Rights and responsibilities – the legal landscape

1. Rights and responsibilities – the legal landscape Tracey Dickens Partner Birkett Long LLP

2. Tracey Dickens Partner and Head of Commercial & Corporate Finance Tracey is responsible for Birkett Long’s Health & Social Care team, which draws together health specialists from other teams in the firm. She regularly assists acquisitive healthcare clients with the purchase of care homes and domiciliary care agencies, acting for a number of large groups in the sector but is equally at home with advising smaller businesses on care home sales or purchases; ensuring the transaction is handled commercially and at the right level for the particular circumstances. Clients say "her knowledge and professionalism are her greatest strengths" redefining lawyers – it’s not just knowing the law

3. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE operational matters

4. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE operational • The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and amending regulations • The Care Act 2014 • Care Quality Commission (Registration) Regulations 2009 • Care Quality Commission (Registration) and (Additional Functions) and Health and Social Care Act 2008 • (Regulated Activities) (Amendment) Regulations 2012 (Amendment to Parts 4 & 5) • Care Quality Commission (Registration and Membership) (Amendment) Regulations 2012 • Companies Act 2006 [includes duties in capacity as a director laid down by the Act, which include • duties to staff, shareholders and in some circumstances creditors] • Data Protection Act 1998 • Equality Act 2010 • Human Rights Act 1998 • Mental Capacity Act 2005 • Mental Health Act 1983 • Mental Health Act 2007 With specific regulations for particular groups such as vulnerable adults and children • Safeguarding Vulnerable Groups Act 2006 • Children Act 1989 • Children Act 2004 • Children and Young Persons Act 1933

5. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE health & safety – working practices

6. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE health & safety – working practices • Health and Safety at Work etc. Act 1974 • The Health and Safety (Miscellaneous Amendments) 2002 • Management of Health and Safety at Work Regulations 1999 • The Health and Safety (First-Aid) Regulations 1981 • The Health and Safety (Miscellaneous Amendments) 2002 • Medicines Act 1968 • The Human Medicines Regulations 2012 • Misuse of Drugs Act 1971 • The Misuse of Drugs (Safe Custody) Regulations 1973 • The Misuse of Drugs and Misuse of Drugs (Safe Custody) (Amendment) Regulations 2007 • Control of Substances hazardous to Health regulations 2002 • The Controlled Drugs (Supervision of Management and Use) Regulations 2013 • Food Safety Act 1990 • The Food Safety and Hygiene (England) Regulations 2013

7. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE health & safety – your premises

8. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE health & safety – your premises • The Electricity at Work regulations 1989 • The Gas Safety (Installation and Use) regulations 1998 • The Hazardous Waste (England and Wales) Regulations 2005 • The Regulatory Reform (Fire Safety) Order 2005 • The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR)

9. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE your staff

10. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE your staff • Employment Rights Act 1996 • Equality Act 2010 • The Manual Handling Operations Regulations 1992 • Protection of Freedoms Act 2012 – links to The Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012 • The Workplace (Health, Safety and Welfare) Regulations 1992

11. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE a lot of regulation!

12. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE data protection Under the DPA 1998 you must • Collect & process data fairly and lawfully – this means • having legitimate grounds for collecting and using data • being transparent about use • handling personal data the way expected • making sure you do not do anything unlawful with the data • You also need to ensure you have the relevant consent for the data you collect • Only collect the data you need • Keep it secure • Relevant and up to data • Only hold as much as you need • Make it available on request Service users & employees have a right to see their personal information

13. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE RIDDOR Reporting injuries, diseases and dangerous occurrences Regulations 2013 • RIDDOR requires employers and others to report on incidents where the work activities, equipment or environment contributed in some way to the circumstances of an accident. • ‘Out of or in connection with work’ • You must notify the enforcing authority without delay • You must keep a record of any reportable injury, disease or dangerous occurrence for 3 years • Keep an accident book that record can be treated as a record for the purposes of RIDDOR

14. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE the workplace (hs&w)regulations 1992 • Care home operators are responsible for health & safety in their business • You must appoint someone competent to help you meet your health &safety duties • You should prepare a health & safety policy • Carry out risk assessments • Consult your employees as they are often the best people to understand the risks in your workplace • Provide training to staff & guidance to visitors and contractors visiting your premises

15. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE the workplace (hs&w)regulations 1992 • You must provide the right workplace facilities for everyone. For example • Providing employees with toilets, hand washing facilities and drinking water • Having a healthy working environment by ensuring there is good ventilation • Keeping your workplace safe by properly maintaining your premises You must display the health and safety law poster where your workers can easily read it

16. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE european convention of human rights • Right not to be treated in an inhuman or degrading way • Rights to Liberty • Right to respect for private and family life; right to respect for home • Right to freedom of thought, conscience and religion • Prohibition of Discrimination These key rights are addressed and encompassed in the H&SC Act 2008

17. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE european convention of human rights • Human Rights Act 1998 • Public Authority includes • Health & Social Care Act 2008 • Section 145 confirms that private and voluntary sector organisations providing residential care services under contract to local authorities are bound by the Human Rights Act. (the amendment does not extend to those who pay for their own care) • Health & Social Care (Quality and Safety) Act 2015

18. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE H&SC Act 2008 (as amended) 12 fundamental standards, these replace the previous essential standards. They apply to all health and social care providers from 1 April 2015. Section 2 Health and Social Care Act 2008; Regulation 9 Person-centred care Regulation 10 Dignity and respect Regulation 11 Need for consent Regulation 12 Safe care and treatment Regulation 13 Safeguarding service users from abuse & improper treatment Regulation 14 Meeting nutritional & hydration needs Regulation 15 Premises & equipment Regulation 16 Receiving & acting on complaints Regulation 17 Good governance Regulation 18 Staffing Regulation 19 Fit & proper persons employed Regulation 20 Duty of candour

19. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE fundamental standards • Regulation 9 – Person-centred care • Patients must receive care and treatment that is personalised specifically for them • It should be appropriate to them • Those with legal authority or responsibility must be supported to make choices • All planning must reflect the patients preferences & requirements • Must comply with the terms of the MCA 2005 • Documentation must contain evidence

20. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE fundamental standards • Regulation 10 – Dignity and respect • Statutory duty to ensure the privacy of service users • Patients must be treated with dignity and respect • Must regard any relevant protected characteristics – such as age; disability or gender • Sanctions – The requirements are not directly prosecutable under the terms of the regulations

21. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE fundamental standards • Regulation 20 – Duty of Candour • A new Duty of Candour applies to all social care providers from 1st April 2015 • Providers must promote a culture that encourages candour – openness & honesty • Notification requirements to be followed where a safety incident occurs • The intention of this regulation is to ensure providers are open & transparent • It is essential to review systems & processes • Sanctions – potential fine of £2,000

22. Thank you Any questions? Tracey Dickens 01206 217326 tracey.dickens@birkettlong.co.uk Birkett Long LLP

23. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE a lot of regulation • Regulation 11 – Need for Consent • Care & treatment is only to be provided with consent of the relevant person • Must obtain consent lawfully • In some cases, it could mean some other regulations cannot be met • Example of this – nutrition and person centred-care • Must provide safe and appropriate care • Sanctions – Breach is a criminal offence, directly prosecutable with fine of £50,000

24. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE a lot of regulation • Regulation 12 – Safe Care and treatment • Must be provided in a safe way for patients • Must be robust risk assessment procedures • Staff must have qualifications, competence, skills and experience • Premises & equipment must be safe • Effective infection control procedures in place • Arrangements to ensure safe handover where care is shared • Sanctions – Criminal offence punishable by £50,000 where someone has come to harm

25. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE a lot of regulation • Regulation 13 – Safeguarding • People must be protected from abuse and improper treatment • Must have robust systems & processes in place • Where allegations or evidence of such abuse arise, there must be effective systems to investigate & address immediately • Sanctions – It’s a criminal offence to fail to comply with most aspects of this regulation – fine £50,000

26. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE a lot of regulation • Regulation 14 – Meeting nutritional needs • Must meet peoples nutritional & hydration needs when staying over night • Assessments should be carried out and reviewed • People must be provided with support to assist them in eating and/or drinking • People preferences, religious and cultural backgrounds must be taken into account • Sanctions – It’s a criminal offence to fail to comply, fine of £50,000

27. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE a lot of regulation • Regulation 15 – Premises and equipment • Premises and equipment must be clean, secure and suitable for purpose • Sanction – breach gives rise to a fixed penalty of £1,250

28. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE a lot of regulation • Regulation 16 – Complaints • Ensure that people can make a complaint about their care and treatment • Have a system for identifying, receiving, recoding, handling & responding to complaints • Staff must know how to respond when a complaint is received • Complaints to be acknowledged & monitored • Providers must give the CQC when requested to do so no later than 28 days after receipt • Sanctions – Failure to provide the CQC is a criminal offence, a fine of £2,500

29. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE a lot of regulation • Regulation 17 – Good governance • Service providers must have systems & processes in place • Be able to assess, monitor & improve quality & safety services • Be able to demonstrate they assess, monitor & mitigate risks • Service providers must maintain accurate medical & care records, keep personnel & management records, seek & act on feedback, be able to provide CQC with a written report • Sanction – Fines from £2,500 - £50,000

30. RIGHTS & RESPONSIBILITIES – THE LEGAL LANDSCAPE a lot of regulation • Regulation 18 and 19 • Providers must: • Have sufficient numbers of suitably qualified, experienced staff • Ensure staff are properly trained & supervised • Ensure they are of good character • Be able to demonstrate that recruitment procedures are robust • Sanctions – Requirements are not directly prosecutable, but lack of staff could lead to breach of other regulations