Legal side of the proposed Care Quality Commission

Ed Mitchell (pictured) explains how the proposed Health and Social Care Bill involves a lot more than merely organisational changes

If enacted, the Health and Social Care Bill will merge the current health and social care regulators to form a single Care Quality Commission. But the regulatory changes are not merely organisational. Regulatory powers to maintain and enforce care standards are being extended too.

Will the same types of care be registered?

Providers already required to register under the Care Standards Act 2000 will still have to do so, but new forms of care will be required to register with the commission. The government has already announced that NHS providers will have to be registered.

There is also the possibility under the bill for registration to be extended to new social care sectors, such as supported housing projects or local authority adult services, that are not currently required to register under the Care Standards Act 2000. This is because secondary legislation under the bill could extend registration to any form of “personal care and other practical assistance”.

Will the commission have new powers of enforcement?

Yes, it will have an express power to issue warning notices and, more significantly, to issue fixed penalty notices. We are likely to see warning and fixed penalty notices being reserved for relatively minor breaches of regulatory requirements – a sort of regulatory slap on the wrist.

Will this cost more?

The bill says nothing about the cost of regulatory fees. What it does do, however, is massively increase the maximum fine for various criminal regulatory breaches, such as breach of a condition of registration, to £50,000.

In addition, it gives the commission itself the power to set fee rates, although central government will be able effectively to cap fees if it thinks they are too high.

Can we expect heavier or lighter touch regulation?

The aim is for measured regulation. The commission will have a wider range of enforcement options, such as the fixed penalty notice, which is supposed to lead to more tailored regulatory interventions.

In addition, the bill expressly requires the commission to have regard to the need to take action that is proportionate to risks posed. This should mean providers with good track records facing fewer inspections.

What about children’s services?

These fall outside the remit of the commission. Ofsted will continue to act as the registration authority for child care (other than NHS provided care).

What about Wales?

Organisational arrangements in Wales are largely untouched by the bill. The Care and Social Services Inspectorate Wales (an arm of Welsh central government) will continue to act as registration authority. The inspectorate will, however, gain the new regulatory powers described above.

More information on The Bill and its Explanatory Notes