National Care Service: consultation analysis

Appendix 2: Proposed enforcement powers

The following options for enforcement options have been extracted from the consultation document (pages 112-113).

In summary, there are options to reform current enforcement powers in the following areas:

(a) Condition notices under section 66 of the 2010 Act (this process is too slow). The test could be made less stringent, or an "intermediate" category could be added.

(b) Improvement notices under section 62 of the 2010 Act (this process is too weak). Changes to require sustained improvement would strengthen this provision. For example, one possibility is that even if improvements are made, the notice could remain "on the service's record" for a set period, and further action provided for, if the same issue arose while the notice remained extant.

(c) Cancellation of a service under section 64 of the 2010 Act (this process is too slow). The statutory process is fair and reasonable and allows the opportunity for representations by services affected, but appeals in the Sheriff court are likely to be protracted. One possible solution is to review court processes to govern the conduct of proceedings, as is the case with other types of court actions. Such a review could provide for clear timetabling of action with a view to avoiding the lengthy appeals currently experienced by the regulator.

(d) Emergency cancellation of a service under section 65 of the 2010 Act (the legal bar is too high). The Sheriff considering an application for cancellation of registration under this provision has a wide discretion. They "may" (and therefore may not) make the order, even if satisfied that there will be serious risk unless the order is made. We would also highlight that in a number of cases there may be issues relating to the length of the process in which applications for emergency cancellations are heard by the court.

The Scottish Government welcomed views on the impact, effectiveness and speed of the current enforcement powers set out above and the proposals for improving them. In making changes to current legislation the regulator would be enabled to ensure they can speedily take action with poor performing services, better protect residents of care homes and other social care users, and drive up the consistency and quality of care expected across all social care services in Scotland.