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Care Homes – The Regulatory Framework

Date: 11/06/2024 | Healthcare, Regulatory Law

According to Public Health Scotland, as of March 2023 there were 1,037 care homes for adults in Scotland and 20,502 registered places – 19% and 5% less respectively than compared with 31 March 2013.  Care homes play an essential role in caring for many of society’s most vulnerable. Understandably, all residential care homes are subject to extensive regulation.

These regulations affect every aspect of the management of the care home, including how the care home is funded, how the welfare of residents is to be maintained and granting powers to care homes to allow them to meet the needs of some of the residents.

Care homes are generally regulated by the Care Inspectorate which is a body created by the Public Services (Reform) Scotland Act 2010. 

We detail some of the key regulations affecting the welfare of residents in this article. Namely:

1. Adults with Incapacity (Scotland) Act 2000

This Act created provisions to protect the welfare of adults who are unable to make decisions for themselves because of a mental disorder or an inability to communicate. The Act allows for authorised care establishments to manage a limited amount of the funds and property on behalf of residents, who are unable to manage their funds and property themselves. In such instances authority may be granted to a care home manager by the supervising body (e.g. the local authority or the health board). Where such authority is granted the appointed person must comply with the principles under the act.

2. Regulation of Care (Scotland) Act 2001

The Regulation of Care (Scotland) Act 2001 aims to improve care standards. Failure of a care service or an individual to comply with the Act and associated regulations means that they can be de-registered by the regulatory body (i.e. the Care Inspectorate) and no longer able to provide care services. The Act places scrutiny on care homes to meet established standards including Scotland’s National Health and Social Care Standards.

3. The Scottish Health and Social Care Standards 2017

The established standards that require to be complied with in terms of the Regulation of Care (Scotland) Act 2001 are Scotland’s National Health and Social Care Standards. The National Health and Social Care Standards came into effect on 1 April 2018. These standards provide the basis on which the Care Inspectorate can decide if a care service is substandard.

The standards require care providers to consider the following parameters in the provision of their service (including when making management or employment decisions):

  1. Dignity and respect;
  2. Compassion;
  3. Be included;
  4. Responsive care and support; and
  5. Wellbeing.

The National Health and Social Care Standards set specific benchmarks where the service is a residential care service. For example, the standards stipulate that premises used for residential care must be suitably adapted and provide easy access to outdoor space and bathrooms, access to telecommunications and suitable ventilation and heating.

4. The Health and Social Care Act 2008

The Health and Social Care Act 2008 sets out that care home residents in privately run care homes (where the fees or the contract was arranged by the local authority or social services) have protection under the Human Rights Act 1998.

5. Health and Safety at Work Act 1974 and Corporate Homicide

The Act covers a wide range of health, safety and welfare across different sectors. The Health and Safety Executive and local authorities hold enforcement powers under the Act. They can refer criminal allegations to the Crown who can prosecute operators and managers who can face significant fines and prison sentences. In February 2024 a care home operator was fined £400,000 after the death of a resident who was able to access a courtyard at night, unsupervised and who fell. She was then left outside for an hour and half and subsequently died in hospital.

Understanding the regulations affecting your business is essential, particularly where your business is subject to multiple layers of regulations. Failure to comply can have implications and the remedies for the resulting problems can be costly and require you to divert time and resources away from running your business.   

In some cases it can lead to prosecution not just of the care provider (normally a limited company) but also the senior management team and company directors.

Davidson Chalmers Stewart’s Healthcare team understand the regulations affecting the care sector as well as the challenges facing the sector. If you need advice in relation to your residential care home, speak to a member of the Davidson Chalmers Stewart Healthcare Team, who will be happy to help.

The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers Stewart LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.

Written by

Nathan Adam | Davidson Chalmers Stewart
Nathan Adam

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