers
and speech and language therapists.[51]
1.30
A “health or social
care profession” is defined in the 2005 Act as any profession in which a person
exercises skill or judgment relating to the preservation or improvement of the
health or wellbeing of others; the diagnosis, treatment or care of those who
are injured, sick, disabled or infirm or the care of those in need of
protection, guidance or support.[52] Under the
2005 Act, the Minister for Health and Children has the authority to designate
any health or social care profession not explicitly included under the Act.[53]
Where the Minister considers that it is appropriate and in the public interest
for a health or social care profession to be designated under the 2005 Act, the
Minister must have regard to the extent to which the profession has a defined
scope of practice, the extent to which the profession is established, and
whether there is a professional representative body to represent a significant
proportion of the profession’s practitioners.[54]
The Minister must also take into consideration the extent to which there are
defined routes of entry to the profession, whether the entry qualifications are
independently assessed and whether the profession is committed to continuing
professional development.[55] The Minister
must finally consider the degree of risk to the health, safety and welfare of
the public from an incompetent, unethical or impaired practice of the
profession.[56]
1.31
The 2005 Act
establishes registration boards for designated professions for the purpose of
establishing and maintaining a register of members,[57]
to give guidance to registrants concerning ethical conduct and to monitor the
continuing suitability of programmes approved by the board for the education
and training of applicants for registration.[58]
All registrants must comply with the conditions of application, and must hold
an approved qualification in the relative profession. The registrant must be a
fit and proper person and must pay the required fee to the Council.[59]
1.32
As stated previously,
one of the main functions of the Council is to make decisions and give
directions relating to imposing disciplinary sanctions on registrants of the
designated professions.[60] The Council
must establish a preliminary proceedings committee, a professional conduct
committee and a health committee.[61] Under the
2005 Act, a complaint may be made about a registrant to the Council on grounds
of professional misconduct; poor professional performance; impairment of the
registrant’s ability to practise; failure to comply with a term or condition of
registration.[62] Once the
Council receives a complaint, it must then refer the complaint to a preliminary
proceedings committee for its opinion as to whether further action is required.[63]
Where the committee decides that further action is required to deal with the
complaint, then it may refer the complaint to either a professional conduct
committee or a health committee.[64]
1.33
Once a committee of
inquiry has completed its assessment, it must then report its findings to the
Council,[65] which can
then either dismiss the complaint or request the registration board to
recommend disciplinary sanctions.[66] The
registration board can recommend a variety of sanctions including an
admonishment or censure; conditions to be attached to the registration; the
suspension of registration for a specified time; the cancellation of
registration; or a prohibition from applying for a specified period for
restoration to the register. [67]
Where a disciplinary sanction is imposed upon a registrant, that person may
apply to the Court for an order cancelling the direction.[68]
The Court, upon hearing the application, may cancel, confirm or modify the
decision and may direct the Council accordingly. Upon the application of an
individual whose registration has been cancelled, the Council may at any time
direct a registration board to restore to its register the name of any person
whose registration has been cancelled provided that certain conditions are
satisfied.[69] Where the
Council does not approve of the application, the individual concerned can
appeal the decision to the High Court, which can then cancel, confirm or modify
the decision and direct the Council.[70]
1.34
There have been some
significant legislative developments in recent years in the regulation of
professionals that operate in the care sector. In particular, there have been
major changes in the regulation of residential care providers, with HIQA
beginning to carry out inspections on all residential care providers. The Health
and Social Care Professionals Act 2005 also represents a significant
milestone in the registration and inspecting of specified professions. Although
the Minister for Health and Children has the authority to designate a health or
social care profession under the 2005 Act, it would appear that domiciliary
care providers do not satisfy certain conditions that the Minister must take
into account prior to designating a profession under section 4 of the 2005 Act.
Therefore, domiciliary care providers would, in the Commission’s view, be
better regulated by some other means.
1.35
The government has a clear policy on the care of older people which
favours the provision of care in domiciliary settings as opposed to
institutional settings. This policy, first advocated in the 1988 Report The
Years Ahead,[71] favours
maintaining older people in dignity and independence at home in accordance with
their wishes until they can no longer be so maintained. The 1988 report
contained a broad range of diverse recommendations aimed at improving the
quality of care being provided to older people. It also made umerous specific
recommendations with regard to the provision of general medical, nursing and
paramedical services to home based services. The main aim of these
recommendations was to strengthen the provision of care at home. The report
recommended that the then health boards (now the HSE) should explore the
possibility of employing care assistants who would work under the supervision
of the public health nurse,[72] though it
did not specify what duties these assistants would have or what specific
training they should have. The report also recommended that where necessary
physiotherapy, speech therapy and chiropody should be provided to those
receiving care at home.[73]
1.36
Despite this very clear policy on older care, there is no legislation or
service provision to give effect to it. As discussed above, HIQA is now
empowered to regulate all residential care providers under the Health Act
2007. HIQA does not, however, have statutory authority to set standards on
safety and quality in relation to providers of health care services in private
homes. While the Health Act 2007 has ensured greater regulation of
institutional care through the activities of HIQA, there is still a poor level
of regulation of those who provide domiciliary care to vulnerable people.
1.37
It has been suggested[74] that putting
in place a regulatory system for institutional care while ignoring the
domiciliary care system is counter-productive, and contradicts the Government’s
intentions to regulate both sectors.[75] Abuse of
vulnerable persons who receive domiciliary care is one of the most common forms
of abuse, but it presents the most difficulties in terms of prevention and
detection.[76] The risk of
not regulating the domiciliary care sector poses many qualitative and safety
issues, including inconsistency in terms of the quality and reliability of the
service.[77] The absence
of statutory regulation also gives rise to safety concerns regarding the
suitability of staff and management, and the vulnerability to abuse of care
recipients. The absence of regulation also raises concerns over inadequate provisions
to ensure safety, security, wellbeing and confidentiality for domiciliary care
recipients.[78]
1.38
A person who, by reason of illness, infirmity or disability is unable to
provide personal care for themselves and receives this care from a formal or
paid carer in their own home, is said to be receiving domiciliary care. Under
section 61 of the Health Act 1970,
the HSE may make arrangements to assist (with or without charge) in the
maintenance at home of:
(a) a sick or infirm person or a dependent of
such a person or
(c)
a person who, but for the provision of a service for him
under this section would require him to be maintained otherwise than at home.[79]
1.39
Section 61A(1) of the Health Act 1970 (inserted by section 11 of
the Health (Nursing Homes)(Amendment) Act 2007) requires home care
providers to give notice in writing to the HSE of the name and address of the
home care provider, and also the name and address of each care recipient.[80]
Under section 61A(2) of the 1970 Act, the HSE is permitted to retain this
information and may publicly disclose any particulars of home care providers
who are legal persons or any statistics from such information. A home care
provider is defined as “a natural or legal person who...provides at a charge,
home care services.” A “home care service” is defined as “...a service made
available in a private dwelling for a person who, by reason of illness, frailty
or disability, is unable to provide the service for himself or herself without
assistance.”[81]
1.40
Section 8(1)(b) of the Health Act 2007, under which HIQA was
established, describes the functions of HIQA and states that one of its
functions is to set standards for “services provided by the [HSE] or a service
provider” who provides health and personal social services on behalf of the
HSE. A “service provider” means someone who “enters into an arrangement...to
provide a health or personal social service on behalf of the [HSE].”
1.41
It has been suggested[82] that section
8(1)(b) could be interpreted as permitting HIQA to lay down quality standards
in respect of domiciliary care if it can be interpreted as “personal care” or
as a “personal social service” being provided by a service provider on behalf
of the HSE. However, where the HSE finances the provision of home care by a
private agency to an individual, it is not clear whether HIQA would have
authority to regulate or monitor such a body.[83]
Currently, therefore, there is no clear legislative provision which expressly
states that HIQA has authority to set standards for, and carry out inspections
of domiciliary care providers. The Commission has come to the conclusion that
the legislative gap should be filled and provisionally recommends, therefore,
section 8(1)(b) of the Health Act 2007 be amended to extend the
authority of the Health Information and Quality Authority to include the
regulating and monitoring of professional domiciliary care providers.
1.42
The Commission provisionally recommends that section 8(1)(b) of the
Health Act 2007 be amended to extend the authority of the Health Information
and Quality Authority to include the regulating and monitoring of professional
domiciliary care providers.
1.43
Section 40 of the Health
Act 2007 established the Office of the Chief Inspector of Social Services
(the Social Services Inspectorate “SSI”). Section 41 sets out the specific
statutory functions of the Chief Inspector. The function of SSI is to register
and inspect the residential care services provided by designated centres. A
“designated centre” is defined as including a residential service in the
public, private and voluntary sector for older people and people with a
disability.[84] The SSI must
establish and maintain a register of all designated centres, and must regularly
inspect them to assess whether they are complying with the any regulations
and/or standards that are set down.[85]
1.44
Under the 2007 Act, a
person seeking to register or renew a registration of a designated centre must
apply to the SSI to register for a three year period.[86]
The SSI must establish and maintain a list of all registered designated
centres. The SSI may grant registration to the registered provider, provided
that he or she is a fit person, and provided that the centre is operated in a
manner that complies with any regulations and standards.[87]
Where an application is granted or the renewal of registration is approved, the
SSI must issue a certificate of registration to the registered provider of the
designated centre.[88] Registration
of a designated centre can be cancelled if the registered provider is convicted
of a particular offence as prescribed by the 2007 Act, or the SSI is of the
opinion that the registered provider is no longer fit or the designated centre
is not being appropriately managed.[89] Where the
SSI proposes to refuse to grant an application, the registered provider must be
notified in writing of the proposal, and must be afforded the opportunity to
respond in writing to the proposed refusal.[90]
The SSI must then take any written submissions made by the registered provider
into account, before making its final decision. Once a final decision has been
made, the registered provider or the applicant can appeal the SSI decision to
the District Court within 28 days of receipt of the written notice of the
decision.[91] The District
Court may then either confirm the SSI decision or may instruct SSI to register the
designated centre or to restore the registration or make an order as to
conditions attaching to registration.[92] The decision
can further be appealed to the Circuit Court.[93]
1.45
Amending the definition
of “designated centre” to include domiciliary care providers would ensure that
all professional domiciliary care providers are required to apply to SSI to
become registered care providers. The SSI could then inspect the services being
provided by the domiciliary care providers, thereby monitoring their compliance
with any Ministerial Regulations and any standards set out by HIQA. This would
also ensure that all registered domiciliary care providers would be certified.
The Health Act 2007 protects all registered providers, by ensuring that
they have a right to respond to a decision of SSI and by ensuring that there is
recourse to the courts. The Commission is of the opinion that the SSI as
established by the 2007 Act provides an appropriate mechanism by which
domiciliary care providers can be registered and inspected.
1.46
The Commission
provisionally recommends the amendment of the definition of a “designated
centre” in section 2(1) of the Health Act 2007 to include domiciliary care
providers. This would extend the power of the Office of the Chief Inspector of
Social Services under section 41 of the Health Act 2007 to register and monitor
professional domiciliary care providers.
1.47
Under section 101 of
the Health Act 2007, the Minister for Health and Children may make
Regulations for the purpose of ensuring proper standards in relation to
designated centres. Such Regulations may refer to the maintenance, care,
welfare and well-being of persons resident in a designated centre as well as
other regulations to govern specific aspects of the operation of designated
centres. In keeping with the provisional recommendations already made in
connection with the extension of the 2007 Act to include domiciliary care, the
Commission provisionally recommends extending the Ministerial regulation-making
power conferred in the Minister for Health and Children by section 101 of the Health
Act 2007, to include the authority to make Regulations in respect of
professional domiciliary care providers..
1.48
The Commission
provisionally recommends extending the Ministerial regulation-making power
conferred on the Minister for Health and Children by section 101 of the Health
Act 2007 to include the authority to make Regulations in respect of
professional domiciliary care providers.
1.49
This Part has examined
how the legislation currently in place to regulate residential care providers
could be amended to incorporate the regulation of domiciliary care providers.
The Health Act 2007 provides a comprehensive statutory framework through
which the residential care sector is regulated. HIQA has already been active in
its role of setting standards for the care sector, and although the SSI has
only recently begun to carry out its role of inspecting residential care
providers to ensure they are complying with HIQA’s standards, it is clear that
standards within the residential care sector will be considerably augmented.
The Health Act 2007 already provides a comprehensive statutory framework
through which the residential care sector is regulated, and it would be
practical to extend the ambit of the 2007 Act to include the regulation of
domiciliary care providers as already discussed above. This would ensure that
there is an established body charged with the responsibility of: registering
domiciliary care providers; setting standards for those providers; and
monitoring those providers compliance with those standards.
1.50
In England and Wales,
the Care Standards Act 2000 was introduced creating a detailed system of
regulation, registration and inspection for domiciliary care providers. Similar
legislative measures have been adopted in Scotland and Northern Ireland. While
there is a considerable amount of legislation relating to the care of older
people in Australia, the regulatory system for health care providers is
complex, and differs greatly depending on the type of care concerned.
1.51
By comparison with the incomplete legislative position in Ireland, the
law regarding the regulation of domiciliary care providers in England and Wales
is comprehensive. The Care Standards Act 2000 is
a wide-ranging piece of legislation, which regulates a broad range of health
care providers, including domiciliary care agencies, and care homes, amongst
others. A “domiciliary care provider” is defined under the 2000 Act as
“. . . an undertaking which consists of or includes arranging
the provision of personal care in their own homes for persons who by reason of
illness, infirmity or disability are unable to provide it for themselves
without assistance.”[94]
The 2000 Act established of the National Care Standards
Commission (NCSC). The NCSC was an independent, non-governmental body,
responsible for the registration, regulation and inspection of a long list of
health care providers. Its regulatory powers have now been subsumed into the
Commission for Social Care Inspection (CSCI).[95]
The CSCI has been renamed the Care Quality Commission (CQC).
1.52
The CQC has the responsibility for regulating health care providers, by
requiring care providers to register with it,[96]
and by conducting regular inspections of such health care providers.[97]
The 2000 Act also provides that the relevant Minister may make Regulations in
order to secure the welfare of persons provided with services by a domiciliary
care agency.[98] Regulations
made in such a way may make provision as to the promotion and protection of the
health of persons receiving domiciliary care.[99]
Under the 2000 Act the relevant Minister may prepare and publish statements of
“National Minimum Standards” which can apply to domiciliary care agencies.[100]
1.53
The CQC registers, inspects and reviews all adult social care services
in the public, private and voluntary sectors in England. The registration
process ascertains that the people who own or manage a service are suitable and
that the service will be operated in accordance with all regulations and
Government standards.[101] Where someone is seeking to register a service, the CQC must
be furnished with information relating to the staff and the service facilities.[102]
The CQC inspects adult social care services against national minimum care standards.[103]
There are three types of inspections that the CQC carry out (i) key
inspections; (ii) random inspections and (iii) and thematic inspections. Key
inspections are conducted on an unannounced basis, and they assess how the
service is performing in accordance with the care standards. This inspection
also involves the service recipients and the service operators. The random
inspections are targeted inspections that focus on specific issues, or check-up
on the service to determine if it is operating in accordance with the
standards. Random inspections are also unannounced and can take place at any
time of the day or night. Finally, thematic inspections focus on how well a
service is performing in a particular area of its service provision. For
example, a thematic inspection might focus on the maintenance of medical
records or the protection of the service recipient’s rights and dignity. Once
an inspection has been carried out, a report is published, and issued to the
owner of the service, who then has 28 days in which to comment on the report,
before it is published on the CQC website. The service owner is given ample
opportunity to rectify any problems which arise out of the inspection report.
If a service provider continuously fails to meet the standards enforced by the
CQC, then he or she can be found guilty of an offence[104]
and the CQC can close the service down.
1.54
The 2000 Act also applies to Wales. Under the 2000 Act the Care
and Social Services Inspectorate Wales (CSSIW) was established in April 2007 as
an independent regulator of the public and private sector care providers. The
CSSIW is a distinct division within the Welsh Department of Public Services and
Performance. Like the CQC in England, the CSSIW seeks to safeguard and promote
the health and well-being of service users in Wales. The CSSIW seeks to ensure
that common standards are applied in a consistent manner across the care
sector, to public and private sector care providers by an independent
regulator.[105] The
functions and powers of the CSSIW are the same as those of the CQC as already
set out above. The CSSIW inspects and reviews local authority social services
and regulates and inspect care settings and agencies, including adult care
homes and domiciliary care agencies, amongst others. The Welsh Assembly has
published regulations in relation to domiciliary care agencies, which will be
discussed in Chapter 2.[106]
1.55
In Scotland, the Regulation
of Care (Scotland) Act 2001 established
the Care Commission as a corporate body, which has the general duty of
furthering improvement in the quality of care services provided in Scotland.[107]
The Care Commission is responsible for registering and inspecting various
different health care providers, including care homes, support services and
adult placement services.[108]
The 2001 Act aims to enhance the safety and welfare of all persons who use, or
are eligible to use, care services and to promote the independence of those
persons.[109]
1.56
The term “care
services” is defined as including “care homes” and “support service” amongst a
broad variety of other care services.[110] The term “support services” is defined
by section 2(2) of the 2001 Act as:
“...a
service provided, by reason of a person’s vulnerability or need, to that
person. . . by
(a) a local
authority,
(b) any
person under arrangements made by a local authority,
(c) a health
body or
(d) any
person if it includes personal care of personal support.”
A “support service” does not include care
homes, but it does include a private or voluntary service providing personal
care under direct arrangements with a vulnerable adult.[111]
1.57
Under the 2001 Act, the
Scottish Ministers have the authority to draw up regulations which may make
provision for securing the welfare of persons provided with a care service.[112]
The Act also confers on the Care Commission the function of registering and
regulating of care services. The Scottish Ministers set up the National Care
Standards Committee,[113]
which developed the National Care Standards, which will be discussed further in
Chapter 2.[114]
The Care Commission considers these national care standards when inspecting
care providers.[115]
The 2001 Act also establishes the Scottish Social Services Council which
registers, regulates and trains social service workers.[116]
1.58
The requirements and
processes for registration and inspection as prescribed under the 2001 Act,
mirrors those set out under the English Care Standards Act 2000. The
same requirements that are set down by the English Care Standards Act 2000
for the registration of a care service, apply to the registration of a care
service in Scotland. Any person who seeks to provide a care service is required
to make an application to register with the Care Commission.[117] It is an offence to provide a care
service without being registered with the Care Commission.[118] The Care Commission is also charged
with inspecting care service providers.[119] The Care Commission can authorise a
person to inspect any care service and enter and inspect the care premises at
any time day or night.[120]
Under the 2001 Act, care homes must be inspected at least twice a year, while
“support services” must be inspected at least once a year.[121] After a care service is inspected, the
Care Commission must publish its inspection report, giving the owner/manager of
the service an opportunity to comment on the report.[122]
1.59
The Northern Ireland
Health and Personal Social Services Regulation and Improvement Authority was
established by section 3 of the Health and Personal Social Services
(Quality, Improvement and Regulation) (Northern Ireland) Order 2003.[123]
The Regulation and Improvement Authority is an independent body, charged with
the responsibility of regulating establishments and agencies within the
statutory and independent health care sectors. The role of the Regulation and
Improvement Authority is to monitor and improve the quality of the health and
personal social services, by conducting reviews of the statutory bodies.[124] The Authority also has the function of carrying
out inspections of statutory bodies and service providers, and persons who
provide or are to provide services for which such bodies or providers have
responsibility.[125]
1.60
The Northern Ireland
Department of Health, Social Services and Public Safety is empowered to publish
minimum standards which the Regulation and Improvement Authority must then
consider when regulating establishments and agencies.[126] The Authority has the responsibility of
regulating a wide range of establishments and agencies, including nursing
homes, residential care homes, domiciliary care agencies, as well as children’s
homes, independent clinics and hospitals.[127] This unified
approach to regulation and monitoring is advantageous as it ensures consistency
across the board in terms of regulation and inspection of all health care
providers, regardless of whether they are statutory bodies or independent
agencies.
1.61
The Australian
Government has a policy of promoting and funding the care of older people, by
providing a wide variety of care packages. The Government provide for both
residential aged care and home and community care packages. Residential aged
care includes publicly-funded places in aged care homes. These places are
allocated to older people who are unable to care for themselves. There is also
an extensive programme of community care packages provided to cater for those
older people who wish to remain in their own homes. There is no unified
approach to the regulation of the health care sector in Australia. No one body
is charged with the responsibility of monitoring and assessing community care
providers.
1.62
The Australian
Government introduced the Aged Care Act 1997 While
the main focus of this Act is the funding of aged care services,[128]
it also seeks to promote a high quality of care for the recipients of aged care
services[129]
and to protect the health and well-being of the recipients of aged care
services.[130]
Under the Aged Care Act 1997, the term “aged care” includes residential
care, community care and flexible care.[131]
1.63
While the 1997 Act has
several objectives, the main purpose of the Act is to provide for the
Commonwealth to give financial support for the provision of aged care through
the payment of subsidies and grants.[132] Eligibility for a subsidy depends on
whether the care provider has been approved i.e. whether it meets the
accreditation requirement. Once a provider has been approved, it incurs certain
responsibilities which relate to the quality of care provided, the rights of
the care recipients and accountability for the care provided.
1.64
Aged care in Australia is a complex and, at best, loosely coordinated
web of Commonwealth and State-funded and regulated services delivered by both
not-for-profit and commercial enterprises.[133] Providers of residential care that
receive funding from the Australian Government are subject to the 1997 Act’s
provisions relating to formal accreditation and monitoring processes. The Aged
Care Standards and Accreditation Agency (ACSAA) is responsible for the
accreditation and monitoring processes, which are complemented by a Complaints
Resolution Scheme and other sanctions under the Department of Health and
Ageing. The ACSAA was established by the Australian Government, as a wholly
owned Commonwealth company limited by guarantee. The ACSAA is the body
appointed by the Department of Health and Ageing as the accreditation body
within the meaning of Division 80 of the Aged Care Act 1997. The main
functions of the ACSAA are to manage the accreditation and ongoing supervision
of Australian Government funded aged care homes and to promote quality care by
providing information and education services.[134] The ACSAA assesses residential aged
care homes, which receive funding from the Australian Government, in accordance
with the Accreditation Standards set down under the Quality of Care Principles
1997.
1.65
The Accreditation
Standards do not dictate the ways in which care and services are to be provided
by residential care providers, but they focus on the expected outcomes of the
care, i.e. the improved quality of care for the resident. The Accreditation
Standards are intended to provide a structured approach to the management of
quality and represent clear statements of expected performance.[135]
The ambit of the ACSAA does not extend to the assessment and supervision of
providers of domiciliary care or community care, or to residential care homes
that do not receive Government subsidies.
1.66
The Aged Care
Complaints Investigation Scheme (ACCIS) was established to manage complaints
made about aged care services that are subsidised by the Australian Government.[136]
The ACCIS has authority to investigate concerns raised about the health and/or
well-being of people receiving Government subsidised aged care. Any person
receiving Government subsidised aged care, or their relative or guardians, can
make a complaint to the ACCIS. Once a concern has been highlighted, the ACCIS
investigates the concern and informs service providers if they are found not to
be providing the appropriate care and services.
1.67
The ACCIS is managed by
the Office of Aged Quality and Compliance (OAQC). The OAQC, located within the
Department of Health and Ageing, is the body responsible for ensuring the
quality and accountability of Australian Government subsidised aged care
services.[137]
The OAQC seeks to ensure the safety and security of people in aged care
services by managing the ACCIS and regulating approved providers of Government
subsidised aged care. It should be noted that the OAQC is currently working on
a priority project which is looking to enhance the accreditation framework for
residential aged care and the quality assurance arrangements for the community
based aged care.
1.68
Finally, the Office of
the Aged Care Commissioner (OACC) is responsible for investigating the ACCIS
and the ACSAA.[138]
The OACC reviews certain decisions made by the ACCIS and examines complaints
about the ACCIS’s processes. The OACC[139] investigates complaints made against
aged care services which are subsidised by the Australian Government.[140]
The Aged Care Commissioner is statutory appointed, and holds an office
independent of the Department of Health and Ageing and the ACSAA. The functions
of the OACC are set out in section 95A-1 of the 1997 Act and Part 6 of the
Investigation Principles 2007.
1.69
A notable
characteristic of community care in Australia is the relative lack of formal
regulation. Australian Government policy places great emphasis on the provision
of home care for older people who wish to remain in their homes. A broad range
of home care packages and services are made available by the Commonwealth and
by the individual States and Territories to older people in order to support
their care at home. Care for older people still living in their own homes is
largely funded through either Community Aged Care Packages (CACP) or the Home
and Community Care services (HACC), jointly funded by the Commonwealth and the
States.
1.70
Where community care is
subsidised by the Australian government, the ACCIS has the power to investigate
any complaints made by the service recipient or any relative or guardian of a
recipient. The authority of the OAQC also extends to Government subsidised
community care. Thus the OAQC can regulate approved providers of Government
subsidised community care. The OACC can review certain decisions made by the
ACCIS in relation to community care services which are subsidised by the
Australian Government.
1.71
The different types of
community care packages available to older people in Australia are each treated
differently in terms of investigation and accreditation. CACPs are
individually planned and coordinated packages of care tailored to help older
Australians with low-level care needs to remain living in their own homes. They
are funded by the Australian Government to provide for the complex care needs
of older people. Two other programmes, Extended Aged Care at Home (EACH) and
Extended Aged Care at Home Dementia (EACHD), also provide services for
high-level care needs at home. EACH and EACHD are individually planned and
coordinated packages, tailored to help frail older Australians with high-level
care needs to remain at home. These three care packages are funded by the
Australian Government and as such are subject to the functions of the ACCIS,
the OAQC and the OACC. Services, or subsidised services, provided by the Australian
government are subject to the Quality of Care Principles.[141]
1.72
Another community care
package is the HACC service which aim to meet basic needs to maintain
the person’s independence at home and in the community. Types of HACC include
community nursing, domestic assistance, personal care, meals on wheels, home
modification and maintenance, transport and community-based respite care. HACC
is funded jointly by the Commonwealth and by individual States, thus HACC does
not fall under the Quality Care Principles. Instead there are national
standards specifically for HACC.[142]
Under these standards, all States and Territory Governments are now required to
include the Standards in all service contracts. Monitoring and compliance with
the Standards is now a major part of service reviews. The HACC National Service
Standards Instrument has been developed to measure the extent to which
individual agencies are complying with the Standards through a service
appraisal process.[143]
1.73
Many providers of
community care operate quality control and complaints mechanisms, but there is
no statutory requirement to do so. Thus consumers, while in the majority of
cases well supported and cared for, very often are exposed potentially to
variable service standards uncertainty about the background of staff they admit
to their homes and have few if any avenues of complaint.[144]
1.74
Services that provide
CACP and EACH are required to take part in Quality Reporting, but not HACC
programmes. Quality Reporting is the Australian Government’s method of
encouraging community care service providers to improve the quality of their
service delivery. All community care service providers have to meet consistent
Australian Government standards in the quality and delivery of services. Quality
Reporting requires providers to report on how their services meet standards and
other expectations. The focus of Quality Reporting is not on service delivery
itself, but on the processes that systems providers have in place to ensure
service quality, and how these might be improved. It is important to note that
Quality Reporting is not about accreditation, but about accountability and
improving service delivery.[145] Under the Quality Reporting
process, service providers complete a quality report, which is then sent to the
Department of Health and Ageing for review. An officer from the Department then
makes a physical inspection of the service provider and the final outcome of
the report is sent to the service provider. Quality Reporting is part of an
overall reform of community care in Australia, which is designed to strengthen
community care and support its growing contribution to the lives of older
Australians. The essence of the reforms is to streamline community care.[146]
A review of Quality Reporting in 2008 found that there had been significant
achievements by the Department of Health and Ageing and service providers in
continuous improvement in the quality of the services.[147]
1.75
Canada’s health care
system is highly evolved and comprehensive. Under the Canada Health Act 1984 the aim of Canadian health care policy is to
protect, promote and restore the physical and mental well-being of residents of
Canada and to facilitate reasonable access to health services without financial
or other barriers.[148] The
organisation of Canada’s health care system is largely determined by Canadian
Constitution which sets out the roles and responsibilities that are divided
between the federal, and provincial and territorial governments.[149]
Canada’s publicly funded health care system provides universal coverage for
medically necessary health care services for all Canadians. Health care is
provided on the basis of need, rather than ability to pay. The publicly-funded
health care sector – known as “medicare” - is administered and delivered by the
provinces and territories, and funded by the federal government under the 1984
Act.[150]
1.76
Community care is a
secondary health care service, though it is not covered by the Canada Health
Act 1984. In response to both the increase in health care costs and public
pressure, provinces and territories have developed a variety of different
schemes for some aspects of home care, particularly end-of-life and palliative
care. Funding for other parts of home care comes from a plethora of different
payment schemes, with a wide mixture of public and private funding sources. The
regulation of these programmes varies, as does the range of services between
the different provinces and territories. Needs are assessed and services are
coordinated to provide continuity of care and comprehensive care. The Federal
Department of Veterans Affairs Canada provides home care services to certain
veterans when such services are not available.
1.77
Care of vulnerable
people has developed significantly in Canada in the last few decades. The
concept of “assisted living” has formed a central part of Canada’s health care
policy. Assisted living is a housing and care alternative for those who are no
longer able to continue living in their own homes, but who do not need the
level of care offered in residential care facilities. An assisted living
residence provides hospitality services such as meals, social and recreational
opportunities, and personal care in the form of assistance with activities of
daily living or medications.[151]
1.78
In British Columbia, a
range of care is available to vulnerable people, from residential care, to home
care, to assisted living and independent living. In 2005, about 23,000 older
persons in British Columbia received home nursing care and 26,000 received home
support including non-medical personal care for the same period. In British
Columbia, home nursing care is provided at no cost to the client, while home
support services are income-tested, with clients paying on a sliding scale
based on their income. About 73% of people receiving home support services pay
no fee due to their low incomes.[152]
1.79
In British Columbia,
there are 114 registered assisted living residences, providing a total of 3,680
units.[153] An
assisted living residence is a premises other than a community care facility in
which housing, hospitality services and prescribed services are provided.[154]
These prescribed services include regular assistance with activities of daily
living, the administration and distribution of medication and the maintenance
and/or management of a resident’s finances or property.[155]
The Minister for Health in British Columbia appoints the assisted living
registrar to register an assisted living residence if he or she is satisfied
that the service will be provided in a manner that will not jeopardise the
health and safety of service users.[156]
The registrar has the power to enter and inspect any assisted living premises
if he or she has reason to believe that the health and safety of a resident is
at risk.[157]
1.80
Assisted living is
available to adults who can live independently but require regular assistance
with daily activities, usually because of age, illness or disability.
Regulation of this sector is complaints-based and so any person seeking to
avail of assisted living must be able to make decisions on their own behalf,
unless a spouse lives with the person and is willing and able to make decisions
on the person’s behalf.[158] As with
home support services and residential care, assisted living provided through
the public health system has user fees that vary based on the resident’s
income. These charges never exceed 70% of a resident’s after-tax income.[159]
1.81
The British Columbia
Housing Management Commission (“”BC Housing”) was created in 1967 through an
Order-in-Council. BC Housing is a provincial crown agency under the Ministry of
Housing and Social Development. The main objective of BC Housing is to create the
best system of housing and support for vulnerable British Columbians.[160]
One of the programmes operated by BC Housing is Independent Living in British
Columbia. Independent living is a funding partnership programme between the
Government of Canada and the Government of British Columbia that funds the
construction of assisted living apartments.
1.82
Independent Living BC
was created in 2002, serves seniors and people with disabilities who require
some support but do not need 24 hour institutional care. It offers a middle
ground to bridge the gap between home care and institutional care. Individuals
cannot apply directly to an assisted living development. They must be assessed
by their local health authority. In terms of cost, individuals pay up to, but
no more than 70% of their after-tax income to live in assisted living homes.
This provides them with accommodation, hospitality services and personal care.
Independent living BC offers assisted living suites, that are self-contained,
wheelchair accessible apartments. Independent senior’s housing, assisted living
homes and residential care facilities are available on the same site, allowing
residents to move from one level of care to the next when the need arises.
1.83
The Ministry of Health
Services in British Columbia also operates Choice in Supports for Independent
Living (“CSIL”) as an alternative for eligible home support clients. CSIL was
developed to give British Columbians with daily personal care needs more
flexibility in managing their home support services. CSIL is a self-managed
model of care. Clients receive funds directly for the purchase of home support
services. They assume full responsibility for the management, co-ordination and
financial accountability of their services, including recruiting, hiring,
training, scheduling and supervising home support workers. Seniors and people
with disabilities who are unable or not always able to direct their own care
can obtain CSIL funding through the formation of a client support group. A
client support group consists of five people who have registered as a
non-profit society for the purpose of managing support services on behalf of a
CSIL client. This can include family members, friends and neighbours. The
client support group takes on all the responsibilities of an employer. CSIL
funds go directly to purchase home support services on behalf of their clients.
CSIL clients have greater flexibility in their care options and may pay family
members, except immediate family members, as care givers although health
authorities may grant an exception for an immediate family member to be paid.
1.84
Under the Community
Care and Assisted Living Act 2003, a “community care facility” is a premises in
which a person provides care to three or more people, who are not related by
blood or marriage to the care provider.[161]
A person carrying on a community care facility must be licensed.[162]
The Act also sets out certain standards which the licensee must maintain in
terms of the staffing of the service and the health and safety of persons in
care.[163]
1.85
Community care facilities are inspected
regularly to ensure compliance with the 2003 Act and Adult Care Regulations
to determine if minimum health and safety requirements are being followed with
respect to policies, staffing, resident care, building requirements and others.
