This blog will provide an overview of the latest development in the passage of the National Care Service (Scotland) Bill (NCS Bill/the Bill). The blog aims to help to navigate some of the main recent changes to Scottish Government proposals for the National Care Service, ahead of further consideration of the Bill prior to formal Stage 2 proceedings. The Health, Social Care and Sport Committee will be taking further oral evidence in September 2024, following a further call for views over the summer of 2024. Throughout the blog, references to sections are to the proposed amended marked up sections.
Because this is a longer than normal read, we’ve included a contents box
Introduction
There has been a hiatus between the publication of the Health, Social Care and Sport Committee’s Stage 1 Report in February 2024 and now. This lull came to an end on 24 June 2024, when the Committee received a letter from the Minister for Social Care, Mental Wellbeing and Sport, Maree Todd MSP, along with a set of documents it had requested, including a version of the Bill, marked up with the Scottish Government’s proposed Stage 2 amendments.
The Stage 1 debate took place on 29 February 2024, with 65 MSPs voting to agree the general principles of the Bill, and 50 voting against. On 28 February, the Labour MSP Jackie Baillie sought to have the Bill referred back to the Committee, which would have stalled the Stage 1 debate. The motion was defeated: 52 for, 64 against.
SPICe Spotlight has a NCS Bill hub where you can catch up on the story so far, and the most recent blog, ‘Does the end of Stage 1 bring clarity for the proposed national care service?’, sets out why this interim stage of further scrutiny has emerged out of the original ‘framework bill’, which stakeholders found difficult to comment on because of the lack of detail. Through Stage 1 scrutiny, and in the Policy Memorandum, proposals were made by the Scottish Government that either didn’t feature on the face of the Bill or substantially changed how the NCS would look. Chief among these was the shift in accountability arrangements from the Scottish Ministers to shared accountability between the Scottish Ministers and local government, and, at local level, NHS Boards. (Scottish Ministers are directly accountable for the NHS in Scotland via the various health boards.)
Where to start?
Opening the marked up version of the Bill (let alone the other documents in the pack) could lead to the temptation to close it immediately . The required revised numbering and the tracked changes, crossings out and colours immediately let you know this is not going to be straightforward. And, let’s face it, a Bill is not the most reader-friendly document at the best of times.
When amendments are added to a Bill, they cannot interfere with the original order of sections etc. This has meant that the Scottish Government’s Bill team have had the challenge of maintaining coherence with quite substantive changes. In your approach to making sense of the changes, do read the letter from the Minister which sets out the thinking and intent of the amendments.
National Care Service Principles
Part 1 of the Bill and its Chapter 1 would see the most substantial changes in the Bill, with Chapters 2,3,4,5 and 6 being deleted. More detail has been added to the principles, and some new ones added, such as that services are experienced by people and carers as integrated (Sections 1, 1A, 1B).
The Scottish Government also recognises that there needs to be alignment between these and other associated principles and standards, such as the Integrated Planning and Delivery principles, Health and Social Care Standards and the National Health and Wellbeing Outcomes.
Clarification has been added about human rights: that they include ‘the rights contained in any international convention, treaty or international instrument ratified by the UK.’ The principles must be reviewed within five years of coming into force and the Scottish Ministers must consult a range of stakeholders, including those who use services and those who work in services provided via the National Care Service.
Policy intentions contained within the deleted sections are not all to be removed, but many would be moved and/or wording modified.
Responsibility for a National Care Service
The shared accountability agreement between the Scottish Government and COSLA means that instead of various local authority functions being transferred to Scottish Ministers and care boards, local authorities would retain legal responsibility for the delivery of their own services, as well as retaining associated staff and assets.
The Scottish Ministers would continue to have powers to direct national policy on social work services, social care and community health. The Bill would mean that Scottish Ministers would set the national strategy for the NCS (Section 1C–1E).
Changes to integration arrangements
Here is where the numbering becomes a little confusing. We are still in Part 1, Chapter 1 but it is most straightforward to stick to ‘sections’ of the Bill.
