We have already published a number of blogs building up to the introduction of the National Care Service Bill on 20 June 2022 in a dedicated ‘hub’ on SPICe Spotlight. This extended blog will have a brief look inside the Bill now it’s arrived and consider what’s in it, and, perhaps more interestingly, what is not. As it’s a bit longer than normal, we’ve added a contents pop-out menu below to help you navigate around the blog.
Can a national care service fulfil our expectations and whatever happened to integration?
As we’ve said in SPICe before, labelling something a national service that looks, on the surface, to be promising the same deal as we have with the National Health Service could be seen as a high-risk strategy in terms of public expectation.
It might also be viewed as a bit counter to the efforts over the past number of years to integrate health and social care services into a seamless system. But maybe this Bill actually represents a further step along that road in a number of ways. Perhaps it is seeking to rectify some of the challenges of integration, such as agreeing budgets for integrated services between health boards and local authorities.
So, what is in the Bill?
Bills are not generally an easy read, so we often head to the Policy Memorandum, the Explanatory Notes and the Financial Memorandum – all part of the Bill package on the day that it is ‘introduced’ in the Scottish Parliament. This is the point at which the Scottish Government hand it over for scrutiny by parliament’s committees.
Because of the breadth of the Bill, the Health, Social Care and Sport Committee will be leading on the scrutiny, but will be joined by the Local Government, Housing and Planning Committee, the Education, Children and Young People Committee as secondary committees. The Criminal Justice Committee too might take an interest. It arguably also crosses the remits of other committees.
The Bill has four Parts, and Part 1 is the chunkiest, comprising seven Chapters:
- The Principles and Institutions of the National Care Service.
- Strategic Planning.
- Information and Support.
- Scottish Ministers’ Powers to Intervene.
- Functions Connected to the Provision of Care.
- Allocation of Care Functions.
- Final Provisions.
Part 2 is titled Health and Social Care information – care records and an information standard.
Part 3 is titled Reforms Connected to the Delivery and Regulation of Care.
Part 4 is Final Provisions. There are also four Schedules.
So to break things down a bit further, the following sections will look at the Parts in turn. Here we go with Part 1, Chapter 1…
On page 2 of the Policy Memorandum (PM), the government sets out its “Vision for the NCS”. This is mirrored in the Bill by the National Care Service Principles, in Section 1. These are sets of (mainly) aspirations, with one exception: the mention in the PM of the creation of a National Social Work Agency, which doesn’t appear in the Bill.
The rest of Chapter 1 of the Bill covers the responsibilities and powers of the Scottish Ministers (which in practice means the Scottish Government) in areas such as setting up care boards, monitoring and improving quality and the financing of care boards. The Bill doesn’t contain provisions to repeal the legislation that established integration authorities, the Public Bodies (Joint Working) (Scotland) Act 2014
covers strategic planning by the Scottish Ministers and care boards. This is not new – integration authorities are required to prepare regular strategic plans. In this Bill, the Scottish Ministers must also prepare a strategic plan if they are arranging services directly (which is likely if special, non-territorial care boards are established).
covers a charter of rights and responsibilities (mirroring the charter that exists for the NHS in Scotland), and which would have to be produced by the Scottish Ministers. This charter could be operational before a National Care Service is operational. Chapter 3 also requires Ministers to establish a complaints service, and would allow them to make provision for independent advocacy services for social care users. These provisions interact with the Public Services Reform (Scotland) Act 2010.
is where we see the potential power for the Scottish Ministers to intervene in the running of care boards. These would be significant powers. Care boards would be under a legal duty to comply with any direction the Ministers issue.
Scottish Ministers could remove all the members of a care board if they deem, following an inquiry, that they have failed to carry out any of their functions, including not following a direction. The removal would come about through regulations, which wouldn’t require any parliamentary scrutiny.
Scottish Ministers would also have powers to intervene in a provider’s operation, through a court.
allows for the government and care boards to conduct research, provide and fund training and purchase land compulsorily to carry out a function of the national care service or a care board.
