GUIDANCE ON FREE PERSONAL AND NURSING CARE IN SCOTLAND 2003

Annex D: Model Contract

This is the Schedule referred to in the foregoing Offer between the Provider and the Council

Terms and Conditions of Contract for Personal Care and nursing care

INDEX

1. Definitions, interpretations and related matters
2. Pre-Conditions
3. Duration of Contract
4. Services to be provided
5. Payment
6. Assessment and Care Management
7. Monitoring and Review of Resident's Care Needs
8. Contract Monitoring
9. Complaints
10. Registration
11. Confidentiality
12. Insurance
13. Statutory Obligations
14. Temporary Absence from Home
15. Death of Resident
16. Assignation and Sub Contracting
17. User Agreements
18. Termination of the Contract
19. Resolution of Disputes
20. Notices
21. Prevention of Corruption and Collusion
22. ariations
23. Law of Scotland
24. Exercise of Powers
25. Entire Agreement

TERMS AND CONDITIONS OF CONTRACT

INTRODUCTION

The Contract is entered into by the Council and the Provider for the purpose of securing appropriate and adequate Care for the Resident who has or will have arranged his or her own residential accommodation with the Provider by Private Agreement.

1. DEFINITIONS, INTERPRETATIONS AND RELATED MATTERS

1.1 In the Contract:-

"Care" means Personal Care and/or nursing care.

"Care Assessments" means the assessments undertaken by the Council's Social Work staff.

"Care Standards" means the standard of care set out in "National Care Standards" published by the Scottish Executive and available from the Stationery Office Bookshop, 71 Lothian Road, Edinburgh EH3 9AZ.

"Care Manager" means the person appointed by the Council to monitor the Care provided to the Resident by the Provider.

"Contract " means the foregoing Offer incorporating the Schedule and the Council's written acceptance thereof.

"Contract Price" means:

(a) where Personal Care only is provided, the amount from time to time set out at regulation 2(a) of the Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002*,
(b) where nursing care only is provided the amount from time to time set out at regulation 2(b) of those Regulations*, and
(c) where both kinds of care are provided, the aggregate of the two amounts*.

*As at 1 July 2002

nursing care only	-	£65 per week
Personal Care only	-	£145 per week
nursing care and Personal Care	-	£210 per week

"Council" means Council, a local authority constituted in terms of the Local Government etc (Scotland) Act 1994 and having its Head Office at and any successor council.
"Commission" means the Scottish Commission for the Regulation of Care, Compass House, 11 Riverside Drive, Dundee.
"Complaints Procedure" has the meaning set out in Section 25 of the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002.
"Home" means the whole buildings and associated lands used as a care home by the Provider and may include any alternative accommodation approved by the appropriate authority in the event of emergency for the purposes of temporarily accommodating all or any part of the management, staff and residents thereof.
"Parties" means the Council and the Provider and "Party" shall be construed accordingly.
"Personal Care" means care of a kind referred to in Section 1(1)(a), (b) and (c) of the Community Care and Health (Scotland) Act 2002.
"Personal Plan" has the meaning set out in regulation 5 of the Regulation of Care (Requirements as to Care Services) Regulations 2002.
"Private Agreement" means any agreement entered into between the Provider and the Resident which sets out the residential terms and conditions of the Resident's residence in the Home.
"Provider" has the meaning ascribed to it in the foregoing Offer.
"Registration" means registration of the Home with the Commission.
"Representative" means any person nominated by the Resident to be first contacted or advised by the Provider and the Council regarding the Resident's circumstances, or any significant change thereto, who shall, in the event of the Resident failing to nominate any such person, be the Resident's next of kin or attorney (if any).
"Resident" means the person to whom the Services are provided in terms of the Contract.
"Schedule" means this Schedule to the Contract.
"Services" means the Care provided in accordance with the terms and conditions of the Contract.

1.2 References to any statutory provisions in the Contract shall be construed as references to those provisions as respectively amended or re-enacted either before or after the date of the Contract.