In addition, follow up is done in response to items that need to be corrected,
complaints, allegations of abuse, and reportable incidents.The Adult Care Regulations
set out specific standards in relation to employees.[164]
A licensee must ensure that each of its employees who works in or about a
community care facility has the personality, ability and temperament necessary
to maintain the spirit, dignity and individuality of the person being care for.[165]
The employees must possess the training and experience necessary to carry out
their duties and they must be physically and mentally competent in order to
perform their duties.[166]
1.86
A unified approach to the regulation of all health care providers
including domiciliary care providers is the approach favoured in England and
Wales, and in Scotland and Northern Ireland. This approach gives consistency
and reliability to the registration, regulation and inspection processes which
all health care providers must undergo. In Australia, there are separate
regulatory bodies for different the different types of health care providers.
Also, where care is funded by the Australian Government that service falls
under a different category of rules, separate from privately funded care or
care funded by the individual states or territories. This approach is
disjointed. While there are a number of different regulatory bodies, there
appears to be no body responsible for the regulation of private domiciliary
care providers, or private health care providers.
1.87
This Chapter examined the factors which necessitate the regulation of
domiciliary care providers. The lack of a statutory framework was identified as
a problem which exposes older people to the possibility of abuse within their
own homes. The discussion examined the role of HIQA in regulating health care
providers, and it further investigated the extent to which HIQA’s authority
could be extended to include domiciliary care providers. The methods of
regulating domiciliary care providers employed in other jurisdictions were then
considered.
1.88
As an independent body, already charged with regulating and inspecting
residential care providers, HIQA is in a prime position to perform the task of
regulating domiciliary care providers. As discussed above, this could be
achieved by amending various sections of the Health Act 2007 to include
the home care setting. Under section 8 of the 2007 Act, HIQA currently has the
authority to set standards on safety and quality in relation to services
provided by the HSE or services provided by a private nursing home. HIQA also
has the authority to monitor the compliance of the different bodies with such
standards, through the SSI under section 41 of the 2007 Act. By amending these
relevant sections of the 2007 Act HIQA would be able to propose standards by
which domiciliary care providers could be regulated and would reflect the
Government’s express policy of regulating both institutional and domiciliary
sectors. These amendments would also enable SSI to register and inspect
domiciliary care providers, to ensure that those providers are complying with
the standards set down by HIQA.
1.89
In Chapter 2, the Commission turns to examine the legislative frameworks
and detailed standards in place for domiciliary care providers in other States
and the standards already drawn up by HIQA in relation to residential care
providers.
2
2.01
In Chapter 1 the
Commission examined how the Health Act 2007 could be amended to regulate
domiciliary care providers. In this Chapter, the Commission examines the
detailed content of such legislative arrangements. In this respect, Part B
examines the approaches adopted in other jurisdictions in relation to home care
regulations and standards. Part C examines the standards already set out by
HIQA for the residential care sector, which indicate the key issues that are
likely to arise in the domiciliary setting. In Part D the Commission sets out
its conclusions and presents options for reform.
2.02
When considering what
regulations and standards should be drawn up to regulate the domiciliary care
sector in Ireland, it is useful to examine what regulations and standards are
favoured by other jurisdictions. The model adopted in most of the jurisdictions
where the domiciliary care sectors are regulated allows the appropriate
Minister(s) or Department to compile regulations, compliance with which is
mandatory, which make provision in relation to various different aspects of the
service, including the management, staff and conduct of the agencies. In many
of these jurisdictions the Minister(s) or Department also has the authority to
publish minimum standards, which flesh out the regulations, and set a standard
below which providers of domiciliary care cannot fall below.
2.03
In Ireland, the
Minister for Health and Children has the authority to make regulations
regarding the procedures to be followed by HIQA in setting standards for care
providers.[167]
The Minister may also make regulations for the purpose of ensuring proper standards
in relation to designated centres. Such regulations may make provision in
relation to the maintenance, care, welfare and well-being of persons resident
in a designated centre, as well as other aspects of the provision of care.[168]
2.04
In order to determine
the best approach for regulating domiciliary care in Ireland, it is important
to examine the models adopted in other jurisdictions, and to look at what key
areas of the service those regulatory frameworks make provision for.
2.05
In England the Secretary of State for Health has the authority to impose
regulations on establishments and agencies which provide health care, including
domiciliary care agencies.[169] Such
regulations were drawn up in the Domiciliary Care Agencies Regulations 2002.
These regulations govern the registration process and the operation of
domiciliary care agencies. The Care Standards Act 2000 also confers on
the appropriate Minister the authority to publish statements of national
minimum standards applicable to establishments and agencies.[170]
The Domiciliary Care – National Minimum Standards were published in
2003, to act as guidelines for the CQC when it is assessing whether an agency
is complying with the regulations. The purpose of the minimum standards is to
ensure as far as possible, that the quality of personal care which older people
are receiving in their own home meets a certain minimum standard.[171]
The standards are considered to constitute a benchmark against which the
services provided by agencies will be judged, but they are not incorporated
into regulations.[172] The Care
Standards Act 2000 requires that standards be taken into account by those
making a decision about regulatory action or inaction in relation to any care
establishment or agency.[173]
2.06
The distinction between regulations and standards was considered by the
High Court of England and Wales in Brooklyn House v Commission for Social
Care Inspection.[174] There is
nothing in the Care Standards Act 2000 specifying that the standards
must be complied with. This is in contrast to the regulations, breach of which
is a trigger for de-registration and also constitutes a criminal offence.[175]
In the Brooklyn House case, the appellant argued that the respondent had used
the national minimum standards to create an offence. Dismissing the appellants’
argument, the Court held that the national minimum standards do not create or
define any offence under the regulations, rather they can be used to determine
whether there had been a breach of the regulations.[176]
Thus, a domiciliary care agency will not be prosecuted for breaching the
standards, but the standards will be taken into account when considering
whether the agency has fulfilled its obligations under the regulations. The
CSCI will consider the degree to which an agency is complying with the
standards when determining whether or not a service should be registered or
have its registration cancelled, or whether to take any action for breach of
regulations.[177]
2.07
In England the
Secretary of State for Health has the authority to publish National Minimum
Standards for health care providers.[178] The Domiciliary Care Agencies
Regulations 2002 set out the procedures and processes to which public,
private and voluntary domiciliary agencies must adhere. Under the 2002
Regulations, each agency must have a “registered person”[179]
to compile a written statement of purpose in relation to the agency, which
should include the agency’s aims and objectives, the nature of the services
which the agency provides, the qualifications of the manager and of the
domiciliary care workers, and a complaints procedure.[180]
A “registered person” means any person who is registered as the provider or
manager of the agency.[181] The
registered person must also ensure that the agency is conducted in a manner
that safeguards the service user from abuse and promotes the independence of
each service user.[182] The
registered person is required to make a guide available to the service user,
which must include information regarding the terms and conditions of the
provision of the service and a summary of the complaints procedure.[183]
2.08
The regulations contain requirements to assure the quality of service
provision. The registered person must ensure that all domiciliary care workers
employed by the agency satisfy certain criteria.[184]
Each domiciliary care worker must be “...of integrity and good character”, must
possess the requisite skills and experience, and must be physically and
mentally fit for the work.[185] In
addition, every domiciliary care worker must furnish the agency with specific
personal and professional information, including details of any criminal
offences, documentary evidence of relevant qualifications and a full employment
history.[186] The
domiciliary care agency must also ensure that personal care is provided in a
manner that ensures the safety of service users and protects them from abuse or
neglect.[187] The agency
must further ensure that personal care is delivered in a manner which promotes
the independence of the service user and respects the privacy, dignity and
wishes of the individual.[188]
Furthermore, the agency must ensure that it supplies the service in a manner
which ensures the safety and security of the property of the service user.[189]
2.09
The regulations set down specific instructions regarding the
arrangements for the provision of personal care. The registered person must
prepare a written plan, called the “service user plan”. This plan should
specify the needs of that individual and the plan should include details of the
way in which those needs will be met by the provision of personal care.[190]
The registered person must draw up the plan in consultation with the service
user[191] and must
take into account the wishes of the service user.[192]
Once the service user plan has been formulated, it must be made available to
the service user and should be kept under review.[193]
The registered person then has responsibility to ensure that the agency
provides a service that meets the needs of the service user as set out in the
plan.[194] The
registered person must also put in place procedures to make sure that medicines
are properly administered.[195] The
regulations require that arrangements are made for the recording, handling,
safe keeping, safe administration and disposal of medicines used in the
provision of personal care.[196] Registered
persons are also required to ensure that care workers have received the
appropriate training, so that they can operate a safe system of working.[197]
2.10
Where the agency arranges for the provision of personal care to a
service user, the registered person must ensure that arrangements specify the
procedure to be followed where the service user makes an allegation of elder
abuse.[198] The
registered person must also ensure that the arrangement specifies the
circumstances in which the care worker may administer or assist in the
administration of the service user’s medication. Importantly, the registered
person must also ensure that the agreement specifies the financial arrangement
that exists where the care worker acts as an agent for, or receives money from
a service user.[199]
2.11
The regulations set down specific requirements in relation to the
qualifications and training of care workers.[200]
The registered person is responsible for ensuring that, at all times, the
agency retains an appropriate number of suitably skilled persons for the purposes
of the agency.[201] The
registered person must ensure that the care worker has all the necessary
information relating to the service user and their specific needs, and that the
care worker receives assistance where needed in order to provide the
appropriate level of personal care.[202]
Each care worker must receive training appropriate to the type of work that
they perform[203] and the
registered person should encourage the care workers to obtain appropriate
qualifications.[204]
2.12
Importantly, the regulations provide for the establishment of a
complaints procedure.[205] This
procedure allows service users, or someone acting on their behalf, to make a
complaint to the registered person and ensures that the complaint is dealt with
in an appropriate and efficient manner. A written copy of the procedure is to
be drawn up and supplied to each service user. This written copy must include
the contact details of the CSCI and the specific details of the complaints
procedure.[206] It is the
responsibility of the registered person to ensure that every complaint is fully
investigated.[207] The
complainant must be informed of what action is being taken in response to the
complaint, within at least 28 days of the complaint being made.[208]
A record, containing details of all the investigations made into the complaint
and any outcome, must be kept by the registered person, and a summary of all
complaints made in a twelve month period must be submitted to the CSCI.[209]
2.13
In 2003, the Department of Health in England published the “Domiciliary
Care: National Minimum Standards”, which set out the minimum standard of
service required of domiciliary care agencies under the 2000 Act. The standards
apply to all providers of personal domiciliary care services in the private,
voluntary and public sectors. However, where an agency is acting as an
employment agency and introduces the care worker to the service user, then some
of the standards will not apply to such agencies. Where an agency operates from
more than one branch, then each branch must register. Similarly, where the
agency is a franchise operation, each individual franchise is treated as a
business and will be required to register separately.[210]
2.14
The standards apply to agencies that provide care to a wide range of
people including older people, people with physical disabilities and people
with learning disabilities. These standards flesh out the regulations, by
setting out specific details with regard to the personal care of the service
user and in particular attention is paid to the drawing up of the service
user’s plan.[211] The
standards are broad, but they reflect the unique and complex needs of
individuals. Domiciliary care agencies are required to respect the privacy,
dignity, autonomy and independence of the service user when providing the care.[212]
The standards also set out the specific measures that must be followed in order
to protect the service user from abuse or exploitation.[213]
Minimum requirements with regard to the development and training of domiciliary
care workers are also established.[214]
2.15
There are five main categories under which the standards fall; (i) user
focused services, (ii) personal care, (iii) protection, (iv) management and
staffing and (v) organisation of the business.
2.16
Central to the policy
objective of maintaining a person’s independence, is the need to keep service
users informed of all aspects of their care. This enables service users to
participate in the process by making informed decisions regarding their care,
thereby maintaining their independence. The aim of the user focused services
standards is to ensure that the rights, privacy and dignity of the individual
are respected in the provision of care.
2.17
Under the user focused
service standards, registered providers are required to produce a statement of
purpose and a service user’s guide that sets out the aims and objectives of the
agency and the nature of the services to be provided.[215] This guide must be provided to all
service users and their carers. The guide must include an overview of the
delivery of care, and key contract terms and conditions, and must detail the
complaints procedure.[216]
The registered person must be able to demonstrate the capacity of the agency to
meet the service user’s needs, by ensuring that staff have the requisite skills
and experience to deliver the care. This affirmation reassures the service user
that the agency is able to meet their care needs. Care workers are required to
arrive at the service user’s home at a specific time, with a slight window for
flexibility. Also, care workers are only changed for legitimate reasons, such
as sick leave or annual leave. These requirements ensure that the service user
receives a consistent and reliable personal care service.[217]
2.18
Importantly, specific
provision is made in the standards for the requirement to provide each service
user with an individual service contract within seven days of commencement of
the service.[218]
The contract should detail the specific details of the service that the
domiciliary care worker will and will not undertake, and the level of
flexibility involved in the provision of personal care. The financial
arrangement between the service user and the agency and the method of payment
should also be detailed. The arrangements for monitoring and reviewing the
needs of the service user must also be outlined in the contract, as well as the
process by which the staff are monitored and supervised. Practical issues, such
as holiday cover and protocol for entering and leaving the premises, should
also be explicitly stated in the contract.
2.19
The fact that the
standards require the service user and the agency to agree a contract, is
significant, as it strengthens the service user’s position. The contract is a
document which both the service user and the care worker can refer to in order
to resolve any issues regarding the nature of the care that may arise. The
service user can rely on the contract to determine what exactly he or she can
expect a carer to provide. Under the contract, the service user is certain of
their own rights and responsibilities. This standard will be examined in more
detail in the context of Chapter 3
2.20
The term “personal
care” is not defined under the Care Standards Act 2000, but the
standards provide some instruction as to what type of care comes under the
umbrella of personal care.[219]
Under this, personal care includes (i) assistance with bodily functions, (ii)
care requiring physical and intimate touching, but not as much as assisting
with bodily functions, (iii) non-physical care and (iv) emotional and
psychological support.[220]
The Department of Health have set out that it is only where an agency is
providing care coming under the first two categories that the agency will be
required to register in accordance with the Care Standards Act 2000.[221]
2.21
As the purpose of
providing domiciliary care is to maintain a person’s independence at home, the
standards seek to ensure that personal care is delivered in a manner that
respects the dignity and privacy of the service user at all times. Thus, the
standards require that a personal service user plan be developed and agreed
with each service user. The plan should be drawn up in liaison with the service
user or, where that is not possible with the service user’s representative. The
plan should outline the specific arrangements for the delivery of care, and
should take account of the needs and wishes of the service user.
2.22
In seeking to protect
the dignity and privacy of the service user, the personal care standards seek
to ensure that care is provided in a manner that respects and promotes the
welfare of the service user. In particular, the standards require that when a
care worker is assisting the service user with dressing, washing, toilet and
continence requirements and other tasks, the care worker must have due regard
for the service user’s dignity and privacy.[222]
2.23
The standards also
require agency managers and care workers to do all they can to assist the
service user in making their own decisions with regard to their care. Care
workers are required to provide the service user with information and assistance
in order to enable them to make these decisions.[223] These standards promote and maintain
the service user’s autonomy and independence.
2.24
As already discussed in
Chapter 1, the threat of elder abuse increases where care is provided in a
domiciliary setting. The protection standards impose specific requirements in
order to protect the service user from abuse or exploitation. Firstly, a risk
assessment must be carried out by the agency; this assessment should consider
the risks associated with the delivery of the service, any risks in assisting
with the administration of medicine and any risks associated with travelling to
and from the service user’s home.
2.25
The standards require
that domiciliary care agencies and care workers take steps to protect service
users from elder abuse, by drawing up written policies and procedures.[224]
The registered person is required to ensure that the agency has clear
procedures to deal with any suspicion or evidence of abuse or neglect, in order
to protect service users. Allegations of abuse must be investigated efficiently
and the details must be recorded.[225]
2.26
The protection
standards also seek to protect the finances of service users, by requiring the
registered person to draw up strict policies and procedures for staff on the
handling of service user’s money.[226] These policies and procedures should
take account of the financial arrangement that is in place for payment of the
service. The standards preclude any staff member from being involved in the
making of or benefiting from a service user’s will.[227] Care workers are also prohibited from
accepting gifts or cash from service users. The registered person is also
required under the standards to ensure that there are procedures in place
within the agency to fully investigate all allegations of financial
irregularity, and that proper records of all financial transactions are
maintained.
2.27
Managers and staff play
an elemental role in ensuring that service users receive a high level of care
and that their privacy and dignity is respected. Service users expect a high
quality of care from domiciliary care agencies. The quality of care provided is
strongly influenced by the managers of the agency, and their ability to perform
their responsibilities effectively. One of their main responsibilities involves
appraising staff and ensuring that they are regularly supervised.[228]
Managers must ensure that only the most competent and qualified people are
recruited, so as to protect the well-being, health and security of service
users.
2.28
Managers must ensure
that there is a rigorous recruitment and selection procedure in place, in order
to protect the well-being of the service users. Anyone applying for a job as a
domiciliary care worker must go through an interview process and if selected,
they must then produce satisfactory references and complete certain training
and qualification verifications and other vetting procedures.[229]
Staff are required to reveal any previous criminal convictions they may have.[230]
In return, all staff must receive a written description of their job, which
identifies their specific responsibilities.[231]
2.29
The standards endeavour
to ensure that personal care is delivered by suitably qualified and competent
staff. The standards make detailed requirements as to the level of training and
qualifications that all staff members possess as a minimum. The registered
person must ensure that all staff are trained sufficiently in order to provide
the services of the agency.[232]
All staff must hold a recognised care qualification.[233] Staff who do not possess an approved
care qualification must obtain one within the first six months of employment.[234]
Managers must also possess an approved management qualification and, if they
don’t already possess one, then they must obtain one within three years of
employment.[235]
Managers must undertake periodic training to update their knowledge, skills and
competence.[236]
2.30
The delivery of
effective domiciliary care requires a clear infrastructure which identifies all
policies and procedures supporting service delivery. The standards require
domiciliary care agencies to be organised in a manner that allows the business
to operate efficiently and to meet the requirements of regulations and the
standards. The delivery of the service must be supported by continuous monitoring
and evaluation. The standards also require that each agency has a system in
place that enables service users to make a formal complaint about the service,
and for the complaint to be investigated promptly.[237]These requirements are to ensure that
service users receive a consistent, well-managed and planned service.[238]
2.31
The Care Standards
Act 2000 applies to Wales, and the National Assembly of Wales (NAW) has the
general duty of encouraging improvement in the quality of care services,
including domiciliary care agencies, provided in Wales. Under the 2000 Act, the
appropriate Welsh Minister has the authority to impose regulations in relation
to establishments and agencies[239] and to draw up national minimum
standards for care service providers.[240] The Domiciliary Care Agencies
(Wales) Regulations 2004 were drawn up and enforced on the 1st
March 2004. The regulations sets out the framework under which domiciliary care
providers can operate.
2.32
The National Minimum
Standards for Domiciliary Care Agencies in Wales were published in 2007. The
Welsh standards form the criteria by which the CSIW will determine whether the
agency provides personal care to the required standard. The standards establish
a minimum below which an agency providing personal care for people living in
their own homes cannot fall. The standards are measurable, they form the mark
against which the quality of care can be measured. They are qualitative, as
they provide a tool for judging the quality of care. The standards and the
regulatory framework within which they operate should be viewed in the context
of the NAW’s overall policy objectives for supporting people in their own home.[241]
2.33
The regulations
themselves focus on the rights of the service user. The regulations seek to
promote the independence of the individual and to encourage them to participate
in all decisions regarding their care. In this regard, the registered person is
required to make suitable arrangements to ensure that the agency is conducted,
and the personal care is provided in a manner that ensures the safety of the
service user,[242]
and promotes their independence.[243] The regulations require the service
provider to consult with the service user when preparing a written care plan
for them.[244]
At every stage of the provision of care, the service provider must provide the
service user with all the information necessary for them to make decisions with
respect to their personal care.[245] This promotes the independence of the
service user, and respects their dignity and individuality. Service providers
are required to produce a written guide to the agency.[246] This guide should contain a statement
of the aims and objectives of the agency,[247] the complaints procedures[248]
and should also set out the terms and conditions upon which personal care is to
be provided to service users.[249] This guide informs the service user
about how the agency operates and what to do if there are any difficulties with
the provision.
2.34
The regulations also
make certain provisions in relation to management and staffing.[250]
The regulations set out requirements in relation to the fitness of all care
workers,[251]
all managers[252]
and all registered persons.[253]
In general, all such persons are required to be of integrity and good
character, physically and mentally fit, and they must provide evidence of
qualifications, references and complete a vetting process.[254] The registered person is required to
ensure that at all times an appropriate number of suitably qualified, skilled
and experienced persons are employed for the purposes of the agency.[255]
The registered person must also ensure that all staff receive training which is
appropriate to the work the they are carrying out,[256] and that if necessary an employee can
be given time off in order to obtain appropriate further qualifications.[257]
2.35
The regulations, by and
large, replicate the provisions set down in the English standards.
2.36
The Welsh standards
form the criteria by which the CSIW will determine whether the agency provides
personal care to the required standard. The standards encourage service users
to do as much as possible for themselves in order to maintain their
independence and physical ability. The text of the National Minimum Standards
for Domiciliary Care Agencies in Wales is heavily based on the English
domiciliary care standards. In fact, for most of the document the exact same
text is used in the Welsh standards as is used in the English standards, with
only slight variations in some parts. Thus, the analysis of the English
standards also applies here, and there is no reason to repeat the discussion
here.
2.37
However, there is one
noticeable difference between the two sets of standards. In the English
standards specific reference is made to the service contract that each service
user must be issued with, which is signed by the service user and the
registered manager of the care service.[258] In the Welsh standards, this “service
contract” is only referred to as a “statement of terms and conditions”.[259]
The two documents are identical, except for their title. Both documents must be
signed by both the service user and the service provider. Both documents must
set out specific information regarding the care arrangement, including the
method of payment, the rights and responsibilities of both parties, and the
processes for monitoring and reviewing the service. There is a slight
difference in the two standards, in that, the Welsh standard requires the
service user to be provided with the statement of terms and conditions before
the service begins.[260]
Whereas the English standards require that the service user be furnished with
the written contract within seven days of commencement of the service.[261]
Perhaps the fact that the English standards refer specifically to a “contract”
places English service users in a stronger position than their Welsh counterparts,
who receive a “statement of terms and conditions”.
2.38
Under the Regulation
of Care (Scotland) Act 2001, Scottish Ministers have the authority to draw
up regulations which may impose requirements on care service providers.[262]
Scottish Ministers established the National Care Standards Committee, which
then became the Care Standards and Sponsorship Branch (CSSB). The CSSB is
responsible for publishing and reviewing national standards for care services.
These standards must be taken into account by the Care Commission when it is
deciding upon any application for registration. The standards are to be used to
monitor care service providers, and to determine whether the providers are
complying with the 2001 Act and the regulations.[263] If, during an investigation by the Care
Commission, it is found that a service provider is not meeting the standards,
then it must make a decision on whether to take enforcement action. In extreme
cases where the service provider does not make any improvements to the service
as directed by the Care Commission, the Care Commission may cancel the
registration of the service provider. In some cases, failing to comply with a
regulation will be an offence. However, failure to satisfy a standard, while
considered to be a serious matter, will not be an offence, but may constitute
evidence of a failure to comply with a regulation, which could be found to be
an offence.
2.39
The Scottish Ministers
have the authority to draw up regulations which may impose requirements on care
services,[264]
in order to secure the welfare of persons provided with a care service.[265]
Such regulations were drawn up in the Regulation of Care (Requirements as to
Care Services) Scotland Regulations 2002. These regulations apply to
domiciliary care agencies. The objectives of these regulations are to promote
and respect the independence and individuality of service users and to provide
the service users with a choice as to the service they receive.[266]
2.40
The regulations provide
for the protection of the health and welfare of service users. Providers are
required to provide their service in a manner which respects the privacy and
dignity of service users.[267]
Service providers are required to prepare a written plan, in consultation with
the service user, setting out how the service is going to meet the needs of the
user.[268]
2.41
The regulations set out
certain requirements in relation to the management and staffing of the care
service. All managers and care workers must be fit to perform the requirements
of their jobs. Persons who are not of integrity and good character, who have
been convicted of a criminal offence, or who have been adjudged bankrupt, shall
be deemed to be unfit to be a care worker or to manage a care service.[269]
Such persons must also be physically and mentally fit, and must have sufficient
skills and experience in order to provide a care service.[270]
2.42
Providers of care
services must ensure that there are sufficient numbers of qualified and
competent persons employed within the agency in order to guarantee that the
needs of service users are met.[271] Service providers must also ensure that
all employees receive appropriate training and assistance to gain further
training.[272]
These requirements ensure that service users receive the best care from
qualified care workers.
2.43
The regulations also
require service providers to keep records of the personal details of service
users and employees.[273] In addition, providers are also required to establish a complaints
procedure to fully investigate any complaints made by a service user or their
representative.[274]
A written copy of the complaints procedure must be supplied to service users
and their representatives if requested[275] and a summary of all complaints made in
a year must be supplied to the Care Commission.[276]
2.44
The regulations set out
certain requirements in relation to the utility of physical restraints on
service users. Service providers must be certain that no service user is
subjected to physical restraint, unless there are exceptional circumstances, or
where restraint is the only practicable method of protecting the welfare of the
service user. Providers are required to maintain a record of any occasion on
which restraint or control has been applied to a user. Full details of the
incident must be included in the report, including the reason why restraint was
necessary.
2.45
The Scottish Ministers
established the Care Standards and Sponsorship Branch for the purposes of
publishing and reviewing national care standards. The Branch operates as a link
between the Scottish Government and the Care Commission. In drawing up
“National Care Standards: Care at Home”, the Branch consulted with various
interest groups, and developed user focused standards. The standards are based
on principles which recognise the rights of service users. The standards seek
to protect the dignity and privacy of the service user and aim to enable
service users to make their own choices when it comes to their care. The purpose
of the standards is to enable service users, or their representatives, to refer
to them in order to determine if they are receiving an appropriate level of
service. Similarly, service providers can refer to the standards in order to
determine what exactly is expected of them when they are providing care.
2.46
The standards can be
organised into different categories; (i) user focused services, (ii) personal
care, (iii) managers and staff and (iv) protection.
2.47
The aim of the
standards is to enable service users to make their own decisions about their
care. Service users are to be presented with an introductory pack that sets out
the objectives of the service, details how the service is to be provided, sets
out the financial arrangement for the provision of the services and sets out
the complaints procedure.[277]
The standards require that a written agreement be drawn up, in consultation
with the service user, setting out how the service will meet the specific needs
of the service user. The terms and conditions of the service provision will be
set out in this agreement.[278]
The agreement takes account of all aspects of the service provision, including
what services exactly are to be provided and what the financial arrangements
are.
2.48
The standards require
that every effort be made by the service provider to encourage the service user
to participate in the care process, and to express their views on any aspect of
the service.[279]
If the service user has communication difficulties, or does not speak English,
then help must be provided to assist the service user in effectively
communicating their views.[280]
The service user may to make a complaint and can expect that it will be dealt
with by the service provider quickly and sympathetically.[281]
2.49
The main focus of the
Scottish standards is on the provision of care in a manner which respects the
service user’s individuality. In this regard, the standards make explicit
reference to the social, cultural and religious beliefs of service users. Care
workers must be informed about, and have respect for, the social, cultural and
religious beliefs of the service user.[282] The care worker must support the
service user in practicing their beliefs and must assist him/her in celebrating
holy days and festivals.[283]
The standards further require care workers to cater to the service user’s food
choices and preferences.[284]
The care worker must cater for any ethnic, cultural or special dietary
requirements that the service user may have.
2.50
The Scottish standards
seek to ensure that personal care is delivered in a manner which respects the
privacy and dignity of the service user. Care workers must have regard for the
privacy of the service user and their homes at all times.[285] Importantly, care workers are required
to ensure that they respect the service user’s dignity and privacy when
providing personal care.[286]
2.51
The standards further
provide that the service provider must draw up a personal plan, detailing the
needs and personal preferences of the service user and how those needs should
be met.[287]
The personal plan will include details such as the service user’s personal
preferences as to food and drink, their social, cultural and spiritual
preferences, their leisure interests and any communication needs. Service users
can ask for their personal plan to be reviewed at any time.[288] These standards ensure that the care
being provided is specifically tailored to the individual service user, and
that they are involved in the process as much as possible. These standards
respect the service user as an individual and promote their independence.
2.52
Service providers are
also required to record the details of any medication needed by the service
user, in their personal plan.[289] The care worker is further required to
maintain a record of the medication administered in the service user’s home. If
a service user is unable to administer their medication themselves, then the
service provider must ensure that arrangements are in place to enable the care
worker to assist the service user with the administration, or to do it for
them.[290]
The standards also require that the care workers have the appropriate skills to
provide the personal care and nursing tasks needed to maintain the service
user’s health.[291]
Where a service user falls ill, the care worker must take the appropriate action,
and contact the emergency services if needed.[292]
2.53
Unlike the English
standards, which make specific and detailed provision in relation to the
protection of the service user, the Scottish standards make little reference to
the protection of service users. Service providers are required to monitor all
aspects of the service, especially the quality of the service.[293]
This is a very vague form of protection. There is no detail as to what
providers are specifically required to monitor and in what way the monitoring
is to be carried out. Providers are also required to ensure that records are
maintained of all financial transactions involving staff members.[294]
The Care Commission can inspect these records at any time.
2.54
In the English
standards, protection of the service user from abuse or exploitation is given a
paramount importance.[295]
The standards recognise the important role that home care workers play in
recognising and protecting people from abuse. Care workers are recognised as
having a key role in minimising the likelihood of abusive situations occurring.
The English standards seek to protect the service user by making detailed
provision relating to safe working practices, by requiring that a risk
assessment be carried out and by making explicit provision relating to the
physical and financial protection of the service user.[296] In comparison to the English standards,
it is clear that the Scottish standards do not go far enough to protect the
welfare of the service user.
2.55
In seeking to ensure
that service users receive a high quality of care that is suited to their
individual needs, the standards set down certain requirements in relation to
the management and staffing of the care service.[297] All staff involved in the home care
service must have the requisite skills and competence to perform the duties of
the service. Furthermore, care workers must be hired through an interview process
and must provide satisfactory references, as well as completing a vetting
process.[298] In addition, staff must have regular training in order to update their
skills. The service must be operated in accordance with all applicable legal
requirements and best-practice guidelines. The service provider must ensure
that the service has policies and procedures to cover the administration of
medication, the recording of incidents and complaints and the management of risk.[299]
2.56
The Domiciliary Care
Agencies Regulations (Northern Ireland) 2007 and the minimum standards for
domiciliary care agencies focus on ensuring that people using the services
provided are protected and that the care being provided is of a certain minimum
standard. Compliance with the regulations is mandatory, and non-compliance with
some specific regulations is considered an offence.
2.57
The Northern Ireland
Department of Health, Social Services and Public Safety has the authority to
impose regulations in relation to establishments and agencies as it sees fit.[300]
This authority was used to set down the 2007 Regulations which came into
operation on the 30th April 2007. These regulations make detailed
provision as to the obligations and responsibilities that domiciliary care
providers owe to the service users. Under the regulations the registered person
must compile a written statement of the aims and objectives of the agency, and
must furnish a copy of this statement to the RQIA.[301] The registered person is also
responsible for producing a written service user’s guide, which records the
details of the care arrangement, including the terms and conditions of the
service provision and the method of payment.[302] One of the greatest responsibilities
that the registered person has is to ensure that the agency is conducted in a
manner that guarantees the safety and well-being of the service users, protects
them from abuse, and promotes their independence.[303] The regulations further require the
registered person to ensure that the service is provided in a manner that
respects the privacy and dignity of service users.[304] A complaints procedure must be established
by the registered person, in order for any complaint made by a service user to
be fully investigated.[305]
A written copy of the complaints procedure must be furnished to the service
user, or to their representative, upon request.[306] The registered person must establish
and maintain a system for evaluating the quality of the services.[307]
These regulations seek to ensure that the service user is protected within the
provision of service, and that they are encouraged to participate in their care
plan
2.58
The regulations make
requirements as to the suitability of all staff involved in the provision of
domiciliary care. Specific measures are set down in relation to the fitness of
registered providers, registered managers and domiciliary care staff in
general. All staff must be of good character and integrity, must be mentally
and physically fit and must satisfy certain prescribed criteria.[308]
They must have the requisite skills and experience to perform their job to a
certain minimum standard. The registered person must also ensure that the
agency is always staffed with a sufficient number of suitably qualified care
workers, so that the agency can fulfil its obligations.[309] In this regard, the registered person
must ensure that each employee of the agency receives training and appraisal,
and is assisted in pursuing further training or qualifications.[310]
2.59
The Northern Ireland
Department of Health may prepare and publish statements of minimum standards in
respect of care providers.[311]
Thus the Domiciliary Care Agencies: Minimum Standards were published in July
2008. These standards apply to both independent and statutory domiciliary care
agencies, but they do not apply to agencies which operate as employment
agencies. These standards give effect to the regulations and are used by the
RQIA, when it is determining the extent to which an agency has met the
regulatory requirements. These standards focus on the quality of care service
users receive and the management of the domiciliary care agency. The standards
cover key areas of service provision and are applicable across various
settings. The standards are measurable through self-assessment and inspection
by the RQIA.
