Registration requirements under the Health and Social Care Act 2008

Under the Care Standards Act 2000, care homes and agencies were subject to registration if they fell within the definitions provided under the Act.

For example, an establishment was subject to registration as a care home if it provided accommodation together with personal care or nursing (if assistance with bodily functions was also provided if required).

The Health and Social Care Act 2008 has shifted the emphasis from what a body is (the setting) to what the body does (the activity). There will be list of ‘regulated activities’ that will be subject to registration.

The activities are: • Personal care • Accommodation for persons who require nursing or personal care • Accommodation for persons who require treatment for drug and alcohol misuse • Accommodation and nursing or personal care in the further education sector • Surgical procedures • Diagnostic procedures • Treatment of disease, disorder or injury • Services in slimming clinics • Transport services, triage and medical advice provided remotely • Maternity and midwifery services • Termination of pregnancy • Assessment or medical treatment for persons detained under the Mental Health Act 1983 • Management and supply of blood and blood-derived products

Draft regulations have also been published. Providers in the social care sector will be interested to note the following:

Supported housing remains outside the scope of regulations unless personal care is provided.

There will be a continuing benefit to providers to offer care and support which falls short of personal care requiring registration.

The draft regulations provide the first statutory definition of ‘personal care’.

The definition is: (a) physical assistance given to a person in connection with; (i) eating or drinking (ii) toileting (including in relation to the process of menstruation) (iii) washing or bathing (iv) dressing (v) oral care, or (vi) the care of skin, hair and nails Or (b) the prompting and supervision of a person, in relation to the performance of any of the activities listed in sub-paragraph (a) where that person is unable to make a decision for themselves in relation to performing such an activity without such prompting and supervision.

Although a statutory definition is welcome for a term which is so important to the regulatory framework, providers should be aware that the definition extends the current understanding of the term.

The significant change is that prompting and supervision in respect of the listed bodily functions will constitute personal care where the service user lacks capacity. Previously, under guidance issue by the Department of Health, non-physical care, for example prompting a person to take a bath, was not considered personal care. The change will be particularly significant to supported housing providers which may find themselves caught by the new definition.

Ancillary services will be subject to registration.

The draft regulations provide that an activity which is ancillary to, or is carried out wholly or mainly in relation to, a regulated activity shall be treated as part of that activity. It is difficult to see what mischief this provision is trying to address. The provision may cause widespread uncertainty and we can expect some wild decisions from CQC. Are suppliers of specialist equipment to be subject to registration? One would hope not but arguably they fall within the definition of providing an activity mainly in relation to care homes. If the regulations are passed in their current form, it is important that this provision is not over-used and swamps the sector with unnecessary regulation.

Personal Carers engaged and directed by an individual are exempt from registration.

Providers of accommodation for personal carers will only be registerable if nursing or personal care is also provided ‘together’ with the accommodation. That retains the position under the Care Standards Act 2000.

Landlords who do no more than provide accommodation will not be registerable but will be registerable if they are in some way operating ‘together’ with the body providing personal care or nursing.

Agencies which supply carers to other registered persons are exempt from registration. Nurses agencies will remain regulated even if they only supply other registered activity providers.