The Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes transitional and savings provisions in respect of Social Care and Social Work Improvement Scotland (SCSWIS) and Healthcare Improvement Scotland (HIS) required as a result of the repeal of Part 1 of the Regulation of Care (Scotland) Act 2001 and the Joint Inspection of Children’s Services and Inspection of Social Work Services (Scotland) Act 2006 by the Public Services Reform (Scotland) Act 2010 (“the 2010 Act”). These 2 bodies were established by the 2010 Act and come into operation on 1st April 2011 which is the appointed day for the purposes of this Order.

Articles 2 and 10 provide that where on the appointed day a person provides a care service or an independent health care service which had been registered under Part 1 of the Regulation of Care (Scotland) Act 2001 (“the 2001 Act”), this will now be treated for all purposes as if it had been registered under Part 5 of the Act or section 10P of the National Health (Scotland) Act 1978 (“the NHS Act) that is as if the body had been registered by either SCSWIS or HIS respectively.

Articles 3 and 11 provide that if a care service is subject to an improvement notice issued under the 2001 Act on the appointed day this is to be treated for all purposes as if it had been issued by SCSWIS in respect of a care service or HIS in respect of an independent care service under either the 2010 Act or the NHS Act.

Articles 4 and 12 provide that cancellation notices issued prior to the appointed day by the Care Commission are to be treated for all purposes as if they were cancellation notices issued by SCSWIS if the matter relates to a care service or HIS if the matter relates to an independent health care service. Similarly, articles 5 and 13 apply the same principle to condition notices and articles 6 and 14 apply the same principle to applications in respect of conditions.

Article 7 relates to the registration of authorised persons and provides that where immediately before the appointed day a person is registered by the Scottish Social Services Council as an employee of the Commission who is also an authorised person within the meaning of the 2001 Act, that person is to be treated for all purposes as if that person an authorised person, under section 50 of the 2010 Act.

Article 9 provides that any outstanding complaints in relation to the Commission, a care service or an independent health care service will be dealt with by SCSWIS.

The remainder of the Order relates to savings provisions. Article 15 provides that in respect of applications for registration of a care service which have not concluded by the appointed day sections 7 and 8 of the 2001 Act will continue in force until those applications are concluded at which point SCSWIS or HIS shall grant the registration in terms of either section 60 of the 2010 Act or section 10P of the NHS Act.

Article 16 provides that if an inspection by the Commission in relation to a care service or independent health care service has not concluded by the appointed day, section 25 of the 2001 Act shall continue in force for the purposes of that inspection.

Article 17 relates to integrated inspections under the 2001 Act. If an inspection carried out under section 26 of the 2001 Act has not concluded by the appointed day, section 26 is to continue until the inspection is concluded. Article 18 concerns urgent cancellation proceedings of registration of a care service or an independent health care service and provides that if an application for cancellation is ongoing on the appointed day, Part 1 of the 2001 Act shall continue in force until the conclusion of proceedings arising from that application for the purposes of any care services (whether they are a care service or an independent health care service) that may be subject to ongoing proceedings under section 18 of the 2001 Act on the appointed day.

Article 19 provides where within the 14 days prior to the appointed day a person has been given notice under section 17(3) of the 2001 Act, from the appointed day any right of appeal is to be treated as a right of appeal under the 2010 Act.

Article 20 provides that if any criminal proceedings are ongoing in respect of an offence under sections 21, 22, 23 or 40 of the 2001 Act, those sections shall continue in force until the conclusion of those proceedings and any offence committed under those sections before the appointed day may be prosecuted after that day as if Part 1 of the 2001 Act had not been repealed.

Article 21 concerns the savings of certain sections for the purposes of Regulations. Sections 2 and 29 of the 2001 Act are to continue in force for the purposes of the Regulation of Care (Fitness of Employees in Relation to Care Services) (Scotland) (No. 2) Regulations 2009 and subsequent amending regulations and section 29 is also to continue in force for the purposes of regulations 19 to 24 of the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002.

Article 22 relates to inspections currently carried out under the Joint Inspections of Childrens Services and Inspection of Social Work Services (Scotland) Act 2006 and provides that if before the appointed day, a joint inspection under Part 1 of the 2006 or a social work inspection under Part 2 of the 2006 Act is not concluded, Parts 1 and 2 of the 2006 Act will continue in force until such inspections are finished.