Chapter 6 – Allocation of Care Functions etc
This part of the Bill may arouse interest and concern, but if we look at Part 1 of the Public Bodies (Joint Working) (Scotland) Act 2014, even just the section headings, we can see that the origins of this idea of transfer are not new. Perhaps because the 2014 Act was seeking a more subtle and seamless integration, rather than transfer of functions, it is couched in terms of ‘delegation’ and ‘integration’ rather than ‘transfer’, except in the case of staff.
Scottish Ministers would be able to make regulations to transfer functions from local authorities to themselves or to care boards, but only those related to specific – social work- linked – legislation.
There is a ‘but’ in this process however. Before transferring children’s or justice services, the government must first carry out a public consultation on the proposed transfer and they have to tell parliament how they carried out the consultation and provide a summary of the responses.
The Parliament’s powers to inform these regulations, or any regulations, are limited, when compared with the scrutiny of a Bill, where amendments can be made.
Here we see one of the issues with so-called ‘framework legislation’. In its scrutiny of the Bill, Parliament will not have all the information it might want or need to assess what the Bill will actually change, nor how it will be done, or its impact. This is because some of the parts of the Bill only serve to give powers to Scottish Ministers to make regulations (secondary legislation) – the detail of the changes, which cannot be amended. No-one yet knows what will be in those regulations, but parliament would have the power to reject them.
With such a big endeavour, there is an argument not to rush to include all this detail in the Bill itself, and to consult further on the detail to ensure time is given to get the regulations right. However, in theory, this could have been done prior to the Bill being presented, even if it meant a delay. This would have meant that committees would have the opportunity to scrutinise it all, and to suggest amendments. The government acknowledges in the PM that the Bill is only part of the picture that will become the National Care Service. Their intention is to co-design the detail with service users and that other aspects will emanate from policy and practice
… And back to the Bill
The transfer of functions from the NHS are perhaps less problematic because health boards are already in a close relationship with government (as in being directly accountable). The relationship with care boards, anticipated by the Bill, mirrors what exists between the government and health boards. It will be interesting to see whether the demarcations between health and social care become more or less defined. Already, under integration, many (most non-planned) healthcare functions are delegated, such as emergency care, geriatric medicine, community health services and mental health services for example.
Also in this chapter, Scottish Ministers could have powers via regulations to redistribute functions from local to national care boards and vice versa.
There would be a power to make regulations to transfer staff from one organisation to another. Interestingly though, not from a health board.
Things will get slightly less wordy from here. The remaining parts of the Bill are not divided into Chapters.
Parts 2 – 4 of the Bill
Part 2 of the Bill would give powers to the government to (once again) make regulations to set up a scheme so that information (governed by a proposed information standard about data protection) could be shared to improve effectiveness of services. There will be no opportunity for the parliament to amend these regulations, but they will have sight of them, be able to take evidence and either accept or reject them.
Part 3 of the Bill covers a range of standalone issues, looking to improve aspects of other legislation or policy.
It would change the Carers (Scotland) Act 2016. A new duty would be placed on local authorities (and later, care boards) to provide the support necessary to enable an unpaid adult or young carer to take ‘sufficient breaks’ from caring for someone. This duty, according to the Explanatory Notes, could not be subject to any eligibility criteria.
In this Part too, we see the incorporation of Anne’s Law, seeking to ensure that the experience during the pandemic is not repeated, where care home residents were not able have visits from loved ones, or leave care homes for many months and longer. Sometimes bans were in place despite government guidance because of a provider’s insurance conditions. The government could issue a direction that requires care homes to allow visits.
However, a direction could be varied or revoked, presumably to prevent visiting in certain circumstances.
Tucked into this Part too is the proposed insertion of a section to enable Ministers to limit the types of organisations that can bid to provide services, namely voluntary organisations.
Also, the powers of the Care Inspectorate are to be strengthened. They will no longer have to issue an improvement notice to a failing service and can move directly to applying to the Sheriff Court to cancel the registration.