2.60
A major focus of these
standards is promoting quality care that is service user centred.[312]
The aim of the standards is to ensure that the care service is delivered in a
manner which respects the service user as an individual and also empowers the
service user, by encouraging their participation in the provision of the
service.[313]
Records must be kept of all feedback from service users and action must be taken
to address any issues that they may raise.[314] In order to ensure that service users
are encouraged to participate in their care, service providers must supply
prospective service users with a service user’s guide, which contains relevant
information about the agency and the general terms and conditions for receipt
of the agency’s services.[315]
Like standards in other jurisdictions, the Northern Irish standards provide
that each service user must be provided with a written individual service
agreement before the commencement of the service. This is effectively a
contract; it must specify the details of the care service that is to be
provided and the method as to how it is to be provided. The agreement must also
contain the terms and conditions of the service provision and any arrangements
that are agreed in relation to any financial transactions.[316] The standards require that the
agreement is regularly monitored, reviewed and up-dated accordingly.[317]
The standards stipulate that the agency supplying the domiciliary care must
have in place sufficient arrangements to ensure that care workers can manage
medicines in a safe and secure manner. The service user is encouraged to
administer their own medication but, where this is not possible, the care plan
must take account of what procedures are to be followed where assistance is
provided for the administration of medicines.[318]
2.61
The standards make
specific provision with regard to the management of the domiciliary care
agency. The agencies are required to have effective management systems in place
that support and promote the delivery of quality care services.[319]
The purpose of these requirements is to ensure that the business of the agency
operates smoothly, so that the service user receives the best level of care. In
this regard, agencies are required to have a defined management structure in
place that identifies the lines of accountability. The registered person is
required to monitor the quality of services in accordance with the agency’s
written procedures, and is also required to complete a monitoring report on a
monthly basis.[320]
Agencies must also have clear systems in place for record keeping in accordance
with legislative requirements.[321] The standards also make certain
provisions in relation to the recruitment and training of staff. Potential
staff must satisfy specific criteria before an offer of employment will be
made.[322]
The registered manager must ensure that all newly appointed staff have
undertaken training that fulfils mandatory training requirements[323]
and all staff must be monitored and their performances appraised. The aim of
this is to promote the delivery of quality care to service users.[324]
The standards make specific provision for the protection of service users from
abuse.[325]
Procedures for protecting vulnerable adults must be included in the induction
programme for staff.[326]
Care workers are required to complete training so that they are informed about
abuse of vulnerable adults and know the indicators of abuse.[327] The standards require that all
suspected, alleged or actual incidents of abuse be reported to the relevant
agencies in accordance with the procedures developed by the agencies.[328]
Agencies are required to have an adequate complaints system in place to deal
with any issue that a service user may have. This ensures that all complaints
are taken seriously and are dealt with effectively.[329]
2.62
The Northern Irish
standards also make detailed provision requiring the registration of
domiciliary care agencies, though there are no standards setting out specific
requirements, agencies are required to show that they are meeting certain
requirements, prior to agencies and persons being registered. These
requirements include demonstrating that the registered person and the
registered manager are fit to perform their duties.[330]
2.63
The regulations and standards set down in England in relation to
domiciliary care agencies are comprehensive, and form the blueprints for which
other jurisdictions have published their own regulations and standards. The
English standards are user focused and seek to ensure that the health and
well-being of the service user is supported by every aspect of the care
service. The standards flesh out the regulations and set out very clear
processes and procedures that domiciliary care agencies must follow in order to
meet the regulations. The regulations and the standards achieve their
objectives of protecting the service user and promoting their independence.
2.64
The Welsh regulations
and standards, by and large, mimic the English regulations and standards. There
is only a slight variation in the Welsh provisions in the use of certain
phrases or words, but the resulting meaning or intention of the provisions is
the same as the English provisions.
2.65
The focus of the
Scottish standards is very much on the service user as an individual. The
standards seek to ensure that the social, cultural and spiritual beliefs of the
individual are respected.[331]
While the Scottish standards do promote the service user’s dignity and privacy,
they make no provision to protect the service user from elder abuse. Unlike the
English domiciliary standards, the Scottish standards do not make provision for
the organisation of the business.
2.66
The language employed
in the Scottish standards focuses on the outcome of the standard, rather than
the process by which the outcome is achieved. The language is user-focused, and
makes statements such as:
“You are
confident that the service will get in touch with the healthcare services if
you need them to.”[332]
While this
use of language is useful for assisting service users in determining what they
can expect from the service, it makes it difficult for service providers to
know exactly what they must do to comply with the standards. The standards do
not state explicitly how service providers are to meet the requirements. The
English standards are far more detailed than the Scottish standards and they
inform service providers of the exact measures that they must take to comply
with the standards. This makes it easier for service providers in England to
identify what they must do to meet the standards.
2.67
The Northern Irish
standards repeat much of what is set out in the English and Welsh standards. As
with those standards, the Northern Irish standards are user focused and aim to
ensure that the care service is delivered in a manner which respects the
individuality of the service user, and encourages the individual to participate
in all aspects of the care process.
2.68
While the Minister for Health and Children has the legislative authority
to draw up regulations for the
purpose of ensuring proper standards in relation to designated centres, the
section conferring this power has not yet been commenced.[333] Under this section, the Minister could
make regulations in relation to the maintenance, care, welfare and well-being
of persons resident in the designated centre. Such regulations could also make
provision in relation to the care environment and the staffing and management
of the organisation.[334]
HIQA has used its authority to publish standards in relation to certain aspects
of the care service.[335]
It is the intention of HIQA that these standards be used when an inspection of
a service is being carried out. HIQA states that some of the standards are
linked to regulations, particularly in relation to the standard that requires
residential care providers to register. Many of the standards are not linked to
regulations, but are designed to encourage continuous improvement.
2.69
It is important to look at standards already drawn up by HIQA for care
services other than domiciliary care services, in order to determine the issues
which the Irish Authority deems important. In this respect, this section shall
examine the National Quality Standards for Residential Care Settings for
Older People in Ireland and the National Quality Standards: Residential
Services for People with Disabilities, in order to establish the common
themes and issues that the two sets of standards deal with.
2.70
Under the National Quality Standards for Residential Care Settings
for Older People in Ireland, HIQA set down a broad range of standards which
cater for every aspect of the older person’s residential care. The standards
are comprehensive and set down what a person can expect in relation to each
element of their residential care. The standards aim to protect the rights[336]
and quality of life[337] of the
individual, as well as providing requirements for the staffing and governance
of the service. The standards are “person-centred” and encourage the
participation of the individual in every aspect of his or her care.[338]
2.71
Both sets of standards are intended to ensure that those who live in
residential centres receive a good quality and safe service. The standards are
designed to safeguard the rights and interests of older people and people with
disabilities in residential centres, by seeking to enhance their quality of
life. Both sets of standards flow from a human rights perspective. The
standards adopt a person-centred approach to the provision of services,
requiring that the service is designed in a manner that reflects the service
user’s needs, preferences and priorities.
2.72
The standards are broken into themes, and these themes are organised
below in a specific manner. In a note within in the National Quality
Standards: Residential Services for People with Disabilities, HIQA stated
that while the standards were not set out in order of priority, the sequence in
which they occurred was the outcome of careful consideration, reflecting the
views of the service user members of the Standards Advisory Group.[339]
2.73
The concept of quality
of life is central to both sets of standards. The standards seek to ensure that
service users receive a standard of care that respects them as individuals and
encourages them to participate in the decision-making process. Both sets of
standards make provision relating to the service users autonomy and provides
that each individual be encouraged to exercise choice and control over his or
her life.[340]
The service provider must encourage each individual to maintain and maximize
his or her independence.
2.74
Service providers must
ensure that the care being provided respects the previous routines,
expectations and preferences of the service user.[341] This promotes a sense of safety and
security for the individual through regularity and predictability. The
individual’s social, religious and cultural beliefs must be accommodated within
the routines of daily living.[342] The standards also require that the
preferences of the individual are taken into account in relation to meals and
mealtimes.[343]
The service user is encouraged to maintain his or her personal relationships
and the service provider must facilitate this by ensuring that no restrictions
are placed on visitors, except in accordance with the individual’s wishes.[344]
2.75
Both sets of standards
require that the individual’s privacy and dignity are respected.[345]
However, the National Quality Standards: Residential Services for
People with Disabilities classify
the provision relating to privacy and dignity under the “Quality of Life”
section, whereas the National Quality Standards for Residential Care
Settings for Older People in Ireland refer to the service users right to privacy and dignity. The provisions
set down in relation to this right to privacy and dignity are comprehensive,
and more extensive than the provisions set down in the National
Quality Standards: Residential Services for People with Disabilities. Staff are required to demonstrate
their respect for the individual’s privacy and dignity in every aspect of their
interaction. A list of specific occasions when care providers must have
particular regard for the individual’s privacy and dignity, such as dressing
and undressing, is set out. Privacy and dignity are central to promoting the
service user as an individual and as a human being. Perhaps it makes a stronger
statement to consider privacy and dignity under the “Rights” section rather
than under the “Quality of Life” section.
2.76
Both sets of standards
acknowledge that staff working with service users have a significant impact on
the quality of life of those individuals. Thus, both sets of standards make
detailed provision in relation to the recruitment, training and supervision of
staff. The purpose of these provisions is to ensure that service users receive
their care from those best suited to provide it, and that they are protected
from abuse. All staff must be recruited in accordance with best practice,
including the provision of adequate references and proof of qualifications.
They must also complete a vetting process, designed to protect vulnerable
service users.[346]
2.77
Staff are provided with
a continuing training and development programme to ensure that they maintain
their competence.[347]
Service providers must ensure that the service is staffed by a sufficient
number of qualified staff at all times.[348] The Draft Standards further require
that all staff are aware of and adhere to key service policies and procedures
including safe care and medication management.[349]
2.78
Protecting the health
and well-being of the service user is one of the main priorities of both sets
of standards. Both standards require that each service user is safeguarded and
protected from all forms of abuse.[350] The standards require that the service
providers have policies in relation to the prevention, detection and response
to abuse.[351]
Staff must also receive induction and on-going training in prevention,
detection and reporting of abuse, in identifying abuse and understanding the
particular vulnerability of service users to abuse.[352]
2.79
Specific provision is
made in both sets of standards for the financial protection of service users.[353]
Procedures must be put in place so that a record of all financial transactions
carried out by staff on behalf of the individual is maintained.[354]
The service provider must provide facilities for the safe storage of the
service user’s money and valuables.[355] The aim of these provisions is to
safeguard the service user and their finances from all forms of abuse and
exploitation.
2.80
As the standards cater
for the specific needs of different groups of people in different situations,
they will not approach the same themes from the same perspectives. Both
standards require an individual plan to be drawn up in respect of each service
user and in accordance with his/her wishes.[356] The plan must be reviewed and updated
regularly in order to ensure that the care being delivered continues to meet
the individual’s needs.[357]
The standards also make detailed provision in relation to the health needs of
individuals.[358]
The Draft Standards provide that the service user must be encouraged to live
healthily and to take responsibility for their own health.[359] In this regard the service provider
must ensure that the service user has access to health education, information
and practical support.[360]
2.81
In the National
Quality Standards for Residential Care Settings for Older People in Ireland, service providers are required to
have policies and practices that promote the health and well-being of the
service user.[361]
These policies and procedures must be based on current best practice and
developed and reviewed annually.[362] Both standards make specific provision
in relation to the management of a service user’s medication.[363]
Where appropriate, each individual is encouraged to be responsible for their
own medication.[364]
Service providers are required to have policies and procedures in place in
relation to medication management that complies with legislative and regulatory
requirements.[365]
The individual’s medication is monitored and reviewed by his or her medical
practitioner.[366]
2.82
The aim of these
standards is to maintain the well-being of the service user by ensuring that
they receive suitable medication. Maintaining the independence of the
individual is also a central aim of these specific standards.
2.83
The National
Quality Standards for Residential Care Settings for Older People in Ireland
also make provision for end of
life care,[367]
something which the National Quality Standards: Residential Services
for People with Disabilities do not. This is an area that any domiciliary care standards will have to
examine and make provision for. The standards require that each service user
must continue to receive care at the end of their lives, which meets their own
personal needs in terms of physical, emotional and spiritual needs. The end of
life care must respect the service user’s dignity and autonomy. The standards
require that the service user’s wishes and choices regarding end of life care
be discussed and documented and, in as far as is possible, implemented and reviewed
regularly with the resident.[368]
Staff must be trained in end of life care[369] and the residential care setting must
have the appropriate facilities to cater for end of life care.[370]
2.84
Both sets of standards
make special provision regarding the rights of service users as citizens first.
Each service user has the right to have access to information that will assist
him/her in informed decision making.[371] Such information must include the
services and facilities provided an outline of the complaints procedure and
details of those in charge. The National Quality Standards for
Residential Care Settings for Older People in Ireland provide that the rights of service users to
consult and participate in the organisation of the residential care setting
must be reflected in all policies and procedure. The service provider is
required to establish an in-house residents’ representative group for feedback,
consultation and improvement on all matters affecting the residents.[372]
2.85
One of the most
important rights of service users is the right to consent to treatment.[373]
In both standards, service users are presumed to be capable of making informed
decisions.[374] Service providers must have a policy in place that ensures that the
informed consent is obtained from the individual.[375] The service user must be provided with
clear explanations in order to assist him/her in making an informed decision.[376]
The wishes and choices of the service user in relation to treatment and care
must be documented and should be reviewed regularly.[377]
2.86
Service providers are
required to listen to and act upon any complaint made by an individual service
user or his family, advocate or representative.[378] The person-in-charge must ensure that
there is a clear complaints procedure in place that details how a complaint can
be made and to whom, and the stages and timescales of the complaints process
amongst other details.[379]
A record of all complaints should be maintained and should include details of
investigations made into the complaint as well as and any action taken.[380]
2.87
Each service user is to
be provided with an agreement, or contract, that they and the registered
provider must both sign.[381]
This agreement should specify the terms and conditions of the service to be
provided to the individual, and the rights, obligations and liability of the
individual and of the registered provider. The National Quality Standards
for Residential Care Settings for Older People in Ireland require the details of the financial
arrangement for the service to be chronicled in this contract. The National
Quality Standards: Residential Services for People with Disabilities do not require this financial
arrangement to be included in the agreement. The provision for this contract
within a domiciliary care arrangement shall be discussed in more detail in
Chapter 3.
2.88
The standards seek to
ensure that the care that service users receive is provided in an environment
designed to ensure a good quality of life. Specific requirements as to the
physical environment are set out in a detailed list of criteria. These criteria
set out extensive requirements in relation to physical characteristics of the
care home.[382]
The standards also require that the health and safety of each service user is
promoted and protected in order to safeguard the individual’s right to a good
quality of life.[383]
The person in charge must ensure that there are proper health and safety
practices in place and that all staff are educated and trained in all aspects
of health and safety.
2.89
Both sets of standards
set out requirements in relation to the governance and management of
organisations providing the care services. The standards require that the care
services are managed by someone competent and appropriately qualified and
experienced.[384]
The services are to be governed in a manner that meets the needs of each
individual.[385]
Each service provider is required to ensure that there is a mission statement
in place and that appropriate policies are communicated to all parties.[386]
The person-in-charge must fulfil all duties prescribed in the regulations and
standards, and all legislative requirements. The standards require that there
is an internal management structure appropriate to the size and purpose of the
service that identifies the lines of authority and accountability.[387]
2.90
The person in charge
must ensure that all policies, procedures and practices are regularly reviewed
and updated. The person in charge of a residential care service must also
ensure that the quality of care and experience of the residents are monitored
and developed on an ongoing basis.[388] The standards further seek to safeguard
the service user by requiring that appropriate record-keeping policies and
procedures be followed.[389]
2.91
Both the National
Quality Standards for Residential Care Settings for Older People in Ireland
and the National Quality Standards: Residential Settings for People with
Disabilities make comprehensive provisions, the aim of which is to protect
service users through the regulation and monitoring of the care services. Both
sets of standards address common issue and any standards which could be drawn
up in the future for the domiciliary care sector should take these issues into
consideration. It is also worth noting that an Expert Advisory Group and
Governance Group on Services for Older People drew up a set of National Quality
Home Care Support Guidelines in October 2008. These Guidelines have not yet
been fully approved for operation and implementation, and are currently
progressing through the HSE. If they are approved by the HSE, they will be sent
to the Department of Health and Children, for further approval and then they
will be finally published. The Guidelines seek to address the various issues
posed by the lack of regulation for a rapidly expanding domiciliary care
sector. The Guidelines look specifically at the rights of older people, the
need to protect the health and social care needs of older people and also the
staffing, management and governance of domiciliary care providers.
2.92
Due to the unique set
up in which domiciliary care is provided, any standards will need to be
tailored specifically for domiciliary care and cannot be merely transposed from
standards drawn up by HIQA for other areas of the care sector. As there are no
previous or current regulations or standards in place in Ireland for
domiciliary care agencies, the regulations and standards drawn up by other
jurisdictions is useful. Standards from other jurisdictions focus on protecting
the service user and their property, by requiring that policies and procedures
be drawn up in respect of the provision of care and in respect of all financial
transactions. These standards also require that procedures are in place to
ensure the proper organisation and management of the service, so that service
users can rely on a well organised service. It is important to note that where
other jurisdictions have published standards for the domiciliary care sector,
these have been supported by domiciliary care Regulations.
2.93
The standards set down
in Ireland for other elements of the care sector should, in the Commission’s
view, be suitably adapted to the domiciliary care setting. The standards
already in place in Ireland highlight different categories in which standards
are necessary in order to ensure that care is provided in a manner which
promotes the well-being and independence of the service user. Any standards for
the domiciliary care sector should incorporate each of the categories
identified above, and should also be user-focused. Such standards must take
into account the different situations that arises in a domiciliary care
arrangement, in particular the fact that the service is provided within the
service user’s own home. The standards in relation to protection may need to be
stronger than the protection standards afforded to residents of care homes. The
contractual arrangement between the service user and the service provider must
also be considered, and the various rights, responsibilities and obligations of
each party to the contract should be explicitly set out.[390] All standards should have as their
objective the promotion of the quality of care, the protection of the health
and well-being of the individual and should encourage the participation of the
individual in the entire care process. There are some areas which are covered
by the two sets of standards, which may be of less relevance to any standards
for domiciliary care providers, for example the standards on the care
environment. In a domiciliary care arrangement, the care is provided in a
person’s own home, and so it may be considered to be too onerous to set down
standards requiring the care recipient to adapt their home in order to comply
with the standards.
2.94
The Commission has, in
this respect come to the clear conclusion that the standards it proposes for
domiciliary care should be specifically tailored for the domiciliary care
setting, building on existing HIQA standards for the residential care setting.
The Commission also considers that the proposed standards should ensure that
domiciliary care is provided in a manner that promotes the well-being and
independence of the service user in their own home.
2.95
The Commission
provisionally recommends that HIQA publish standards which should be
specifically tailored for the domiciliary care setting, building on existing
HIQA standards for the residential care setting. The Commission also
provisionally recommends that the proposed standards should ensure that
domiciliary care is provided in a manner that promotes the well-being and
independence of the service user in their own home.
3
3.01
The delivery of home
care services raises various issues relating to the safety and autonomy of the
recipient of care (the “service user”). Due to the inherent vulnerability of
people who enter into agreements for the provision of personal care in their
home, detailed measures need to be taken to protect these people. There is a
need for the specific details of the provision of home care as agreed between
the parties to be formally recorded. By documenting the agreed terms and
conditions of the provision of care, both the service user and the service
provider are aware of their respective rights and responsibilities. Part B
examines the concept of the care contract, which will be informed by public
standards. Part C discusses various issues which could form the core provisions
of the care contract. In particular, this section shall examine the competency
of the service provider, the terms and conditions of the provision of care, the
requirement for financial transparency of the arrangement and the various
rights and responsibilities of both parties. Part D concludes with a summary of
the chapter.
3.02
The very nature of the
provision of home care is such that the recipients of the service are
automatically placed in a vulnerable position, as it involves someone entering
their own home and providing them with a service that they need. The fact that
an individual needs some form of care at home highlights their vulnerability
and also the level of trust that they must place in the person or agency
providing the service. The need for domiciliary care can arise where a person’s
ability to care for themselves unaided gradually or rapidly diminishes. People
who receive care at home may not always be able to defend themselves where they
are suffering abuse or neglect. Of course there are many recipients of home
care that will be able to represent themselves. However, in order to protect
all individuals who receive domiciliary care, there should be a type of care
contract, which could be used to by individuals or someone on their behalf to
set out the various terms and conditions of the provision of care arrangement.
3.03
This contract would be
informed by the proposed standards to be drawn up by HIQA. As such, parties to
the care contract would be required to meet whatever standards HIQA sets down.
This would ensure that no individual or agency would be able to provide a
domiciliary care service unless they meet the HIQA standards. In turn, this
would protect the individual care recipient by ensuring that the service being
provided was of a certain standard and quality.
3.04
The care contract may
focus on the competence of the service provider to provide the appropriate
services to meet the needs of the individual. The care contract may also refer
to the specific terms and conditions of the arrangement for the provision of
care. These terms and conditions would set out a minimum standard, which the
service provider would be unable to contract out of. The various policies and
procedures that the service provider has in place in relation to the protection
of the service recipient should also be documented in the care contract. This
care contract would act as a guide for both care recipients and domiciliary
care providers, by identifying what services are to be provided and how they
are to be provided.
3.05
As discussed above, the
care contract should set out certain minimum requirements which the service
provider must meet and which it cannot contract out of. This section shall
examine the issues which could make up the core contractual provisions, by
identifying the components which should make up the core provisions of the
contract. The contract should also ensure that the needs of the service user
are met, that their autonomy and independence are respected, and that he or she
is protected from financial abuse. The care contract will look at the minimum
competence level below which the service provider must not fall. The code of
competence should be set out in the standards. The core provisions of the care
contract should also refer to the terms and conditions of the provision of
care. The policies and procedures that a service provider has in place for
protecting the service recipient should also be detailed in the care contract.
3.06
Under HIQA’s National
Quality Standards for Residential Care Settings for Older People in Ireland,
the registered provider of the residential care home must supply the service
user with a contract within a month of their admission.[391] The National Quality
Standards: Residential Services for People with Disabilities make no reference to a particular
time-frame in which the service provider must provide the service user with the
individual service agreement.[392] In England, the standards require that
the agency providing the care must issue a written contract to the service user
within 7 days of the commencement of the service.[393] The standards drawn up in Scotland,
do not specify any particular deadline in terms of when the written agreement
must be issued to the service user, but it does provide that the written
agreement must include the date that the agreement was made, as well as the
date on which the service starts. This would suggest that the agreement must be
issued to the service user prior to the commencement of the service.[394]
In Wales the standards make an explicit requirement for the agency to issue a
statement of terms and conditions prior to the commencement of the service.[395]
3.07
Where a person
contracts for the provision of home care, he or she must be able to ascertain
whether or not the service provider has the capacity to deliver the service
competently. The delivery of effective personal care services to people living
in their own home requires a clear infrastructure which identifies each stage
of the process of service delivery and provides policies and procedures which
supports practice.[396] The Sale of Goods and Supply of Services Act 1980 provides that where
a person enters into a contract for the provision of any service, he or she can
expect that the service provider has the requisite skill and experience to
deliver the service competently.[397] Where a person is entering into a
contract for the provision of home care, it is even more important to ensure
that the service provider can provide the services competently. In order to
ensure that vulnerable people are adequately protected when they enter into a
contract for the provision of home care, the care contract should make specific
requirements regarding the competency of service providers to provide services.
This would help to protect the service user from abuse by ensuring that the
services provided are provided with due care and skill. Many other
jurisdictions require that specific provisions be set out in these contracts in
order to ensure the quality of the service that is being supplied, this is
discussed below.
3.08
The care contract
should seek to ensure the competence of the service provider by making certain
requirements with regard to the quality of the service being provided. This
will ensure that the service user is fully aware of the degree of skill and
experience of the service provider has. The service user can thus make an
informed decision about whether the service provider will be capable of meeting
his or her needs.
3.09
The National Quality
Standards for Residential Care Settings for Older People make certain
requirements in relation to the skill and qualification of staff. The purpose
of those requirements is to ensure that the care services are delivered in
accordance with the standards and the needs of the resident are addressed by
people with the requisite level of skill and experience.[398] However, the contract between the
registered provider of the residential care setting and the resident does not
stipulate that these requirements must be included in the care contract.[399]
It is useful to examine what requirements are set out in other jurisdictions
with regard to the quality assurance of home care services. The England, the Domiciliary
Care Agencies Regulations 2002 state that the registered person should
ensure that all domiciliary care workers employed by the agency are of good
character and have the requisite skills and experience necessary to fulfil the
role for which they were employed.[400] In giving effect to these
regulations, the English Domiciliary Care - National Minimum Standards require
the contract to set out the processes that the service provider has established
for ensuring that the quality of the home care service is of a certain
standard.[401]
By stipulating that the home care worker has a certain level of qualification,
skill and experience, the regulations and standards seek to ensure that the
quality of the service being provided is of a certain level. Standards in other
jurisdictions simply require that service providers have quality assurance
processes, but do not stipulate that these processes should be included in the
contract as part of the terms and conditions.[402]
3.10
Including such
requirements in the care contract would allow the service user to establish the
competency of the service provider enabling them to determine if the service
provider will be able to meet their needs. In order to offer service users the
highest level of protection, measures must be taken to ensure that the service
provider is capable of providing the service required to a certain standard.
The inclusion of a specific term regarding the quality of the home care workers
and the agency itself, would be a high form of protection for the service user.
3.11
While it is important
to ensure that all home care workers have the requisite qualifications, skill
and experience, it is also important to ensure that all home care workers are
adequately monitored and supervised in the performance of their jobs. Staff may
have the relevant skills and experience, but due to the vulnerable position of
people receiving home care, further monitoring and supervising mechanisms would
offer even greater protection and even greater quality assurance.
3.12
The National
Quality Standards for Residential Care Settings for Older People in Ireland make only basic provisions in
relation to the monitoring and supervision of staff.[403] Under these standards, employers are
required to ensure that all staff receive induction and continued professional
development and appropriate supervision throughout their employment.
Residential care providers are required to assess the competency and skills of
all staff in order to determine if they need more training.[404] The Standards do not require such
provisions to be included in the contract. The recently published National
Quality Standards for Residential Services for People with Disabilities do not
provide extensive requirements in terms of the monitoring and supervision of
staff. The person in charge must ensure that there are systems in place for
monitoring the quality of the service as experienced by the individual.[405]
There is no provision in these standards which requires the individual service
agreement to make provision for the monitoring and supervision of staff. HIQA
has the authority to monitor healthcare providers to ensure that the national
standards are being met. By amending section 8(1)(b) of the Health
Act 2007 to include the home care setting, HIQA’s authority to monitor
healthcare providers could be extended to cover home care agencies.[406]
3.13
In England, extensive
requirements with regard to the supervision of home care workers are placed on
domiciliary care agencies.[407]
Under the Regulations, domiciliary care agencies are required to ensure that
all staff members receive appropriate training and appraisal. Upon such
appraisal, the agency is required to take any measures necessary to address any
unsatisfactory aspect of the care worker’s performance. The Standards specify
that these arrangements for monitoring and supervising staff must be included
as part of the terms and conditions of the care contract.[408] There are similar requirements provided
for under the Domiciliary Care Agencies (Wales) Regulations 2004.[409] The Welsh standards specifically require the terms and conditions of the
contract to specify the arrangements in place for monitoring and supervising
staff.[410]
3.14
Although the standards
of care that have been drawn up in Ireland do not specifically require the care
contract to set out the monitoring and supervision procedures, other
jurisdictions do such monitoring and the implementation of supervision
arrangements. By requiring home care agencies to set out the procedures for the
monitoring and supervision of staff, the care contract would add to the
protection of the service user, by ensuring that each home care worker is being
supervised and assessed on a regular basis. This not only protects the service
user, but also the employee and the agency. By ensuring that regular appraisals
are carried out, the agency can identify if any employee is having difficulty
performing their job, and may offer assistance or further training to remedy
the situation. Regular appraisals also ensure that agencies can adapt to any
change in the condition of the service user.
3.15
It is important that
both parties are aware of what exactly they are contracting for. In any
contract for the supply of a service, the terms and conditions of the provision
of the service are set out in detail. Where a person enters a contract for the
supply of a home care service, the specific terms and conditions for the supply
of the service need to be agreed and formally recorded. This will ensure that
both parties are fully informed of their responsibilities. In contracts for the
supply of home care, it is also important that the contract records what
services are not covered by the contract and the level of flexibility involved
in the provision of the service.
3.16
There is no doubt that
the terms and conditions of the provision of care need to be discussed and
agreed between the service user and the service provider. The changing nature
of the service user’s needs and circumstances should be reflected in the terms
and conditions of the provision of care. The terms and conditions of care
should protect the autonomy and independence of the service user and encourage
their participation in the delivery of care as far as possible. A key issue is
whether the terms and conditions of the provision of care specific to the
individual service user are best dealt with under the care contract or under a
type of service user’s care plan, the terms of which would be established under
national standards.
3.17
It is useful to examine
how HIQA’s National Quality Standards for Residential Care Settings for Older
People treat the terms and conditions of the provision of care. The Standards
require that the contract for services sets out the overall care and services
covered by the fee being charged.[411] Additionally the Standards also
require that the contract takes account of any additional health, personal and
social care services that do not form part of the agreed services.[412]
The Standards do not require the contract to specify any further specific
details regarding the provision of care. However, they do necessitate that the
resident’s care plan sets out in detail how the health, personal and social
care needs of the resident are to be met by the staff.[413] All residents, including those with
a cognitive impairment, must be encouraged to participate in the formulation of
the care plan.[414]
The care plan must be reviewed and updated regularly, to reflect the changing
needs and circumstances of the resident.[415]
3.18
Regulations and
standards in other jurisdictions set down similar requirements with regard to
the terms and conditions of the provision of care. Under the English
Regulations, the general terms and conditions of the provision of care by the
service provider, and the amount and method of payment, must be set out in a
service user’s guide.[416] This service user’s guide provides the service user and potential
service users with information so that he or she can determine whether the
service provider in question has the capacity to meet his or her specific
needs. Furthermore, a service user plan must be drawn up by the registered
person of the agency in consultation with the service user.[417] This service user plan must set out the
specific terms and conditions of home care that the individual service user is
to receive. This form of individual care plan ensures that the specific needs
of the service user are met.
3.19
The Domiciliary Care –
National Minimum Standards go further than HIQA’s National Quality Standards
for Residential Care Settings for Older People in terms of required terms and
conditions of the care contract. Under the Domiciliary Care – National Minimum
Standards, the contract must specify the areas of activity which home care or
support workers will and will not undertake and the degree of flexibility in
the provision of personal care.[418] This may include any special needs,
medical or otherwise, communication requirements and other specific details of
the provision of personal care. For example, if a person needs assistance
getting in and out of bed, getting dressed and/or undressed, bathing and/or
using the toilet. By recording these specific aspects of care, the service user
knows exactly what services he or she will be receiving, and what services will
not be covered by the contract. It should be noted that this requirement for
the contract to take account of the specific details of the provision of care
is not founded on any regulation in England.[419]
3.20
The Commission
provisionally recommends that the terms and conditions of the provision of care
be agreed and recorded in a care contract, in order to offer the maximum
protection to the service user.
3.21
People who enter into a
contract to receive care in their own homes are in vulnerable positions. They
are inviting home care workers into their own homes, and as such need to be
given assurances that they will be protected in their own homes, and that their
safety will be in no way compromised. Issues such as the entering and leaving
the home, and key-holding arrangements are important in the context of
protecting service users who receive home care. Another important issue is the
handling of the service user’s money and personal property. Clear arrangements
regarding these issues should be agreed between the parties.
3.22
The issue of the
handling of the service user’s property and money is even more important in the
context of home care provision, as service users are even more exposed than
those in a residential care setting.
3.23
It is important to look
at the regulations and standards in place in other jurisdictions, to appreciate
how these issues are dealt with in a home care setting. In England, the
regulations do not make any specific requirements in relation to entering and
leaving the home. However, the Standards provide that the care contract must
specifically include details of the arrangements agreed for entering and
leaving the home and any key-holding arrangements.[420] The Welsh Standards also require that
the statement of terms and conditions for the provision of care from an agency
must specify the key-holding arrangements, and any other arrangements for
accessing the home.[421]
3.24
The English Standards
go on to set out further requirements in relation to entering and leaving the
home.[422]
These protocols set out specific details including; knocking/ringing a bell;
speaking out before entering the home/room; written and signed agreements on
key-holding; safe handling of keys; alternative arrangements for entering the
home; securing doors and windows and action to take in the case of lost or
stolen keys.[423]
These comprehensive provisions set out the specific terms and conditions that
the contract must set out in relation to accessing the home and key-holding arrangements.
The Welsh Standards also make similar provisions to protect the service users
and to ensure that they are safe and secure in their own homes, though they do
not set out the any specific details that the contract must include.[424]
Both the English and Welsh standards for domiciliary care agencies make
specific requirements in relation to identity cards of staff members.[425]
These provisions offer further protection to vulnerable people who receive care
at home.
3.25
The Commission
provisionally recommends that the care contract should contain specific
policies in relation to the entering and leaving of the service recipient’s
home by the carer.
