A phoenix could still appear out of the ashes of the National Care Service Bill
The final amendments to what was the National Care Service Bill have been published. Nick Kempe reviews them to see what good can be salvaged out of the ground-down remains of the legislation.
The final amendments to what had been the National Care Service (Scotland) Bill were published this week (see here) prior to the third stage reading which takes place in the Scottish Parliament next Tuesday. The Bill has been renamed the Care Reform (Scotland) Bill after the Scottish Government was forced to drop its plans for a highly centralised care service under Ministerial control in January.
A quarter of the Bill, and over 90% of the costs the Scottish Government has allocated to implementing it (£13.7-22.8m out of £14.3-23.5m in year one), now covers “Rights to short breaks for carers”. This consists of four pages of amendments to existing carers legislation, which as a consequence is very difficult to understand, but effectively creates new criteria and new bureaucratic processes to determine which carers will be entitled to short-breaks.
The intention appears to be to focus ‘entitlement’ to a break on those carers with the greatest needs and, to ensure this happens, the Minister responsible, Maree Todd, has submitted an amendment to her own legislation providing a tighter definition of what a ‘short break’ means.
The voluntary sector representing carers, who are likely to receive much of the short-breaks funding, have gone along with this approach when, if the persons supported by carers had a ‘right’ to care service provision, as we proposed in Caring for All, carers could take a break whenever they wanted.
It appears likely that given their massive budgetary deficits, the Integrated Joint Boards responsible for delivery of care services, will use the short-breaks funding as a substitute for existing services and as a consequence there may well be no net benefit for carers.
The second new ‘right’ in the Bill is Anne’s Law, which came out of the bans on relatives visiting care home residents during the Covid pandemic. To prevent this happening again Care Home Relatives Scotland have been trying to have relatives recognised as “essential care givers”, no different to staff.
At Stage 2 of the Bill the Scottish Government conceded certain relatives/friends of care home residents should be treated as “Essential Care Supporters” and committed to create a duty on care home providers “to facilitate visits” and publish a code of practice. Just as with short breaks, however, the Bill creates a significant new bureaucracy around this – e.g how care homes should identify “essential care supporters” – but no means for relatives to get redress where things go wrong.
Both Labour and Tories have submitted amendments to the Bill to address this failure by giving the Care Inspectorate the responsibility and the power to enforce ‘Anne’s Law’. Meantime, another amendment from Maree Todd states that the duty of care homes to facilitate “visits” (it should read “essential care giving”as it does not extend to accompanying or paying residents to do so outwith the home).
That is despite many care homes now charging self-funders over £2000 a week and undermines the Scottish Government’s own care standard, that people including care home residents “should be supported to participate fully and actively in my community”, in favour of the financial interests of providers.
The latest estimated costs for the Bill, sent to the Finance and Administration Committee of the Scottish Parliament two weeks ago (see here) , state Anne’s Law will cost £90-99k in the first year and nothing after that. Legislation without resources is meaningless.
The Scottish Government’s estimates of the costs of other aspects of the Bill are equally telling. The provisions about provision of information about services and advocacy will cost nothing until 2027/28 when £1.2-1.7m will be allocated. The National Social Work Agency, actually a government department, will be mainly funded through existing funding to the Office of Chief Social Work Officer, with c£1m extra promised by 2031/32.
That will come to about £33k per local authority, less than the wages of one member of staff. This compares to the c£1m a month that the Scottish Government is still spending on designing the administrative arrangement for what Maree Todd still describes as a National Care Service (see here).
There appears to be no financial allocation for Clause 36, intended to improve Information Sharing, which tells you nothing will change there either, although the provision to apply a civil sanction (it was originally criminal) to members of the workforce who fail to share information remains.
While the Scottish Government appears to have lost the will to do anything to improve care provision, the opposition parties (mainly Labour and the Tories) have proposed a significant number of other amendments to the Bill, besides those on Anne’s Law, including provisions for the Scottish Government:
to collect data on care needs, without which no-one can estimate the current gap between needs and resources;
to report on the social care market, including how much profit is being taken out of the care system by private providers, and to bring social care providers under the scope of the Freedom of Information Act;
to create a single digital health and care record, without which information will never be shared effectively, accessible to the person concerned;
to improve the terms and conditions of the social care workforce by setting up a national system of collective bargaining, ensuring ethical commissioning incorporates fair work and ensuring advocates are properly trained;
to be held to account by the Scottish Parliament through regular reporting on the care system as a whole and specific matters such as the capacity of the workforce, the number of carers receiving short breaks, the impact of advocacy services and progress on Fair Work.
In summary, while the opposition political parties have focussed on different aspects of the Bill, most of the amendments represent considerable improvements to the Bill and concern matters that should have been included in the original version. As a whole they would, if passed, help pave the way to a better care system such as we proposed in Caring for All
The question now is the extent to which the opposition parties are, in the public interest, prepared to form a united front to force the Scottish Government to accept a significant number of these amendments before Tuesday or risk being outvoted on the day.