1.3 In the Contract, words importing the singular number only shall be deemed to include the plural number and vice versa unless the context otherwise requires and words importing the masculine gender shall be deemed to include the feminine gender and vice versa unless the context otherwise requires.

1.4 Reference to persons in the Contract shall include all entities with legal personality including natural persons, partnerships and companies save where the context otherwise requires.

2. PRE CONDITIONS

2.1 The Provider shall be registered with the Commission, or an equivalent body if the placement is outwith Scotland.

2.2 The Resident (a) has chosen the Home to provide the Care and (b) has entered or will have entered into a Private Agreement with the Provider and (c) has either had a Care Assessment carried out and been assessed by the Council as requiring Care, or is a person referred to in Regulation 2 of the Community Care (Assessment of Needs)(Scotland) Regulations 2002 to whom the Council has decided to provide or to secure the provision of Care without carrying out such a Care Assessment.

3. DURATION OF CONTRACT

3.1 The Contract will commence on the last date of execution hereof or the date of the Resident's entry to the Home, whichever is the later, and will continue until terminated in accordance with any of the terms of the Contract.

4. SERVICES TO BE PROVIDED

4.1 The Provider shall, in exchange for the Contract Price, provide Care to the Resident in accordance with the Care Standards.

5. PAYMENT

5.1 The Council will pay the Contract Price to the Provider for the Services in accordance with the Council's usual payment mechanisms. The Provider will provide receipted invoices to the Council.

5.2 If payment of the Contract Price is not made within 28 days of the due date, the Council shall on written demand by the Provider pay interest at 2% above the Royal Bank of Scotland Base Rate from time to time in respect of each day of overdue payment.

6 ASSESSMENT AND CARE MANAGEMENT

6.1 Care Assessments will be arranged by the Council.

6.2 The Resident will have a Care Manager allocated by the Council.

7. MONITORING AND REVIEW OF RESIDENT'S CARE NEEDS

7.1 The Resident's Care, including a report by the Provider on the review of the Resident's Care in the Personal Plan, will be reviewed at the end of any trial period, (initial review) and six months after the start of the Contract and annually thereafter.

7.2 The Resident, the Representative, the Council, and the Provider may request a review at any other time.

7.3 The Care Manager will be responsible for calling, arranging a venue for and minuting, the initial review and the six month review.

7.4 Annual reviews will thereafter be the responsibility of the Provider. The Provider will advise the Care Manager of any review and will give the Care Manager the opportunity to comment as part of the review.

7.5 The Care provided in the Home will be in accordance with the Care Standards as inspected and monitored by the Commission. The Council will utilise this information for the purposes of monitoring the provision of the Care by the Provider.

8. CONTRACT MONITORING

8.1 The Provider will comply with the Council's systems for monitoring, evaluating and auditing the operation of the Contract upon being given reasonable notice by the Council. The Council will advise the Provider about the systems for monitoring, evaluating and auditing in use. The Council reserves the right to visit the Home and the Resident at any reasonable time without giving notice and without prejudice to the Resident's right to privacy.

9. COMPLAINTS

9.1 The Provider will provide a copy of the complaints procedure of the Home to the Council and the Resident.

9.2 The Resident will be advised by the Council that he or she has the right to complain directly to the Council if he or she is not happy with any aspect of the Care.

9.3 The Provider will ensure that the Resident and the Representative know how to make a complaint and are assisted with the completion of the documents (if required).

9.4 The Provider will notify all complaints relating to the Contract to the Council routinely as part of the auditing of the Contract.

10. REGISTRATION

10.1 In the event of the Commission serving notice of intent to take, or notice of decision to implement enforcement action against the Provider, the Council may, but shall not be bound to terminate the Contract without notice irrespective of whether or not the time for any representation or appeal with respect to the enforcement action has expired or that a representation or an appeal is pending.