3.26
Due to the private
setting in which home care is provided, the care contract should set out more
precise details in terms of the handling of a service user’s money and property
than is required under HIQA’s standards for residential care. The Commission
previously examined the issue of financial abuse in its Report on Vulnerable
Adults and the Law. The Commission recommended that, in the case of a
person whose capacity was limited or absent, it was appropriate that carers
could have a “general authority to act” that is to carry out routine acts for
such persons, including in connection with financial matters, where that was in
the interest of the adult in question.[426] This general authority was included in
the Commission’s draft Scheme of a Mental Capacity and Guardianship Bill 2008
in the Report and has been incorporated into Head 16 of the Government’s Scheme
of a Mental Capacity Bill 2008, published in 2008.[427]
3.27
The Commission notes
that provision for a general authority to act does not apply to all financial
arrangements made between a carer and an adult who may be vulnerable. It is
therefore, necessary to examine what standards are required in this wider
context.
3.28
The National Quality
Standards for Residential Care Settings for Older People in Ireland provide
that the finances of the resident must be safeguarded. Registered care
providers are required to have a clear policy and procedure regarding the
management of resident’s accounts and personal property.[428] The standards require that where staff
members handle any money belonging to the resident, signed records and receipts
must be kept, and where possible these must be signed by the resident or a
representative.[429]
The care provider must ensure that there are secure facilities in which the
resident’s money or other valuables may be kept[430] and a record must be maintained of all
such items.[431]
The Standards do not require the contract to take account of these provisions,
rather service providers are required to establish policies and procedures to
ensure that service user’s finances and personal property are protected.
3.29
The English Standards
set out detailed requirements which must be followed where the registered
person is drawing up policies and procedures for staff who are handling service
users’ money and property.[432]
These provisions cover situations where the care worker is handling the service
user’s finances to pay for a service or bill, for example or to pay for
shopping or to collect the service user’s pension. The Standards also set out
situations in which the care worker may not handle the service user’s money,
including the borrowing or lending of money by the service user, the offering
of gifts or cash by the service user and the sale or disposal of goods
belonging to the service user.[433]
3.30
Both the English and
Welsh Standards require that a record must be maintained in the service user’s
home of all financial transactions undertaken on behalf of, or support given
to, the service user.[434]
The Scottish Standards set out basic provisions for the recording of financial
transactions, but do not make the same detailed requirements that the English
and Welsh standards do.
3.31
There is nothing in
either the English or Welsh standards which requires financial protection
provisions to be included in the terms and conditions of the care contract. The
standards do require clear policies and procedures to be drawn up in order to
offer the service user financial protection. There is a provision in the
English Standards which requires the care contract to take account of the liability
of each party if there is any damage occurring in the home.[435] This could be interpreted as including
damage to the personal property of the service user.
3.32
The Commission
provisionally recommends that the care contract should contain clear policies
and procedures in relation to the handling by the carer of money and personal
property of the service recipient. The Commission also provisionally recommends
that there should be clear policies in place regarding the refusal of gifts
from the service recipient.
3.33
The over-prescription
of medications, particularly of anti-psychotic medication for people with
dementia, is a major difficulty in the care of vulnerable adults.[436]
Medicines are sometimes used in the care environment as a tool for managing
service users and ensuring that the care of people with dementia is easier for
staff.[437]
The responsibility for the administration of medicines for older people in care
settings very often rests with care staff, but many lack sufficient experience
or knowledge of the management of medicines. This may lead to errors occurring,
particularly when the care workers have not received adequate training in the
safe practice of administering medicines. The Leas Cross report, found that
although regular medication review is a standard part of the care of older
people. This was not followed in Leas Cross, and nearly all prescriptions were
written in a different handwriting to that of the doctor’s signature. No
written policy was offered to support regular medication review.[438]
3.34
In Ireland residential
care providers are required to establish policies and procedures for the
management of medication.[439]
The Standards require that records are kept to account for all medicines
received and administered.[440] Staff must adhere to procedures for the safe administration of
medication, for prescription, supply, receipt, self-administration by
residents, recording, storage, handling and disposal of medicines that accord
with legislation and professional regulatory requirements or guidance.[441] Residents may self-administer their own medication, and staff must
promote the resident’s understanding of their health needs as they relate to
medication.[442] All medication errors are recorded, reported and analysed.[443] The Standards also provide that the residential care setting must
monitor and review the resident’s medication programme every three months. This
is to protect residents from unnecessary illness caused by excessive,
inappropriate or inadequate consumption of medicines.
3.35
In England, where a
domiciliary care agency arranges for the personal care of a service user, these
arrangements must specify the circumstances in which a domiciliary care worker
may administer or assist in the administration of medicines to the service user
and the procedures to be adopted in these circumstances.[444] The Domiciliary Care Standards in
England do not specifically require that these arrangements for the management
of medicines be documented in the care contract. However, the care contract is
required to specify any:
“areas of
activity which home care or support workers will and will not undertake and the
degree of flexibility in the provision of personal care...”[445]
This provision
could be interpreted as including the management and monitoring of the
administration of medication to home care recipients. Furthermore, the English
Standards require that the registered person of an agency must ensure that
there is a clear written policy and procedure which identifies the parameters
and circumstances for assisting with medication and health related tasks, the
limits to assistance, and tasks which may not by undertaken without specialist
training.[446]
Staff may only assist with the taking of or the administration of medication,
when it is within their competence and they have received any necessary
specialist training. The service user must also give his or her informed
consent.[447]
3.36
HIQA’s Standards for
Residential Care Settings for Older People in Ireland set out specific
requirements in relation to the management and administration of medication.
The standards also make certain requirements in relation to the monitoring and
review of medication management. However, there is nothing which requires the
monitoring of medication to be included in the contract.
3.37
Under recent
legislation, a nurse who works for a health service provider in a nursing home
or in a private home where the health service is provided has the authority to
prescribe medications.[448]
There are certain conditions attached to this authority namely that the
medicinal product must be one that would ordinarily be given in the usual
course of the service, and the prescription must be one that would be issued in
the usual course of the provision of that health service. This development
highlights the importance of monitoring the administration of medications to
home care recipients.
3.38
Given the vulnerable
position of people receiving home care services and the importance of
preserving their independence and autonomy, the issue of administering
medication is important. The arrangements agreed by both the service user and
the service provider should include details of the administration and
monitoring of medication. This would help to identify any mis-management of
medicines, and would help to ensure that medicines are used as part of a proper
treatment plan, and not to control unruly service users. This would also help
to make certain that service users are protected from abuse and that their
autonomy and independence is respected.
3.39
The Commission
provisionally recommends that the care contract should set out specific policies
and procedures in relation to the management of a service recipient’s
medication.
3.40
A contract is a legally
enforceable document. Each party to a contract can rely on this document to
make sure that the other parties comply with their responsibilities under the
contract. If one party breaches the terms and conditions of the contract, then
the other party can take legal action to enforce the contract.
3.41
In order to protect
service users and to further ensure the quality of the service being provided,
a robust complaints procedure must be in place to deal with complaints made by
service users or somebody on their behalf. The complaints procedure should take
account of the inherent vulnerability of those receiving care in their own
homes and their general reluctance to make a complaint. For this reason, it is
important that the complaints procedure is set out clearly, and is accessible
to the service user. The procedure should ensure that any formal complaint is
investigated efficiently, and any appropriate action is taken.
3.42
In Ireland the National
Quality Standards for Residential Care Settings for Older People in Ireland, state that any complaint made by a
resident (service user) or someone on their behalf, must be acted upon, and
fully investigated.[449]
The standards detail specific requirements with regard to the operation of the
complaints procedure.[450]
However, there is no requirement under these standards for the complaints
procedure to be included as part of the terms and conditions of the contract of
care.
3.43
Under the English Domiciliary
Care Agencies Regulations 2002, all agencies providing home care must have
a complaints procedure in place to deal with complaints made by the service
user or someone on their behalf.[451] A written copy of the complaints
procedure must be given to each service user.[452] The registered person of the agency has
28 days in which to take action to deal with a complaint and he or she must
also maintain a record of each complaint and any steps taken to deal with the
complaint.[453]
The English standards set out further details that the complaints procedure
must take account of, such as record keeping and timescales for the process.[454]
The English and Welsh standards require that the complaints procedure is set
out in the service user’s guide, but do not require the procedure to form part
of the terms and conditions of the contract or agreement for care. [455]
3.44
Due to the inherent
vulnerability of many recipients of home care, and potential mental capacity
issues, the Commission wishes to ensure that vulnerable adults do not have to
utilise the courts system in order to enforce the terms and conditions of their
contract of care. In its Report on Vulnerable Adults and the Law, the
Commission recommended the establishment of a new independent Office of Public
Guardian.[456]
The current Draft Scheme of Mental Capacity 2008 as published by the
Department of Justice mirrors much of the recommendations of the Commission’s
Report. The Scheme provides for the establishment of an Office of Public
Guardian, to oversee and supervise the arrangements for substitute
decision-making for adults who lack capacity.[457] One of the key functions of the Office
would be to enable the Public Guardian to deal with representations (including
complaints) regarding the manner in which a donee of an enduring power of
attorney or a personal guardian appointed by a court, is exercising his or her
own powers.[458]
Where an
individual has entered a contract for the provision of services, and is
concerned that the service provider has breached the terms and conditions of
the contract to the extent that the health and well-being of the individual may
be compromised, then a complaint should be made to the Office of the Public
Guardian. In light of the vulnerability of those who receive home care and the
need to avoid the adversarial courts system, the Commission considers that the
powers and functions of the Public Guardian could be extended to enable the
Office to provide for those vulnerable adults who have not executed an enduring
power of attorney, or a court appointed personal guardian. This would allow the
Public Guardian to receive and deal with representations and complaints
regarding the domiciliary care being provided to individuals. The extension of
the function of the Public Guardian would enable vulnerable adults to resolve
any issue there may be over a breach of the contract without having recourse to
the adversarial courts system. Instead any issue about the breach or alleged
breach of a contract for the provision of domiciliary care could be referred to
the Public Guardian.
3.45
The care contract
should protect individuals and domiciliary care providers alike, by setting out
the certain terms and conditions of the provision of domiciliary care services,
as agreed between the parties. These terms and conditions should refer to the
competence of the service provider, and its ability to provide the appropriate
services to meet the client’s needs. The specific details about the provision
of the care services should also be set out in the care contract. This would
ensure that each party knows exactly what services are to be provided and what
services are not to be provided. Any agreed policies and procedures that relate
to the protection of the service recipient, including any complaints procedure
and any agreed policy on the administration and management of the service
recipient’s medicines should be included in the care contract.
3.46
The care contract must
be informed by public standards as set out by HIQA. This care contract should
set out general policies and procedures in relation to specific aspects of the
provision of domiciliary care. In particular certain issues such as protection
and medication management should be covered by the care contract, in order to
ensure that the vulnerable adult is adequately protected.
3.47
The Commission turns in
the next chapter to the contracting arrangements for the provision of
domiciliary care services.
4
4.01
In this Chapter, the
Commission discusses the different contracting arrangements that may be
involved in the provision of domiciliary care services. It is important that
the legal effects of these different arrangements on all parties - the State,
service providers and service recipients - are clearly understood. In particular,
the Commission notes the significant different effects of being, on the one
hand, an employer of a service provider and, on the other, engaging a service
provider as a contractor. The Commission discusses this distinction in Part B.
In Part C, the Commission examines the importance of ensuring that the
contracting arrangements for the provision of domiciliary care services are
transparent. The Commission discusses in this respect the different types of
financial contracting arrangements that may be in place, ranging from complete
or part-financing by the HSE, State subventions, complete or part-payment by
the service recipient to the HSE, related tax treatment and completely private
arrangements by the service recipient with care providers. In Part D, the
Commission discusses the impact of the responsibilities that arise under
employment law on domiciliary care contracts. In Part E, the Commission
examines the situation where a person’s mental capacity may affect an
individual’s ability to enter into a contract.
4.02
It is extremely
important to know who is the employer of a domiciliary care provider, because
this carries significant legal responsibilities. The employer must comply with
many statutory obligations under employment legislation,[459] including providing a written contract
of employment, compliance with working time obligations (such as limits on
hours of work, holidays and maternity leave) and safety and health
requirements. In addition, the employer is responsible for relevant social
welfare and tax returns for employees.[460]
The Commission discusses these obligations in Part D.
4.03
In the context of
domiciliary care provision, the HSE is currently the largest employer in this
respect as it employs a large number of individuals who provide professional
home care organised through the HSE community care system. As the Commission
has already noted, a number of private sector businesses have also become
engaged in providing domiciliary care in Ireland in recent years, and these
businesses would also be seen as employers in this respect.
4.04
In general, therefore,
service recipients would not ordinarily be employers of the individuals who
provide domiciliary home care, because those individuals are already employees
of, for example, the HSE or the private sector home care providers. There may,
however, be situations where a service recipient could become an employer and
it is important to discuss the way in which the law determines this. For the
purposes of employment law, an employer is a person who enters into a “contract
of service” with an individual; the employer usually also pays an employee an
agreed wage or salary, often paid weekly or monthly. By contrast, if a person
agrees a fee rather than a wage for an individual’s, or a company’s, services –
called a “contract for services” – the person paying the fee does not become an
employer. Instead, if an individual is providing the services he or she is
usually regarded as a self-employed “independent contractor” and, if the services
are provided by a company, the company is the employer of the individual who
actually comes into the client’s home to provide the domiciliary care.
4.05
It is clear that, in
most existing arrangements involving domiciliary care, a service recipient is
not the employer. The recipient could, however, be an employer if he or she
were to enter into a direct contractual arrangement with an individual on the
basis that, in return for the individual providing 6 hours domiciliary care per
week, the care recipient would give the carer €150 per week. The care recipient
and the care provider might not have said to each other “and, of course, this
is a contract of employment” but in legal terms that is the effect of the
contractual arrangement. The Commission emphasises that, in the majority of
existing arrangements for domiciliary care, the HSE or private sector care
providers are clearly in the position of employer but it is important to
understand why this is so.
4.06
Although there are no definitive
criteria for determining whether a contract is one “of service”
(employer-employee) or “for services” (engaging an independent contractor) some
relevant factors include those mentioned such as payment arrangements, working
hours and the degree of control over the individual engaged. In Henry Denny
& Sons Ltd v. Minister for Social Welfare[461]
the Supreme Court agreed that various tests can be applied in this respect and
that no single factor is definitive. The 2007 Code of Practice for
Determining Employment or Self-Employment Status of Individuals[462]
provides a list of detailed criteria, which are based on the key economic
question: “Is the person a free agent with an economic independence of the
person engaging the service?” The Code of Practice does not have statutory
force but states that an individual would normally be an employee if he
or she:
·
is under the control of another person who directs as to how, when and
where the work is to be carried out
·
supplies labour only
·
receives a fixed hourly/weekly/monthly wage
·
is not exposed to personal financial risk in carrying out the work
·
does not assume any responsibility for investment and management in the
business
·
does not have the opportunity to profit from sound management in the
scheduling of engagements or in the performance of tasks arising from the
engagements
·
works set hours or a given number of hours per week or month
· works for one person or for one business
· receives expense
payments to cover subsistence and/or travel expenses
·
is entitled
to extra pay or time off for overtime
4.07
These criteria support
the view that the majority of domiciliary care arrangements would not involve
the care recipient being an employer.
4.08
Indeed the Commission
considers that, even in the relatively small percentage of cases where an
individual wishes to enter into an arrangement to purchase domiciliary care
services from an individual carer, it should be possible for this to be done
through an intermediate body, whether the State in the form of the HSE or a
private sector provider who would arrange for the provision of care with the
individual domiciliary carer and also be regarded as employer. Of course,
individuals remain free to take on the responsibility of being the employer but
the Commission considers that it might be appropriate for there to be a choice
available in this regard, and it invites submissions on this issue.
4.09
The Commission
provisionally recommends that an individual who wishes to enter into an
arrangement for the provision of domiciliary care services should have the
option to contract with an intermediary, whether a State body or a private
sector body, who would arrange for the provision of care and who would assume
the responsibilities of an employer towards the domiciliary carer.
4.10
In this Part the
Commission discusses the need for transparency in the contractual arrangements
for the provision of domiciliary care. This is especially important to ensure
that the employment status surrounding the parties is well understood. There is
the added dimension that many of those who need domiciliary care services are
potentially vulnerable to abuse, including financial abuse. In this regard, it
is important that any contractual arrangements be based on a template, related
to the proposed national standards to be developed by HIQA, and should identify
such matters as the various contracting parties, including the recipient and
provider of the care services, the financial arrangements between the parties
and the specific services covered by, and those excluded by, the contract.
4.11
It is clear that any
template-based care contract should identify the contracting parties. On one
side of the arrangement, the contract must identify the party that is providing
and charging for the service. This could be the HSE, a voluntary organisation,
a private domiciliary care agency or an individual professional. On the other
side of the arrangement, the party that is receiving the service must be
identified. The contract should also identify the party paying for the service,
who may be the service recipient themselves, someone on his or her behalf, or
the State, through the HSE. The Commission turns to examine the various methods
that might be involved in this respect.
4.12
Where the HSE
completely funds and directly provides the home care, the service user will not
be involved in the financial arrangements concerning the care contract. If the
HSE purchases care from some other care provider, the care contract will be
agreed between the HSE and that care provider. In such a case, the Commission
considers that the HSE and the service provider should consult with the service
user in order to ascertain their wishes and desires regarding their care, and
to ensure that the service user is involved in the decision-making process.
4.13
The HSE may also
part-finance the provision of home care, for example through the administration
of a home care package, or some other payment. Under the current Home Care
Support Scheme, home care may be provided by
voluntary and community organisations on behalf of the HSE. In some instances,
a package might have consisted of a financial package which the service user
could then use to engage a private carer or home help service. The Commission
understands that this form of cash grant home care package is rare, and is no
longer available in many HSE areas. In any event, it is important that there is
a formal record of any financial arrangement and that, where the State is
part-financing the provision of care, this must also be recorded.
4.14
In its 2005 Care for
Older People Report, the National Economic and Social Forum (NESF)
strongly supported the concept of community-based subventions towards the care
needs of those in community settings.[463] The NESF submitted that the development
of community-based subventions should be considered in the context of the
overall policy of promoting care at home.[464] The NESF recognised that
community-based subventions are advantageous, as they support older people’s
preferences for living at home for as long as possible, in line with the policy
objective outlined in the social partnership programme Towards 2016.
Community-based subventions are generally cost-effective in comparison to the
cost of nursing homes or extended hospital stays.[465]
4.15
The Nursing Homes
Support Scheme Act 2009 establishes a scheme which aims to provide a
uniform system of financial support to individuals in long term residential
care services, often referred to as the “fair deal” scheme. The purpose of the
scheme is to ensure that no one would be put in a position where they have to
sell their home during their lifetime in order to fund their care. The scheme
also contains safeguards to ensure that, where the spouse or partner of an
individual who seeks State support remains living in the principal residence,
he or she retains enough income to live comfortably and does not have to sell
or mortgage the home to provide for themselves.[466] In the Oireachtas debates on the 2009
Act, the issue of extending the support scheme to incorporate community-based
services was raised. While this is not included in the 2009 Act, it is clear
that an extension of the scheme to community-based care is consistent with
Government policy.[467]
4.16
Under the 2009 Act
individuals who apply for State assistance to help cover the cost of their
care,[468] can choose
between public or private nursing homes.[469]
Where a person chooses a public nursing home, their assessed contribution[470]
is paid to the HSE, and the State pays the balance. Where an individual chooses
a private nursing home, their contribution is paid to the private nursing home,
and the State pays the balance of the cost of care to the private nursing home.
The Commission endorses this approach to financing the cost of care. Nursing
homes who wish to be placed on the HSE’s list of approved facilities under the
2009 Act apply to the National Treatment Purchase Fund (the NTPF).[471]
The NTPF then negotiates the cost of the service with the applicants, and then
enters into an Approved Nursing Home Agreement, which contains the details of
the financial arrangements. Once this is completed, the NTPF then provides the
HSE with a list of providers with which it has an Approved Nursing Home
Agreement.
4.17
Under the 2009 Act,
people availing of residential care will make a contribution towards the cost
of their care in accordance with their means. This figure will not exceed 80%
of a person’s assessable income and 5% of the value of his or her assets,
including his or her principal residence.[472] After their death, and the death of
their spouse or partner, if any, a maximum of 15% of their estate will be paid
to the State in the form of a deferred contribution. Where a person selects a
public nursing home, their contributions are made payable to the HSE, with the
State funding the remainder of the bill. If a person selects a private nursing
home, they pay their contribution to the nursing home, and the State pays the
remainder of the cost.
4.18
The Commission
acknowledges the positive impact that the Nursing Homes Support Scheme Act
2009 will have in bringing about greater clarity and protection to older
persons in residential care settings, as well as to their spouses and partners.
The Commission supports the views expressed in the Oireachtas debates on the
2009 Act,[473]
and previously by the NESF, that community-based subventions should be
incorporated into the overall policy for care of older people. This would
advance stated government policy to support older people to remain in their own
homes for as long as is possible, and to support community-based care.[474]
4.19
The Commission
invites submissions as to whether a subvention arrangement, comparable to that
for nursing homes in the Nursing Homes Support Scheme Act 2009, should be
extended to community-based provision of domiciliary care.
4.20
The HSE is currently
responsible for providing domiciliary care in accordance with the various
community-based home care packages already in place. If a person wishes to
apply for domiciliary care from the HSE, he or she usually contacts the public
health nurse at their local health office. The public health nurse then
assesses the needs of the individual, and makes a determination as to what, if
any, domiciliary care services the individual needs. The Commission understands
that in some HSE areas, the public health nurse assesses individuals and then
classifies them into different categories depending on their level of need. In
general, those with a medical card, who have high dependency needs, as well as
some people with terminal illnesses receive a home care package. Individuals
are entitled to have their needs assessed, but they are not entitled to receive
the services that they are assessed as needing. Thus, public health nurses have
a significant role in whether a person receives home care from the HSE.
4.21
Where a person is in
need of domiciliary care and has the means to purchase the care themselves,
they have the option of either entering into a contractual arrangement with a
private domiciliary care agency or an individual professional carer. As already
discussed above, where a person has the means to purchase domiciliary care the
option should be available of entering into a contractual arrangement directly
with the HSE to purchase the services from the HSE or from some other agency or
individual professional through the HSE. This option would be a mirror
image of one version of the Home Care Support Scheme which, as discussed in
Chapter 1, can involve the HSE providing a cash grant to individuals to enable
them to purchase care services privately. If individuals were able to contract with the HSE for the provision of
domiciliary care services, this could greatly assist the care
recipients, some of whom are vulnerable, including in terms of potentially
having responsibilities as an employer were they to enter into an employment
contract (contract of service) with an individual professional carer. The care
services could include those typically involved in a care package, such as
physiotherapy, chiropody, occupational therapy, speech therapy and general home
help services, as well as professional carers providing personal care. The HSE
could initiate a tender process for the different areas, in which providers who
are registered with HIQA would be able to offer their services. The HSE would
also be in a position to negotiate better rates than would be likely for an
individual, thereby ensuring that the individual gets the best service for the
best value. This would also ensure that the HSE has a record of all people
providing services to older people with whom it has a contract with. This would
also allow the individual to choose their care provider from a list of service
providers. By allowing individuals to purchase care services from or through
the HSE, they can fund their care themselves, while avoiding any potential responsibilities
under employment law.
4.22
The Commission
provisionally recommends that an individual who wishes to pay for the provision
of domiciliary care services should have the option to contract directly with
the HSE for such services.
4.23
In order to ensure that
a person receives the appropriate domiciliary care that is appropriate to his
or her needs, it is important that an assessment of need is conducted. This
assessment would identify the specific needs that the individual has, and would
allow the service provider to determine how best to meet those needs. In
2007, the National Disability Authority published Standards for the
Assessment of Need,[475] which HIQA
then adopted after it was established.[476]
The standards represent a new approach to assessing the needs of eligible
persons with disabilities and/or special educational needs for health and/or
educational services.[477] The
standards set down the desired and achievable levels of performance against
which actual performance can be measured.[478] The aim of the standards is to ensure that each assessment
is “person-centred”, in other words, that each assessment is conducted in a
manner which focuses primarily on the individual being assessed.[479]
In promoting the “person-centred” approach to the assessment, the standards
provide for the participation of the individual in the assessment process.[480]
Throughout the assessment, the individual must be appreciated and their dignity
and privacy must always be respected.[481]
The assessment process must be kept as simple, efficient and accessible as
possible, and the individual must be kept fully informed about all aspects of
the process.[482] The
assessor must, in addition to being suitably qualified and having the relevant
experience, have up to date Garda Vetting Clearance.[483]
This is essential, as any person who is carrying out an assessment of need will
be in close contact with vulnerable persons.
4.24
While there are standards in place to assess the need of persons with
disabilities for health and/or educational services in Ireland, there are
currently no standards by which the need for domiciliary care can be assessed.
Where the HSE is providing, or co-ordinating the delivery of, the domiciliary
care, the individual concerned is entitled to an assessment of need. However,
if a person enters into a private arrangement for the provision of care, then
an assessment of need may be carried out to assess the services they require.
If an individual can afford to pay for those services directly then he or she
should be facilitated in obtaining the services.
4.25
While the Commission considers that this aspect of the Consultation
Paper is worthy of discussion, it has concluded that the issue of assessment of
need in the context of the provision of domiciliary care is a matter of policy
which is ultimately a matter for Government to determine. In those
circumstances, the Commission does not consider it appropriate to make any
recommendation on this topic.
4.26
State benefit in the form of tax relief is also available to a person
who pays for residential care, but this relief is currently not available to a
person who pays directly for professional domiciliary care. Tax relief is
available to an individual in respect of health expenses incurred in a tax
year. The amount of relief generally available for health expenses is equal to
the standard rate of tax and such expenses would include medical procedures and
drugs. Health expenses are defined in section 469 of the Taxes Consolidation
Act 1997 as including expenses incurred in relation to maintenance or
treatment in a nursing home, and where it is proved that an individual has
incurred nursing home fees the tax relief is more generous. The 1997 Act
provides that the individual is entitled, for the purpose of ascertaining the amount
of the income on which he or she is to be charged income tax, to have a
deduction made from his or her total income of the amount proved to have been
defrayed on fees paid to a nursing home. There is, however, no similar tax
relief available to a taxpayer who incurs expenditure for domiciliary care in
his or her own home.[484] In
the Commission’s view, this appears to be inequitable and, moreover, not to be
consistent with stated government policy to encourage community-based care. For
that reason, the Commission has concluded that section 469 of the Taxes
Consolidation Act 1997 should be extended to provide for tax relief for
fees incurred by an individual in meeting the cost of domiciliary care.
4.27
The Commission provisionally recommends that section 469 of the Taxes
Consolidation Act 1997should be extended to provide tax relief for fees
incurred by an individual in meeting the cost of domiciliary care.
4.28
Where a service user
enters into an agreement with a private sector home care provider and pays for
the cost of the service themselves the Commission considers that, consistently
with the position where the service is provided through the HSE, the contract
should set out specific details of this financial arrangement. Issues such as
the amount of the cost of care, the method of payment and the regularity of
such payments should be agreed between the parties and recorded in the
contract.
4.29
As discussed in Part B,
where an individual uses their own funds (or, less commonly, a cash grant
provided through a home care package), to contract with a private domiciliary
care agency, he or she does not take on the status of employer. The domiciliary
care agency that employs the professional carer remains the employer, and the
contract between the individual care recipient and the domiciliary care agency
is, as discussed in Part B, a contract for services.
4.30
In order to ensure
financial transparency, the Commission is of the view that such a contract for
care should identify the contracting parties and that it should formally set
out the financial arrangement for payment for the service.
4.31
Where a service user
chooses to contract with an individual professional carer for domiciliary care
services, it may be that, in accordance with the 2007 Code of Practice for
Determining Employment or Self-Employment Status of Individuals,[485]
the service user could also be taking on the status of employer. If, for
example, the carer is under the control of the service recipient, if he or she
receives a fixed wage and works set hours, supplies the labour only and not any
materials, the carer is likely to be considered to be the employee of the
service recipient. It may be that these situations are likely to represent a
minority of cases where domiciliary care is sought and provided, but in the
Commission’s view they also highlight a potential set of situations to which
the proposed national standards to be developed by HIQA might not extend
because the care provider may not be registered as such. This reinforces the
importance of having in place the option for service recipients of being able
to contract directly through an intermediary, whether private sector or the
State, for the home care service provision. The Commission has therefore come
to the conclusion that there should be public education of the fact that a
service user could be regarded as an employer of a professional carer if the
service user does not contract directly through an intermediary, whether private
sector or the State, for the provision of professional domiciliary care.
4.32
The Commission
provisionally recommends that there should be public education of the fact that
a service user could be regarded as an employer of a professional carer if the
service user does not contract directly through an intermediary, whether
private sector or the State, for the provision of professional domiciliary
care.
4.33
The scope of the
domiciliary care contracts to which the proposed national standards to be
developed by HIQA will apply is, it should be noted, limited. They will not
extend, for example, to other home-related work which a home owner may enter
into, such as general cleaning, electrical maintenance or gardening. These
contracts will, of course, give rise to questions as to whether the home owner
is an employer of, for example, the cleaner (contract of service) or has
engaged the cleaner as an independent contractor (contract for services). These
contracts would be outside the terms of reference of the proposed national
standards for domiciliary care to be developed by HIQA. The Commission
considers, however, that such arrangements could be subject to the general
supervision of the proposed Office of the Public Guardian (OPG), which the
Commission recommended in its 2006 Report on Vulnerable Adults and the Law[486]
and which the Government’s General Scheme of a Mental Capacity Bill 2008[487]
proposes to establish. The monitoring arrangements to be put in place under
the OPG have been discussed in Chapter 3.[488]
.
4.34
Financial abuse has
been highlighted as one of the forms of abuse to which vulnerable adults are
most susceptible.[489]
Financial abuse has been defined as the “intentional or opportunistic
appropriation of the income, capital or property of a vulnerable person through
theft, fraud, deception, undue influence or exploitation.”[490] This can include the hoarding of a
vulnerable person’s resources for future gain.[491] Financial abuse can be perpetrated by
family members, neighbours, friends or anyone in a position of trust, and as
such can make it very difficult to detect. Of the more than 1,800 cases of
elder abuse reported to the HSE in 2008, 16% involved incidents of financial
abuse.[492]
4.35
In this respect, it is
useful to examine the standards drawn up by HIQA in terms of financial
transparency in the care contract concerning residential care services. The
HIQA 2008 Standards for Residential Care Settings for Older People
require the service provider to provide each resident with a written contract
setting out the fees that are payable, and identifying who is to pay these
fees.[493] The
contract must identify who is to pay these fees, be it the service user, a
representative or a family member(s), the HSE, or some other party. The
contract must also specify what overall services are covered by this fee, and
what services are not.[494]
If there are to be any additional health, personal and social care services
beyond this, the Standards require that these are expressly set out in the
contract for care.
4.36
Similarly, HIQA’s 2009 National
Standards for Residential Care Settings for People with Disabilities provide
that the individual service agreement – a type of contract - must set out the
nature and extent of the services being provided and whether any charges are to
be applied for these services, what the charges cover and whether particular
supports are only available on payment of extra charges.[495]
4.37
From a
comparative perspective, it is also useful to examine how other States deal
with the financial transparency of the contractual arrangement for the
provision of domiciliary care. The English Domiciliary Care Standards require
that the contract for the provision of care makes provision for the fees
payable for the service, and who is to make these payments. The Scottish
Standards also require that the written agreement for services takes account of
the charges for the relevant services, and how the service user will make the payments.[496]
4.38
It is clear from these
various standards documents that, regardless of who is funding the service, the
financial arrangement for the provision of domiciliary care services is agreed
between the parties and formally recorded. The contract for care should
specifically identify the contracting parties, and should set out in clear
terms the financial arrangement for the funding of the provision of home care.
Indeed, in the Commission’s view, the private setting in which home care is
provided may require that the contract for care should set out more specific
details in terms of the handling of a service user’s money and property than is
required, for example, under HIQA’s standards for residential care. On this
basis, the Commission has concluded that any contract for the provision of
domiciliary care services should include specific provisions that set out the
financial arrangement between the contracting parties for the agreed services.
4.39
The Commission
provisionally recommends that any contract for the provision of domiciliary
care services should include specific provisions that set out the financial
arrangement between the contracting parties for the agreed services.
4.40
As already mentioned,
the employer in a domiciliary care setting (usually, the HSE or other service
provider, but occasionally the service recipient) takes on a wide range of
responsibilities under employment law. In this Part, the Commission discusses
these responsibilities in general and also discusses some specific aspects
arising under safety and health at work legislation. The main purpose of this
discussion is to draw attention to the complexity of the relevant law, which is
most likely apply to the HSE and private sector service providers. In addition,
since these issues are discussed in the existing HIQA national standards for
the residential care setting, the Commission considers that they should also be
addressed in the proposed national standards for the domiciliary care setting.
4.41
The HIQA National
Quality Standards for Residential Care Settings for Older People require
that the contract between the resident and the registered provider takes
account of the rights, obligations and liability of both contracting parties.[497]
The Standards do not set out what specific rights and obligations the contract
should detail. A similar requirement is made under HIQA’s 2009 National
Quality Standards for Residential Care for People with Disabilities. Under
these standards, the rights, obligations and liability of the registered
service provider and the individual must be set out in the individual service
agreement.[498] Under the
English Domiciliary Care Standards, there is a requirement that each service
user that finances the cost of care themselves must be provided with a
written contract that must set out the various rights and responsibilities of
both parties and their liability if there is a breach of contract or any damage
occurring in the home.[499]
The Commission now turns to describe briefly the scope of these general
obligations under employment law.