Section 12B (and Schedule 2a) would allow the renaming of integration joint boards to National Care Service local boards and would remove alternative integration models (such as lead body). Only the integration joint board model will be allowable (but renamed). This will have implications for Highland, which was the only authority to choose the lead body model, where there is no separate joint board.
Creation of a National Care Service Board
Section 12D would establish the National Care Service Board, a completely new body in the health and social care landscape. Section 12E sets out its purpose, which is:
“to oversee the National Care Service local boards and the provision of services by the National Care Service so as to secure continuous improvement in the wellbeing of the people of Scotland.”
This new body must produce a corporate plan about how it will fulfil its purpose, in accordance with a NCS strategy set out by the Scottish Ministers.
There is some detail in the policy notes to accompany the marked up Bill on proposed amendments on governance and NCS Board membership (Schedule 2c).
The policy notes state that:
“as a core minimum the membership of the National Care Service Board will include members appointed to represent the Scottish Ministers, local government and NHS Health Boards, as well as people with lived experience of accessing or delivering integrated health and/or social care services, and people who are or have been unpaid carers.”
All members of the National Board would be appointed by Scottish Ministers, with health board and local authority members nominated by the bodies they represent. All members would have voting rights. However, the amendments propose that a power is created to further expand the provisions about the Board membership following further engagement with stakeholders.
The National Care Service Board would be able to employ staff and determine terms and conditions of employment, but the first Chief Executive would be appointed by Scottish Ministers.
The NCS Board could also establish committees and sub-committees from outwith the Board membership.
Scottish Ministers could, by regulations, decide on further functions for the NCS Board, using the affirmative procedure. This procedure allows for a degree of scrutiny by the Scottish Parliament.
National Care Service local boards (NCS local boards)
In the Bill as introduced, there was a proposal to create local care boards. There was no reference to these in relation to existing integration arrangements or the Public Bodies (Joint Working) (Scotland) Act 2014 (The ‘2014 Act’).
In the proposed amendments, Section 12B would modify the 2014 Act to rename integration joint boards as National Care Service local boards. Detail on membership of local boards does not appear in the proposed amendments, although it is the Scottish Government’s intention to use regulation-making powers in the 2014 Act to review and potentially change:
- the role of localities – their remit and regulation
- chairing arrangements of the local boards
- voting rights to facilitate a fuller inclusion of local voices
- local board committee structure and governance.
Monitoring and Improvement
While there is section in the bill as introduced on improvement, the amended sections (12K and 12L) provide more detail and set out that the NCS Board will have responsibility for monitoring and improving services delivered through the NCS. Section 12L describes a ‘support and improvement framework’ that must be developed by the NCS Board, and which must align with work covered by other public bodies, and in particular, Healthcare Improvement Scotland, Public Health Scotland and the Care Inspectorate (Social Care and Social Work Improvement Scotland).
In the Memorandum to support the amendments, the Scottish Government state (para. 138-139) that this responsibility:
“would support the prioritisation of improvement work with a focus on evidence, informed action, and clear monitoring to ensure demonstrable impact at a national level. It would support the development of a national framework that has:
- an agreed vision and common understanding of improvement
- coordinates evidence informed action around the key themes
- agreed improvement principles and an improvement model
- a consistent way of measuring improvement, acknowledging that the starting point will not be the same for everyone.
It is proposed that a collaborative approach will be taken to developing a national framework via a multi-agency steering group co-chaired with COSLA and SOLACE.”
National Social Work Agency (NSWA)
The Bill as introduced did not include provisions to establish a national social work agency, but it was referred to in the Bill as introduced Policy Memorandum.
It is intended that the NSWA will be a new public body, an executive agency. Disclosure Scotland and Social Security Scotland are examples of executive agencies. Executive agencies delivery aspects of government business and have a specialised function in the management of public services. Staff are civil servants with a Chief Executive who is directly accountable to Scottish Ministers. The role of Chief Social Work Adviser will also be put on a statutory footing.
