England

An amendment to the regulatory framework in 2015 put reducing harm at the heart of social care regulation in England. The Secretary of State has powers to choose whether or not to make regulations that impose requirements on providers about care quality or the health, safety and welfare of service users. However, since 2015, the Secretary of State has an additional duty to make regulations to impose requirements on providers that the Secretary of State considers necessary for securing care services that ‘cause no avoidable harm to the persons for whom the services are provided’.

The duty to regulate for the purpose of securing services that ‘cause no avoidable harm’ is defined by statute to mean services that do not ‘cause or contribute to, whether directly or indirectly’ any ‘harm [that] is avoidable, in relation to a service, unless the person providing the service cannot reasonably avoid it (whether because it is an inherent part or risk of a regulated activity or for another reason)’.

A registered service provider is required at Regulation 19 (fit and proper persons employed) to establish and operate recruitment procedures to ensure that care workers are employed only if they are ‘of good character’, have the necessary qualifications, competence, skills and experience to undertake the relevant tasks, and are of sufficient health to properly perform work tasks (subject to [reasonable adjustments in respect of disability including long term conditions]).

For the purposes of Regulation 19, employment is stated to refer to employment under a contract of service, an apprenticeship, a contract for services or otherwise than under a contract. It therefore covers staff who are directly employed or deployed by the provider, including agency staff, apprentices and volunteers.

‘Good character’ is not defined in the Regulations, but matters relating to it are noted in Schedule 4, Part 2.  These are whether a person has been convicted of anything that constitutes an offence in the UK; and whether they have been erased, removed or struck-off a professional register maintained by a health care or social work regulator. The CQC Guidance states that when assessing whether a person is of good character, providers must have regard to these matters. It also states that it is not possible to outline every character trait that a care worker should have, but makes particular mention of honesty, trust, reliability and respect.

CQC Guidance for Providers on Meeting the Regulations (2015)

Providers must have appropriate processes for assessing and checking people’s competence for their role and that they have the necessary skills and experience, and any qualifications where required (whether by law or by the provider itself). The CQC Guidance expects that competence is attained before a person works unsupervised, and that the [Care Certificate standards] are followed when assessing competence. The Guidance also states that competence may include ‘demonstration of a caring and compassionate approach’.

If a care worker no longer meets the ‘fit and proper’ requirements, the provider that employs them must take necessary and proportionate action. The CQC Guidance expects action to be taken without delay, or immediately if there is an imminent risk to service users or others. Such action is not prescribed, but might include training, investigation, disciplinary action, removal from post or reference to relevant external authorities. The Guidance stipulates that any response should be fair to the care worker concerned and follow correct procedures, including those required in employment law. The Guidance expects providers to regularly review whether care workers meet the ‘fit and proper’ requirements as well as to respond to any concerns about care workers raised by others.

CQC Guidance for Providers on Meeting the Regulations (2015).

According to Guidance, if a provider is investigating whether a care worker meets the ‘fit and proper’ requirements they are expected to take ‘appropriate interim measures’ to minimise risks to people using the service. Such measures are not prescribed but might include supervised work or the appointment of temporary staff if an employee is suspended. Where a provider has concerns or findings about a care worker no longer meeting the ‘fit and proper’ requirement, the Guidance states that they should inform appropriate external bodies such as professional regulators, police, and safeguarding authorities about concerns, and support any related enquiries and investigations.

CQC Guidance for Providers on Meeting the Regulations (2015).

To ensure that ‘fit and proper’ persons are employed, service providers must obtain and hold certain information in relation to each person. The CQC guidance states that the following information must be obtained before employment starts as part of ‘robust’ recruitment procedures:

• photographic proof of identity,
• a copy of a criminal record certificate and a DBS certificate (where these are required),
• a copy of an enhanced criminal record certificate and any suitability information relating to vulnerable adults (where these are required),
• satisfactory evidence of conduct in previous employment relating to either health or social care, or children or vulnerable adults,
• satisfactory verification of the reason that any previous employment with children or vulnerable adults ended (so far as this is reasonably practicable),
• documentary evidence of relevant qualification (so far as this is reasonably practicable to obtain),
• a full employment history and a satisfactory written explanation of any gaps in employment,

satisfactory information about physical or mental health conditions relevant to the person’s capability to perform job-related tasks (subject to [reasonable adjustment in respect of disability including long term conditions]).

CQC Guidance for Providers on Meeting the Regulations (2015).

If a person is barred from engaging in certain ‘regulated activities’ under the Safeguarding Vulnerable Groups Act 2006, including the provision of personal care and other assistance to older or disabled adults, it is a criminal offence for them to undertake such work, or to seek or offer to do it. It is also an offence for a service provider to permit a barred individual from undertaking activities from which they are barred and for an employment agency to provide a barred person to a service provider, in order to work in an activity from which they are barred.

The Guidance expects service providers to take all reasonable adjustments under the Equality Act 2010 to enable a care worker to carry out their role, including offering them an alternative role. It is made it clear that this ‘does not mean that people who have a long-term condition or a disability cannot be appointed’.

The Guidance also expects providers to have processes in place to enable them to consider a person’s physical and mental health requirements relevant to the role at the time of appointment.

CQC Guidance for Providers on Meeting the Regulations (2015).