Legal Line – Nicole Ridgwell

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Nicole Ridgwell of Ridouts answers your legal questions

What does ‘treatment is a condition of the provision of the accommodation’ mean? If treatment is provided but is voluntary and freely given, with no local authority/NHS involvement, and specifically excluded as a legal condition of residence in the tenancy/contract/licence, what then? Within scope or not?

Andy Bannell, Charis

Nicole answers:

According to CQC’s ‘Scope of Registration’, this phrase describes the regulated activity of providing residential accommodation together with treatment for substance misuse. The providerScreen Shot 2016-07-08 at 11.17.04 must provide ‘accommodation’ and ‘treatment’ and, significantly, the service user must utilise both at the same time. The provider may provide accommodation on a different site from treatment but, if linked, they are in scope. As CQC explains ‘the accommodation is provided because someone requires and accepts treatment’.

The definition of ‘treatment’ within this regulated activity is wide-ranging, covering recognised interventions from managed withdrawal or detoxification to structured psychological programmes. In essence, if your form of treatment falls within the definition, and if to accept treatment a service user will be given accommodation, your service is within scope.

The question raises three conditional queries. Firstly, what if the treatment is ‘voluntary and freely given’? I assume this refers to there being no cost to the service user. As readers will know, many programmes are free to service users, whether provided by charity or paid for by insurance. This would not alter whether the treatment is regulated for CQC purposes.

Next, where there is ‘no local authority/ NHS involvement’. This is an interesting question. One interpretation is that the service does not take referrals from local authorities or the NHS. The simple response is that how service users arrive at the service does not change the nature of the regulated activity once there. Another interpretation is that the provider does not believe they are subject to local authority or NHS oversight. Whilst the latter can certainly be true, local authority safeguarding teams will always have some level of oversight and investigatory powers in relation to any provider providing regulated treatment in their vicinity.

The last condition is that treatment is ‘specifically excluded as a legal condition of residence’. I am unsure whether this means that the service user’s accommodation ‘contract’ purposefully omits a clause making treatment mandatory, or whether the provider is prohibited from providing treatment at the accommodation and must do so elsewhere. In either scenario, the answer is the same: if accommodation is provided because the service user requires and accepts treatment, it is within scope. No amount of clever drafting will change this.

If you fall within the definition you must be registered. It is vital that providers interrogate their systems and practices to check whether they are within scope. The consequences of finding out too late that you are without appropriate registration can be costly, financially and in terms of reputation; whilst the advantages of registration can include greater recognition, credibility and higher referral numbers.

Nicole Ridgwell is solicitor at Ridouts LLP, a practice of health and social care lawyers, www.ridout-law.com.