National Care Service Expert Legislative Advisory Group: outputs summary

Expert Legislative Advisory Group (ELAG) Summary of outputs

Background to ELAG

The Health, Social Care and Sport Committee's Stage 1 Report recommended setting up an Expert Legislative Advisory Group (ELAG). The Scottish Government accepted this. We set up a group of around 60 experts, including people with lived experience. They met every week for nine weeks to discuss our approach to proposed Stage 2 amendments.

We grouped the discussions by theme. This was because there were many amendments. We also needed to work quickly to meet the commitment from the lead Minister for the Bill to provide a package of Stage 2 amendments and associated documents to the lead parliamentary committee by June 2024. We set out the remit and work of the group in a terms of reference document that was agreed by the group's members.

We are grateful for the ELAG's views on these matters which have informed the Stage 2 amendments. One of the benefits of working in social care is the range of insights and opinions. These come from stakeholders, people accessing social care support, carers, and people working across the system.

Find more information about the Expert Legislative Advisory Group at gov.scot, including:

• details about the group members
• the terms of reference
• minutes from each meeting

We will publish this report there too.

Areas that ELAG discussed

The areas the ELAG discussed were broad and included:

• National Care Service Board
• National Care Service local reform
• National Care Service principles
• procurement
• independent advocacy
• The Charter of Rights and Responsibilities
• complaints and redress
• Anne's Law
• children's services
• justice social work

ELAG and Stage 2 Amendments

This is a summary of how ELAG discussions have influenced the considerations of our proposed Stage 2 amendments of the National Care Service (Scotland) Bill. We sent these amendments to the Scottish Parliament on 21 June 2024.

We knew the conversation would be wider than the Bill amendments. However, we welcomed people's views around areas that may be covered in secondary legislation, guidance or practice in the future as well as direct feedback on our policy intention for amending the primary legislation.

We have covered two main types of amendments in discussion. One was areas that changed a lot, either structurally or strategically, since the Bill was introduced at Stage1. For example, the introduction of the National Care Service Board and the approach to local reform. We go into more detail on these areas later in this report.

The other was areas where proposed amendments are more detailed and relate to things that were already in the Bill as introduced. For example, on complaints or principles.

In some cases, there are clear links between ELAG discussions and specific amendments. Others are more wide-reaching and have a broader impact on several areas. These need a full read of the package to understand their influence.

National Care Service Board (NCSB)

Most people supported the idea that we should have an NCS Board during discussions about it. The feedback from these sessions is helping us develop policy. It will also influence the work we are planning over summer 2024 to co-design parts of the NCS Board.

The main points for the us to reflect on include:

• how the board will link to other regulatory bodies in the health and adult social care system (for example the Care Inspectorate)
• suggestions about other stakeholders we should engage with
• the best way to support lived experience board members
• views that the board needed to have "teeth" so that it could hold other parts of the system to account
• suggestions for the type of committees that we need to set up to support the board
• the need for national priorities to be identified to direct the work of the different parts of the system

National Care Service local reform

Members broadly supported the proposed reforms to local structures. They recognised the emphasis on building on existing structures to deliver change.

Discussions also included:

• that people would like more practical details about the governance reforms driven by the creation of the NCS Board. This would help them fully review the impact of these reforms. We will think about the best way to share this information
• mixed feedback on the naming convention we suggested for integration authorities. But we heard that the term 'integration authority' is not well understood by the public. This has informed our decision to rename integration authorities to NCS Local Boards. This will make what these bodies do clearer. It will also make it clearer that they are accountable to the National Care Service Board
• a range of practical suggestions on how to enhance the voice of lived experience in decision making. We will co-design reforms based on these suggestions. We will use guidance to put these reforms into practice

National Care Service principles

The group's discussions covered these points:

