1.1 Legislation and statutory frameworks

Course: NVQ Level 5 Diploma In Leadership & Management for Adult Care

Unit 2: Governance and regulatory processes

LO1: Understand legislation and statutory requirements that underpin adult care provision

1.1 Legislation and statutory frameworks

The safety and well-being of service users, staff, and other stakeholders is a priority for any organization. Failure to comply with legislation can result in an unsafe working environment that has negative effects on the people it impacts (e.g., They may not be able to get jobs elsewhere). There must therefore exist systems in place at all times which ensure compliance so we don’t end up putting our clients’ health at risk

The following is a list of important legislation relating to NHS (National Health Service), social care, and voluntary sector providers.

Health & Safety at Work Act (HASAW) 1974

This act applies to all staff working for an organization with the exception of volunteers. It provides rules and regulations for employers who must ensure that their employees are safe whilst at work. Staff is expected to work in a safe environment that is free of risks to their health and safety.

The Health & Social Care Act 2008 (Regulated Activities) 2014

This act applies to those who provide social care as part of their business. In addition, anyone involved in the trading and selling of adult services has a legal obligation to register with the Care Quality Commission (CQC).

The CQC is an independent body that carries out checks on providers and can take enforcement action if they find breaches relating to safeguarding, quality of care, and the registration process. It is therefore vital to check with them before registering an adult service business or providing any services at all.

CQC also provides guidance on legislation relating to social care services which can be accessed here. This includes safe staffing levels for residential homes, nursing staff in hospitals, children’s homes, and home care services.

CQC Regulations

These regulations refer to the rules and procedures that a provider must follow when providing services to adults, children, and young people. For example, staff working in hospitals or care homes must be trained in basic life support or first aid.

The regulations require providers to meet certain standards. This includes maintaining a safe environment that is free from abuse and neglect, having well-trained staff and in place policies and procedures to address various risk factors (Staff well-being, Mental health, Discrimination [and hate crime], Safeguarding [sexuality and relationships], Substance use).

Fundamental Standards

These standards refer to the individualized care and support that a service user should receive. They include respect, dignity, rights of privacy and independence, information sharing policies and procedures, access to advocacy services, etc.

CQC’s fundamental standards and principles say that:

• You must respect and promote a service user’s rights, choices, and wishes (This includes those who use adult social care services as well as those who need health care).
• Services must be designed to meet the needs of everyone involved. This includes families where applicable.
• Services must work together with other agencies such as social care, the police, and the health service.
• Services must have procedures in place to address discrimination (e.g., Incidents of violence/aggression or physical assault that are motivated by hatred).
• You must listen to people who use your services as well as relatives where applicable.
• Providers are required to have a complaints procedure in place.
• Those working for the service must be well trained and have access to appropriate supervision.

KLOES Standards

KLOE refers to Key Lines of Enquiry and sets out criteria for assessing whether the care and treatment provided by a service are meeting fundamental standards. The five KLOES are:

1. Dignity and respect (e.g., Is service user treated and involved with dignity and respect?)
2. Individual needs for care and support (e.g., Does the service meet their needs?)
3. Personal agency (e.g., Can the individual make his or her own choices?)
4. Safeguarding (e.g., Is everyone kept safe and free from abuse?)
5. Safety (e.g., Is there good supervision and management of the service?)

Fit and Proper Person

A provider, or anyone working for a provider, must meet certain standards to be considered “fit and proper” for the role they are undertaking. These include being of good character, an appropriate level of training which is updated regularly, professional qualifications, etc.

Reference to “fit and proper person” is made in the regulations and fundamental standards. The Care Quality Commission defines a fit and proper person as:

They must be up to date with the necessary knowledge, skill, and judgement for working within their given role. They should also have relevant experience and training which is recognised by relevant authorities. As an employer, they should act fairly and within their judgement.

They must also demonstrate honesty, integrity, and confidentiality. They must conduct themselves in a professional manner at all times.

The Equality Act 2010

The Equality Act 2010 requires that services do not discriminate against service users based on certain grounds. These include age, disability, gender reassignment, race, religion & belief (including lack of belief), marriage and civil partnership status, pregnancy and maternity, sex (sexual orientation), and gender (gender identity).

The Act specifies that discrimination can be direct or indirect. It also includes provisions to protect service users from harassment and victimization.

As well as these protections for specific groups, the law protects individuals from discrimination when a service is treating someone else in a different way to them in a similar situation.

The duties under the Equality Act 2010 apply to all providers of services, in whatever setting they are provided in. This includes general practices and hospitals.

The Act also says that a person providing a service must not discriminate when exercising a public function or “service-related activity”, such as making decisions about care options for a patient. For this purpose, discrimination includes disability-related discrimination.

Another provision of the Equality Act is that some public authorities, such as local councils or voluntary organizations, must publish an equality scheme. This sets out how they will make sure people with disabilities are not discriminated against in accessing their services.

The Care Act 2014

The Care Act 2014 provides a statutory duty for health and adult social care organizations to work together across boundaries. This ensures that people receive the services they need as close to home as possible.

It sets out a number of principles including:

• Well-led organizations that support people to shape services and make good choices about how their care and support is provided
• Targeted action through Local Healthwatch aimed at improving outcomes for those using adult social care services, in particular, those most in need
• A clear and relevant complaints procedure with a provider for everyone who uses a service, ensuring that people have a voice when things go wrong or could be done better.

The Safeguarding of Vulnerable Groups Act 2006

The Safeguarding of Vulnerable Groups Act 2006 provides a framework for protecting vulnerable groups. It consolidates existing legislation and aims to enhance public protection by preventing unsuitable people from working with others who are vulnerable.

The Act covers the nature of employment checks for people coming into regulated activity and existing staff. It also outlines what should be included in vetting, barring, and registration policies and procedures that must be adhered to by service providers.

Mental Capacity Act 2005

The Mental Capacity Act 2005 sets out the principles of the way in which people should be helped to make decisions. It covers decision-making about mental capacity and how best people with mental capacity can give or refuse their consent to treatment or care.

The Mental Capacity Act 2005 enables people to have the capacity to make some decisions for themselves and assists professionals in deciding whether a person lacks capacity.

Main principles:

• People should be supported and encouraged to make their own decisions, as far as possible;
• People should be allowed to retain decision-making powers even when they lack mental capacity;
• Decisions should be made in the person’s best interests; and
• The least restrictive option should be considered when deciding what is in their best interests.

Mental Health Act 1983

The Mental Health Act 1983 is designed to ensure treatment and care in the least restrictive way. It does this by protecting people’s rights, giving them a say in decisions about their care and treatment, with access to independent advocacy if they wish it.

The act allows people with mental health problems to be treated closer to home if they are not a risk, instead of being detained in hospital. Local authorities must provide information about the Mental Health Act 1983, including information about independent advocacy services for those detained under the act.

Liberty Protections Safeguards (formerly Deprivation of Liberty Safeguards)

The Department of Health is responsible for ensuring that those subject to deprivation of liberty receive the support and safeguards they require and ensuring that the rights of those around them are also protected.

The Liberty Protection Safeguards (formerly Deprivation of Liberty Safeguards) provide a framework for protecting people who lack the capacity to make decisions about their care and treatment or where their rights, freedoms, and choices are restricted.