How Common Weal helped reform care

Craig Dalzell looks at the Care Reform (Scotland) Bill - what remains of the National Care Service Bill - and compares it to Common Weal’s own work to see how many of our proposals made it into the final Bill.

This month, the Care Reform (Scotland) Bill passed unanimously through the Scottish Parliament, with a sigh of relief from those politicians who worked on it and are surely now just relieved that it’s all over. The Minister in charge of overseeing the Bill, Maree Todd, was herself relieved from care duty by the First Minister the day after the Bill passed in a ‘mini-reshuffle’ that saw Màiri McAllan return to Cabinet after parental leave (albeit moving from energy to housing) and Tom Arthur stepping into the role of care.

Of course, with the Parliamentary Election less than a year away, it’s likely that these roles will be up for grabs again – perhaps by the same people, perhaps by others, depending on how the electoral results shake out.

The issue of care reform is not, of course, done and dusted by this Bill. The reason the Parliament passed the Care Reform (Scotland) Bill this month was because they failed to create a workable plan for a National Care Service that would have been legislated for the National Care Service (Scotland) Bill before it was renamed to focus only on Care Reform.

I wish it had been different. Despite the efforts of our Care Reform Group to push for an NCS as laid out in our blueprint Caring For All, we were not successful. Despite our efforts to support other ideas of more limited forms of a National Care Service that we could have built out from, we were not successful.

However, when we were eventually forced to withdraw our support for the then NCS Bill, we put forward our own proposals of how to salvage the best of what was on the table. If we weren’t going to get a National Care Service, we could at least pull some of the better proposals from the Bill and make them happen anyway. Indeed, in our paper Tackling the Care Crisis Now offered multiple ways of doing this.

The then NCS Bill could have been pared back, the ‘good parts’ could have been legislated for separately, or the Government could have recognised that many of those ‘good parts’ could have been brought forward by means other than legislation (such as via making voluntary agreements between the Scottish Parliament and Cosla or Ministers just unilaterally changing Government policy). In the end, the Scottish Greens opted to adopt the first of those options and this pushed the Government into doing the same.

Of course, as we also pointed out in Tackling the Care Crisis Now, some of the details of some of the ‘good parts’ also needed to be worked out not just because some of them pointed to parts of the legislation that were being scrapped and so loose ends needed tying up, but because the legislation as written didn’t quite match up to the ambition of the goal.

Legislation is complex (and reading proposed amendments to a Bill is more akin to reading unannotated computer code than it is actual text) but it’s important to try to work out exactly what was and wasn’t passed as part of this Bill.

This week’s article from me is going to look at what we called for in Tackling the Care Crisis Now and will try to work out which of our own proposals made it through to the final Bill.

A National Social Work Agency and National Chief Social Work Advisor

In our paper, we called attention to the fact that while the idea of a National Social Work Agency (NSWA) was one worth supporting (we published a policy paper here outlining the reasons why and how to build one), the legislation on what it would do was worryingly sparse.

In essence, the final version isn’t much better – merely saying that the Government will appoint “a member of its staff” to be a National Chief Social Work Advisor (this may be an existing civil servant or someone hired for the role) and to appoint other members of staff to form the NSWA. This agency will advise Ministers directly on matters of policy to do with social work and will prepare an annual report on the state of the social work sector and its workforce.

One major deviation from our proposal here is that we called for the Chief Advisor to be appointed as a Commissioner. This would have meant that the Advisor would report not to Ministers, but to Parliament and would by appointed by Parliament rather than by Ministers. This is an important distinction when it comes to the democratic oversight of policy as we’ve too often seen in Scotland that speaking truth to power can be difficult if one of those powers is the power to fire you if they don’t like the truths being told.

This recommendation does come with the caveat that we’re concerned with the rise in the number of these kinds of extra-democratic advisory offices and we’re glad that the Scottish Parliamentary Corporate Body has adopted our recommendation that no new Commissioners are created until they are better regulated. In Scotland, it is the people who are sovereign over how Government and Parliament operates – not Government Ministers or appointed technocrats – and decisions must be made accordingly.

Independent Advice, Information and Advocacy

This section of the Bill passed more or less as we called for and mandates that Ministers must make provision for care advice and advocacy services independent of Ministers, Local Authorities or other related government bodies. Provision is also made such that Ministers must review the scope of advice sought and given at least once per Parliamentary session and make improvements to the case system accordingly. In our paper, we were concerned that primary legislation may not be required to create this service but ultimately such legislation was passed.

A Complaints Service

The amendments to create an official complaints services so that people could uphold their rights within the care sector appear to have been entirely dropped from the Bill as passed. Common Weal has been loudly insistent that whenever a new right to something is created (such as “the right to adequate care”) then there must be a mechanism of enforcement of those rights otherwise they just become a flag flying at half mast – stating that you should be entitled to something but not really doing anything if you don’t get it.

We did, however, point out that this kind of service didn’t need primary legislation to create. It would be a simple matter of changing Government policy to support it, then resourcing an existing body – such as Citizens’ Advice – to provide the service.

Care Records and Information Standards

This appears to be a section of the legislation that was substantially gutted and watered down despite attempts to amend it. Brian Whittle MSP spearheaded many amendments that may have improved the digital collection of data and on a mandate to gather important statistics like the number of unpaid carers who take up their right to a short break as a result of this Bill.