• how the effectiveness of the principles will be measured. Members asked about indicators. The NCS principles will guide all work relating to the NCS. Scottish Ministers will be responsible for developing and publishing a NCS Strategy. It will set out the context and strategic direction and aims for the NCS, in line with the principles. The strategy will also set out any actions we need to take to achieve those aims. The NCS Board must also act in a way that is consistent with the NCS principles in carrying out its work
• members were broadly in favour of the amendment to define the term 'human rights'. But some noted it may be difficult to do this without explicitly mentioning human rights treaties. While the proposed amendment aims to be clear without giving the impression that some rights are more important than others, we are grateful for the feedback from ELAG members. We have worked to ensure that the amendment wording refers to international treaties the UK Government has agreed to. We have also referred to provision of support for a person living independently in the community
• questions about plans for streamlining principles. Members asked us to share how the principles, standards and outcomes may work together in the future. We are developing a clear outline of our plans in this area

National Care Service procurement

The ELAG provided valuable feedback on our suggested amendments.

However, feedback showed we should continue to engage with a wide range of stakeholders to:

• share information and work in partnership on our wider planned actions. This includes actions that do not need legislation
• consider actions that we can take to support smaller local organisations, in ways that legislation allows
• further test the 'third sector' definition
• share more information about relevant procurement legislation such as the 'light touch regime'
• make it clear how the proposed amendments will work with self-directed support legislation
• make the roles, responsibilities and the governance process of procurement within the NCS clear

Through discussions with the ELAG we are content that we do not need to change our policy intent and proposed amendments. But we are carrying out more stakeholder engagement to test the definition of 'third sector'. We expect to make the independence of third sector organisations clearer.

We are also developing our approach to stakeholder engagement. We plan to work more closely with stakeholders and people with lived experience on procurement improvements.

National Care Service Independent Advocacy

ELAG members supported the proposed amendment to add independent information and independent advice to the NCS Bill. This is as well as independent advocacy.

The main points the group discussed included:

• potential regulations relating to these areas. Members asked that as well as co-design work, evidence for any possible regulations includes engagement with advocacy agencies and other key stakeholders
• current independent advocacy provision, including concerns about insufficient funding. We will keep engaging with organisations that provide independent advocacy. This will help us to understand their work and how advocacy could support people when they use NCS services

National Care Service (NCS) Charter

ELAG members broadly welcomed the proposed amendments to Charter provisions.

They discussed:

• the need to avoid repeating other charters, for example, the NHS Charter of Patient Rights and Responsibilities. We are mindful of other existing Charters and Standards. We will continue to work to make sure the NCS Charter compliments and aligns with them
• that it is important to update the Charter in response to new legislation. We will update the draft Charter until close to the launch of the NCS. After that, we will review it within five years of officially showing it to the Scottish Parliament

National Care Service complaints and redress

ELAG members did not highlight any concerns or opposition to proposed Stage 2 complaints and redress amendments.

They:

• recognised that these reflect broader changes to the planned NCS structure (for example the introduction of the NCS Board and reforming integration authorities). This includes existing practice to bring new public bodies under the jurisdiction of the Scottish Public Services Ombudsman (SPSO)
• supported making NCS complaints processes simple and accessible, but highlighted possible risks such as delays
• highlighted where we could make improvements, for example by making roles and responsibilities of different complaints bodies clearer. Other areas they said could be clearer included governance and accountability, data sharing and funding

We welcome this feedback from ELAG members and will continue to reflect on this with people who access and deliver care support. We will also continue our engagement with wider stakeholders as we co-design the NCS complaints service.

National Care Service and Justice Social Work

The views we heard from the ELAG reflected feedback that we have gathered over the last year from:

• the NCS Justice Reference Group
• independent research
• workshops hosted by the Scottish Government with practitioners and people in the justice system

ELAG members told us:

• they did not oppose the proposed amendment to delegate all Justice Social Work services to IJBs. But they said that more information on the practicalities of this will be important
• that communication between services is important and including Justice Social Work in the NCS could help support collaborative working

We will continue to reflect this feedback across the rest of the Bill process.