4.42
Under the Terms of Employment (Information) Act 1994, employers are obliged to provide a written statement
of terms of employment within the first two months of the commencement of
employment. The statement of terms of employment must include particular
details including: the name and address of the employer and the employee; the
place of work; the title or nature of the job; the method of payment; any terms
and conditions in relation to hours of work, paid leave, sick leave; and any
periods of notice for termination of the contract required.[500]
It should be noted that the provisions of the 1994 Act do not apply to those
who are normally expected to work for less than 8 hours a week.[501]
4.43
Under the Organisation
and Working Time Act 1997, an employer may not require an employee to work more
than an average of 48 hours in a week. This average is spread out over a
minimum period of four months.[502] The Organisation and Working Time
Act 1997, also sets out specific provisions in relation to holiday leave,
which the service user must take into account.[503] The employer must provide the carer
with a payslip, detailing the gross wage, and the amount of deductions.[504]
Employers are also required to pay their employees a wage that does not fall
below the agreed national minimum wage.[505] The employer is also responsible for
the employee’s income tax (PAYE) and social insurance (PRSI).[506]
The employer is also vicariously liable for any negligence by a carer employed
by it.[507]
4.44
The provision of
domiciliary care services raises some safety and health concerns both for
service users and home care workers. The Safety, Health and Welfare at Work
Act 2005 imposes general duties on
employers to ensure, so far as is reasonably practicable, the safety, health
and welfare of employees[508]
and of persons other than employees who are present at a place of work.[509]
The 2005 Act also requires employers to have in place a written statement of
safety management procedures, called the safety statement, including a
requirement to specify how it has secured and managed the safety, health and
welfare of employees[510]
and persons other than employees.[511] The general duties in the 2005 Act have
been supplemented by a series of detailed Regulations setting out specific
duties of employers, notably, the Safety, Health and Welfare at Work (General
Application) Regulations 2007.[512]
4.45
In addition to general
issues concerning safety and health, the Commission is aware of some specific
issues that arise in the context of professional carers in a domiciliary
setting. Thus, there has been some debate as to whether it would be
appropriate, on safety and health grounds, for an employer to prohibit carer
employees from engaging in manual lifting of clients in their homes. In the
English case R. (A and B) v East Sussex County Council,[513] the English High Court (Munby J)
held that such a “no lift” ban would be in breach of the rights of the service
user under the European Convention on Human Rights. In this case, two
sisters A and B, who were profoundly disabled and suffered from learning
difficulties, successfully applied (with the support of the British Disability
Rights Commission) for a declaration that East Sussex County Council’s
(ESCC) virtual
blanket “no manual lifting policy” was illegal. The sisters lived with their
parents in a house which had been especially adapted. Under British
legislation, they were entitled to care from the local authority. As a result
of some incidents, A and B and their parents challenged the ESCC’s policy of
not permitting care staff to lift A and B manually.
4.46
Munby J held
that it was not ‘reasonably practicable’ within the meaning of
the British Health and Safety at Work Act 1974 (the equivalent of the
Irish 2005 Act) for the ESCC to avoid the need for their employees to undertake
manual handling of A and B altogether. Munby J accepted that the ESCC’s revised
manual handling policy, which was presented to the Court after the case had
begun and which made clear that it did not have a blanket no manual lifting
policy, was lawful and “representative of good practice.” It was therefore
compatible with the British Manual Handling Operations Regulations 1992[514] and with the ECHR, which had been implemented in the UK
by the Human Rights Act 1998.
4.47
Thus, the new policy of the ESCC shifted the dispute from being an issue
about the lawfulness of the ESCC’s alleged blanket no manual lifting policy, to
being an issue about whether A and B were entitled to be manually lifted by
their carers. Munby J held they were. He held that the British 1992 Regulations
established a clear hierarchy of safety measures but were a risk
reduction/minimisation regime and not “a no risk regime.” There was, he noted,
no “absolute prohibition on hazardous lifting.” Rather, the employer’s duty was
to avoid or minimise the risk in so far as is reasonably practicable. In the
case of A and B, and when considering the needs of those with a disability, the
term reasonably practicable must, he said, take account of the rights of
disabled persons in the ECHR. The reasonably practicable test must now, where
the disabled are concerned “be informed” by the ECHR.
4.48
While this decision might not be followed precisely in Ireland, it is
worth noting that Irish courts are also required to take account of the ECHR
because it too has been implemented in Ireland by the European Convention on
Human Rights Act 2003, which is modelled on the
UK Human Rights Act 1998.
4.49
Turning to more general
issues in this respect, the National Quality Standards for Residential Care
Settings for Older People, require that the “rights, obligations and
liability of the resident and the registered provider”[515] be accounted for in the contract for
service. The Standards also provide that the health and safety of the resident,
staff and visitor are promoted and protected.[516] The registered provider is required to
ensure that the care setting complies with all aspects of relevant health and
safety legislation. The registered provider must ensure that there are policies
and procedures in place for providing and maintaining a safe and healthy place
of work.[517] Other jurisdictions which have set out standards for the
domiciliary care sector, require that the responsibilities of the service user
and of the agency regarding health and safety must be recorded in the contract
for care.[518]
4.50
The National Quality Standards for Residential Care Settings for
Older People, require that the contract takes account of the liability of
the resident and the registered provider.[519] This is to
cover against any loss or damage to the service user’s assets, and the delivery
of the service. The English Domiciliary Care Standards require that the
contract for care between the parties sets out the various rights and
responsibilities of both parties, including insurance, and liability if there
is a breach of contract or any damage occurring within the home.[520]
4.51
Having considered these
aspects of the national standards and the specific issues identified in the
English A and B case, the Commission has concluded that any contract for
domiciliary care provision should make specific reference to the
responsibilities that arise under employment law, including any specific issues
arising under safety and health legislation.
4.52
The Commission
provisionally recommends that any contract for domiciliary care provision
should make specific reference to the responsibilities that arise under
employment law, including any specific issues arising under safety and health
legislation.
4.53
The Commission now
turns to discuss the issue of the mental capacity of the service user. Under
the Government’s Scheme of a Mental Capacity Bill 2008, which proposes
to implement the key recommendations in the Commission’s 2006 Report on
Vulnerable Adults and the Law[521]
a person over 18 years of age will be presumed to have full capacity to
enter into contracts. In this respect, the Scheme of the Bill proposes a
functional approach to determining capacity,[522]
so that a person would be deemed to have capacity if he or she has cognitive
understanding of a particular decision at the time the decision is to be made.
The functional approach test accommodates the reality that decision-making
capacity is a continuum rather than an end-point which can be neatly
characterised as present or absent.[523] This approach recognises that legal
capacity issues arise in a specific factual context such as the capacity to
enter into a contract for care.[524] Therefore, the assessment of capacity
should also be narrowed to the particular decision which needs to be made.
4.54
The Scheme of the Bill
also proposes to establish an Office of Public Guardian (OPG). The functions of
the OPG would include a supervisory role in respect of personal guardians and
persons appointed under enduring powers of attorneys.[525]
The OPG would also deal with representations including complaints about the way
in which personal guardians exercise their powers.[526]
4.55
The Scheme of the Bill,
in keeping with the Commission’s recommendations, proposes that a person who
makes a relatively minor decision with regard to the personal care, healthcare
or treatment of another person whose decision-making capacity is in doubt
should be protected from civil and criminal liability.[527] This person must take reasonable steps
to establish the other person’s lack of capacity.[528] The Scheme of the Bill also proposes
that where such a decision involves money and is carried out in the interest of
an adult who is reasonably believed to lack capacity to consent, the person
taking the action may lawfully apply the money in the possession of the person
concerned for meeting his or her expenditure.[529] Thus where this “general authority to
act” is used, a person who acts as a representative of an individual who
lacks capacity and enters into a contract for the provision of domiciliary care
might not incur any liability in relation to the act. The representative may
also reimburse himself or herself out of money in the other person’s
possession.[530] The Commission considers that, in the context of domiciliary care, it
may be appropriate that such a representative could refer his or her “general
authority” decisions to the Office of Public Guardian. It would then be a
matter for the OPG to determine whether the contract for care is an appropriate
contract with regard to the individual’s personal care needs. The OPG would
also have to consider whether the decisions made by the representative
constitute an appropriate expenditure of money.
4.56
The Commission
acknowledges that the use of a “general authority” in this context may,
however, be open to potential misuse, even where it is subject to the
supervision of the OPG. Another option which could be considered where a person
lacks the capacity to enter into a contract for care is the appointment of a
personal guardian, as proposed under the Scheme of the 2008 Bill.[531]
The personal guardian could be authorised to make decisions in relation to care
including the authority to enter into contracts for care on behalf of the person
who lacks capacity. Under the Scheme of the 2008 Bill, the Office of Public
Guardian would have a supervisory and support role for all personal guardians
appointed by a guardianship order,[532] and also attorneys operating under an
enduring power of attorney.[533]
The personal guardian could be obliged to give a report on the welfare of the
person lacking capacity and an account of the property, income and expenditure
to the Office of Public Guardian.[534]
4.57
A third option
available in cases where a person lacks the capacity to enter into a contract
for care arises where an enduring power of attorney (“EPA”) has been executed.
An enduring power of attorney is a legal mechanism executed by the individual
concerned when he or she has the requisite capacity. The EPA confers on a nominated
attorney certain decision-making powers, in the event that the individual loses
capacity.[535]
Once a person who has made an EPA loses capacity then his or her attorney can
make decisions relating to his or her property or affairs and/or “personal
care” decisions. Currently, a “personal care” decision does not give an
attorney any authority to make any health care decisions. However, the Scheme
of the Mental Capacity Bill 2008 proposes that “welfare” decisions could
include decisions on health care[536].
4.58
Under the Scheme of the
Bill, the Office of Public Guardian would play a supervisory and support role
for all attorneys operating under an EPA. The OPG would also have the power to
deal with representations, including complaints, about the way in which an
attorney operating under an enduring power of attorney is exercising his or her
powers.[537]
4.59
The Commission invites submissions on whether it is appropriate that, in
connection with an individual whose capacity to enter into a contract is in
doubt or may be absent, a “general authority” to act on the person’s behalf
could include entering into a contract for the provision of domiciliary care or
whether this should be a matter only for a personal guardian or an attorney
appointed under an enduring power of attorney.
5
5.01
In this Chapter, the
Commission examines a number of protective measures to ensure high standards of
selection are in place for professional carers and to maximise the protection
of service recipients. In Part B, the Commission examines the procedures
currently in place in Ireland for screening in the context of sensitive
positions of responsibility and the recommendations made in the 2004 Report
of the Working Group on Garda Vetting. In Part C the Commission examines the
different protection mechanisms adopted in other jurisdictions, notably the
approach in the United Kingdom between the devolved administrations (in
Northern Ireland and Scotland) and England and Wales. In Part D, the Commission
examines the safeguards afforded to those who report abuse of vulnerable people
(whistleblowers).
5.02
It is essential that
all domiciliary care providers, whether in the public sector or private sector,
ensure that their professional carers have suitable competence (including
relevant training and experience) in the context of the sensitive work in which
they are engaged. This should include recruitment processes that involve
screening and vetting arrangements to maximise the high quality of care that
the Commission understands is the norm. Such screening must also prevent
unsuitable persons from becoming professional carers, in particular, that those
whose behaviour could be a threat to the safety and well-being of vulnerable
adults are not employed in care positions. The Commission now turns to examine
the current screening procedures for those who wish to work with vulnerable
adults.
5.03
The Commission in its
2007 Report on Spent Convictions[538]
examined the issue of vetting procedures in Ireland in the context of spent
convictions. “Vetting” is the process by which a potential employee agrees to
have a background check carried out on them by official authorities.[539]
The aim of this background check is to provide certain information to the
potential employer enabling them to screen candidates in order to determine the
suitability of the person concerned for the job. The result of this screening
procedure is to minimise the potential risk to vulnerable members of society
from contact with individuals whose behaviour could be detrimental to their
safety and well-being. While the vast majority of people who apply to work with
vulnerable adults are likely to be of good character, it is nevertheless
essential that organisations that provide care to vulnerable adults take all
reasonable steps to ensure that only suitable persons are employed in care
positions.[540]
5.04
An Garda Síochána plays
a significant role in promoting the welfare and protection of vulnerable adults
through the Garda Central Vetting Unit (GCVU). The GCVU was established in 2002
on an administrative basis,[541] for the
purpose of dealing with requests for criminal record vetting. The GCVU does not
provide clearance for persons to work with vulnerable adults, but rather it
discloses details regarding all prosecutions, pending or completed, and/or
convictions. Initially, the GCVU focused primarily on vetting in the health and
social services sector. In 2006, the GCVU began a phased expansion to include
the vetting of all persons who would have substantial, unsupervised access to
children and vulnerable adults, regardless of whether they worked full-time or
part-time. Under the current system, the GCVU deals with requests to screen or
vet certain prospective employees of the HSE and agencies funded by the HSE where
the work involves access to children and vulnerable adults,[542]
as well as new teachers, staff working in the youth work sector, and staff
working in care homes for older people. This scope has been extended to include
private hospitals, residential childcare centres, and agencies working with the
homeless, local community initiatives, arts organisations and private tuition
centres. Where such a request is made, the GCVU completes a criminal history
check on the potential employees, by using the Garda Criminal Records Office
(GCRO) Criminal Registry System and the PULSE system.[543]
The results of the search are then sent to the designated agency that makes the
request, which then makes the decision whether or not to employ the person in
question. It is important to note in this respect that the existence of a
criminal record (especially for relatively minor matters) does not, and should
not, automatically prevent a person from gaining employment: the purpose of the
screening and vetting process is to ensure that a prospective employer has all
the relevant information available on which to make an informed judgement on
the suitability of the job applicant.
5.05
The 2004 Report of
the Working Group on Garda Vetting recommended the introduction of a
three-tier system for recruitment and selection vetting. The Report recommended
that a “special” level of vetting be introduced, that would be applicable to
those applying for posts that involve substantial unsupervised access to
children and vulnerable adults. A second “standard” level of vetting applicable
to posts within public service and the private security sector and a final
“security” level of vetting that would apply to those applying for posts that
involve national security.[544] There is a
responsibility on employers who receive sensitive information to utilise that
information in an appropriate and fair manner with regard to the prospective
employee or volunteer as well as the vulnerable adult. The Working Group
recommended that the disclosure of sensitive information should occur only with
the written consent of the individual applicant.
5.06
In its 2007 Report
on Spent Convictions, the Commission recognised that some employers, who
would not ordinarily come under the description of a “designated agency”, were
using alternative methods to retrieve personal data about potential employees.
Under section 4(1) of the Data Protection Act 1988, any person may request a copy of ‘data’ about the
person that is held by a ‘data controller’.[545]
Some employers were advising prospective employees to make a request under
section 4 of the 1988 Act to the GCVU, without indicating the true purpose.[546]
This practice has been referred to as “enforced subject access”. The Commission
supported the concerns expressed by the Data Protection Commissioner in
relation to this misuse of section 4 of the 1988 Act by some employers.[547]
Section 5(d) of the Data Protection (Amendment) Act 2003 proposes to amend
section 4 of the 1988 Act, by providing that no person shall, in connection to
the recruitment of another as an employee, the continued employment of that
other or a contract for the provision of services to him or her by another
person, require another to make a request under section 4(1) of the 1988 Act.
At the time of writing (July 2009), section 5(d) of the 2003 Act has not yet
been brought into force by a Commencement Order.
5.07
The Working Group on
Garda Vetting recommended that “soft” as well as ”hard” information should be
disclosed through the vetting process. Such soft information would include
allegations of a criminal nature in certain circumstances.[548]
The 2006 Report of the Joint Oireachtas Committee on Child Protection[549]
recommended that further research be conducted into the possibility of
incorporating soft information into a comprehensive vetting system.[550]
The Joint Committee did not consider that the constitutional protection of the
good name of the citizen was an insurmountable obstacle to the incorporation of
soft information into the vetting process.[551]
The Committee considered that the Constitution does not prohibit procedures
which can lead to findings adverse to a particular individual and to the
publication of those findings to the detriment of that individual and his good
name.[552] The Joint
Committee also noted, however, that the Constitution requires that the good
name of the individual be protected from unjust attack, and in the case of
injustice done, that the State, by its laws, should vindicate the good name of
the citizen.[553] The issue
of requiring a constitutional amendment to deal with this matter definitively
remains a live, and unresolved, issue at the time of writing (July 2009). The
Commission also notes that the 2004 Report of the Working Group on Garda
Vetting also recommended that vetting should provide for the disclosure of
all criminal convictions, all past criminal prosecutions, all criminal
prosecutions pending and allegations and complaints involving alleged criminal
activity and limited to a case-by-case basis, even where the DPP is considering
whether a relevant prosecution should be brought.
5.08
In general, soft
information includes allegations of a criminal nature. It is clear that this
is, therefore, a matter that raises many constitutional issues, as the Report
of the Oireachtas Committee makes clear. As this is a matter which may
ultimately require a constitutional amendment, and which is currently (July
2009) still under consideration, the Commission does not consider it
appropriate to make any recommendations on the issue of whether soft
information should be included in any screening or vetting process concerning
professional domiciliary carers.
5.09
As already mentioned in
Chapter 1, people who receive care at home are in a vulnerable position, and
are at risk of abuse from those who hold positions of power over them. Such
vulnerable adults may not always be in a position to complain about ill
treatment or report abuse. The nature of the abuse may also make vulnerable
adults reluctant to complain or report abuse. Such people are often reluctant
to complain or report abuse for various reasons. Vulnerable adults need to be
protected by ensuring that there are procedures in place to enable them and
others to report suspected abuse, and for these complaints to be fully
investigated without fear adverse consequences and/or repercussions.
5.10
There are many profiles
of perpetrators of abuse against vulnerable adults, and the abuse can occur in
many different situations. The following are some hypothetical examples of how
unregulated professional carers might exploit their position of power over a
vulnerable adult:
·
use of psychological
and/or physical abuse to gain control over the vulnerable adult;
·
financially abusing a
vulnerable adult, whereby the professional carer is in possession of the
vulnerable adult’s pension book, for the purpose of collecting the pension. The
carer may be directed to use the pension money to pay for services and/or items
that the vulnerable adult needs, and there is a risk that a carer could
misappropriate the proceeds for their own benefit;
·
use of physical and/or
sexual abuse or the threat of such abuse to cause the vulnerable adult to
submit to their requests, or to cause the vulnerable adult not to complain of
any mistreatment;
·
neglect of a vulnerable
adult, by failing to provide an appropriate level of care, for example by not
providing personal care, or neglecting any medical or personal care needs the
vulnerable adult may have, or allowing the vulnerable adult to develop bed
sores;
·
the use of medications,
particularly of anti-psychotic medication for people with dementia, to control
or manage difficult vulnerable adults;
·
use of emotional abuse,
to extort money or personal items from the vulnerable adult in exchange for
completing tasks that the carer is already being paid to do.
5.11
In recent years, the
issue of abuse of older persons or “elder abuse” has received increased
attention from government agencies, the media and the public at large. The term
“elder abuse” has been defined as:
“A single or
repeated act, or lack of appropriate action, occurring within any relationship
where there is an expectation of trust which causes harm or distress to an
older person or violates their human or civil rights.”[554]
The HSE has
taken significant measures in recent years to combat elder abuse in particular
by raising awareness about the issue.[555]
As part of these measures, the HSE have appointed Dedicated Officers for Elder
Abuse in each HSE administrative area. These Officers are responsible for
developing and evaluating the HSE’s response to elder abuse. The HSE has also
appointed Senior Care Workers for Elder Abuse, who are employed within Local
Health Offices, and who work closely with Dedicated Officers for Elder Abuse to
assess and manage cases of suspected elder abuse referred to the HSE. These
initiatives have led to increased public awareness of elder abuse, and
increased reporting of incidents of suspected elder abuse. Of the total number
of cases of alleged abuse reported to the HSE in 2008, over 85% of them
concerned incidents of abuse within the victim’s own home.[556] This can be compared to just 4% of
reported cases relating to abuse occurring within private residential care
units. This comparatively low rate of abuse in residential care settings may be
attributable to the recent developments in the regulation of the residential
care sector. This contrast between the levels of reported abuse in the
different care settings further highlights the need for the domiciliary care
sector to be regulated.
5.12
Under the National
Quality Standards for Residential Care Settings for Older People in Ireland,
residential care providers are required to establish a policy in relation to
the prevention of, and the reaction to, all forms of abuse.[557] This policy must outline the procedures
for preventing, detecting and responding to suspicion, allegation or evidence
of abuse or neglect.[558]
All staff are required to be trained in the procedures for preventing and
responding to abuse.[559]
The Standards do not require either the care contract or the resident’s care plan
to take account of these procedures and policies.
5.13
The relevant
legislation and standards in other States require domiciliary care providers to
establish procedures and policies for dealing with cases and/or suspected cases
of abuse.[560]
The Standards do not require the care contract or the service user care plan to
take account of these procedures and policies.[561] Due to the vulnerable position that
people who receive home care are in and the extent to which they are dependent
on the home care worker, it is important that measures are taken to ensure that
home care workers possess the requisite competence and skills to provide the
care.
5.14
Head 27 of the
Government’s Scheme of Mental Capacity Bill 2008,[562]
proposes to introduce a new criminal offence of ill treatment or wilful
neglect, based on a similar offence in section 44 of the English Mental
Capacity Act 2005. Three categories of persons are dealt with in Head 27
(and in section 44 of the English 2005 Act): a person “who has the care of
another person who lacks, or whom the [carer] reasonably believes to lack,
capacity;” a person appointed as an attorney under an enduring power of
attorney; and a person appointed under the Scheme of the Bill as a personal
guardian. It is clear that a professional carer who provides domiciliary care
could come within Head 27 of the Scheme of the 2008 Bill because he or she has
responsibility for the care of another who lacks capacity. Under the Scheme of
the Bill, a person found guilty of the offence of ill treatment or wilful
neglect would, on summary conviction, be liable to a term of up to 12 months
imprisonment, or a fine not exceeding €3000, or both. On conviction on
indictment, a person found guilty of the offence would, be liable to up to 5
years imprisonment, or a fine of €50,000 or both.[563]
The Commission endorses the proposal in Head 27 of the Government’s Scheme of
Mental Capacity Bill 2008 to create an offence of ill treatment or wilful
neglect as involving an important protective element in the context of
domiciliary care.
5.15
The Commission
endorses the proposal in head 27 of the Government’s Scheme of Mental Capacity
Bill 2008 to create an offence of ill treatment or wilful neglect as involving
an important protective element in the context of domiciliary care.
5.16
In this Part, the Commission discusses the position of a person who
discloses information to the relevant authorities about serious concerns they
may have about a health or social care service which either they or someone they
are in contact with, are receiving. Such a “whistleblower” may also be someone
who is employed by a health or social care provider, and who discloses
information to the relevant authority about the care provider. This Part also
discusses the distinction between the protective measures offered to those who
report child abuse and those who report abuse of vulnerable adults.
5.17
The Protection for
Persons Reporting Child Abuse Act 1998 introduced legal safeguards to
protect persons who reported concerns about incidents of possible child abuse.
Section 3(1) of the 1998 Act provides that where a person expresses his or her
opinion to an appropriate person that a child is or has been abused[564]
he or she will not be liable for damages, provided that he or she acts
reasonably and in good faith.
5.18
The 1998 Act provides
that where an employee makes a communication under section 3, his or her
employer shall not penalise the employee for having done so.[565]
Where an employer breaches this provision, the employee may present a complaint
to a rights commissioner in the Labour Relations Commission that his or her
employer has contravened this provision, and the rights commissioner must give
the parties an opportunity to be heard by the commissioner. Where a person
makes a statement in accordance with section 3, and he or she knows the
statement to be false, that person shall be guilty of an offence.[566]
5.19
The 2004 Report of
the Working Group on Garda Vetting recommended that the Protection of
Persons Reporting Child Abuse Act 1998 should be amended so as to offer
protection for persons reporting the abuse of vulnerable adults, such as those
with certain mental or physical disabilities.[567]
The Commission considers that this proposal is worthy of further consideration
and has concluded that it should invite submissions on the issue of protecting
people who report concerns about incidents of possible abuse of vulnerable
adults, by professional carers.
5.20
The Commission
invites submissions as to whether the form of protection for people who report
concerns about incidents of possible abuse contained in the Protection of
Persons Reporting Child Abuse Act 1998 should be extended to apply in the
context of professional domiciliary care.
5.21
A recipient of
domiciliary care is often in a vulnerable and isolated position which makes it
difficult for them to disclose information about a serious concern he or she
may have about the standard of safety or quality of the service that he or she
is receiving. It is also possible that the service recipient will not want to
make a complaint about the provision of service for fear that the service will
be removed from them, or that the abuse will worsen or that he or she will be
open to civil legal action. A situation could also arise whereby the service
recipient is not aware that there is anything untoward about the safety or
quality of the service being provided. In such situations, there is a danger
that such incidents of abuse can go unreported. In many situations, vulnerable
service recipients rely on others to make complaints or to disclose information
to the relevant authority on his or her behalf. A person who makes a disclosure
of information in this regard is known as a whistleblower and could be a
relative, a friend or a neighbour.
5.22
The Protection
of Persons Reporting Child Abuse Act 1998 was introduced to protect people
who report child abuse from civil liability. The 1998 Act provides that where
an employee makes a communication under section 3, then he or she must not be
penalised for so doing.[568] If a
person knowingly makes a false statement under section 3, then he or she shall
be guilty of an offence under section 5.
5.23
The Health Act 2004 (which
established the Health Service Executive), as amended by the Health Act 2007,
has made extensive provision in relation to employees of relevant bodies who
make disclosures of information.[569]
Where an employee of a relevant body[570]
makes a disclosure of information to an authorised person in good faith, then
this disclosure shall be deemed to be a “protected disclosure”.[571]
Such a disclosure of information must be made in good faith, and the whistleblower
must believe on reasonable grounds that the disclosed information will
establish that the health or welfare of a person who is receiving a health or
personal social service is or is likely to be at risk,[572]
that the actions of any person employed by a relevant body poses or is likely
to pose a risk to the health or welfare of the public[573]
or that the relevant body is failing or is likely to fail to comply with any
legal obligation.[574] Where an
employee makes a protected disclosure regarding the conduct of his/her
employer, he or she shall not be penalised,[575]
and any contravention of this by the employer constitutes a ground of complaint
by an employee to a rights commissioner.[576]
5.24
Where a person makes a
protected disclosure, he or she is not liable in damages, or other forms of
relief,[577] unless he
or she knew that it was, or was reckless as to whether it was, false,
misleading, frivolous or vexatious.[578]
Where a professional carer is employed by the HSE, or another organisation that
has entered into an arrangement with the HSE to provide domiciliary care on
behalf of the HSE,[579] and he or
she makes a disclosure of information on reasonable grounds and in good faith,
the disclosure will be deemed to be protected.[580]
5.25
Section 55C of the Health
Act 2004, inserted by the Health Act 2007, appears to protect
employees of residential institutions and private nursing homes not operated by
the HSE or contracted to provide services on behalf of the HSE from liability
for disclosing information to the chief inspector. This is the case where the
information is disclosed in good faith and on reasonable grounds that it would
show that (a) the actions of any person employed by the institution posed, is
posing or is likely to pose a risk to the health or welfare of a resident or
(b) the person carrying on the business has failed to comply with the
regulations and standards as prescribed under the Health Act 2004, as
amended by the Health Act 2007.[581]
5.26
The Health Act 2004,
as amended by the 2007 Act, does not specify whether the safeguards associated
with a protected disclosure apply to an employee of a private domiciliary care
agency, a voluntary organisation providing domiciliary care and/or a
professional carer employed on an individual basis, where such a person makes a
disclosure on reasonable grounds in the belief that it will satisfy section 55B
of the Act.
5.27
There is now extensive
legislation to safeguard employees who make protected disclosures and to
protect individuals who report child abuse. However, there are no legal
safeguards available to individuals who disclose information about a serious
concern that they may have about the provision of domiciliary care to a
relative, friend or a neighbour. Vulnerable adults who receive domiciliary care
may not always be in a position to alert the relevant authority about concerns
they may have about the provision of care. In this respect, the Commission
considers that there should be some legal protection for people who disclose
information on their behalf. These legal safeguards could be implemented by
amending Part 9A of the Health Act 2004, in a way that ensures that such
disclosures of information would be considered to be protected disclosures
under the 2004 Act. This would ensure that where a person discloses information
in good faith about suspected abuse of vulnerable adults, the disclosure will
be a protected disclosure and the person disclosing the information will not be
civilly liable for making the disclosure.
5.28
The Commission
provisionally recommends that Part 9A of the Health Act 2004, which deals with
disclosure of abuse, be amended, to ensure that employees of domiciliary care
providers will be covered by the protected disclosure safeguards.
5.29
Under the relevant legislation
in England and Wales, and Northern Ireland and Scotland, no person can
take proceedings because of the fact that he or she is listed, or that
information has been provided to the relevant authority about the individual in
accordance with the relevant legislation.
5.30
Under the Safeguarding
Vulnerable Groups Act 2006, where a person provides information to the
Independent Safeguarding Authority (ISA) in accordance with the 2006 Act, no
action for damages can be taken against him or her.[582]
However, if such a person provides information which he or she knows to be
untrue then the individual cannot rely on the civil legal safeguards mentioned.[583]
The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 makes
similar provisions in relation to the protection of persons who refer
information to the ISA.[584] The Protection
of Vulnerable Groups (Scotland) Act 2007 provides more detailed civil legal
protection for those who
provide information to the Scottish Ministers in accordance with sections 3 to
8 of the 2007 Act. Where a person provides information to the Ministers, he or
she will not be liable for any loss or damage incurred by any person. However,
where the provider of information knew, or was reckless as to whether the
information being provided was untrue or misleading, and he or she still
provided that information knowing that it could be used by the Ministers in their
decision to include someone on a barred list, then that person shall not escape
legal liability.[585]
5.31
In this Part, the
Commission examines the measures in place in other jurisdictions for the
protection of vulnerable adults. In England, Wales and Northern Ireland there
have been significant legislative developments in recent years in relation to
the screening and monitoring of those who provide care to vulnerable adults. In
those jurisdictions, there is a far-reaching system which includes the
establishment of negative registers and the use of “soft” information in the
screening process. These protection mechanisms are discussed in detail. A
separate but aligned scheme is currently being established in Scotland, under
the Protection of Vulnerable Groups (Scotland) Act 2007 The
relationship between the protection mechanisms in place in each of these
jurisdictions is also discussed. The issue of mandatory reporting of abuse is
also discussed. In this regard, the situation in Australia shall be examined.
In Australia, the legislation confers on approved care providers an obligation
to report incidents of abuse or suspected abuse. This mandatory reporting obligation
does not, however, extend to members of the public. Legislation in place in the
Canadian province of Alberta also confers a mandatory obligation to report
abuse on any person who has a reasonable belief that the recipient of a care
service is being abused. In British Columbia, legislation imposes a voluntary
reporting system.
5.32
In England and Wales,
the Care Standards Act 2000 introduced significant measures in relation
to the protection of children and vulnerable adults. Part VII of the 2000 Act
provided for the establishment of a type of ‘negative register’ – a list of
individuals who were considered unsuitable to work with vulnerable adults.[586]
This list was known as the Protection of Vulnerable Adults list (POVA list).
Under the 2000 Act, a provider of care for vulnerable adults had the duty to
refer any person, who had been dismissed on grounds of misconduct, or who had
resigned in circumstances such that the provider would have dismissed him, to
the Secretary of State for Health.[587]
Once the Secretary of State received such information, he or she provisionally
placed the worker on the POVA list.[588]
The Secretary of State was required to invite observations from the worker on
the information submitted to him by the employer. However, the Secretary of
State was not required to do this before the worker was provisionally included
in the list. After considering all the information presented, the Secretary of
State then decided whether the provider reasonably considered whether the
individual was guilty of misconduct and whether he or she was unsuitable to
work with vulnerable adults. Thus the test was not whether the misconduct
actually took place, but rather whether the employer reasonably considered that
it did.[589] On a
practical note, there were considerable time delays between the initial
referral to the Secretary of State and the final determination about an
individual’s inclusion in the POVA list. It appears that about 80% of referrals
to the Secretary of State were not confirmed on the list.[590]
The effect of being provisionally included on the list prevented any other
employer from employing the individual in a care position.[591]
The appellants in R (Wright) v. Secretary of State for Health contended
that the Care Standards Act 2000 was incompatible with Articles 6 and 8
of the European Convention on Human Rights by virtue of the lack of an
opportunity to have an oral hearing before being provisionally listed on the
POVA list. The House of Lords agreed and found that the procedure for
provisional listing did not meet the requirements of Article 6(1). It is worth
noting that all Law Lords agreed that the principle in the 2000 Act of
providing protective measures through screening was appropriate in the context
of vulnerable persons; the fatal flaw with the 2000 Act was in terms of the
effect on employment of a provisional listing.