11. CONFIDENTIALITY

11.1 Other than as permitted in terms of Clause 11.2 below, the Provider and its staff shall regard as strictly confidential and shall not disclose to any unauthorised person, at any time during or after the duration, of the Contract, any information obtained in relation to the Council or the Resident. The Provider shall not use any such information except as specifically required for the purposes of performing its obligations under the Contract.

11.2 Notwithstanding Clause 11.1 above, the Provider may, with the prior consent of the Resident, disclose personal and medical information relating to the Resident to the relatives of the Resident or other suitably interested person in respect of the Resident. Such information must have also been made available to the Resident, subject always to any legislation, rule of law, or any pending civil or criminal investigation or inquiry and in particular to compliance with the Access to Personal Files Act, 1987 and the Data Protection Act, 1998.

11.3 The Provider shall at all times, ensure that its employees observe the principle of confidentiality in terms of Clauses 11.1 and 11.2 above. The Provider shall indemnify the Council against any claims made by the Resident or any third party, as a result of either the Provider, or its employees, failing to maintain confidentiality in terms of this contract.

11.5 The Provider shall not, unless permitted or requested to do so by the Resident, reveal information relating to any other contract which might exist between the Provider and the Resident.

11.6 The Provider shall not, unless permitted or requested to do so by the Resident, reveal any financial information about the Resident, even if the Provider is aware that the Resident's capital or income appears to be running low.

11.7 The obligations of confidentiality contained in this clause shall survive the termination of the Contract.

12. INSURANCE

12.1 The Provider shall be responsible for ensuring that appropriate and adequate insurance is maintained throughout the duration of the Contract.

13. STATUTORY OBLIGATIONS

13.1 Throughout the duration of the Contract, the Provider will observe and comply with all statutory enactments and regulations, and bye-laws of local or other authorities or other public bodies applicable to the Home and to the Services including and without prejudice to the foregoing generality, the Adults with Incapacity (Scotland) Act 2000 and those applicable to Health and Safety at Work, Human Rights and Race Relations.

14. TEMPORARY ABSENCE FROM THE HOME

14.1 The Provider will provide the Care to the Resident over a twenty four hour period, 365 days a year, subject to any hospitalisation or other absence agreed between the Resident and the Provider.

14.2 The Provider will immediately inform the Representative and the Council if the Resident is absent from the Home without notice.

14.3 In the event of the hospitalisation of the Resident, the Provider will, as soon as reasonably practicable (but in any event no later than the next working day) inform the Council.

14.4 The Council will continue to pay the Contract Price for a period of fourteen days from the commencement of the Resident's absence from the Home.

15. DEATH OF THE RESIDENT

151 In the event of the death of the Resident, the Provider will, as soon as is reasonably practicable, but no later than the next working day, inform the Council.

15.2 The Contract and the Council's financial obligation will terminate three complete days after the date of death (the date of the Resident's death being day zero).

16. ASSIGNATION and SUB CONTRACTING

16.1 The Provider binds and obliges itself:

(a) not to assign or sub-contract any part of the Contract without the prior written consent of the Council, and
(b) not to significantly change the facilities or amenities of the Home without giving the Council and the Resident at least 4 weeks' written notice, and
(c) to give at least 4 weeks' written notice to the Council and the Resident prior to a sale of the Home being completed.

16.2 In the event of the Provider selling or entering into an agreement to sell the Home, the Council may, upon being satisfied of the intended purchaser's suitability, and provided the intended purchaser applies for and is granted registration by the Commission within 60 days of the sale, consent to an assignation of the Contract in favour of the purchaser.

17. USER AGREEMENTS

17.1 The Resident will not be required or requested by the Provider to sign any agreement in respect of his or her place in the Home which conflicts with the provisions of the Contract. Where any such agreement, including the Private Agreement, does so conflict the terms of the Contract shall take precedence.

18. TERMINATION OF THE CONTRACT

18.1 Without prejudice to Clause 15.2, the Contract will subsist until termination in accordance with the provisions of this Clause 18.