And there we are, the main aspects of the Bill. As you can see, it covers a number of areas: principles, the setting up of care boards, information sharing, unpaid carers and care homes. The rest of this blog will consider some of these areas and also what is not covered. One of the major headlines is that:…
The Scottish Government says that the purpose of the Bill ‘is to improve the quality and consistency of social services in Scotland.’ To do this, the government will be able to set up ‘care boards’. These will be directly accountable to the Scottish Ministers and will be able to take on functions that are currently managed and run by local authorities and health boards (via integration authorities).
The Bill doesn’t say what will happen to integration authorities (IJBs), but it’s hard to see how they could function alongside care boards. The National Care Service will comprise the Scottish Ministers and care boards working together to plan and deliver the transferred services.
The government wants everyone to have the same experience and quality of care wherever they live in Scotland.
COSLA were quick to explain their resistance to what it sees as a ‘power grab’ from local government to the centre. They believe that social care should remain under local control and be accountable locally. To paraphrase very slightly, they say ‘the structural changes to create the NCS are a costly distraction from the long-term underinvestment of social care, and will have a damaging impact on the local government workforce’.
The Public Bodies (Joint Working) (Scotland) Act 2014 required the movement of staff between local government and the NHS, and entailed ‘a long period of intensive negotiation’, according to this article describing what happened in NHS Highland and the Highland Council. Highland was an early pilot for integration.
A bit more about care boards
Care boards could be set up via secondary legislation for particular areas or as national, ‘special’ boards (much like the NHS boards). The Bill doesn’t tell us who will be appointed to these boards, but Schedule 1 does say something about their constitution.
Unlike Integration Joint Boards, care boards will be able to appoint staff. Under Integration, the Chief Officer is employed by either the health board or the local authority. The Finance Officer for an IJB is appointed under the terms of local government legislation. Under this proposed legislation, the chief executive of a care board will be appointed by the Scottish Ministers.
The other difference is that the Scottish Ministers would be able to provide financial assistance to care boards including grants, loans, guarantees and indemnities. Under current integration arrangements, health boards and local authorities pool a proportion of their resources to cover the functions that are delegated.
What is not there and how will it get where it needs to be?
The Scottish government readily accepts that this is framework legislation, so there are questions to be raised about what’s not in the Bill. Returning to the interlude above about framework legislation, Paragraph 7 of the PM explains the government’s rationale.
“The Scottish Government is committed to engaging with people with experience to co-design the detail of the new system, to finalise new structures and approaches to minimise the historic gap between legislative intent and delivery. For that reason the Bill creates a framework for the National Care Service, but leaves space for more decisions to be made at later stages through co-design with those who have lived experience of the social care system, and flexibility for the service to develop and evolve over time. Some of those future decisions will be implemented through secondary legislation, others will be for policy and practice.”
There are one or two things to unpick here. The first, ‘the historic gap between legislative intent and delivery’ they mention, presents a major challenge for all policy makers. It is sometimes called ‘the implementation gap’ – basically meaning that the failure of well-intentioned public policy is because too little focus or resource is channelled into implementation planning. This helpful article describes the problem in an accessible way.
The authors of the article say:
“In a review of the components of service improvement for the Health Foundation, Allcock et al. (2015) point out that those who work on the front line, whether managerially or professionally, know more about the challenges of delivery than national policy-makers. A crucial task for implementation support is, therefore, to tap into the perceptions and experiences of those whose behavior will shape the implementation process.”
Therefore, tying these two strands together, in addition to the planned co-design “with those who have lived experience”, perhaps the government may also wish to consider co-designing with managers and staff at all levels in social work, and the NHS, the ones who will be required to make the National Care Service a success.
More questions will arise through the process of scrutiny as the committees hear from a wide range of stakeholders between October and December this year. Some of these might include:
- What will be different about the national care service for those using services?
- How will it operate?
- What will happen to IJBs and Health and Social Care partnerships?
- When will care boards be established?
- Who will sit on them?
- Can integration of health and care continue with a separate National Health and National Care Service?
- Will carers actually get respite breaks?
Perhaps the biggest question hanging in the air is whether the Scottish budget, which would be funding the care boards directly rather than local authorities, can meet the ambitious aspirations contained within the National Care Service principles written into the Bill alongside its commitments to the NHS and all the new social security responsibilities.
Senior Researcher Health and Social Care