5.33
The Safeguarding
Vulnerable Groups Act 2006 established the Independent Barring Board[592]
to create and maintain the children’s barred list and the adults’ barred list.[593]
A person will be barred from regulated activity[594]
relating to vulnerable adults,[595]
where he or she is included on the adults’ barred list or is included in a list
maintained under the law of Scotland or Northern Ireland.[596]
A person must be included on the adults’ barred list if he or she engages in
relevant conduct, which can include conduct which endangers[597]
or is likely to endanger a vulnerable adult,[598]
inappropriate conduct involving sexually explicit images depicting violence
against human beings[599] and
inappropriate conduct of a sexual nature involving a vulnerable adult.[600]
It should be noted that the Safeguarding Vulnerable Groups Act 2006 does
not apply to informal carer arrangements.[601]
The IBB must give the person in question the opportunity to make
representations as to why he or she should not be included in the adults’
barred list.[602] A person
who is included in a barred list may apply to the IBB for a review of his or
her inclusion.[603] An
individual who is included in a barred list may appeal to a Tribunal against a
decision to include him or her in a barred list, but only on the grounds that
the IBB made a mistake as to a point of law, or as to a finding of fact.[604]
If the tribunal finds that the IBB has made a mistake, then it must direct the
IBB to remove the individual from the list, and remit the matter to the IBB for
a new decision.[605]
5.34
A person is considered
to be a regulated activity provider if he or she carries on a scheme under
which an individual agrees with him or her to provide care or support to the
individual who needs it and the provider is required to register with the
Commission for Social Care Inspection.[606]
It is important to note that a person is not considered to be a regulated
activity provider if he or she is an individual and he or she enters into a
private arrangement to provide care to another. An arrangement is considered to
be a private arrangement if it is for the benefit of a child or vulnerable
adult who is (a) a member of the provider’s family, or (b) a friend of the
provider.[607] It would
appear that persons employed by domiciliary care agencies are subject to the
provisions of the Safeguarding Vulnerable Adults Act 2006,[608]
but would seem that individuals who enter into a private arrangement with a
family member or friend, to provide them with domiciliary care, are not subject
to the provisions of the 2006 Act.[609]
5.35
Under the Safeguarding
Vulnerable Groups Act 2006, the Secretary of State for Health has a
responsibility to provide any relevant information relating to a person who
makes an application for the information in relation to another person. The
person requesting the information must have the consent of that other person,
about whom the information is concerned.[610]
People who are entitled to make an application for vetting information include
people who are considering employing another person to engage in a regulated
activity or controlled activity relating to a vulnerable adult.[611]
“Relevant information” relating to vulnerable adults includes information which
would reveal whether the individual concerned is subject to monitoring in
relation to regulated activity relating to vulnerable adults. Also, relevant
information would include information which would show whether this individual
is undergoing assessment.[612]
5.36
In Northern Ireland,
when a person applied for employment that involved unsupervised access to
children or vulnerable adults, then that person would be vetted in accordance
with the so-called Pre-Employment Consultancy Service (PECS), provided that the
prospective employer was registered with the Department of Health, Social
Services and Public Safety (DHSSPS). The PECS system was established, on an
administrative basis, following an inquiry into abuse at children’s homes. The
PECS system provided a means for employers to access information held by the
PSNI, the DHSSPS and the Department of Education, in order to enable them to
determine the suitability of potential employees for roles that involved
substantial access to children or vulnerable adults. Thus employers could avail
of employment-related vetting in relation to the health and education sectors
respectively. PECS was available to any statutory, voluntary, community or
private sector organisation working with children and/or vulnerable adults.
5.37
The Protection of
Children and Vulnerable Adults (Northern Ireland) Order 2003 implemented
the PECS system on a statutory basis in 2005. The 2003 Order enhanced
arrangements for the safeguarding of vulnerable groups by establishing barred
lists: (i) the Disqualification from Working with Children List (DWC List) and
(ii) the Disqualification from Working with Vulnerable Adults List (DWVA List).[613]
Under the 2003 Order a person who provided care for a vulnerable adult had a
duty to refer a care worker to the DHSSPS if he or she dismissed the worker on
grounds of misconduct or would have if the worker had not resigned or retired.
Where the DHSSPS received such information, the individual would be
provisionally placed on the list, while the DHSSPS considered all the
information at hand. The DHSSPS had a responsibility to invite the individual
concerned to make any observations on any information that it had. It was then
the responsibility of the DHSSPS to determine whether or not to include the individual
on a barred list, if the DHSSPS was of the opinion that the provider reasonably
considered that the worker was guilty of misconduct and that the worker was
unsuitable to work with vulnerable adults.[614]
5.38
Where an individual was
included in a barred list, other than provisionally, he or she had the right to
appeal the decision to a Social Care Tribunal.[615]
Where an individual was placed on the list provisionally for a period of more
than 9 months, then he or she could apply to have his or her inclusion in the
list determined by a Social Care Tribunal instead of by the DHSSPS. The Social
Care Tribunal had the authority to allow the appeal, and then direct the removal
of the individual from the list. The 2003 Order further provided that where an
individual had been included on the list for a period of at least 10 years,
then he or she could apply to a Social Care Tribunal to be removed from the
list.[616] An
application for removal would only be granted where the Social Care Tribunal
was satisfied that the individual’s circumstances had changed and that the
change was such that leave should be granted.[617]
The Order further provided for the restoration to the list of an individual who
acts in such a way as to give reasonable cause to believe that vulnerable
adults or children could be at risk of harm.[618]
5.39
Where a person was
included in a barred list under the 2003 Order, he or she could not
knowingly apply for, offer to do, accept or do any work in a care position, as
to do so would constitute an offence.[619]
Any provider that sought to employ an individual, had to ascertain whether the
individual concerned was included on the list, and if so, then that provider
was precluded from employing the individual.[620]
Under the 2003 Order any person who wished to ascertain whether a relevant
individual was included on a barred list simply had to apply to the DHSSPS and
pay a set fee.[621]
5.40
The 2003 Order was
repealed by the Safeguarding Vulnerable Groups (Northern Ireland) Order
2007. The 2007 Order seeks to align Northern Ireland with the Safeguarding
Vulnerable Groups Act 2006. The 2007 Order refers to the establishment of
the IBB,[622] soon to be
the ISA under section 1 of the Safeguarding Vulnerable Groups Act 2006.
As under the 2006 Act, the 2007 Order imposes on providers of a regulated
activity a duty to refer any individual to whom the provider withdraws
permission to engage in the activity, if he or she has engaged in relevant
conduct or he or she satisfies the harm test.[623]
5.41
Once a reference of
information is made to the ISA, the ISA must provisionally include that
individual in the barred list and must using all the information available,
then make a decision as to whether the individual should be confirmed on the
list.[624] Any
individual who is provisionally included on a barred list, awaiting a decision
of the ISA, is entitled to make representations to the ISA as to why he or she
should be removed from the list.[625]
If the ISA confirms an individual’s inclusion on a barred list, that individual
can appeal the decision to a Social Care Tribunal[626]
in accordance with section 4 of the Safeguarding Vulnerable Groups Act 2006.
The 2007 Order also makes provision allowing a person included on a barred list
to apply to the ISA for a review of his or her inclusion, with a view to his or
her removal from the list. The 2007 Order contains the same criteria in this
regard as those in the Safeguarding Vulnerable Groups Act 2006.
5.42
The 2007 Order also
makes similar provision in relation to the commission of offences as those in
the Safeguarding Vulnerable Groups Act 2006. Under the 2007 Order, where
a person is placed on a barred list, and he or she seeks to engage, offers to
engage or engages in regulated activity from which he or she is barred, then
that person will be guilty of an offence.[627]
A person will be guilty of an offence under the 2007 Order, if he permits an
individual to engage in a regulated activity from which that individual is
barred, and he or she knows that the individual is barred from the activity and
the individual engages in that activity.[628]
5.43
The 2007 Order confers on
the Secretary of State for Health, a responsibility, similar to that imposed by
the Safeguarding Vulnerable Groups Act 2006 provides. Under the 2007
Order, the Secretary of State must provide a person with vetting information
where that person makes an application for such information in respect of
another person whom he or she is considering employing in a regulated or
controlled activity relating to a vulnerable adult.[629]
5.44
In Scotland, a scheme,
separate from the Independent Safeguarding Authority (ISA), is being
established under the Protection of Vulnerable Groups (Scotland) Act 2007.
The Scottish scheme will be aligned to the ISA and will co-operate with it.
Under the Scottish legislation, anyone included on a barred list in Scotland
will automatically be barred from working with either children or vulnerable
adults in Scotland, England and Wales, and Northern Ireland. There are some
differences between the 2006 Act and the Scottish 2007 Act. Under the 2007 Act,
the term “protected adult” is used instead of “vulnerable adult”. A protected
adult includes an individual aged over 16, who is provided with a prescribed
service.[630] However,
unlike the Safeguarding Vulnerable Groups Act 2006 and the Safeguarding
Vulnerable Groups (Northern Ireland) Order 2007 the 2007 Act does not
specifically refer to the provision of domiciliary care as a regulated
activity. Regulated work with adults is defined as including work in a position
whose normal duties include caring for protected adults and being in sole
charge of protected adults.[631]
5.45
The 2007 Act contains
many provisions similar to those made under SVG legislation. One of the major
differences between the 2007 Act and the SVG legislation is that the Scottish
Ministers are responsible for maintaining the lists of barred individuals, as opposed
to an independent body as in England and Wales, and Northern Ireland. Similar
to the SVG legislation, the 2007 Act requires that where an organisation
dismisses an individual on grounds that the individual harmed a protected
adult, or placed a protected adult in harm, then the organisation must refer
any prescribed information to the Minster.[632]
If such an organisation fails to fulfil their duty as described, it will be
guilty of an offence.[633] Where the
Ministers are satisfied that the information indicates that it may be
appropriate for the individual to be included in the adults’ list, then they
must consider listing the individual.[634]
Where the Ministers receive information which indicates that the individual
should be included in the adult’s list, either from vetting information, or
information received when considering whether to list the individual under the
children’s list, and the individual does regulated work with adults, then the
Minsters must list the individual in the adult’s list.[635]
The Ministers must consider all of the information in order to determine
whether the individual is suitable to work with adults.[636]
Before making such a decision, the Ministers must give the individual an
opportunity to make representations as to why he or she should not be listed.
The Ministers must then take these representations into consideration when
deciding whether to list the individual.[637]
5.46
Under the 2007 Act,
where an individual is listed under section 16, he or she may appeal to the
sheriff against the decision.[638]
The sheriff can then either confirm the individual’s listing or he or she can
direct the Ministers to remove the individual from the adult’s list.[639]
Either the individual or the Ministers can appeal the decision of the sheriff
to the sheriff principal, the decision of whom is final.[640]
Similar to the SVG legislation, a listed individual can apply to be removed
from the adult’s list after a prescribed length of time, under the 2007 Act, as
per section 25(3). Where the Minsters are satisfied that the applicant is no
longer unsuitable to work with protected adults, the Ministers can remove the
individual from the adult’s list.[641]
An individual may also appeal to the sheriff against the Ministers decision not
to remove him or her from the list.[642]
5.47
Where an individual is
on a list, it is an offence for him or her to do, or to seek or agree to do,
any regulated work from which he or she is barred.[643]
It is also an offence for an organisation to offer regulated work to an
individual that is barred from that type of work.[644]
A further example of co-operation between the jurisdictions in evident in the
2007 Act, whereby the Scottish Ministers can refer information to the ISA where
they consider that the Authority is the more appropriate forum for the
individual’s case to be determined.[645]
5.48
Where an individual is
already included in the adults’ barred list as maintained under section 2 of
the Safeguarding Vulnerable Groups Act 2006, the Scottish Ministers do
not need to list the individual in the adults’ list as provided for under
Scottish legislation.[646] Under the
2007 Act where the ISA decides not to include an individual in the adults’
barred list, and the Scottish Ministers that the ISA considered all the
relevant information, then the Ministers do not need to list the individual in
the adults’ list.[647]
5.49
There is significant
provision under the Protection of Vulnerable Groups (Scotland) Act 2007
for the vetting of potential staff and the disclosure of information.[648]
The Scottish Ministers are required to administer a scheme under which
information about individuals who do regulated work with vulnerable adults is
collated and disclosed in accordance with the 2007 Act.[649]
Individuals who work with, or who wish to work with vulnerable adults, may
apply to the Ministers to become a member of the scheme, provided he or she is
not barred from doing the work.[650]
The Ministers must create a new record for each scheme member, and ascertain
any vetting information that there may be about the individual. Ministers must
make arrangements for the purpose of discovering whether any new vetting
information arises in relation to scheme members while those members
participate in the scheme.[651] Where any
new information comes to light, the Ministers must update the scheme record
accordingly. The 2007 Act also provides for the disclosure of scheme records on
condition that:
·
(i) the scheme member
requests the disclosure,
·
(ii) the scheme member
participates in the scheme in relation to that type of regulated work,
·
(iii) the person to
whom the disclosure is to be made is requesting the information for the purpose
of enabling him or her to consider the scheme member’s suitability to do the
type of regulated work, and
·
(iv) the person to whom
the disclosure is to be made is registered under the Police Act 1997.
5.50
Where these conditions
are all satisfied the Ministers must disclose the scheme member’s record.[652]
5.51
Under the Aged Care
Act 1997, approved providers of residential care are required to report to
the police and the Department of Health and Ageing, any incidents involving
alleged or suspected reportable assaults[653]
within 24 hours of when the provider starts to suspect that there may be such
an incident.[654] Approved providers
are required to take reasonable measures to ensure that members of staff who
provide a service in connection with the approved provider’s residential care
service report any suspicions or allegations of reportable assaults to either
the approved provider, the police or the Department.[655]
Where an employee makes such a disclosure, the approved provider has a
responsibility to take reasonable measures to ensure that the identity of the
employee is protected, and that such employees are not subjected to
victimisation.[656] There are
specific exceptions to this general requirement to report incidents under
section 63-1AA(1), for example where the alleged assault is perpetrated by
another resident of the facility, who has an assessed cognitive or mental
impairment. This obligation to report alleged or suspected reportable assaults,
does not appear to extend to providers, or employees of domiciliary care
agencies. Section 63-1AA of the Aged Care Act 1997 applies to approved
providers of residential care only.
5.52
Comprehensive
guidelines were published in 2006, by the Australian Department of Health and
Ageing to assist approved providers to meet their requirements under the Aged
Care Act 1997, for criminal history record checks for relevant staff and
volunteers working in Australian Government subsidised aged care services.[657]
Under the new requirements, all Australian Government subsidised services;
including residential aged care services, community aged care services and
flexible care services, are required to ensure that all staff employed by them,
and volunteers, undergo regular criminal history record checks, obtain a
national police certificate that is not older than 3 years, and are assessed as
being suitable to work in aged care.[658]
A police check is a check undertaken by State or Territory Police Services or
the Australian Federal Police that discloses evidence of whether a person has
any recorded convictions, or has been charged with, and found guilty of an
offence, but was discharged without conviction, or is the subject of any
criminal charge still pending before a Court. Where a person has been convicted
of murder or sexual assault or convicted of, and sentenced to imprisonment for
any other form of assault, he or she will be deemed to be unsuitable to work in
the aged care sector, and consequently he or she must not be employed to provide
care or ancillary duties in the aged care sector.[659]
5.53
The guidelines
emphasise that, though it is the responsibility of the approved provider to
ensure that all relevant staff and volunteers have appropriate and valid police
certificates, the arrangements for obtaining such certificates is an issue that
must be negotiated between the aged care provider and the individual concerned.[660]
Such an individual may either obtain a police certificate and furnish it to the
provider, or he or she may give his or her consent for the approved provider to
request a police certificate from the relevant body. The approved provider is
responsible for obtaining an individual’s consent and recording it in an
acceptable format that meets the provisions of the Privacy Act 1988. The
Aged Care Act 1997 sets out detailed requirements in terms of the
approved providers responsibilities in relation to the protection of personal
information.[661] The 1997
Act provides that personal information must not be used other than for the
purpose connected with the provision of aged care, and this information must
not be disclosed to another party except with the written consent of the
individual.[662] The 1997
Act further provides that approved providers have a responsibility to take all
reasonable measures to protect all personal information, to prevent against the
loss or misuse of such information.[663]
5.54
In Alberta the Protection
of Persons in Care Act 2000 was introduced to safeguard vulnerable
people who were receiving care. The 2000 Act is scheduled to be replaced by the
Protection of Persons in Care Act 2009 but the 2009 Act has currently
(July 2009) not yet come into force. The 2009 Act will apply to public
institutions that provide care to vulnerable adults, and to social care
facilities that are places of care for persons who are aged or infirm or who
require special care.[664] It is
unclear as to whether this includes domiciliary care agencies. The purpose of
the 2009 Act is to prevent abuse of clients of these care services, by
requiring the mandatory reporting of abuse, and to ensure that such complaints
are independently reviewed.[665] Section
7(1) of the 2009 Act requires that every individual who has reasonable grounds
to believe that there is or has been abuse of a client of a care service
provider, must report the abuse to an authorised person, as soon as is
reasonably practicable. Anyone who fails to comply with this duty, will be
guilty of an offence.[666] The 2009
Act also confers on every service provider and individual employed by or
engaged for services by a service provider, who provides care or support
services to a client, a duty to take reasonable steps to protect the client
from abuse while providing the care and to maintain a reasonable level of
safety for the client.[667] The 2009
Act further protects those that report abuse, by prohibiting service providers
and individuals employed by or engaged for services by a service provider, from
taking adverse action against the individual for reporting the abuse.[668]
The 2009 Act offers some safeguards for service providers, by making it an
offence for someone to report abuse that they know to be false or malicious, or
where the individual does not have reasonable grounds to believe the
information is true.[669]
5.55
The distinction between
the 2000 Act and the 2009 Act, lies in the introduction by the 2009 Act of
complaint officers. Under the 2000 Act, where a complaint was made to the
police service or the relevant Minister, an investigator would be appointed to
conduct an investigation into the complaint.[670]
This investigator would then compile a report of the findings, which would be
sent to the relevant Minister, who could then refer the matter to the police
service, or where the agency against which the complaint was made, is in
receipt of funding from the Crown or a Crown agency, the Minister could review
or alter that funding.[671] The
Minister could also recommend that the agency involved in the complaint take
disciplinary proceedings against an employee or a service provider.
5.56
Under the 2009 Act, the
system for investigating complaints of abuse will change. The 2009 Act will introduce
dedicated complaints officers, to whom complaints about the provision of care
can be made.[672] The
complaints officers will conduct preliminary investigations into complaints,
before deciding whether the issue warrants further investigation by a dedicated
investigator.[673] All
interested parties must be notified of the complaints officer’s decision. Once
a matter has been referred to an investigator, he or she must fully investigate
the complaint. Investigators have considerable investigative powers, including
the authority to enter any relevant property and access any relevant documents,
as well as being able to interview any person who might have relevant
information.[674] A final
report is then furnished to the Director. The Director is appointed by the
Minister and has all of the functions of a complaints officer and an
investigator.[675] The
Director makes a decision based on the investigator’s final report, as to what
he or she thinks is appropriate to prevent the abuse of clients. A copy of the
decision must be supplied to all interested parties, and the client and the
individual involved must be notified of the right to appeal the decision to an
appeal panel.[676] An appeal
must be made within 15 days of the party’s receipt of the notification. On
appeal, the appeal panel may confirm, reverse or vary the Director’s decision,
and the appeal panel’s decision is final.[677]
5.57
Part 3 of the Adult
Guardianship Act 1996 provides for the support and assistance of abused and
neglected adults. The 1996 Act introduced the concept of voluntary reporting of
suspected abuse of vulnerable adults to British Columbia. Part 3 of the 1996
Act applies whether an adult is abused or neglected in a public place, in the
adult’s own home, in a relative’s home or some other care facility.[678]
This provision thus includes domiciliary care agencies, as well as informal
carers. Under section 46 of the 1996 Act, anyone who has information which
indicates that an adult is being abused or neglected, and is unable to prevent
the abuse, may report the abuse to a designated agency. The 1996 Act also
offers whistle-blowers protection to safeguard those who make such reports
about alleged abuse from legal action for damages.[679]
Employees who make such voluntary reports of abuse or neglect are also
protected under the 1996 Act.[680]
Employers are not allowed to refuse to employ or to refuse to continue
employing a person who has made a disclosure under section 46. Employers are
also precluded from threatening to dismiss, discriminate against and or
intimidate such employees.
5.58
Once a report of abuse
is made to a designated agency, the agency must determine whether the adult in
question is being abused or neglected, and whether he or she needs support and
assistance.[681] If the
designated agency determines that the adult does not need support or
assistance, because there is no evidence of abuse or neglect, then no further
action is taken.[682] However,
where the designated agency determines that the adult in question needs support
or assistance, then the agency can refer the adult to available health and
social services, inform the Public Guardian and Trustee and/or investigate the
report to determine if the adult is abused or neglected.[683]
The designated agency has the authority to interview relevant persons in order
to obtain relevant information about the report of abuse. The designated agency
also has the power to enter premises in order to interview someone, as part of
the investigation.[684] After
conducting an investigation, the designated agency may determine that no
further action is necessary, may refer the matter to the Public Guardian and
Trustee, may apply to the court for any interim orders necessary to protect the
individual concerned, or may prepare a support and assistance plan to meet the
needs of the individual.[685] Where such
a plan is prepared, the designated agency may apply to the court for an order
authorising the provision of services.[686]
On hearing the application, the Court must consider whether the adult is being
abused or neglected, is unable to seek support and assistance, and needs the
services proposed in the plan.[687]
Where the Court finds that a person is being abused or neglected, it may order
a person found to be abusing the adult to stop residing at or to stay away from
the premises where the abused adult lives, or not to visit or harass the adult.
The Court may order that such a person must pay for, or contribute towards the
adult’s maintenance or services to be provided for the adult.[688]
The 1996 Act protects those who act on behalf of designated agencies, from
personal liability for anything done in good faith in the exercise or
performance of their powers, duties and functions as prescribed by the Act.[689]
Neither the designated agency nor the government are absolved from vicarious
liability for an act or omission for which it would be vicariously
liable if this section were not in force.[690]
5.59
The Commission
invites submissions on the issues of mandatory and voluntary reporting of abuse
of vulnerable adults, by all persons, including employees of domiciliary care
providers.
5.60
Domiciliary care
workers play an important role in the lives of the people that they care for.
These carers have a responsibility towards the person they care for to minimise
both the likelihood of abusive situations occurring and to contribute to the
monitoring of those that may be considered to be at risk.[691]
There is a need to introduce measures that will protect vulnerable adults who
receive domiciliary care from abuse. Part of these protection measures must
include proper procedures for screening domiciliary care professionals. Such a
system would have to balance the need to protect vulnerable adults and the need
to protect the rights of the individual concerned to privacy and due process.
In this Part, the Commission examines different options that could be
implemented to screen domiciliary care workers. The role of the GCVU as it
extends to the screening of domiciliary care workers is also discussed. The
option of certifying individuals, and setting out requirements for such
certification is also considered.
5.61
Given the exposure vulnerable people have to possible exploitation and
abuse, the Commission considers that screening measures should be in place for
those who provide care to the vulnerable person. Currently, any organisation
that recruits and selects persons who would have substantial unsupervised
access to children and/or vulnerable adults can make a request for information
about prospective employees and volunteers from the GCVU. Such persons include
employees of the HSE and agencies funded by the HSE that would have access to
vulnerable persons, as well as staff working in care homes for older people.[692]
There is no express provision that requires domiciliary care workers to undergo
a vetting procedure before commencing employment. Domiciliary care agencies can
voluntarily approach the GCVU to request that a check on potential employees is
carried out, but this is not as yet a mandatory obligation.
5.62
The 2004 Report of
the Working Group on Garda Vetting recognised that this type of screening
is only one element of safe recruitment practices, and should not be solely
relied on by employers. Voluntary disclosure by potential employees is another
element of safe recruitment practices. Under HIQA’s 2007 Standards
for Residential Care Settings for Older People, all persons employed in a
residential care setting will be subjected to a satisfactory Garda vetting
procedure, which will also include screening from other jurisdictions.[693]
The standards also provide that in addition to a satisfactory GCVU vetting, all
new staff in residential care settings must supply two references, including a
reference from their last employer. These prospective employees must also
confirm their registration or validate their status, as well as verify their
qualifications, before their employment will be confirmed.[694]
Employers also have a responsibility to explore any gaps that appear in the
individual’s employment history.
5.63
In Chapter 1, the
Commission provisionally recommended that the Health Information and Quality
Authority (HIQA) and the Office of the Chief Inspector of Social Services (SSI)
should be empowered to regulate and monitor domiciliary care providers. These measures,
if introduced, would confer on HIQA the authority to set standards which
domiciliary care providers would have to meet whilst providing their services.
These standards could set out certain core competencies that domiciliary care
providers would have to meet, with regard to staffing the service. By extending
the scope of SSI, this will ensure that all domiciliary care providers must
apply for registration. In accordance with the registration process already
provided for under the Health Act 2007 for residential care providers,
the registration process for domiciliary care providers would be based on any
standards that HIQA would set out for domiciliary care providers. Before
granting all applications to care providers, SSI must be satisfied that the applicant
is compliant with any relevant HIQA standards.[695]
This provision would apply to domiciliary care providers. Where a care provider
successfully registers with SSI, a certificate of registration is issued to the
applicant,[696] and if
there are any conditions which SSI decides to attach to the registration, then
the certificate clearly sets these out.
5.64
The Health Act 2007
already provides a statutory framework by which domiciliary care providers
could easily be regulated and monitored. Where an individual works as an
independent professional domiciliary carer, the issue then arises as to how he
or she can be regulated and monitored. As already discussed in Chapter 1, the Health
and Social Care Professionals Act 2005 is not a suitable framework for the
registration of domiciliary care professionals.[697]
There is, in the Commission’s view, a need to establish a register of all independent
professional carers. This would ensure that such carers are properly registered
with a particular body that would regulate and inspect each individual carer to
ensure that they are complying with any standards and regulations. Under the
framework set out by the Health Act 2007, HIQA is in a prime position to
initiate the registration and monitoring of individual professional domiciliary
carers. Under this system, individual professional domiciliary carers would be
required to register with SSI, which, if it approves the application, would
issue each carer with a certificate of registration. SSI would then be
responsible for the monitoring of registered professional domiciliary carers.
These measures would go some way toward ensuring that professional domiciliary
carers would comply with any standards published by HIQA. As provided for in
the National Quality Standards for Residential Care Settings for Older
People, any standards for
professional domiciliary carers could include a requirement to provide
references, details of qualifications and Garda vetting to anyone who wishes to
employ such a carer. If a domiciliary care worker was then found guilty of an
offence as prescribed by section 51(2) of the Health Act 2007, then his
or her registration could be cancelled, and he or she could be decertified.
5.65
The Commission
invites submissions on the establishment of a specific register of professional
domiciliary carers, which would be operated by HIQA, and would set out specific
requirements in relation to the registration and monitoring of professional
domiciliary carers.
6
6.01
The Commission’s
provisional recommendations in this Consultation Paper may be summarised as
follows.
6.02
The Commission provisionally recommends that section 8(1)(b) of the
Health Act 2007 be amended to extend the authority of the Health Information
and Quality Authority to include the regulating and monitoring of professional
domiciliary care providers.[Paragraph 1.42]
6.03
The Commission
provisionally recommends the amendment of the definition of a “designated
centre” in section 2(1) of the Health Act 2007 to include domiciliary care
providers. This would extend the power of the Office of the Chief Inspector of
Social Services under section 41 of the Health Act 2007 to register and monitor
professional domiciliary care providers. [Paragraph 1.46]
6.04
The Commission
provisionally recommends extending the Ministerial regulation-making power
conferred on the Minister for Health and Children by section 101 of the Health
Act 2007 to include the authority to make Regulations in respect of
professional domiciliary care providers.[Paragraph 1.48]
6.05
The Commission
provisionally recommends that HIQA publish standards which should be
specifically tailored for the domiciliary care setting, building on existing
HIQA standards for the residential care setting. The Commission also provisionally
recommends that the proposed standards should ensure that domiciliary care is
provided in a manner that promotes the well-being and independence of the
service user in their own home. [Paragraph 2.95]
6.06
The Commission
provisionally recommends that the terms and conditions of the provision of care
be agreed and recorded in a care contract, in order to offer the maximum
protection to the service user. [Paragraph 3.20]
6.07
The Commission
provisionally recommends that the care contract should contain specific
policies in relation to the entering and leaving of the service recipient’s
home by the carer. [Paragraph 3.25]
6.08
The Commission
provisionally recommends that the care contract should contain clear policies
and procedures in relation to the handling by the carer of money and personal
property of the service recipient. The Commission also provisionally recommends
that there should be clear policies in place regarding the refusal of gifts
from the service recipient. [Paragraph 3.32]
6.09
The Commission
provisionally recommends that the care contract should set out specific
policies and procedures in relation to the management of a service recipient’s
medication. [Paragraph 3.39]
6.10
The Commission
provisionally recommends that an individual who wishes to enter into an
arrangement for the provision of domiciliary care services should have the
option to contract with an intermediary, whether a State body or a private
sector body, who would arrange for the provision of care and who would assume
the responsibilities of an employer towards the domiciliary carer. [Paragraph
4.09]
6.11
The Commission invites
submissions as to whether a subvention arrangement, comparable to that for nursing
homes in the Nursing Homes Support Scheme Act 2009, should be extended to
community-based provision of domiciliary care. [Paragraph 4.19]
6.12
The Commission
provisionally recommends that an individual who wishes to pay for the provision
of domiciliary care services should have the option to contract directly with
the HSE for such services. [Paragraph 4.22]
6.13
The Commission
provisionally recommends that section 469 of the Taxes Consolidation Act 1997
should be extended to provide tax relief for fees incurred by an individual in
meeting the cost of domiciliary care. [Paragraph 4.27]
6.14
The Commission
provisionally recommends that there should be public education of the fact that
a service user could be regarded as an employer of a professional carer if the
service user does not contract directly through an intermediary, whether
private sector or the State, for the provision of professional domiciliary
care. [Paragraph 4.32]
6.15
The Commission
provisionally recommends that any contract for the provision of domiciliary
care services should include specific provisions that set out the financial
arrangement between the contracting parties for the agreed services. [Paragraph
4.39]
6.16
The Commission
provisionally recommends that any contract for domiciliary care provision
should make specific reference to the responsibilities that arise under
employment law, including any specific issues arising under safety and health
legislation. [Paragraph 4.52]
6.17
The Commission invites submissions on whether it is appropriate that, in
connection with an individual whose capacity to enter into a contract is in
doubt or may be absent, a “general authority” to act on the person’s behalf
could include entering into a contract for the provision of domiciliary care or
whether this should be a matter only for a personal guardian or an attorney
appointed under an enduring power of attorney. [Paragraph 4.59]
6.18
The Commission endorses
the proposal in head 27 of the Government’s Scheme of Mental Capacity Bill 2008
to create an offence of ill treatment or wilful neglect as involving an
important protective element in the context of domiciliary care. [Paragraph
5.15]
6.19
The Commission invites
submissions as to whether the form of protection for people who report concerns
about incidents of possible abuse contained in the Protection of Persons
Reporting Child Abuse Act 1998 should be extended to apply in the context of
professional domiciliary care. [Paragraph 5.20]
6.20
The Commission
provisionally recommends that Part 9A of the Health Act 2004, which deals with
disclosure of abuse, be amended, to ensure that employees of domiciliary care
providers will be covered by the protected disclosure safeguards. [Paragraph
5.28]
6.21
The Commission invites
submissions on the issues of mandatory and voluntary reporting of abuse of
vulnerable adults, by all persons, including employees of domiciliary care
providers. [Paragraph 5.59]
6.22
The Commission invites
submissions on the establishment of a specific register of professional
domiciliary carers, which would be operated by HIQA, and would set out specific
requirements in relation to the registration and monitoring of professional
domiciliary carers. [Paragraph 5.65]
[1]
Law Reform Commission,
Third Programme of Law Reform 2008-2014 (LRC 86-2007), Project 29.
[2]
LRC 83-2006.
[3]
Available at
www.justice.ie. The Government’s April 2009 Legislation Programme indicates
that a Mental Capacity Bill is to be published by the end of 2009.
[4]
LRC 83-2006.
[5]
The concept of “home” is an important one. For
the purposes of this project, a home is considered to be a dwelling, in which a
person ordinarily resides in, which is not a hospital or a nursing home, but which
can also include sheltered housing accommodation.
[6]
Health and Social
Services for Older People The Years Ahead Report: A Review of the
Implementation of its Recommendations, National Council on Ageing and Older
People, June 2001, at 23 ff.
[7]
Towards 2016:
Ten-Year Framework Social Partnership Agreement 2006-2015 (Department of
the Taoiseach, Government Publications, 2006) at Section 32: Older People.
[8]
See www.cso.ie.
[9]
Central Statistics
Office, “Regional Population Projections 2011-2026”, Table 3, 4th
December 2008, www.cso.ie.
[10]
Ahern, Doyle and Timonen
“Regulating Home Care of Older People: The Inevitable Poor Relation?” (2007) 29
Dublin University Law Journal 374 at 377.
[11]
“Reported cases of
elder abuse top 1,800”, Irish Times report, 3rd February 2009,
Barry Roche.
[12]
Rickard-Clarke, “Elder
Abuse – Legal Solutions” in O’Dell (ed) Older People in Modern Ireland:
Essays on Law and Social Policy (FirstLaw, 2006) at 249.
[13]
For more information see
Department of Health, “Partial Regulatory Impact Analysis Domiciliary Care
Standards” (2001) available on www.dh.gov.uk.
[14]
Op cit fn6 at 393.
[15]
For more information on the Home
Care Support Scheme see www.dohc.ie in the Consumer Information section, under
the Health Services for older people section.
[16]
See the HSE website -
http://www.hse.ie/eng/Find_a_Service/Older_People_Services/Benefits_and_Entitlements/Home_Care_Packages.html.
[17]
Ibid.
[18]
This contractual relationship shall
be discussed in more detail in Chapter 3.