This, to my mind, is a serious shortcoming of the Bill as it passed. Once again, it’s one thing to give people a right like the right to a break but if the Government is actively voting down a mechanism to measure how many people may not be taking short breaks (perhaps because they are not being supported to do so) then it calls into question their commitment towards protecting that right.

For a much more detailed analysis of this issue in particular, see Nick Kempe’s article here.

Rights to Breaks for Carers

This is one of the longer sections of the Bill but it essentially boils down to delivering two policies. 1) That carers have a right to take sufficient breaks and 2) that Local Authorities have a duty to support carers to take those breaks. Unfortunately, and as a we warned in our paper, there’s little in here on how to determine what is meant by “sufficient” or how actually to support that right. With the aforementioned voting down of the tracking of how many carers are exercising their right to take a break, I worry that this could become another unmet need in the care sector.

Anne’s Law

The version of Anne’s Law – the right for residents of care homes to receive visits so we don’t ever see again some of the disasters that happened during the pandemic - that eventually passed is quite different from the version advocated for by the Care Home Relatives Group. Rather than passing a right to visitation, the Bill appears to merely create a code of practice by which care homes can deny visitation in a justifiable way.

This may well amount to the same thing, especially as there’s a presumption against denial in the code, but we’ll have to see how widely the loopholes can be tied around actual practice. We generally know when a regulation is working only when someone is successfully prosecuted for breaking it.

Procurement Reservations

This was an area that fell far short of the possible. MSP Katy Clark initially posted an amendment that would have allowed Local Authorities to cap the amount of profit that could be extracted by private care companies from care contracts issued by Local Authorities (in the same way that the SNP gained much credit for limiting the amount of profit that could be extracted from NPD capital projects compared to the much-maligned PFI contracts that preceded them – although they’ve since backslid on this policy too).

This amendment was blocked before it even reached the Chamber though, as seen above, the secondary part of that amendment – to measure the amount of profit being extracted – was passed. The original version of this amendment did not set a limit on where the profit cap could be so it would have, in effect, allowed Local Authorities to set the cap to zero and to mandate that all care they commission would be publicly owned or not-for-profit. This was a major missed opportunity in the Bill.

Cancellation of Care Service Registration

This section of the Bill passed more or less as we expected though we noted that the requirement that a service provider is given notice when its behaviour falls short of minimum standards and is given time to respond to that notice before its licence to practice is revoked may not be appropriate in particularly egregious examples of failure.

Assistance in Inspections

As anticipated, this section of the Bill was passed not in its own right but via modification to other legislation (in this case, the Public Services Reform (Scotland) Act 2010) and so could have been brought about separately from a National Care Service Bill. We still believe that it could have been brought in even faster via a voluntary agreement between the Scottish Government and relevant bodies as those bodies are all ultimately controlled by Scottish Ministers.

Freedom of Information

Katy Clark’s amendment calling for Freedom of Information to be extended to private care homes in receipt of public money was voted down by the Government, with then-Minister Maree Todd stating that they had set up a working group to consult on the policy before they would consider it.

Given that I’m on that working group, I dearly hope that this will not result in us being used in the way that the ELAG group was last year – as a delaying and ultimately blocking action rather than a good faith approach to improving policy.

I’ll know if it’s the former rather than the latter if the Government accepts rather than fights against Clark’s Members’ Bill which will extend FOI rights to all private companies that use public money, not just care homes. Given my experience of the Government’s approach to FOI being “secrecy by default” though, I will have to see it before I believe it.

National Collective Bargaining

Jackie Baillie’s amendments to improve and strengthen the sectoral bargaining provisions in the Bill (to give care workers the same abilities to collectively bargain for better pay as is enjoyed by teachers and other sectoral workers) were partially successful. Her amendment to compel Ministers to provide written guidance on sectoral bargaining was successful but her amendment to outright compel contracting authorities to accept sectoral bargaining was not.

This means that while there will be, within the next two years, written guidance on what good sectoral bargaining should look like, it doesn’t look as if this will be anything more than voluntary on the part of Local Authorities or the private sector and, indeed, Maree Todd described such arrangements as voluntary in her own concluding remarks in the debate.

Conclusion

There are, of course, more details in the Bill than I can cover here (the debate in the Chamber ran to more than four hours and those debates themselves are, by their nature, brief summaries of the detailed work that goes on behind the scenes.

I think the Bill ended up being just about as good as we could have expected given the circumstances and I’m glad to see that the Scottish Parliament has accepted many of the measures that we lobbied for (though, yes, key things like Freedom of Information and Collective Bargaining could have gone further).

The core message from this is that the provisions that passed must now lead to a better care service in Scotland but also that it represents only filling in a few cracks in a dam that can only be properly fixed by a true National Care Service. We cannot let the momentum on this falter simply because politicians are exhausted and burned out by their failure to deliver one now.

It obviously won’t happen in this Parliament now, but an early priority for after the next election must be to deliver one – hopefully next time we’ll determine what it should look like and then legislate for it rather than repeat the mistake of the last few years which was to try to legislate and then try to design the NCS to fit the Bill.