The NSWA will work to meet the Scottish Ministers’ duties to provide the NCS and oversee its services provided by social work and social care. The NSWA will be the first national body with oversight over social workers and their professional development and workforce planning.
According to the Regulation of Care (Scotland) Act 2001, these duties rest with Scottish Ministers. However, much of this work is currently covered by the remit of the Scottish Social Services Council (SSSC), the regulator for social services.
During Stage 1 scrutiny, questions were raised about the current roles and remits of the social care regulators – the SSSC and the Care Inspectorate, and how a national social work agency might impact on the roles and remits of these bodies. The documents do acknowledge this potential for duplication or modification to roles and remits but doesn’t go into great detail. The Memorandum states what the agreed foundations for the NSWA are, but doesn’t provide the nitty gritty of how the various Ministerial duties will be delegated. These foundations would be:
“Ensuring a social work workforce that is equipped and resourced to undertake its professional duties
- Improving local services while ensuring local flexibility, through agreement on national, regional and local approaches to policy development and service provision
- Supporting local implementation of national policy consistently across Scotland whilst focussing on practical solutions for social workers
- Developing approaches, such as national standards for social work, to support a more consistent experience of social work that adapts to local and personal requirements and preferences
- Promoting support that is person-led and consistent, wherever people live in Scotland”
Workforce planning
Both the social work and social care workforce are under severe pressure in terms of recruitment and retention of staff. This has a significant impact on the ability of local authorities to assess the needs of people in their area and to provide and arrange care and support for them.
As already indicated, according to the Regulation of Care (Scotland) Act 2001, it is the role of Scottish Ministers to determine the numbers of social workers and social service workers required, and what training is required, although, these and other functions could be delegated to the SSSC or others authorised to carry them out, such as the NSWA.
Following a number of inquiries carried out by the Health and Sport Committee (2016–2021), which identified a more national approach to workforce planning as a priority, the Scottish Government published a set of three workforce plans to cover NHS staffing, social care staffing and primary care workforce.
Following the scrutiny of the Health and Care (Staffing) (Scotland) Bill in 2018, the then Health and Sport Committee noted that the outcomes of the Bill could not be achieved without attention given to wider national workforce planning. The Committee felt that this wider planning should take into account the needs of policy and legislation rather than a process of replacing retiring staff – attending more to the demand side rather than the supply side which had previously been the focus. An integrated plan was published in December 2019, followed by a national workforce strategy in 2022.
Sections 157–162 of the Memorandum explain why workforce planning has been difficult for the Scottish Ministers. Responsibility would pass to the NCS Board, but only for social workers and social care staff, not NHS staff.
This means that the opportunity to consider integrated health and social care workforce planning to ensure services in both domains are integrated coherently will potentially be lost or made more challenging.
(Ethical) Commissioning and procurement
The issue of how services are commissioned by integration authorities, along with procurement processes, arose in Stage 1 scrutiny, as well as in the post-legislative scrutiny of the Social Care (Self-directed Support) (Scotland) Act 2013.
Guidance and tools to support ethical commissioning will be developed separate from the Bill process. They will support NCS principles to implement fair work. However, there seems to be no further progress on sector-wide arrangements for the social care workforce, currently employed under a variety of terms and conditions, depending on the employer. The Scottish Government is aware of the support for collective arrangements and funding conditionality, as well as Fair Work Accreditation and a national forum to advise on workforce priorities, terms and conditions and collective bargaining.
On procurement, the Memorandum (paras. 167–174) state that it will still be local authorities who have responsibility for procuring social care services, while the NCS Board would be able to arrange specialist or complex services on a ‘once for Scotland’ national basis.