[19]
“Carers group claims its members
save State €2.5 billion”, The Irish Times, Health Supplement, 10
February 2009.
[20]
Towards 2016: Ten-Year Framework
Social Partnership Agreement 2006-2015 (Department of the Taoiseach,
Government Publications, 2006) at 54.
[21]
Press Release “Government not proceeding with publication of a National Carers’
Strategy” dated 3rd March 2009, available at www.welfare.ie.
[22]
The 1990 Act has been amended by the
Health (Nursing Homes) (Amendment) Act 2007 (primarily in the context of
the State’s nursing home subvention arrangements) and by the Health Act 2007
(primarily for the purposes of bringing private nursing homes under the remit
of the standard-setting powers of HIQA).
[23]
Section 2(1)(a) of the 1990
Act.
[24]
Section 2(1)(e).
[25]
Section 2(1)(f).
[26]
Proviso to section 6(1) of the 1990
Act. Section 6 will be repealed when the Health Act 2007 comes into
force fully. Section 104(1) of the 2007 Act, in accordance with Part 1 of
Schedule 1, provides for the repeal of section 6 of the 1990 Act but this
section has not yet (July 2009) come into effect. The definition of a “nursing
home” in the 2007 Act clearly deals with facilities not provided by a private
individual to a spouse or relative and it may have been considered unnecessary
to repeat the proviso in section 6(1) of the 1990 Act.
[27]
Section 6(2)(j) of the 1990 Act.
Section 6 will be repealed when the Health Act 2007 comes into force
fully.
[28]
S.I. No 226 of 1993, as amended by
the Nursing Homes (Care and Welfare) (Amendment) Regulations 1994.
[29]
The Regulation-making power in
section 6 of the 1990 Act will be repealed when the Health Act 2007
comes into force fully. Section 6 of the 1990 Act will be replaced by the
Regulation-making power in section 101 of the 2007 Act. Pending the making of
Regulations under 101 of the 2007 Act, the 1993 Regulations remain in force:
see section 26 of the Interpretation Act 2005.
[30]
Regulation 5 of the Nursing Homes
(Care and Welfare) Regulations 1993.
[31]
Regulation 7 of the Nursing Homes
(Care and Welfare) Regulations 1993.
[32]
Regulation 10 of the Nursing
Homes (Care and Welfare) Regulations 1993.
[33]
Regulation 11(1) of the Nursing
Homes (Care and Welfare) Regulations 1993.
[34]
Regulations 14 and 15 of the Nursing
Homes (Care and Welfare) Regulations 1993.
[35]
Regulation 16(1) of the Nursing
Homes (Care and Welfare) Regulations 1993.
[36]
Regulation 27 of the Nursing
Homes (Care and Welfare) Regulations 1993, as amended by the Nursing
Homes (Care and Welfare) (Amendment) Regulations 1994.
[37]
Regulations 18 to 21 of the Nursing
Homes (Care and Welfare) Regulations 1993.
[38]
Regulation 23 of the Nursing
Homes (Care and Welfare) Regulations 1993.
[39]
Regulation 24 of the Nursing
Homes (Care and Welfare) Regulations 1993.
[40]
O’Neill, A review of the deaths at
Leas-Cross Nursing Home 2002-2005 (HSE, 2006). In July 2009, the Report of a
Commission of Investigation into Leas Cross (conducted by Diarmuid O’Donovan
SC), available at www.dohc.ie reached similar conclusions.
[41]
Ibid, p.3.
[42]
Section 6 of the Health Act 2007.
[43]
Section 7 of the Health Act 2007.
[44]
Section 8(1)(c) of the Health Act
2007.
[45]
Section 9(1)(a) of the Health Act
2007.
[46]
These include: Hygiene Standards
(2008), Standards for Infection Prevention and Control (2008) and Symptomatic
Breast Disease Standards (2006: published when HIQA had been established on
an interim basis, prior to the 2007 Act).
[47]
Health Information and Quality
Authority Standards for Residential Care Settings for Older People
available at www.hiqa.ie.
[48]
Health Information and Quality
Authority National Quality Standards: Residential Services for People with
Disabilities available at www.hiqa.ie.
[49]
Section 6(1) of the Health and
Social Care Professionals Act 2005.
[50]
Section 8 of the Health and
Social Care Professionals Act 2005.
[51]
Section 4 of the Health and
Social Care Professionals Act 2005.
[52]
Section 4(3) of the Health and
Social Care Professionals Act 2005.
[53]
Section 4(2) of the Health and
Social Care Professionals Act 2005 provides that a profession may come
under this provision provided it is not already regulated under an Act of the
Oireachtas, and interested parties are given an opportunity to make
representations, and the Minister considers it appropriate and in the public
interest that the profession be designated under the Act.
[54]
Section 4(4) of the Health and
Social Care Professionals Act 2005.
[55]
Section 4(4)(c)-(d) of the Health
and Social Care Professionals Act 2005.
[56]
Section 4(4)(e) of the Health and
Social Care Professionals Act 2005. The Minister may also take into
consideration any other factor he or she believes is relevant.
[57]
See also section 36 of the Health
and Social Care Professionals Act 2005.
[58]
Section 27(3) of the Health and Social Care Professionals Act 2005.
[59]
Section 38 of the Health and
Social Care Professionals Act 2005.
[60]
See Part 6 of the Health and
Social Care Professionals Act 2005.
[61]
Section 51 of the Health and
Social Care Professionals Act 2005.
[62]
Section 52 of the Health and
Social Care Professionals Act 2005.
[63]
Section 53 of the Health and
Social Care Professionals Act 2005.
[64]
Section 56(1) of the Health and
Social Care Professionals Act 2005. A hearing before a professional conduct
committee must in general be held in public, whereas a hearing before a health
committee shall in general, not be held in public, see section 58 of the Health
and Social Care Professionals Act 2005.
[65]
Section 63 of the Health and
Social Care Professionals Act 2005.
[66]
Section 64 of the Health and
Social Care Professionals Act 2005.
[67]
Section 65 of the Health and
Social Care Professionals Act 2005.
[68]
Section 69 of the Health and
Social Care Professionals Act 2005.
[69]
Section 73(2) of the Health and
Social Care Professionals Act 2005.
[70]
Section 75(4) of the Health and
Social Care Professionals Act 2005.
[71]
National Council for the Elderly, “The
Years Ahead”, 1988.
[72]
Recommendation 6.29 of the 1988
Report.
[73]
Recommendation 6.37 of the 1988
Report.
[74]
Ahern, Doyle and Timonen “Regulating
Home Care of Older People: The Inevitable Poor Relation?” (2007) 29 Dublin
University Law Journal 374 at 395.
[75]
Ibid.
[76]
Rickard-Clarke, “Elder Abuse – Legal
Solutions” in O’Dell (ed) Older People in Modern Ireland: Essays on Law and
Policy, (First Law, 2006) at 265.
[77]
Op. cit., fn70 at 378.
[78]
Ibid.
[79]
Section 61(1) of the Health Act
1970.
[80]
Ibid at section 61A(1).
[81]
See section 61A(3) of the Health
Act 1970.
[82]
Ahern, Doyle and Timonen “Regulating
Home Care of Older People: The Inevitable Poor Relation?” (2007) 29 Dublin
University Law Journal 374 at 381.
[83]
This issue shall be discussed in
more detail in Chapter 3.
[84]
Section 2 of the Health Act 2007.
[85]
Section 41(1)(b) of the Health
Act 2007.
[86]
See section 48 and section 49(2) of
the Health Act 2007.
[87]
Section 50 of the Health Act
2007.
[88]
Section 50(3) of the Health Act
2007.
[89]
Section 51 of the Health Act 2007.
[90]
Section 53 of the Health Act 2007.
[91]
Section 57 of the Health Act
2007.
[92]
Section 57(4)(a) of the Health
Act 2007.
[93]
Section 62 of the Health Act
2007.
[94]
As per section 4(3) of the Care
Standards Act 2000.
[95]
Section 102(3) Health and Social
Care (Community, Health and Standards) Act 2003 transferred the functions
of the National Care Standards Commission under Part II of the Care
Standards Act 2000 to the Commission for Social Care Inspection in April
2004.
[96]
Section 11(1) of the Care
Standards Act 2000.
[97]
Section 31 of the Care Standards
Act 2000.
[98]
As per section 22(2)(d) of the Care
Standards Act 2000.
[99]
As per section 22(5) of the Care Standards Act 2000.
[100]
Section 23 of the Care Standards
Act 2000. The National Minimum Standards: Domiciliary Care will be
discussed in more detail in Chapter 2.
[101]
See www.cqc.org.uk for more
information regarding the particulars of the registration and inspection
process.
[102]
See Schedule II of the National
Care Standards Commission (Registration) Regulations 2001 for further
details.
[103]
Section 31 of the Care Standards
Act 2000.
[104]
Section 24 of the Care Standards Act
2000.
[105]
For more information see www.cssiw.org.uk.
[106]
Domiciliary Care Agencies (Wales)
Regulations 2004, Welsh Statutory Instruments 2004 No. 219 (W23).
[107]
Section 1(1) Regulation of Care
(Scotland) Act 2001.
[108]
See the Regulation of Care (Scotland)
Act 2001, and the Care Commission’s website www.carecommission.com.
[109]
Section 59 of the Regulation of
Care (Scotland) Act 2001.
[110]
Section 2(1)(a)-(b) of the Regulation
of Care (Scotland) Act 2001.
[111]
See www.scotland.gov.uk under the Health
and Community Care section for more detail.
[112]
Section 29(2)(e) of the Regulation of
Care (Scotland) Act 2001.
[113]
Initially, the Scottish Ministers
established a body named the National Care Standards Committee, which had
responsibility for publishing and reviewing national standards for care
services. This body was renamed the Care Standards and Sponsorship Branch. For
more information about the Care Standards and Sponsorship Branch see the Care
Standards and Sponsorship Branch section on
www.scotland.gov.uk/Topics/Health/care.
[114]
Section 5 of the Regulation of Care
(Scotland) Act 2001.
[115]
For more information see
www.scotland.gov.uk under the Health and Community Care section.
[116]
See Part 3 of the Regulation of Care (Scotland) Act 2001 for more
details about the Scottish Social Services Council.
[117]
Section 7 of the Regulation of Care
(Scotland) Act 2001.
[118]
Section 21(1) of the Regulation of Care
(Scotland) Act 2001.
[119]
Section 25(2) of the Regulation of Care
(Scotland) Act 2001.
[120]
Section 25(2)(a)-(b) of the Regulation
of Care (Scotland) Act 2001.
[121]
Section 25(3) and section 25(5) of the Regulation
of Care (Scotland) Act 2001.
[122]
Section 27(5) of the Regulation
of Care (Scotland) Act 2001.
[123]
Health and Personal Social Services
(Quality, Improvement and Regulation) (Northern Ireland) Order 2003, (HPSS
NI Order).
[124]
Article 35(1)(a) of the Health and Personal Social Services
(Quality, Improvement and Regulation) (Northern Ireland) Order 2003.
[125]
Article 35(1)(d) of the Health and Personal
Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order
2003.
[126]
Article 38 of the Health and Personal Social Services (Quality,
Improvement and Regulation) (Northern Ireland) Order 2003.
[127]
Article 8 of the Health and Personal Social Services (Quality,
Improvement and Regulation) (Northern Ireland) Order 2003.
[128]
Section 2-1(1)(a) of the Aged Care Act
1997.
[129]
Section 2-1(1)(b) of the Aged Care Act
1997.
[130]
Section 2-1(1)(c) of the Aged Care Act
1997.
[131]
As per Schedule 1 of Aged Care Act
1997.
[132]
Section 3-1 of the Aged Care Act 1997.
[133]
Hardy “Aged Care” [2002] Australian
Elder Law Review 1 at 2.
[134]
For more see www.accreditation.org.au.
[135]
www.accreditation.org.au.
[136]
For more information see
www.health.gov.au under the Office of Aged Care Quality and Compliance section
within the Aged Care section.
[137]
For more detailed information see
www.health.gov.au under the Office of Aged Care Quality and Compliance section
within the Aged Care section.
[138]
Section 95(2)(d)(i) of the Aged Care
Act 1997.
[139]
Section 95A of the Aged Care Act 1997.
[140]
For more information see
www.agedcarecommission.net.au.
[141]
Section 54 of the Aged Care Act 1997.
[142]
Home and Community Care Program National
Standards Instrument see www.health.gov.au.
[143]
For more information see
www.health.gov.au.
[144]
Hardy “Aged Care” [2002] Australian
Elder Law Review 1 at 2.
[145]
For more information see www.health.gov.au
in the Quality Reporting section within the Community Care section.
[146]
“The Way Forward – A new strategy for Community Care”, available at
www.health.gov.au.
[147]
For more information see
www.agedcareaustralia.gov.au.
[148]
Section 3 of the Canada Health
Act 1984.
[149]
Constitution Act 1867.
[150]
For more information see Ministry of
Health Canada’s Health Care System available at www.hc-sc.gc.ca.
[151]
Report of the Premier’s Council on Aging
and Seniors’ Issues Aging Well in British Columbia at p.53 available at
www.hls.gov.bc.ca/seniors/council.
[152]
Ibid at p.50.
[153]
Op cit fn174 at 53.
[154]
Section 1 of the Community Care and
Assisted Living Act 2003.
[155]
Regulation 2 of the Community Care and
Assisted Living Regulations 2008.
[156]
Section 25(1) of the Community Care and
Assisted Living Act 2003.
[157]
Section 25(2)(a) of the Community Care
and Assisted Living Act 2003.
[158]
For more information see department of
Health Home and Community Care: A Guide to Your Care, August 2007,
available of www.health.gov.bc.ca/hcc.
[159]
Report of the Premier’s Council on Aging
and Seniors’ Issues Aging Well in British Columbia, at p53.
[160]
For more information see www.bchousing.org.
[161]
Section 1 of the Community Care and
Assisted Living Act 2003.
[162]
Section 5 of the Community Care and
Assisted Living Act 2003.
[163]
Section 7 of the Community Care and
Assisted Living Act 2003.
[164]
Regulation 6.1 of the Adult Care
Regulations 1980. The 1980 Regulations were amended by B.C. Reg. 419/2008.
[165]
Regulation 6.1(a) of the Adult Care
Regulations 1980.
[166]
For more information see
www.hls.gov.bc.ca/seniors.
[167]
Section 100 of the Health
Act 2007.
[168]
Section 101(2) of the Health
Act 2007.
[169]
Section 22(1) of the Care
Standards Act 2000.
[170]
Section 23 of the Care
Standards Act 2000.
[171]
Domiciliary Care –
National Minimum Standards at 3.
[172]
Ridout, “New Laws for the Regulation and Funding of Care”, Elder Law and
Finance, 1.2 at 38.
[173]
Section 23(4)(a) of the Care
Standards Act 2000.
[174]
91 BMLR 22; 2006 EWHC 1165.
[175]
Mitchell, “Community
Care Law update”, 156 New Law Journal 1608.
[176]
See judgment of Kay LJ.
[177]
Domiciliary Care – National
Minimum Standards at 4.
[178]
Section 23 of the Care
Standards Act 2000.
[179]
A registered person is any person
who is registered as the provider or the manager of the agency as per section
2(1) of SI 3214/2002 Domiciliary Care Agencies Regulations 2002.
[180]
Schedule 1 of the Domiciliary
Care Agencies Regulations 2002.
[181]
Regulation 2(1) of the Domiciliary
Care Agencies Regulations 2002.
[182]
Regulation 13 of the Domiciliary
Care Agencies Regulations 2002.
[183]
Regulation 5(1) of the Domiciliary
Care Agencies Regulations 2002.
[184]
Regulation 12 of the Domiciliary
Care Agencies Regulations 2002.
[185]
Ibid.
[186]
Schedule 3 of the Domiciliary
Care Agencies Regulations 2002.
[187]
Regulation 13(a) and (b) of the Domiciliary
Care Agencies Regulations 2002.
[188]
Regulation 13(c) and (e) of the Domiciliary
Care Agencies Regulations 2002.
[189]
Regulation 13(d) of the Domiciliary
Care Agencies Regulations 2002.
[190]
Regulation 14(2) of the Domiciliary
Care Agencies Regulations 2002.
[191]
Regulation 14(3)(c) of the Domiciliary
Care Agencies Regulations 2002.
[192]
Regulation 14(5)(a) of the Domiciliary
Care Agencies Regulations 2002.
[193]
Regulation 14(3)(a) and (b) of the Domiciliary
Care Agencies Regulations 2002.
[194]
Regulation 14(4) of the Domiciliary
Care Agencies Regulations 2002.
[195]
Regulation 14(7) of the Domiciliary
Care Agencies Regulations 2002.
[196]
Ibid.
[197]
Regulation 14(8) of the Domiciliary
Care Agencies Regulations 2002.
[198]
Regulation 14(6) of the Domiciliary
Care Agencies Regulations 2002.
[199]
Regulation 14(6)(d) of the Domiciliary
Care Agencies Regulations 2002.
[200]
Regulation 15 of the Domiciliary
Care Agencies Regulations 2002.
[201]
Regulation 15(1)(a) of the Domiciliary
Care Agencies Regulations 2002.
[202]
Regulation 15(1)(b) and (c) of the Domiciliary
Care Agencies Regulations 2002.
[203]
Regulation 15(2)(a) of the Domiciliary
Care Agencies Regulations 2002.
[204]
Regulation 15(2)(b) of the Domiciliary
Care Agencies Regulations 2002.
[205]
Regulation 20 of the Domiciliary
Care Agencies Regulations 2002.
[206]
Regulation 20(3)(a) and (b) of the Domiciliary
Care Agencies Regulations 2002.
[207]
Regulation 20(4) of the Domiciliary
Care Agencies Regulations 2002.
[208]
Regulation 20(5) of the Domiciliary
Care Agencies Regulations 2002.
[209]
Regulations 20(6) and 20(7) of the Domiciliary
Care Agencies Regulations 2002.
[210]
Department of Health Domiciliary
Care: National Minimum Standards at 5, available at
www.dh.gov.uk/en/Publicationsandstatistics.
[211]
Standard 7 of the Domiciliary
Care: National Minimum Standards.
[212]
Standards 8 and 9 of the Domiciliary
Care: National Minimum Standards.
[213]
See standards 11-15 of the Domiciliary
Care: National Minimum Standards.
[214]
See standards 18-20 of the Domiciliary
Care: National Minimum Standards.
[215]
Standard 1 of the Domiciliary Care:
National Minimum Standards, in accordance with regulations 4 and 5 of the Domiciliary
Care Agencies Regulations 2002.
[216]
Standard 1.2 of the Domiciliary
Care: National Minimum Standards.
[217]
Standard 6 of the Domiciliary
Care: National Minimum Standards.
[218]
Standard 4 of the Domiciliary
Care: National Minimum Standards.
[219]
Domiciliary Care: National
Minimum Standards at 5.
[220]
Domiciliary Care: National
Minimum Standards at 5-6.
[221]
Department of Health Supported
Housing and Care Homes: Guidance on Regulation at 4, available at
www.dh.gov.uk/publications.
[222]
Standard 8 of the Domiciliary
Care: National Minimum Standards in accordance with regulation 14 of the Domiciliary
Care Agencies Regulations 2002.
[223]
Standard 9 of the Domiciliary
Care: National Minimum Standards in accordance with regulation 14 of the Domiciliary
Care Agencies Regulations 2002.
[224]
Standard 14.1 of the Domiciliary
Care: National Minimum Standards.
[225]
Standard 14.3 of the Domiciliary
Care: National Minimum Standards.
[226]
Standard 13 of the Domiciliary
Care: National Minimum Standards in accordance with regulation 14 of the Domiciliary
Care Agencies Regulations 2002.
[227]
Standard 13.2 of the Domiciliary
Care: National Minimum Standards.
[228]
Standard 21 of the Domiciliary
Care: National Minimum Standards.
[229]
Standard 20 of the Domiciliary
Care: National Minimum Standards.
[230]
Standard 17 of the Domiciliary
Care: National Minimum Standards sets out all the various checks that
potential staff must satisfy before the contract of employment can be
completed.
[231]
Standard 18 of the Domiciliary
Care: National Minimum Standards.
[232]
Standard 19.1 of the Domiciliary
Care: National Minimum Standards.
[233]
Standard 20.2 of the Domiciliary
Care: National Minimum Standards.
[234]
Standard 20.2 of the Domiciliary
Care: National Minimum Standards.
[235]
Standard 20.5 of the Domiciliary
Care: National Minimum Standards.
[236]
Standard 20.7 of the Domiciliary
Care: National Minimum Standards.
[237]
Domiciliary Care: National
Minimum Standards at 35.
[238]
Standard 22 of the Domiciliary
Care: National Minimum Standards in accordance with regulation 22 of the Domiciliary
Care Agencies Regulations 2002.
[239]
Section 22(1) of the Care
Standards Act 2000.
[240]
Section 23(1) of the Care
Standards Act 2000.
[241]
Welsh Assembly Government National
Minimum Standards for Domiciliary Care Agencies in Wales, piii-ix,
available at www.csiw.wales.gov.uk/docs.
[242]
Regulation 13(a) of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[243]
Regulation 13(c) of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[244]
Regulation 14(1) of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[245]
Regulation 14(4) of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[246]
Regulation 5 of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[247]
Regulation 5(1)(a) of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[248]
Regulation 5(1)(e) of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[249]
Regulation 5(1)(c) of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[250]
Regulations 8-11;15,16 of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[251]
Regulation 15 of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[252]
Regulation 10 of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[253]
Regulation 8(2) of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[254]
For more details on the criteria an
employee must satisfy, see Schedule 2 of the Domiciliary Care Agencies
(Wales) Regulations 2004.
[255]
Regulation 16(1)(a) of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[256]
Regulation 16(2)(a) of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[257]
Regulation 16(2)(b) of the Domiciliary
Care Agencies (Wales) Regulations 2004.
[258]
Standard 4 of the Domiciliary
Care: National Minimum Standards.
[259]
Standard 5 of the National
Minimum Standards for Domiciliary Care Agencies in Wales.
[260]
Standard 5.1 of the National
Minimum Standards for Domiciliary Care Agencies in Wales.
[261]
Standard 4.1 of the Domiciliary
Care: National Minimum Standards.
[262]
Section 29(1) of the Regulation
of Care (Scotland) Act 2001.
[263]
Care Standards and Sponsorship
Branch National Care Standards: Care at Home Scottish Executive at 10,
available at www.infoscotland.com/nationalcarestandards.
[264]
Section 29(1) of the Regulation
of Care (Scotland) Act 2001.
[265]
Section 29(2)(e) of the Regulation
of Care (Scotland) Act 2001.
[266]
Regulation 2 of the Regulation of Care (Requirements as to Care
Services) Scotland Regulations 2002.
[267]
Regulation 4(1)(b) of the Regulation of Care (Requirements as
to Care Services) Scotland Regulations 2002.
[268]
Regulation 5(1) of the Regulation of Care (Requirements as
to Care Services) Scotland Regulations 2002.
[269]
Regulation 6(2)(a),(b),(c) of the Regulation of Care (Requirements as
to Care Services) Scotland Regulations 2002.
[270]
Regulations 7(2)(c)(d) and 9(2)(a)(b) of
the Regulation of Care
(Requirements as to Care Services) Scotland Regulations 2002.
[271]
Regulation 13(b) of the Regulation of Care (Requirements as
to Care Services) Scotland Regulations 2002.
[272]
Regulation 13(c)(i)(ii) of the Regulation of Care (Requirements as
to Care Services) Scotland Regulations 2002.
[273]
Regulation 19(1),(2) of the Regulation of Care (Requirements as
to Care Services) Scotland Regulations 2002.
[274]
Regulation 25(3) of the Regulation of Care (Requirements as
to Care Services) Scotland Regulations 2002.
[275]
Regulation 25(5) of the Regulation of Care (Requirements as
to Care Services) Scotland Regulations 2002.
[276]
Regulation 25(7) of the Regulation of Care (Requirements as
to Care Services) Scotland Regulations 2002.
[277]
Standard 1.1 of the National Care
Standards: Care at Home.
[278]
Standard 2 of the National Care
Standards: Care at Home.
[279]
Standard 11 of the National Care
Standards: Care at Home.
[280]
Standard 10.2 of the National Care
Standards: Care at Home.
[281]
Standard 11.3 of the National Care
Standards: Care at Home.
[282]
Standard 5.1 of the National Care
Standards: Care at Home.
[283]
Standard 5.3 of the National Care
Standards: Care at Home.
[284]
Standard 6.1 of the National Care
Standards: Care at Home.
[285]
Standard 9.3 of the National Care
Standards: Care at Home.
[286]
Standard 9.6 of the National Care
Standards: Care at Home.
[287]
Standard 3 of the National Care
Standards: Care at Home.
[288]
Standard 3.3 of the National Care
Standards: Care at Home.
[289]
Standard 8.1 of the National Care
Standards: Care at Home.
[290]
Standard 8.3 of the National Care
Standards: Care at Home.
[291]
Standard 7.2 of the National Care
Standards: Care at Home.
[292]
Standard 7.4 of the National Care
Standards: Care at Home.
[293]
Standard 4.5 of the National Care
Standards: Care at Home.
[294]
Standard 4.4 of the National
Care Standards: Care at Home.
[295]
See standards 11-15 of the Domiciliary
Care: National Minimum Standards for a more detailed discussion.
[296]
See standards 11-15 of the Domiciliary
Care: National Minimum Standards.
[297]
Standard 4 of the National Care
Standards: Care at Home.
[298]
Standard 4.3 of the National Care
Standards: Care at Home.
[299]
Standard 4.1 of the National Care
Standards: Care at Home.
[300]
Section 23(1) of the Health and Personal
Social Services (Quality, Improvement and Regulation)(Northern Ireland) Order
2003.
[301]
Regulation 5(1),(2) of the Domiciliary
Care Agencies Regulations (Northern Ireland) 2007.
[302]
Regulation 6(1)(b) of the Domiciliary
Care Agencies Regulations (Northern Ireland) 2007.
[303]
Regulation 14(a),(b),(c) of the Domiciliary
Care Agencies Regulations (Northern Ireland) 2007.
[304]
Regulation 14(e) of the Domiciliary
Care Agencies Regulations (Northern Ireland) 2007.
[305]
Regulation 22(1) of the Domiciliary
Care Agencies Regulations (Northern Ireland) 2007.
[306]
Regulation 22(3) of the Domiciliary
Care Agencies Regulations (Northern Ireland) 2007.
[307]
Regulation 23 of the Domiciliary Care
Agencies Regulations (Northern Ireland) 2007.
[308]
Regulations 8(3), 10(2), 13 of the Domiciliary
Care Agencies Regulations (Northern Ireland) 2007.
[309]
Regulation 16 of the Domiciliary Care
Agencies Regulations (Northern Ireland) 2007.
[310]
Regulation 16(2)(a),(b) of the Domiciliary
Care Agencies Regulations (Northern Ireland) 2007.
[311]
Section 38(1) of the Health and
Personal Social Services (Quality, Improvement and Regulation)(Northern
Ireland) Order 2003.
[312]
Department of Health, Social Services and
Public Safety Domiciliary Care Agencies: Minimum Standards at 9.
[313]
Standard 1.2 of the Domiciliary Care
Agencies: Minimum Standards.
[314]
Standard 1.3 and 1.4 of the Domiciliary
Care Agencies: Minimum Standards.
[315]
Standard 2.2 of the Domiciliary Care
Agencies: Minimum Standards.
[316]
Standard 4.2 of the Domiciliary Care
Agencies: Minimum Standards.
[317]
Standard 4.3 of the Domiciliary Care
Agencies: Minimum Standards.
[318]
Standard 7 of the Domiciliary Care
Agencies: Minimum Standards.
[319]
Standard 8 of the Domiciliary Care
Agencies: Minimum Standards.
[320]
Standard 8.11 of the Domiciliary Care
Agencies: Minimum Standards.
[321]
Standard 10 of the Domiciliary Care
Agencies: Minimum Standards.
[322]
Standard 11.2 of the Domiciliary Care
Agencies: Minimum Standards.
[323]
Standard 12.2 of the Domiciliary Care
Agencies: Minimum Standards.
[324]
Standard 13 of the Domiciliary Care
Agencies: Minimum Standards.
[325]
Standard 14 of the Domiciliary Care
Agencies: Minimum Standards.
[326]
Standard 14.3 of the Domiciliary Care
Agencies: Minimum Standards.
[327]
Standard 14.4 of the Domiciliary Care
Agencies: Minimum Standards.
[328]
Standard 14.6 of the Domiciliary Care
Agencies: Minimum Standards.
[329]
Standard 15 of the Domiciliary Care
Agencies: Minimum Standards.
[330]
Standard 2 of the Domiciliary Care
Agencies: Minimum Standards.
[331]
Standard 5 of the National Care
Standards: Care at Home.
[332]
Standard 7 of the National Care
Standards: Care at Home.
[333]
Section 101 of the Health Act 2007
empowers the Minister for Health and Children to make regulations.
[334]
Section 101(2) of the Health Act 2007.
[335]
Health Information and Quality Authority National
Quality Standards for Residential Care Settings for Older People in Ireland
(2009) and Health Information and Quality Authority National Quality
Standards: Residential Services for People with Disabilities (2009).
[336]
Standards 4 and 5 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[337]
Standard 4 of the National Quality
Standards for Residential Care Settings for Older People in Ireland.
[338]
Standard 2 of the National Quality
Standards for Residential Care Settings for Older People in Ireland.
[339]
National Quality Standards: Residential
Services for People with Disabilities at 11.
[340]
Standard 1 of the National Quality
Standards: Residential Services for People with Disabilities and standard
17 of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[341]
Standard 3 of the National Quality
Standards: Residential Services for People with Disabilities and standard
18 of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[342]
Standard 3.5 of the National Quality
Standards: Residential Services for People with Disabilities and standard
18.4 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[343]
Standard 3.6 of the National Quality
Standards: Residential Services for People with Disabilities and standard
19 of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[344]
Standard 4 of the National Quality
Standards: Residential Services for People with Disabilities and standard
20 of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[345]
Standard 2 of the National Quality
Standards: Residential Services for People with Disabilities and standard 4
of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[346]
Standard 5 of the National Quality
Standards: Residential Services for People with Disabilities and standard
22 of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[347]
Standard 5.12 of the National Quality
Standards: Residential Services for People with Disabilities and standard
24.3 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[348]
Standards 5.9 and 5.10 of the National
Quality Standards: Residential Services for People with Disabilities and
standard 23.4 of the National Quality Standards for Residential Care
Settings for Older People in Ireland.
[349]
Standard 5.14 of the National Quality
Standards: Residential Services for People with Disabilities.
[350]
Standard 6 of the National Quality
Standards: Residential Services for People with Disabilities and standard 8
of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[351]
Standard 6.15 of the National Quality
Standards: Residential Services for People with Disabilities and standard
8.1 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[352]
Standard 6.18 of the National Quality
Standards: Residential Services for People with Disabilities and standard
8.4 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[353]
Standard 7 of the National Quality
Standards: Residential Services for People with Disabilities and standard 9
of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[354]
Standard 7.4 of the National Quality
Standards: Residential Services for People with Disabilities and standard
9.3 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[355]
Standard 7.6 of the National Quality
Standards: Residential Services for People with Disabilities and standard
9.5 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[356]
Standard 8 of the National Quality
Standards: Residential Services for People with Disabilities and standard 11
of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[357]
Standard 8.10 of the National Quality
Standards: Residential Services for People with Disabilities and standard
11.3 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[358]
Standard 9 of the National Quality
Standards: Residential Services for People with Disabilities and standards
12 and 13 of the National Quality Standards for Residential Care Settings
for Older People in Ireland.
[359]
Standard 9.1 of the National Quality
Standards: Residential Services for People with Disabilities.
[360]
Standard 9.2 of the National Quality
Standards: Residential Services for People with Disabilities.
[361]
Standard 12 of the National Quality
Standards for Residential Care Settings for Older People in Ireland.
[362]
Standard 13.1 of the National Quality
Standards for Residential Care Settings for Older People in Ireland.
[363]
Standard 9.12-9.14 of the National
Quality Standards: Residential Services for People with Disabilities and
standard 14 of the National Quality Standards for Residential Care Settings
for Older People in Ireland.
[364]
Standard 9.12 of the National Quality
Standards: Residential Services for People with Disabilities and standard
14.9 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[365]
Standard 9.13 of the National Quality
Standards: Residential Services for People with Disabilities and standard
14.1 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[366]
Standard 9.14 of the National Quality
Standards: Residential Services for People with Disabilities and standard
15.2 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[367]
Standard 16 of the National Quality
Standards for Residential Care Settings for Older People in Ireland.
[368]
Standard 16.2 of the National Quality
Standards for Residential Care Settings for Older People in Ireland.
[369]
Standard 16.4 of the National Quality
Standards for Residential Care Settings for Older People in Ireland.
[370]
Standard 16.5 of the National Quality
Standards for Residential Care Settings for Older People in Ireland.
[371]
Standards 10 and 11 of the National
Quality Standards: Residential Services for People with Disabilities and
standard 1 of the National Quality Standards for Residential Care Settings
for Older People in Ireland.
[372]
Standard 2.4 of the National Quality
Standards for Residential Care Settings for Older People in Ireland.
