Care Reform needs more than rights that aren’t protected
The newly published National Care Service Charter of Rights will do little to nothing to improve conditions for carers and the cared for nor does it offer adequate resources, responsibilities or the relationships required to ensure that rights are upheld.
Among the numerous strategies, plans and reports that the Scottish Government dumped into the public realm just two days before Parliament wound up ahead of the elections was a “National Care Service Charter of Rights”. The title is meaningless. To have rights, there must be concomitant responsibilities. There can be no rights therefore relating to a National Care Service which does not exist. To rub salt into the wound the cover, a photo-montage of 11 smiling people, wilfully ignores the current state of care services in Scotland.
The Independent Review of Adult Social Care in Scotland, published in 2021, recommended a rights-based approach to adult social care. Due to public concern about the care system following Covid, the Scottish Government then introduced a National Care Service (NCS) Bill into the Scottish Parliament. Among its provisions was a clause requiring Scottish Ministers to ‘prepare a charter (“the National Care Service charter”), containing a summary of the rights and responsibilities relating to the services that would be provided by the NCS’.
The Scottish Government’s proposals to create a highly centralised NCS then collapsed through lack of political support. The NCS Bill was drastically pruned back to become the Care Reform (Scotland) Act 2025 and, among the provisions that were lost, were those about the NCS charter. As the recent publication shows – and as we said when the Bill was being debated - the creation of a charter, now badged as a charter of rights but without the concomitant responsibilities, did not require legislation. This was because the Scottish Government never intended it to create any new rights or responsibilities in the first place.
The 44-page document now published is less a charter than a discursive and incomplete guide to people’s rights with respect to social work, social care and community health services. It overlaps with three other charters for adults and one for children. If you are caring for someone with dementia you now have no less than three charters to choose from: the NCS charter, the Carers Charter and the Charter of Rights for People with Dementia and their Carers in Scotland.
The Charter does correctly distinguish between rights, which are based in law and should be enforceable in the courts, and expectations which aren’t. Besides rights the Charter also contains certain expectations, such as that people should be treated with dignity and respect.
An accompanying 22 page document is intended “to support people’s understanding of the legal basis for their rights as reflected in the Charter”. A significant number of the rights described are not specifically related to social care but more general. These include Human Rights legislation (for both adults and children), Equalities law, Data Protection and the right to complain to the Scottish Public Services Ombudsman.
The new National Social Work Agency for Scotland has published a list of 44 Acts of Parliament affecting social work practice from 1948 to the present; 13 before the creation of the Scottish Parliament and 31 subsequently. Most of these Acts create specific rights, often procedural in nature, in relation to social work and care services. The amount of legislation and its complexity makes it almost impossible for anyone working in the care system to understand their responsibilities, let alone for the public to understand their rights. While that is an argument for creating a charter/guide, it would be more effective to consolidate the legislation, as was attempted in England with the Care Act in 2014, and simplify it too so people could see their rights at a glance instead of wading through lengthy guides.
Unfortunately, despite its length, the NCS Charter of Rights is far from comprehensive and is therefore an unreliable guide to social care rights. For example, it omits any mention of the Chronically Sick and Disabled Person Act 1970, which is still in force. This was the first legislation in the world to give rights to people with disabilities, including assistance with making adaptations to the home, the provision of equipment, the provision of meals and assistance with travel. The Act is also one of the few pieces of legislation which actually gives people a right to receive certain services and which people have been able to enforce through the courts.
“We therefore proposed a National Care Service should be built on the Four Rs: rights, responsibilities, relationships and resources.”
The Charter is also silent about the biggest current rights scandal in social care, the financial extortion racket where private equity firms are, as a recent piece in the Guardian puts it, treating older people in care homes like ATMs. While prattling on about respect, the Charter has nothing to say about consumer rights or the rights of people to choose a care home where they are safe from financial exploitation. Nor does it mention any rights in relation to delayed discharge from hospital, rights which if respected could have significantly reduced the number of deaths in care home during the Covid crisis.
While the Charter acknowledges that for a right to be meaningful, it must be enforceable in a court of law, most of the section on “Upholding Rights” is a description of current complaints processes – not the same thing at all. After extensive consultation, the best the Charter can offer is:
“If you believe your legal rights are not being upheld, or you disagree with a public body’s decision, you may have the option to apply to go to court and ask a judge to decide on your case.”
The Charter fails to mention legal aid, one of the original pillars of the welfare state. The majority of people in need of social work and social care services have dementia or learning disabilities or mental health problems or are struggling with frailty or disabilities and many are living in poverty. For most of these people going to court is simply not an option. An equitable legal system, which supported such people to uphold their rights in the courts, would however cause no end of trouble.
The truth is there are very few deliverable, and therefore meaningful, rights to social care services despite all the legislation. The fundamental problem is that while local authorities still have a duty to assess care needs, there is no legal right to be assessed within a certain time period, and then what services are provided are determined by what is judged affordable at the time. Hence why more and more vulnerable people are stuck at home and, if they are lucky, may get to see a carer who has 15 minutes to undertake a whole range of tasks and has no time to talk to them. In Caring for All, we argued that human rights are “insufficient without adequate resources, a clear line of responsibility for ensuring rights are met and the effective relationships which enable care”. We therefore proposed a National Care Service should be built on the Four Rs: rights, responsibilities, relationships and resources. Any charter of rights produced outwith that context is effectively meaningless: the term “carewashing”, which was originally applied to private care companies, would appear appropriate.