18.2 The Provider may terminate the Contract, by giving 28 days written notice to the Resident and the Council.

18.3 If the Provider has a receiver appointed, becomes insolvent, apparently insolvent, or is sequestrated or goes into liquidation (other than voluntary liquidation for the purposes of reconstruction or amalgamation) or is wound up by the Court or is voluntarily wound up by creditors or by members, the Council shall be entitled to terminate the Contract with immediate effect.

18.4 The Council may terminate the Contract immediately without notice and advise the Resident if the Provider commits a material breach of the terms and conditions of the Contract. One of the circumstances constituting a material breach will be the serving on the Provider by the Commission of a decision notice stating that the Commission has decided to implement a proposal to cancel registration.

18.5 The Provider may terminate the Resident's Care upon giving the Council and the Resident 28 days' notice in writing if:

(a) the care needs of the Resident are such that the Provider, the Council and the Commission agree that the Provider is unable to continue to provide appropriate care; or
(b) the Council has failed to pay the Contract Price to the Provider in accordance with the Contract.

18.6 The Council may terminate the Contract upon 28 days' written notice if the Care being provided under the Contract is no longer appropriate to the Resident's care needs.

18.7 Notwithstanding any of the above the Council may terminate the Contract upon 28 days' written notice. The Council will advise the Provider in writing of its reasons for terminating, except where this would conflict with any duty of confidentiality between the Council and any other person.

18.8 Notwithstanding any of the above, the Contract will terminate with effect from the date of termination of the Private Agreement. If the Provider receives notice of the Resident's intention to leave the Home or to terminate the Private Agreement, the Provider shall notify the Council.

18.9 During any notice period stipulated in this Clause 18, the Provider and the Council will co-operate to ensure that Care is provided to the Resident.

19. RESOLUTION OF DISPUTES

19.1 If any dispute arises between the Council and the Provider in respect of the Contract the Council and the Provider shall use their reasonable endeavours to reach an amicable and workable resolution of the matter in dispute within two weeks of the dispute arising.

19.2 If a dispute is not resolved between the Council and the Provider in terms of Clause 19.1, then the dispute will be referred to the dispute resolution procedure set out in the Commission's regulations and shall follow all the steps therein as appropriate. The Care will continue until the dispute is resolved.

20. NOTICES

20.1 Any notice in writing required to be given to either Party in terms of the Contract, whether delivered by hand or first class post (in which case receipt shall be deemed to have occurred forty eight hours after such posting) or other information, instructions or communication given to the Provider at the Home, shall be deemed to have been received by the Provider.

20.2 Any notice in writing whether delivered by hand or by first class post (in which case receipt shall be deemed to have occurred forty eight hours after such posting) or other information, instruction or communication given to the Care Manager or any other person nominated from time to time by the Council being the duly authorised representative for all purposes connected with the Contract, shall be deemed to have been received by the Council.

21. PREVENTION OF CORRUPTION AND COLLUSION

21.1 The Council will be entitled to terminate the Contract with immediate effect and to recover from the Provider the amount of any loss resulting from such cancellation if the Provider has given or agreed to give, to any member, employee or representative of the Council any gift or consideration of any kind as an inducement or reward for doing any act in relation to the obtaining or carrying out of the Contract or the Care of the Resident.

22. VARIATIONS

22.1 The terms of the Contract shall not be amended or varied in any way other than by a written Minute of Variation between duly authorised representatives of the Provider and the Council and shall be intimated forthwith to the Resident.

23. LAW OF SCOTLAND

23.1 The construction, validity, performance and all other matters arising out of and in connection with the Contract shall be governed by the Law of Scotland.

24. EXERCISE OF POWERS

24.1 The Council will exercise any of its powers, obligations or discretions in terms of the Contract, in a reasonable manner and in accordance with its statutory obligations.

25. ENTIRE AGREEMENT

25.1 The Contract shall constitute the entire contract between the Council and the Provider in respect of the Home and the Resident's admission to the Home and supersedes all prior oral or written agreements, understandings or undertakings between the Council and the Provider in respect of the Home and the Resident.