[373]
Standard 11 of the National Quality
Standards: Residential Services for People with Disabilities and standard 3
of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[374]
Standard 11.1 of the National Quality
Standards: Residential Services for People with Disabilities and standard
3.1 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[375]
Standard 11.6 of the National Quality
Standards: Residential Services for People with Disabilities and standard
3.2 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[376]
Standard 11.4 of the National Quality
Standards: Residential Services for People with Disabilities and standard
3.4 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[377]
Standard 11.2 of the National Quality
Standards: Residential Services for People with Disabilities and standard 3.6
of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[378]
Standard 14 of the National Quality
Standards: Residential Services for People with Disabilities and standard 6
of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[379]
Standard 14.4 of the National Quality
Standards: Residential Services for People with Disabilities and standard
6.3 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[380]
Standard 14.6 of the National Quality
Standards: Residential Services for People with Disabilities and standard
6.5 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[381]
Standard 13.10 of the National Quality
Standards: Residential Services for People with Disabilities and standard 7
of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[382]
Standard 25 of the National Quality
Standards for Residential Care Settings for Older People in Ireland.
[383]
Standard 16 of the National Quality
Standards: Residential Services for People with Disabilities and standard
26 of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[384]
Standard 17.8 of the National Quality
Standards: Residential Services for People with Disabilities and standard
27 of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[385]
Standard 17.3 of the National Quality
Standards: Residential Services for People with Disabilities.
[386]
Standard 17.5 of the National Quality
Standards: Residential Services for People with Disabilities and standard
28 of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[387]
Standard 17.7 of the National Quality
Standards: Residential Services for People with Disabilities and Standard
29.1 of the National Quality Standards for Residential Care Settings for
Older People in Ireland.
[388]
Standard 30 of the National Quality
Standards for Residential Care Settings for Older People in Ireland.
[389]
Standard 19 of the National Quality
Standards: Residential Services for People with Disabilities and standard
32 of the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[390]
This is an issue that will be considered
in more detail in Chapter 3 and 4.
[391]
Standard 7.1 of the National Quality Standards for
Residential Care Settings for Older People in Ireland.
[392]
Standard 13.11 of the National
Quality Standards for Residential Care Settings for People with Disabilities.
[393]
Standard 4.1 of the Domiciliary
Care – National Minimum Standards.
[394]
Standard 2.2 of
the National Care Standards: Care at Home.
[395]
Standard 5.1 of the National
Minimum Standards for Domiciliary Care Agencies in Wales.
[396]
Department of
Health Domiciliary Care – National Minimum Standards at 35, available at
www.dh.gov.uk.
[397]
Section 39(a)-(b) of the
Sale of Goods and Supply of Services Act 1980.
[398]
Standard 23 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[399]
Standard 7 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[400]
Regulation 12(a)-(b) of the Domiciliary
Care Agencies Regulations 2002.
[401]
Standard 4(2) of the Domiciliary
Care – National Minimum Standards.
[402]
Standard 4 of the Scottish National
Care Standards – Care at Home provides that the home care is provided by
management and care staff who have the requisite skills and competence to carry
out the tasks required by the individual service user. The Standards do not
require the contract of care to take account of such requirements. Standard 27
of the National Minimum Standards for Domiciliary Care Agencies in Wales
makes a similar requirement, but the Standards do not require that the
processes of assuring the quality of the home care service be included in the
contract of care.
[403]
Standard 24 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[404]
Ibid at standard 24.2.
[405]
Standard 17.16 of the National Quality Standards for
Residential Services for People with Disabilities.
[406]
This is discussed in Chapter 1.
[407]
Regulation 15(2)(a) and 15(3) of the
Domiciliary Care Agencies Regulations 2002.
[408]
Standard 4.2 of the Domiciliary
Care – National Minimum Standards.
[409]
Regulation 16(2)(a) and 16(3) of the
Domiciliary Care Agencies (Wales) Regulations 2004.
[410]
Standard 5(2) and standard 13 of the
National Minimum Standards for Domiciliary Care Agencies in Wales.
[411]
Standard 7.1 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[412]
Standard 7.2 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[413]
Standard 11 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[414]
Standard 11.5 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[415]
Standard 11.6 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[416]
Regulation 5 of the Domiciliary
Care Agencies Regulations 2002.
[417]
Regulation 14 of the English Domiciliary
Care Agencies Regulations 2002. The Domiciliary Care Agencies (Wales)
Regulations 2004 make similar provisions with regard to the service user’s
guide (Regulation 5) and the service user’s care plan, called a service
delivery plan (Regulation 14).
[418]
Standard 4.2 of the Domiciliary
Care – National Minimum Standards.
[419]
The National Minimum Standards
for Domiciliary Care Agencies in Wales makes a similar requirement, but
extends the provision to include “the expectations of the service users.” Standard
5.2 of the National Minimum Standards for Domiciliary Care Agencies in Wales
2004.
[420]
Standard 4.2 of the Domiciliary
Care – National Minimum Standards.
[421]
Standard 5.2 of the National
Minimum Standards for Domiciliary Care Agencies in Wales.
[422]
Standard 15 of the Domiciliary
Care – National Minimum Standards.
[423]
Standard 15.2 of the Domiciliary
Care – National Minimum Standards.
[424]
Standard 15 of the Domiciliary
Care – National Minimum Standards.
[425]
Standard 15.3 of the Domiciliary
Care – National Minimum Standards, and standard 15.3 of the National
Minimum Standards for Domiciliary Care Agencies in Wales.
[426]
LRC 83-2006, at paragraph 2.88.
[427]
Available at www.justice.ie.
[428]
Standard 9.1 of the National Quality Standards for
Residential Care Settings for Older People in Ireland.
[429]
Standard 9.3 of the National Quality Standards for
Residential Care Settings for Older People in Ireland.
[430]
Standard 9.5 of the National Quality Standards for
Residential Care Settings for Older People in Ireland.
[431]
Standard 9.6 of the National Quality Standards for
Residential Care Settings for Older People in Ireland.
[432]
Standard 13.1 of the Domiciliary
Care – National Minimum Standards.
[433]
For more detail see standard 13 of
the Domiciliary Care – National Minimum Standards.
[434]
Standard 13.4 and standard 16 of the Domiciliary Care – National Minimum
Standards and Standard 16.1 of the National Minimum Standards for
Domiciliary Care Agencies in Wales.
[435]
Standard 4.2 of the Domiciliary
Care – National Minimum Standards.
[436]
For more see House of Commons Health
Committee Elder Abuse Second Report of Session 2003-2004, Volume 1.
[437]
Ibid at 18.
[438]
For more information, see A
review of the deaths at Leas-Cross Nursing Home 2002-2005 (O’Neill Report)
(HSE, 2006).
[439]
Standard 14 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[440]
Standard 14.5 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[441]
Standard 14.3 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[442]
Standard 14.10 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[443]
Standard 14.4 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[444]
Regulation 14(6)(b) of the Domiciliary
Care Agencies Regulations 2002. Regulation 14(5)(b) of the Domiciliary
Care Agencies (Wales) Regulations 2004 makes a similar provision.
[445]
Standard 4.2 of the Domiciliary
Care – National Minimum Standards. The National Minimum Standards for
Domiciliary Care Agencies in Wales make a similar provision under standard
5.2.
[446]
Standard 10.3 of the Domiciliary
Care – National Minimum Standards. See also standard 10 of the National
Minimum Standards for Domiciliary Care Agencies in Wales 2004. The Scottish
National Care Standards: Care at Home, also require that the service
provider has policies and procedures in place regarding the administration of
medication, see standard 4 for more information.
[447]
Standard 10.3 of the Domiciliary
Care – National Minimum Standards.
[448]
Section 4 of the Medicinal
Products (Prescription and Control of Supply) (Amendment) Regulations 2007.
For more information see An Bord Altranais Guidance to Nurses and Midwives
on Medication Management July 2007 available at www.nursingboard.ie.
[449]
Standard 6 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[450]
Standard 6.3 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[451]
Regulation 20(1) of the Domiciliary
Care Agencies Regulations 2002.
[452]
Regulation 20(2) of the Domiciliary
Care Agencies Regulations 2002.
[453]
Regulation 20(5) of the Domiciliary
Care Agencies Regulations 2002. The Domiciliary Care Agencies (Wales)
Regulations 2004 make provisions similar to the Domiciliary Care
Agencies Regulations 2002 in Regulation 21.
[454]
Standard 26 of the Domiciliary
Care – National Minimum Standards.
[455]
The service user’s guide provides
comprehensive information regarding all aspects of the organisation of the
agency, and the delivery of the care, including details of the complaints
process. For more detail see standard 1.2 of the Domiciliary Care – National
Minimum Standards, and standard 1.2 of the National Minimum Standards
for Domiciliary Care Agencies in Wales. Similarly, the Scottish National
Care Standards: Care at Home do not require the complaints procedure to
form part of the written agreement for care, but details of the procedure must
be included in the introductory pack which is provided to each service user as
per Standard 1.
[456]
Law Reform Commission Report on
Vulnerable Adults and the Law (LRC Report 83-2006) at 7.14.
[457]
Part 2 of the Scheme of Mental
Capacity Bill 2008. Head 28 of the Bill establishes the Office of Public
Guardian, while Head 32 sets out the objectives and functions of the Office.
[458]
Ibid at Head 32(2)(i).
[459]
Fennell and Lynch Labour
Law in Ireland (Gill & Macmillan 1993) at 115.
[460]
McAteer, Reddin and
Deegan Income Tax: Finance Act 2008 Bolster (ed) (Irish Taxation
Institute 2008 21st Ed) at 464.
[461]
[1998]1 IR 34.
[462]
Available at
www.welfare.ie. The Code of Practice was prepared by the Employment Status
Group to ensure that individuals were given an appropriate employment status,
both to prevent tax evasion and to ensure that individuals received appropriate
social insurance protection.
[463]
National Economic and
Social Forum Care for Older People Report (Report 32, November 2005) at
3.24.
[464]
National Economic and
Social Forum Care for Older People Report (Report 32, November 2005) at
3.21.
[465]
Ibid at 3.23.
[466]
Part 2 of Schedule 1 of
the Nursing Homes Support Scheme Act 2009.
[467]
See Vol. 195 Seanad
Debates,10 June 2009, in which Minister of State at the Department of Health
and Children, Áine Brady TD stated: “Many Senators raised the issue of support
for community-based services, bearing in mind that this Bill provides support
for residential services. The Government is committed to community-based
supports for older people and has allocated an additional €200 million towards
the provision of community-based services over the past three years. The
Government is committed to continuing to emphasise community-based care.”
Available at http://debates.oireachtas.ie.
[468]
Section 5 of the Nursing Homes Support Scheme Act
2009.
[469]
Section 12 of the Nursing Homes Support Scheme Act
2009.
[470]
Part 1 of Schedule 1 of the Nursing Homes Support Scheme Act
2009.
[471]
Under section 40 of the Nursing Homes Support Scheme Act
2009, the National
Treatment Purchase Fund was designated as the body authorised to
negotiate with proprietors of registered nursing homes to reach agreement in
relation to the maximum price(s) that will be charged for the provision of
long-term residential care services to Nursing Homes Support Scheme residents.
See www.ntpf.ie.
[472]
The Nursing Homes Support Scheme
“A Fair Deal” Information Leaflet (Department of Health and Children,
Government Publications, October 2008) available at www.dohc.ie/press/releases.
[473]
Seanad Debates Vol. 195,16 June
2009.
[474]
Towards 2016: Ten-Year Framework
Social Partnership Agreement 2006-2015 (Department of the Taoiseach,
Government Publications, 2006) at Section 32: Older People.
[475]
Standards for the Assessment of
Need, available at www.hiqa.ie.
[476]
In accordance with section 10 of the
Disability Act 2005.
[477]
In accordance with the Education
for Persons with Special Educational Needs Act 2004 and Disability
Act 2005.
[478]
Standards for the Assessment of
Need, at p5, available at www.hiqa.ie.
[479]
Ibid.
[480]
Standard 1.4 and 1.5.
[481]
Standard 1.2.
[482]
Standard 3.1.
[483]
Standard 4.2.
[484]
Section 466A of the Taxes
Consolidation Act 1997 provides for claiming a Tax Credit (known as Home
Carer’s Tax Credit) in certain circumstances. However, the Tax Credit can
only be claimed by persons whose income is less than €5,080 per annum and is
not applicable to professional home care provision.
[485]
Available at www.welfare.ie.
[486]
LRC 83-2006. See the Introduction,
paragraph 2, above.
[487]
Available at www.justice.ie. See
also the Introduction, paragraph 2, above.
[488]
See paragraph 3.44, above.
[489]
UK Department of Health No
Secrets – guidance on developing and implementing multi-agency policies and
procedures to protect vulnerable adults from abuse (2000), and
Report of the Working Group on Elder Abuse, Protecting Our Future
(Stationery Office, Dublin, 2002), p25.
[490]
Salomons The Role of the Public
Guardianship Office in safeguarding vulnerable adults against financial abuse
(Canterbury Christ Church University College).
[491]
Ibid.
[492]
National Elder Abuse Steering
Committee HSE Elder Abuse Service Developments 2008: Open Your Eyes 2008,
at p.27, available at www.hse.ie.
[493]
Standard 7 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[494]
See standard 7.2 of the National
Quality Standards for Residential Care Settings for Older People in Ireland
for more discussion on this point.
[495]
Standard 13.11 of the National
Quality Standards for Residential Care Settings for People with Disabilities.
[496]
Standard 2.2 of the National Care
Standards – Care at Home.
[497]
Standard 7.2 of the National
Quality Standards for Residential Care Settings for Older People in Ireland,
HIQA.
[498]
Standard 13.11 of the National
Quality Standards for Residential Services for People with Disabilities.
[499]
Standard 4.2 of the Domiciliary
Care – National Minimum Standards. A similar provision is made under
standard 5.2 of the National Minimum Standards for Domiciliary Care Agencies
in Wales.
[500]
Section 3(1)(a) of the Terms of
Employment (Information) Act 1994.
[501]
Section 2(1)(a) of the Terms of
Employment (Information) Act 1994.
[502]
Section 15(1)(a) of the Organisation
and Working Time Act 1997.
[503]
Part III of the Organisation and
Working Time Act 1997.
[504]
Section 4(1) of the Payment
of Wages Act 1991.
[505]
Section 14(a) of the National
Minimum Wage Act 2000.
[506]
The Revenue Commissioners have
published an information leaflet to assist domestic employers with their
responsibilities for their employee’s tax. For more see “Domestic Employer
Scheme – Employing a person in your home”, Reference Material IT 53, available
at www.revenue.ie.
[507]
See McMahon and Binchy, The Law
of Torts, (3rd ed, Tottel Publishing, 2000), Ch 43, p1091-1117.
[508]
Section 8 of the Safety, Health
and Welfare at Work Act 2005.
[509]
Section 12 of the 2005 Act.
[510]
Section 20 of the 2005 Act.
[511]
Section 20(9) of the 2005 Act.
[512]
SI No. 299 of 2007.
[513]
[2003] EWHC 167 (Admin) (High Court of
England and Wales, 18 February 2003).
[514]
The equivalent of Part 4, Chapter 4
of the General Application Regulations 2007.
[515]
Standard 7.2 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[516]
Standard 26 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[517]
Standard 26.2 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[518]
See Standard 4.2 of the English Domiciliary
Care – National Minimum Standards, standard 5.2 of the National Minimum
Standards for Domiciliary Care Agencies in Wales, standard 4.2 of the
Northern Irish Domiciliary Care Agencies – Minimum Standards.
[519]
Standard 7.2 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
[520]
Standard 4.2 of the Domiciliary
Care – National Minimum Standards. The National Minimum Standards for Domiciliary
Care Agencies in Wales make similar provisions under standard 5.2.
[521]
LRC 83-2006.
[522]
Head 2 of the Scheme of Mental
Capacity Bill 2008.
[523]
Report on Vulnerable Adults and
the Law (LRC 83-2006) at para 2.28.
[524]
Report on Vulnerable Adults and
the Law (LRC 83-2006) at para 2.27.
[525]
Head 32(2) of the Scheme of
Mental Capacity Bill 2008.
[526]
Head 32(2)(i) of the Scheme of
Mental Capacity Bill 2008. This role of the Public Guardian to deal with
complaints was considered in more detail above, in Chapter 3.
[527]
Head 16 of the Scheme of Mental
Capacity Bill 2008.
[528]
Head 16(2) of the Scheme of
Mental Capacity Bill 2008.
[529]
Head 16(4) of the Scheme of
Mental Capacity Bill 2008.
[530]
Ibid Section 8(3).
[531]
Head 6(2)(b) of the Scheme of
Mental Capacity Bill 2008. The appointment of a personal guardian for a
person who lacks capacity was a recommendation of the Commission in its Report
on Vulnerable Adults.
[532]
Head 32(2)(d) of the Scheme of
Mental Capacity Bill 2008.
[533]
As shall be discussed in more detail
below.
[534]
Head 32(2)(j) of the Scheme of
Mental Capacity Bill 2008.
[535]
See generally Gallagher Powers of
Attorney Act 1996 (Round Hall Sweet & Maxwell 1998). Law Reform
Commission Report on Vulnerable Adults and the Law (LRC 83-2006) Chapter
4.
[536]
Head 48(3) of the Scheme of
Mental Capacity Bill 2008.
[537]
Head 32 of the Scheme of Mental
Capacity Bill 2008.
[538]
Law Reform Commission Report
on Spent Convictions (LRC Report 84-2007) at Chapter 4.
[539]
Ibid at paragraph
4.03.
[540]
Section 3.2.2 of the Report
of the Working Group on Garda Vetting (2004) available at www.justice.ie.
[541]
The 2004 Report of
the Working Group on Garda Vetting recommended that the GCVU be placed on a
clear statutory setting. In
its 2007 Report on Spent Convictions the Commission fully supported this
recommendation.
[542]
In many instances, a
vetting policy has been a requirement for those organisations which are in
receipt of funding through the HSE, and other state departments.
[543]
PULSE is an acronym for
Police Using Leading Systems Effectively.
[544]
Section 3.4 of the Report
of the Working Group on Garda Vetting.
[545]
The term “data” is
defined as information in a form in which it can be processed, and “data
controller” is defined as a person who, either alone or with others, controls
the contents and use of personal data, as per section 1 of the Data
Protection Act 1988.
[546]
Section 7.5.4 of the Report
of the Working Group on Garda Vetting.
[547]
Law Reform Commission Report on
Spent Convictions (LRC 84-2007) at paragraph 4.33.
[548]
Section 3.3 of the Report of the
Working Group on Garda Vetting.
[549]
Joint Committee on Child Protection Report
on Child Protection, (House of the Oireachtas, Government Publications,
November 2006) available at www.oireachtas.ie
[550]
Report on Child Protection at
section 15.3.4.
[551]
Report on Child Protection at
section 15.3.3.
[552]
Report on Child Protection at
section 15.3.4.
[553]
Ibid.
[554]
Report of the Working Group on Elder
Abuse Protecting Our Future (Stationery Office, Dublin, 2002) at p25.
This definition of elder abuse was endorsed by the HSE in the National Elder
Abuse Steering Committee HSE Elder Abuse Service Developments 2008: Open
Your Eyes 2008, at p.5, available at www.hse.ie.
[555]
The National Centre for the
Protection of Older People is currently (July 2009) undertaking a programme of
research which examines the issue of elder abuse in Ireland. This programme is
funded by the HSE and consists of a collaborative research team from various
schools within University College Dublin. The aim of the centre’s research is
to contribute to the development of policy and practice in relation to elder
abuse. See www.ncpop.ie.
[556]
National Elder Abuse Steering
Committee HSE Elder Abuse Service Developments 2008: Open Your Eyes 2008
at p27.
[557]
Standard 8 of the National
Quality Standards for Residential Care Settings for Older People in Ireland,
HIQA.
[558]
Standard 8.1.
[559]
Standard 8.4.
[560]
Regulation 14(6)(a) of the Domiciliary
Care Agencies Regulations 2002.
[561]
See Standards 4.2, 7 and 14 of the English
Domiciliary Care – National Minimum Standards; Standards 4, 5.2 and 14 of
the National Minimum Standards for Domiciliary Care Agencies in Wales;
Standards 2 and 3 of the Scottish National Care Standards – Care at Home.
[562]
See paragraph 2 of the Introduction
to the Consultation Paper.
[563]
Head 27(2)(a)-(b) of the Scheme
of Mental Capacity Bill 2008.
[564]
Section 3(1)(a) of the Protection
for Persons Reporting Child Abuse Act 1998 includes where a child has been
or is being assaulted, ill-treated, neglected or sexually abused. Section
3(1)(b) covers the expression of opinions that a child’s health, development or
welfare has been or is being avoidably impaired or neglected, (as per section
3(1)(b).
[565]
Section 4(1) of the Protection of
Persons Reporting Child Abuse Act 1998.
[566]
On summary conviction, a person
shall be liable to a fine not exceeding Ł1,500 or a term of imprisonment not
exceeding 12 months or to both. On conviction on indictment, a person shall be
liable to a fine not exceeding Ł15,000 or a term of imprisonment not exceeding
3 years, or to both, as per section 5(2) of the 1998 Act.
[567]
Report of the Working Party on
Garda Vetting available at www.justice.ie at para 5.2.3.
[568]
Section 4 of the Protection of
Persons Reporting Child Abuse Act 1998.
[569]
Section 103(1) of the Health Act
2007 amended the Health Act 2004 by inserting Part 9A into the 2004
Act. Section 55B of the 2004 Act, now provides for the protected disclosure of
information by an employee of a relevant body. Sections 55E and 55G make
further provisions regarding protected disclosures of information in relation
to regulated professions by persons other than employees.
[570]
Section 55A of the Health Act
2004 provides that a “relevant body” includes (a) the Executive (b)
a service provider (c) any other person who has received or is receiving
assistance in accordance with section 39 of the Health Act 2004 or
section 10 of the Child Care Act 1991 and (d) a body established
under the Health (Corporate Bodies) Act 1961. Under section 2 of the Health
Act 2004 a “service provider” is a person who enters into an arrangement
with the HSE to provide a health or personal social service on behalf of the
HSE. Thus, voluntary organisations that provide domiciliary care and private
domiciliary care agencies and who enter into an arrangement with the HSE to
provide the care on behalf of the HSE would be subject to section 55B of the Health
Act 2004.
[571]
Section 55B of the Health Act
2004.
[572]
Section 55B(a) of the Health Act
2004.
[573]
Section 55B(b) of the Health Act
2004.
[574]
Section 55B(c) of the Health Act
2004.
[575]
Section 55M(1) of the Health Act
2004.
[576]
Section 55M(2) of the Health Act
2004.
[577]
Section 55L(3) of the Health
Act 2004.
[578]
Section 55L(2) of the Health Act
2004.
[579]
Section 38 of the Health Act
2004.
[580]
Section 55B of the Health Act
2004.
[581]
Section 55C of the Health Act
2004 has not yet come into effect. It is expected that section 55C will
come into effect in July 2009, when the Chief Inspector of Social Services
commences the registration and inspection of the different elements of the
social care services.
[582]
Section 57 of the Safeguarding
Vulnerable Groups Act 2006.
[583]
Section 57(2) of the Safeguarding
Vulnerable Groups Act 2006.
[584]
Section 57 of the 2007 Order.
[585]
As per section 41(2) of the Protection
of Vulnerable Groups (Scotland) Act 2007.
[586]
Section 81(1) of the Care
Standard Act 2000.
[587]
Section 82(1) of the Care
Standard Act 2000.
[588]
Section 82(4)(b) of the Care
Standard Act 2000.
[589]
As per Baroness Hale of Richmond in R
(Wright and others) v Secretary of State for Health [2009] UKHL 3 at paragraph 8.
[590]
R (Wright) v Secretary of State
[2009] UKHL 3 at paragraph 9.
[591]
Ibid at paragraph 12.
[592]
Section 1 of the Safeguarding
Vulnerable Groups Act 2006 established the Independent Barring Board, which
is in the process of being replaced by the Independent Safeguarding Authority.
The Authority is due to appoint its CEO in September 2009, and until then the
barred lists will remain in operation.
[593]
Section 2 of the Safeguarding
Vulnerable Groups Act 2006. However, it should be noted that the
Independent Barring Board is to be replaced by the Independent Safeguarding
Authority by October 2009.
[594]
A “regulated activity” is defined in
Section 7 of Part 2 of Schedule 4 of the Safeguarding Vulnerable Groups Act
2006. A regulated activity is one of the following that is carried out
frequently by the same person: (a) any form of teaching of vulnerable adults
(b) any form of care for or supervision of vulnerable adults (c) any form of
assistance or guidance provided to a vulnerable adult or (d) any form of
treatment or therapy provided for a vulnerable adult. Section 7(4) also
provides that any activity carried out in a care home, will constitute a
regulated activity for the purposes of section 3(3) of the Safeguarding
Vulnerable Groups Act 2006.
[595]
A vulnerable adult was defined as
including a person who has reached the age of 18 and is in receipt of
domiciliary care, which is defined as care of any description provided to an
individual in their own home, by reason of their age, health or disability, as
per section 59(1)(c) of the Safeguarding Vulnerable Groups Act 2006.
[596]
Section 3(3) of the Safeguarding
Vulnerable Groups Act 2006.
[597]
A person’s conduct endangers
a vulnerable adult if he or she harms or attempts to harm a vulnerable, or
causes a vulnerable adult to be harmed, as per Section 10(2) of Part 2 of
Schedule 3 of the Safeguarding Vulnerable Groups Act 2006.
[598]
Paragraph 10(1)(a) of Part 2 of
Schedule 3 of the Safeguarding Vulnerable Groups Act 2006.
[599]
Paragraph 10(1)(d) of Part 2 of
Schedule 3 of the Safeguarding Vulnerable Groups Act 2006.
[600]
Paragraph 10(1)(e) of Part 2 of
Schedule 3 of the Safeguarding Vulnerable Groups Act 2006.
[601]
Section 58 of the Safeguarding
Vulnerable Groups Act 2006.
[602]
Paragraph 11(2) of Part 2 of
Schedule 3 of the Safeguarding Vulnerable Groups Act 2006.
[603]
Paragraph 18(1) of Part 2 of
Schedule 3 of the Safeguarding Vulnerable Groups Act 2006.
[604]
Section 4 of the Safeguarding
Vulnerable Groups Act 2006.
[605]
Section 4(6)(a) and (b) of the Safeguarding
Vulnerable Groups Act 2006.
[606]
As per section 11(1) of the Care
Standards Act 2000.
[607]
Section 6(7) of the Safeguarding
Vulnerable Groups Act 2006.
[608]
Section 7(1)(b) of Part 2 of
Schedule 4 of the Safeguarding Vulnerable Groups Act 2006, provides that
a regulated activity includes any form of care for, or supervision of a
vulnerable adult, by the same person.
[609]
Section 58 of the Safeguarding Vulnerable Groups Act 2006.
[610]
Section 30(2)(b) of the Safeguarding
Vulnerable Groups Act 2006.
[611]
As per Schedule 7 of the Safeguarding
Vulnerable Groups Act 2006.
[612]
Section 31(3)(b) of the Safeguarding
Vulnerable Groups Act 2006.
[613]
Article 35 of the Protection of Children and
Vulnerable Adults (Northern Ireland) Order 2003.
[614]
Article 36 of the Protection of Children and
Vulnerable Adults (Northern Ireland) Order 2003.
[615]
Article 42 of the Protection of Children and
Vulnerable Adults (Northern Ireland) Order 2003.
[616]
Article 43 of the Protection of Children and
Vulnerable Adults (Northern Ireland) Order 2003.
[617]
Article 44(4) and (5) of the Protection of Children and
Vulnerable Adults (Northern Ireland) Order 2003.
[618]
Article 45 of the Protection of Children and
Vulnerable Adults (Northern Ireland) Order 2003.
[619]
Article 46(5) of the Protection of Children and
Vulnerable Adults (Northern Ireland) Order 2003.
[620]
Article 46(1) of the Protection of Children and
Vulnerable Adults (Northern Ireland) Order 2003.
[621]
Article 47 of the Protection of Children and Vulnerable
Adults (Northern Ireland) Order 2003.
[622]
Article 5 of the Safeguarding Vulnerable Groups
(Northern Ireland) Order 2007.
[623]
See Article 37 of the Safeguarding Vulnerable Groups
(Northern Ireland) Order 2007. “Relevant conduct” is conduct which endangers a vulnerable adult or
conduct of a sexual nature involving a vulnerable adult.
[624]
Paragraph 8(3) of Schedule 1 of the
2007 Order.
[625]
Paragraph 16(1) of Schedule 1 of the
2007 Order.
[626]
Article 8 of the 2007 Order.
[627]
Article 11(1) of the 2007 Order.
[628]
Article 13(1) of the 2007 Order.
[629]
Section 32(1) of the Safeguarding
Vulnerable Groups (Northern Ireland) Order 2007.
[630]
Section 94 of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[631]
Part 1 of Schedule 3 of the Protection
of Vulnerable Groups (Scotland) Act 2007.
[632]
Section 3 of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[633]
Section 9 of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[634]
Section 10(3) of the Protection
of Vulnerable Groups (Scotland) Act 2007.
[635]
Section 12(2) of the Protection
of Vulnerable Groups (Scotland) Act 2007.
[636]
Section 16 of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[637]
Section 17(1)(a) of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[638]
Section 22(1) of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[639]
Section 22(3)(b) of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[640]
Section 23 of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[641]
Section 26(2)(a) of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[642]
Section 27 of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[643]
Section 34 of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[644]
Section 35 of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[645]
Section 40(2)(a) of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[646]
Section 40(1) of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[647]
Section 40(3) of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[648]
Part 2 of the Protection of Vulnerable Groups (Scotland) Act
2007.
[649]
Section 44 of the Protection of Vulnerable Groups (Scotland) Act
2007.
[650]
Section 45(1)(b) or the Protection of Vulnerable Groups
(Scotland) Act 2007.
[651]
Section 47(2) of the Protection of Vulnerable Groups (Scotland) Act
2007.
[652]
Section 54(1) of the Protection of
Vulnerable Groups (Scotland) Act 2007.
[653]
A “reportable assault” is defined as
unlawful sexual contact, the unreasonable use of force, and other offences, as
per section 63-1AA(9) of the Aged Care Act 1997.
[654]
Section 63-1AA(1) of the Aged Care Act
1997.
[655]
Section 63-1AA(5) of the Aged Care Act
1997.
[656]
Section 63-1AA(6)-(7) of the Aged Care
Act 1997.
[657]
Police Certificate Guidelines for Aged
Care Providers (Department of Health and Ageing, Australian Government,
2006) available at www.health.gov.au.
[658]
Police Certificate Guidelines for Aged
Care Providers (Department of Health and Ageing, Australian Government,
2006) available at www.health.gov.au at p3.
[659]
Police Certificate Guidelines for Aged
Care Providers (Department of Health and Ageing, Australian Government,
2006) available at www.health.gov.au at p14.
[660]
Police Certificate Guidelines for Aged
Care Providers (Department of Health and Ageing, Australian Government,
2006) available at www.health.gov.au at p12.
[661]
Section 62.1 of the Aged Care Act 1997.
[662]
Section 62-1(b) of the Aged Care Act
1997.
[663]
Section 62.1(c) of the Aged Care Act
1997.
[664]
Section 1(h)(i) of the Social Care
Facilities Review Licensing Act .
[665]
Section 2 of the Protection of Persons
in Care Act 2009.
[666]
Section 7(5) of the Protection of
Persons in Care Act 2009.
[667]
Section 10(1) of the Protection of
Persons in Care Act 2009.
[668]
Section 18 of the Protection of Persons
in Care Act 2009.
[669]
Section 24 of the Protection of Persons
in Care Act 2009.
[670]
Section 7 of the Protection of Persons
in Care Act 2000.
[671]
Section 8(3)(a) of the Protection of
Persons in Care Act 2000.
[672]
Section 7(1) of the Protection of
Persons in Care Act 2009.
[673]
Section 11(5) of the Protection of
Persons in Care Act 2009.
[674]
See in general section 12 of the Protection
of Persons in Care Act 2009.
[675]
Section 4 of the Protection of Persons
in Care Act 2009.
[676]
Section 15(1)(d) of the Protection of
Persons in Care Act 2009.
[677]
Section 17(6)-(7) of the Protection of
Persons in Care Act 2009.
[678]
Section 45 of the Adult Guardianship
Act 1996.
[679]
Section 46(3) of the Adult Guardianship
Act 1996.
[680]
Section 46(4) of the Adult Guardianship
Act 1996.
[681]
Section 47(1) of the Adult Guardianship
Act 1996.
[682]
Section 47(3) of the Adult Guardianship
Act 1996.
[683]
Section 47(3) of the Adult Guardianship
Act 1996.
[684]
Section 48 of the Adult Guardianship Act
1996.
[685]
Section 51(1) of the Adult Guardianship
Act 1996.
[686]
Section 54 of the Adult Guardianship
Act 1996.
[687]
Section 56 of the Adult Guardianship Act 1996.
[688]
Section 56(3)(c) of the Adult
Guardianship Act 1996.
[689]
Section 60.1(1) of the Adult
Guardianship Act 1996.
[690]
Section 60.1(2) of the Adult
Guardianship Act 1996.
[691]
Expert Advisory Group and Governance Group
National Quality Home Care Support Guidelines (Health Service Executive,
2008) at 14.
[692]
The Commission examined this issue in its
Report on Spent Convictions (LRC 84-2007) Chapter 4, p 100.
[693]
Health Information and Quality Authority Standards
for Residential Care Settings for Older People, available at www.hiqa.ie,
Standard 22.2.
[694]
Ibid.
[695]
Section 50(1)(b) of the Health Act
2007.
[696]
Section 50(3) of the Health Act 2007.
[697]
As per section 4 of the Health and
Social Care Professionals Act 2005.