consultation paper

legal aspects of carers

 

 

 

 

 

 

(LRC CP 53-2009)

 

© Copyright

Law Reform Commission

 

FIRST PUBLISHED

July 2009

 

ISSN   1393-3140

 

 

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.


 


 


TABLE OF CONTENTS

 

Introduction  3

CHAPTER 1               Regulation of Professional home care       providers and reform options  3

A     Introduction  3

B     Professional Health Care at Home  3

C     Methods of Delivery of Professional Home Care  3

(1)   HSE Home Help Services  3

(2)   HSE Home Care Support Scheme  3

(3)   Private commercial agencies  3

(4)   Informal carers  3

(5)   Conclusion  3

D    Regulation of other care professionals  3

(1)   Regulation of residential care providers  3

(2)   Health and Social Care Professionals Act 2005  3

(3)   Conclusion  3

E     Regulation of domiciliary care providers  3

(1)   Function of HIQA  3

(2)   Role of the Office of the Chief Inspector of Social Services  3

(3)   Ministerial regulation-making power 3

(4)   Conclusion  3

F     Other jurisdictions  3

(1)   England and Wales  3

(2)   Scotland  3

(3)   Northern Ireland  3

(4)   Australia  3

(5)   Canada  3

(6)   Conclusion  3

G    Conclusion  3

CHAPTER 2                 Statutory regulations and standards  3

A     Introduction  3

B     Regulations and Standards: Other Jurisdictions  3

(1)   England  3

(2)   Wales  3

(3)   Scotland  3

(4)   Northern Ireland  3

(5)   Conclusion  3

C     Standards in Ireland for other sectors  3

(1)   Quality of life  3

(2)   Staffing  3

(3)   Protection  3

(4)   Health and development 3

(5)   Rights  3

(6)   Care environment 3

(7)   Governance and management 3

(8)   Conclusion  3

D    Conclusion  3

CHAPTER 3                 care contract  3

A     Introduction  3

B     Care contract and public standards  3

C     Core provisions of the care contract 3

(1)   Competence of service provider 3

(2)   Provision of care  3

(3)   Protection  3

(4)   Medication management 3

(5)   Complaints procedures  3

(6)   Conclusion  3

D    Conclusion  3

CHAPTER 4                 Contracting arrangements  3

A     Introduction  3

B     Contracting arrangements: who is the employer of the service provider?  3

C     Contractual transparency  3

(1)   Contracting parties  3

(2)   Financial arrangements  3

D    Some specific employment law responsibilities  3

(1)   General responsibilities under employment law  3

(2)   Safety and health responsibilities  3

E     Mental capacity and domiciliary care  3

(1)   General authority to act on another’s behalf 3

(2)   Personal guardian  3

(3)   Enduring power of attorney  3

(4)   Conclusion  3

CHAPTER 5                 protective measures  3

A     Introduction  3

B     Current screening and vetting arrangements for sensitive posts  3

(1)   “Soft” information  3

(2)   Abuse of vulnerable adults and elder abuse  3

C     Whistle-blowing protection and protected disclosures  3

(1)   Protection for Persons Reporting Child Abuse Act 1998  3

(2)   Protected disclosure in relation to the care of vulnerable adults  3

(3)   Other jurisdictions  3

D    Safeguards in other jurisdictions  3

(1)   England and Wales  3

(2)   Northern Ireland  3

(3)   Scotland  3

(4)   Australia  3

(5)   Alberta  3

(6)   British Columbia  3

E     Screening of domiciliary care professionals  3

(1)   Disclosure of information  3

(2)   Registration and certification  3

CHAPTER 6                 Summary of provisional          recommendations  3

 

 

TABLE OF LEGISLATION

Adult Guardianship Act 1996

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

Brooklyn House v Commission for Social Care Inspection

91 BMLR 22

Eng

Henry Denny & Sons Ltd v. Minister for Social Welfare

[1998] 1 IR 34

Irl

R (Wright) v. Secretary of State for Health

[2009] UKHL 3

UK

R. (A and B) v East Sussex County Council

[2003] EWHC 167 (Admin)

Eng

 

 

 

 

Introduction

 

 

A          Background to the project

 

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         

CHAPTER 1            Regulation of Professional home care providers and reform options

A                  Introduction

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.

B                  Professional Health Care at Home

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.

C                  Methods of Delivery of Professional Home Care

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)                HSE Home Help Services

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.

(2)                HSE Home Care Support Scheme

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]


 

 

(3)                Private commercial agencies

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.

(4)                Informal carers

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.

(5)                Conclusion

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.

D                  Regulation of other care professionals

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)                Regulation of residential care providers

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.

(a)                Health (Nursing Homes) Act 1990

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.

(b)               The Health Act 2007 and HIQA

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]

(2)                Health and Social Care Professionals Act 2005

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]

(3)                Conclusion

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.

E                  Regulation of domiciliary care providers

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)                Function of HIQA

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.

(2)                Role of the Office of the Chief Inspector of Social Services

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.

(3)                Ministerial regulation-making power

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.

(4)                Conclusion

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.

F                  Other jurisdictions

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)                England and Wales

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]

(2)                Scotland

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]

(3)                Northern Ireland

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.


 

 

(4)                Australia

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.

(a)                Regulation of Residential Care Providers in Australia

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.

(b)               Regulation of Community Care Providers in Australia

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]

(5)                Canada

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]

(a)                British Columbia

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]


 

 

(i)                 Assisted living in British Columbia

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]

(ii)               Independent living in British Columbia

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.

(iii)              Community care facilities

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]

(6)                Conclusion

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.

G                  Conclusion

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         

CHAPTER 2            Statutory regulations and standards

A                  Introduction

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.

B                  Regulations and Standards: Other Jurisdictions

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.

(1)                England

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]

(a)                Domiciliary Care Agencies Regulations 2002

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]

(b)               Domiciliary Care: National Minimum Standards

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.

(i)                 User focused services

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

(ii)               Personal care

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.

(iii)              Protection

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.

(iv)              Management and staffing

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]

(v)                Organisation of the business

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)                Wales

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]

(a)                Domiciliary Care Agencies (Wales) Regulations 2004

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.

(b)               National Minimum Standards for Domiciliary Care Agencies

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”.

(3)                Scotland

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.

(a)                Regulation of Care Scotland Regulations 2002

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.

(b)               National Care Standards: Care at Home

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.

(i)                 User focused services

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.

(ii)               Personal Care

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]

(iii)              Protection

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.

(iv)              Management and Staff

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]

(4)                Northern Ireland

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.

(a)                Domiciliary Care Agencies Regulations (Northern Ireland) 2007

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]

(b)               Domiciliary Care Agencies: Minimum Standards

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]

(5)                Conclusion

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.


 

 

C                  Standards in Ireland for other sectors

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]

(1)                Quality of life

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)                Staffing

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]

(3)                Protection

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.

(4)                Health and development

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]

(5)                Rights

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.

(6)                Care environment

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.

(7)                Governance and management

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]

(8)                Conclusion

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.

D                  Conclusion

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         

CHAPTER 3            care contract

A                  Introduction

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.

B                  Care contract and public standards

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.

C                  Core provisions of the care contract

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]

(1)                Competence of service provider

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.

(a)                Quality assurance

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.

(b)               Monitoring and supervision of staff

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.

(2)                Provision of care

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.

(a)                Terms and conditions of care

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)                Protection

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.

(a)                Entering and leaving the property

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.

(b)               Handling of money and personal property

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.