This page is designed to answer the following questions:
- 1.1 Legislation and statutory frameworks (Level 5 Diploma in Leadership and Management for Adult Care, Governance & Regulatory Processes)
NOTE: Although this page has been marked as complete, it has not yet been peer-reviewed or quality-assured, therefore it should be considered a ‘first draft‘ and any information should be fact-checked independently.
For this assessment criterion, you will be required to research current legislation and statutory frameworks that apply to your service provision.
Legislation must be followed at all times to ensure that your service operates in a legal and safe way. Failure to comply with legislation can result in an unsafe working environment that has a negative effect on the well-being of service users, staff and other stakeholders. Therefore, there must be systems in place to ensure compliance.
Important legislation that relates to NHS, social care and voluntary sector providers are discussed below.
Health & Safety at Work Act (HASAW) 1974
The HASAWA sets out an employer’s duty to ensure that the workplace is safe (as far as is practicably reasonable) and an employees responsibilities to themselves and others with regards health, safety and wellbeing.
This is detailed further in several additional regulations (COSHH, RIDDOR etc.), the most important of which are discussed here.
The Health & Social Care Act 2008 (Regulated Activities) 2014
This act legislates for the regulation of health and social care organisations, established the Care Quality Commission (CQC) as the independent regulator and sets out a number of regulations in line with ‘Fundamental Standards’.
CQC regulations are the statutory framework through which health and care services are provided and must be adhered to. The regulations (in brief) are:
- Regulation 4: Requirements where the service provider is an individual or partnership
- Regulation 5: Fit and proper persons: directors
- Regulation 6: Requirement where the service provider is a body other than a partnership
- Regulation 7: Requirements relating to registered managers
- Regulation 8: General
- 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 and improper treatment
- Regulation 14: Meeting nutritional and hydration needs
- Regulation 15: Premises and equipment
- Regulation 16: Receiving and acting on complaints
- Regulation 17: Good governance
- Regulation 18: Staffing
- Regulation 19: Fit and proper persons employed
- Regulation 20: Duty of candour
- Regulation 20A: Requirement as to display of performance assessments
Further information about regulations can be found on CQC’s website.
CQC’s Fundamental Standards are the minimum standards that must be met by all regulated health and care providers and are aligned closely with the regulations. These standards are:
- Person-centred care
- Dignity and respect
- Safeguarding from abuse
- Food and drink
- Premises and equipment
- Good governance
- Fit and proper staff
- Duty of candour
- Display of ratings
More information about Fundamental Standards can be found on CQC’s website.
KLOE is an acronym for Key Lines of Enquiry and sets out the main areas that CQC will look at during inspection of a service. This helps to ensure consistency acrosee the inspection system. The five KLOES are:
- Is it safe?
- Is it effective?
- Is it caring?
- Is it responsive?
- Is it well-led?
These KLOES are provided in more detail by CQC here.
Fit and Proper Person
References to ‘fit and proper person are mentioned in both the regulations and fundamental standards, but what exactly is a ‘fit and proper person’?
Regulation 19 describes a fit and proper person as somebody of good character with the qualifications, competence, skills, experience and health to perform their job function correctly. This applies to all staff at director-level staff.
Organisations must have systems in place to ensure the suitability of directors including a robust recruitment process, continual monitoring and procedures to follow if a director is no longer deemed to be a ‘fit and proper person’.
The Equality Act 2010
The Equality Act 2010 protects individuals from discrimination based on nine characteristics. They are:
- Gender reassignment
- Marriage/civil partnership
All care organisations must ensure that they comply with this legislation by
Information for employers about how to stay compliant with the Equality Act can be on the Equality and Human Rights Commission website.
The Care Act 2014
The Care Act 2014 reformed how care is assessed and delivered. It made local authorities responsible for assessing anyone who may require care services and gave individuals more choice over how their care is delivered with focuses on personal outomes and wellbeing. There were also provisions for carers as well a greater emphasis on prevention, protection and safeguarding.
The Safeguarding of Vulnerable Groups Act 2006
The Safeguarding of Vulnerable Groups Act 2006 helps to avoid harm to children and vulnerable by preventing unsuitable people from working with them. Part of these greater controls include the Disclosure and Barring Service (DBS), which employers can use to check that their employees are not prohibited from working in a care role.
Mental Capacity Act 2005
The Mental Capacity Act 2015 provides protection for individuals that may not have the mental capacity to make decisions for themselves. You should be familiar with the Code of Practice for the Mental Health Capacity Act, which sets out five statutory principles:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
It also sets out the criteria for assessing mental capacity:
- Does the person have a general understanding of what decision they need to make and why they need to make it?
- Does the person have a general understanding of the likely consequences of making, or not making, this decision?
- Is the person able to understand, retain, use and weigh up the information relevant to this decision?
- Can the person communicate their decision (by talking, using sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful?
Mental Health Act 1983
The Mental Health Act 1983 (amended in 2007) covers the assessment, treatment and rights of individuals with a mental health disorder, including detainment if there is a risk that an individual may harm themselves or others.
Liberty Protections Safeguards (formerly Deprivation of Liberty Safeguards)
Liberty Protection Safeguards (LPS) protect the rights of individuals in care homes or hospitals that are deprived of their liberties, in their best interests, to be given the care and treatment they need. It ensures that there is a robust system in place for the authorisation of restrictive systems by a hospital manager, CCG or local authority and there are provisions legal recourse by affected individuals.