Anne's Law

ELAG members discussed the policy aim of Anne's Law. This aim is to put in law that people living in adult care homes have a "right" to receive in-person visits from people they choose in all but exceptional circumstances. Concerns were raised around the inclusion of "exceptional circumstances" which it was felt by some could result in unnecessary restrictions on those who provide essential support for their loved one.

There was further discussion on the importance of care home residents being able to meaningfully connect with those important to them.

There were also conversations around how policy should reflect the experiences of residents, friends, and families.

Further comments on Anne's Law included:

• unpaid carers having equal voice and being equal partners in care, and moving away from the term 'visiting'
• having clarity in the complaints/redress process if decisions need to be challenged, and more information on 'exceptional circumstances'
• that consideration should be given to extending Anne's Law to other settings like supported accommodation and hospitals, as people living in those settings may have experienced problems in seeing their loved ones
• the need to involve groups and individuals who can advocate for the emotional and wellbeing needs of residents in the decision-making process

Children's services

Members' comments helped us understand how the changes we propose may impact services, service users and service providers.

The main points members raised focused on:

• the impact on connections between and across services, in particular with education
• the impact on the workforce
• the need for the proper amount of time to implement and test changes
• confusion about what specific services are "children's services" for the purposes of the NCS amendments

Summary of ELAG meetings

Below, we have included a summary of the feedback that ELAG members gave during each meeting.

Meeting 1: Introductory meeting – 4 April 2024

The group discussed the draft terms of reference, membership and topics of discussion.

Meeting 2: National Care Service Board (NCSB) – 11 April 2024

The group agreed the terms of reference, subject to changes.

Other points raised included:

• questions on the future scope and governance of the NCSB
• the need for the NCSB's membership to be broad enough (for example, including the workforce, carers, third sector, and other groups) that lived experience members on the NCSB should be equal to other members
• that the NCSB should have a focus on prevention and early intervention

Meeting 3: National Care Service Board – 18 April 2024

The group agreed the terms of reference.

Oher points raised included:

• the need to be clearer about future scope of the NCS and governance of the NCSB, including future accountability flows
• the need to be clearer about what the NCSB would do and how it would relate to other parts of the system
• the need to make sure the NCSB did not just add another layer of reporting and make the system more, rather than less, complicated
• that financial resources might limit how we put these reforms into practice
• the amount of detail in the Target Operating Model we shared with the group was difficult to follow and it would have been better to talk through this model
• the need to make sure that we have full lived experience representation on boards at all levels of the system, and that national board governance supports this. All lived experience cannot be represented by one individual
• the delivery of co-design and how it is working with the NCS Bill

Meetings 4 and 5: National Care Service local reform – 25 April and 2 May 2024

Before the meeting on 25 April, we updated the terms of reference with new members.

We asked the group to consider several matters, including the issue of renaming integration authorities as NCS local boards. They had mixed views on the proposal. Some members did not express a strong attachment to the current name.

This discussion included:

• feedback that 'integration authority' and 'integration joint board' may not be terms well understood by the public
• the benefits of demonstrating alignment between the NCSB and NCS local boards through the board name
• the proposed name may still not provide clarity on the remit of local boards and the services they covered in and of themselves
• that transformational change and shifting culture are the more important aspects of reform

We asked the group:

• how we can ensure lived experience is meaningfully represented in decision- making
• what support and training should be provided

This discussion covered:

• the importance of ensuring a full and diverse range of voices are represented at the local level, including those with protected characteristics
• the importance of lived experience representatives on local boards representing a wider range of interests and groups, for example there could be citizens panels that sit behind boards or wider networks to feedback information to and from the representative, including connecting local and national board members
• disabled people and carer organisations being involved in providing independent support to representatives

ELAG members felt that all local board members should undertake the same training and appointment process and were supportive of investing in training for everyone. They felt that professional board members should also receive training on working with people with lived experience and that leadership played a strong role in ensuring that lived experience representation was meaningful.

Meeting 6: National Care Service principles – 9 May 2024

Before this meeting we updated the terms of reference with new members.