Public Contracts (Scotland) Regulations 2015 allow for a ‘Light Touch Regime’ for service contracts equal to or greater than the threshold of £663,540, allowing quality, continuity, accessibility, specific user needs and involvement to be taken into account. When contracts are below that threshold, no procurement procedural rules apply. However, contracts below that threshold, but which are worth at least £50,000, are regulated by the Procurement Reform (Scotland) Act 2014
Section 41 of the Bill as introduced modifies the 2015 Regulations in order to ‘reserve contracts for certain services’ – this applies if the organisation qualifies according to a number of criteria, including that profits are reinvested to achieve the organisation’s objectives to provide public service on behalf of the NCS. The Stage 1 Report highlights the reservations of a number of witnesses to the approach, and the Committee recommended, among other things, for the Scottish Government to:
“undertake a review of procurement practices and develop a strategy to remove competitive tendering from social care procurement, in favour of a collaborative approach to commissioning and procurement which is underpinned by ethical commissioning principles.”
Amendments are proposed to Section 41, with modifications proposed to The Procurement Reform (Scotland) Act 2014. This appears to add a further dimension to procurement, tying in the NCS local board’s strategic planning to decisions made about procurement strategies and ‘regulated procurements’.
What remains to one side for now?
The Minister highlights and explains in her letter four areas where changes are intended but are not yet worked up. These are:
- Direct Funding: giving Scottish Ministers power to directly fund integration authorities for specific purposes (such as commissioning specialist services)
- inclusion of children’s services (a desire to see the inclusion of children’s services, community health and social work, in the scope of the NCS)
- inclusion of Justice Social Work (as above)
- Anne’s Law (there were suggestions during Stage 1 that this proposal, to ensure that a person in residential care always had access, through visiting rights, to a family member or friend for advocacy and support, be expedited. As a move towards that, two new Standards have been added to the Health and Social Care Standards (on which the Care Inspectorate bases its inspections of services) set out the expectation that people living in care homes should have the right to see someone who is dear to them, even during a Covid-19 outbreak, and be able to name a person or persons who can directly participate in meeting their care needs.
Somewhat oddly, the reason given for the delay in work on these is:
“to free up COSLA and local government colleagues from further negotiation on these issues and allow them to focus specifically on the mission to reduce Delayed Discharges in the coming weeks and months.”
It is slightly odd because one overarching rationale for the creation of the National Care Service was to create parity of esteem with the NHS for a somewhat fragmented and undervalued sector (social care) (p.18). The statement here points to a sector that is required to support the NHS in tackling patient flow rather than prevention of admission to hospital in the first place through high quality primary and community care services.
There are other areas where the Scottish Government plans to do more work. For example, the NCS Charter of Rights and Responsibilities, which has been the subject of co-design work for a number of months. An update on this was included in the pack of documents, along with a draft of the Charter.
Part 2 of the Bill is about Health and Social Care information. It has some proposed amendments which appear to align it with health and social care integration. In Section 36, the reference is to information shared so that public health and social care services can be provided, and these are services listed in the schedule of the Public Bodies (Joint Working) (Scotland) Act 2014, or by a health board. References to care boards have been removed.
Part 3 relates to rights to breaks for carers, which remains unchanged, and Section 40, which is, in essence, ‘Anne’s Law’. Procurement under Part 3 has been discussed above (Section 41). Part 4 comprises the ‘Final Provisions’ and the proposed amendments insert the reference to NCS local boards being renamed integration joint boards.
The Scottish Government also included a marked-up copy of the Public Bodies (Joint Working) (Scotland) Act 2014. A new paragraph in schedule 2B replaces section 1(12) of the 2014 Act. This allowed Scottish Ministers to remove services that could be delegated from the schedule in the 2014 Act. The amendment would mean that Scottish Ministers could also add enactments and therefore, further functions to the schedule, by affirmative procedure.
This blog has highlighted a number of the main proposed amendments from the Scottish Government, but there are others not covered here, which will undoubtedly come to light through the scrutiny planned for September and October 2024.
Call for Views
The Health, Social Care and Sport Committee have just launched a call for views, open till 30 August 2024. People and organisations are invited to share their views on the proposed amendments.
You can access more information about the Call for Views here:
Anne Jepson, Senior Researcher, Health and Social Care, SPICe