At this meeting, discussion points included:

• the importance of the NCS Principles being deliverable in practice, and the role resourcing will play in this
• how the principles could be strengthened
• suggestions that the UN Convention on the Rights of Persons with Disabilities (CRPD), including Article 19 on the right to independent living, could be referenced in the principles

Members of the group asked for more information about:

• how the effectiveness of the principles will be measured in the future
• some language used, and said the principles should be clear and easy to understand
• plans to streamline the principles, outcomes and a standards landscape

Meeting 7: Procurement – 16 May 2024

Before this meeting we updated the terms of reference with new members.

At this meeting, discussion points included:

• support for the proposal to amend the reserved process to include third sector
• a discussion on the challenges around defining the third sector and the need for a definition to be clear and easy to understand
• what the proposed amendments will change and how it will address current issues
• accountability and where it will lie in relation to procurement and ethical commissioning
• how our policy approach would link to existing self-directed support and procurement legislation
• members also recommended groups that we should engage with around procurement

Meeting 8: Independent advocacy, the Charter of Rights and Responsibilities (the NCS Charter) and complaints and redress – 23 May 2024

Before this meeting, we updated the terms of reference to reflect new members and to incorporate comments.

Independent advocacy

Members were supportive of potentially adding regulation-making powers for:

• independent information
• independent advice

Members were pleased to see independent advocacy included in the Bill. However, some members were concerned that current funding is not enough and to make meaningful improvements will need more resources.

Some members suggested there is a lack of clarity on what regulations could be brought forward. They expressed their desire for an explicit right to independent advocacy. They also said there should be a duty requiring Scottish Ministers to make provision about independent advocacy to be included in primary legislation.

The NCS Charter

Members were largely positive about the proposed amendments to the NCS Charter provisions.

Some members wanted more information on what the Charter is and to explain how it can help people.

Some said that duplication with existing charters should be avoided where possible.

They also said that it will also be important to align and update the Charter in response to new legislation.

Complaints

Members did not highlight any concerns or opposition to proposed Stage 2 amendments. Members recognised the complexity of the existing complaints landscape and supported the need for simplicity and accessibility. This included an appetite for the different roles of complaint bodies to be set out with clear responsibilities.

Members highlighted the need to manage the introduction of the NCS complaints services into an already complex landscape.

Members wanted more information on:

• the scope of the NCS complaints service functions,
• confidentiality,
• governance,
• funding,
• accountability.

Meeting 9: Anne's Law, children's services and justice social work – 30 May 2024

Anne's Law

There was strong support from members of the group for Anne's Law and the need to enshrine it in law. Discussion around this covered:

• the term 'visiting' and greater awareness that family and friends who provide essential care and support should be considered as equal partners in care
• the definition and scope of "exceptional circumstances," should visiting restrictions be considered
• the need for a clear advocacy and appeals processes should decisions need to be challenged
• extending Anne's Law to include other settings – for example, supported accommodation and hospitals and other forms of community support. Some people living in some of these settings experienced problems in seeing their loved ones
• the need to involve groups and individuals who can advocate for the emotional and wellbeing needs of residents, friends and families in any decision-making process

Children's services

The group discussed the inclusion of children's services in the NCS.

This included the potential impact on links between services, in particular education services.

However, the group accepted that better collaboration across the board and strengthening of partnership working would be a good thing.

Other discussion points included:

• whether legislation is the appropriate way to drive this change and how the NCS evidence base relates to children
• the need to ensure that children's voices are heard and do not get lost in a wider system
• the potential benefits of including certain children's services in the NCS
• the complexities of the existing policy and service delivery landscape
• the impact of structural changes on workforce, highlighting the need for time to make changes and greater involvement of the sector in the process

Justice social work

During this discussion, members discussed the complexity of including justice social work in the NCS. This included a discussion about how change to the structures could undermine existing good practice.

The group also discussed:the lack of resource and underinvestment across the board and how that might be a barrier to implementation the inclusion of justice social work into the NCS in general