Social care - Independent Review of Inspection, Scrutiny and Regulation: recommendation report

3. Background

What is social care support?

Social care support services are about providing people with the support and assistance they need to lead a full and active life.

The social care support sector is large and as diverse as the people it assists. Figures from the Insights in Social Care: Statistics for Scotland show there are approximately 14,000 registered services across Scotland providing social care support to an estimated 200,000 people of all ages (1 in 25 of the population) each year. Over 200,000 people are part of the social care support workforce in Scotland, and 167,600 are part of the Scottish Social Services Council Register.

Social care support is delivered in a variety of settings, including people’s own homes, their local communities and care homes, by a mixed economy of public sector and independent services. Social care support is one part of a wider system, that includes Social Work Services, Housing, Third Sector, Children’s Services, Early Learning and Childcare provision and Community Health.

Why an Independent Review of Inspection, Scrutiny, and Regulation?

Robust inspection, scrutiny, and regulation has a crucial part to play in ensuring that people experience high-quality care and support which makes a positive impact on their lives, based on their needs, rights and choices.

The terms ‘inspection’, ‘scrutiny’, and ‘regulation’ are frequently used interchangeably. For definitions to use in this Review we looked first to The Crerar Review: The Report of the Independent Review of Regulation, Audit, Inspection and Complaints Handling of Public Services in Scotland. The Crerar Review defined regulation and inspection as:

Regulation focuses on providing a licence to operate, enforcement of legislation and regulations and monitoring the quality of services provided. Regulation may also include elements of service inspection and can be designed to drive up quality as well as to enforce standards. To this definition we would add that as well as enforcing standards, regulation in the context of this Review may include assessing performance against agreed themes, for example, for thematic inspections.

Inspection is periodic, targeted scrutiny of specific services, to check whether they are meeting national and local performance standards, legislative and professional requirements and the needs of service users.

Scrutiny The Review acknowledges that this can mean different things to different people and organisations. As set out in the Scottish Commission for Learning Disability Report – Using scrutiny to drive outcomes: Improving quality of life for people with learning disabilities, it also happens in different ways – for example, through involving people in decisions about planning and delivering services, through citizen-led scrutiny, through internal review and challenge, and through external scrutiny and investigation. In this Review we have deliberately adopted a broad definition of scrutiny.

Our national regulators play a critical role in assuring consistent and high standards of social care support. However, the current system has been in place over the last 20 years, during which time the social care support landscape and skills requirements of the workforce have changed.

The Independent Review of Adult Social Care in Scotland (IRASC) reported hearing a range of views on current arrangements for inspection and regulation. Examples of good practice, where inspection was based on genuine dialogue and a focus on improvement, were described, but the IRASC was told that often too much attention was placed on process and not enough on individuals’ experience of care and support. In addition, the IRASC also heard the view that there was an accountability gap at a national and local level and that there is not meaningful joint inspection of health and social care support services. The IRASC also raised important questions around how to deliver improvement.

The conclusions of IRASC are consistent with a growing body of evidence from recent reviews that highlight some of the challenges with current systems including, The Promise, The Scottish Drugs Deaths Taskforce Final Report Changing Lives, and ‘The Muir Review’, Putting Learners at the Centre: Towards a Future Vision for Scottish Education.

Although these reviews vary in their focus on children and care, adult social care, drug deaths and education, common themes include:

• the need to focus on putting people and relationships above processes;
• a need to focus on improvement; and
• challenges with data collection and sharing.

A key recommendation from the IRASC was the creation of a National Care Service (NCS). The IRASC stated:

We need a National Care Service to achieve the consistency that people deserve, to drive national improvements where they are required, to ensure strategic integration with the National Health Service, to set national standards, terms and conditions, and to bring national oversight and accountability to a vital part of Scotland’s social fabric.

The Scottish Government’s vision for the NCS is for everyone to have access to consistently high-quality social care support across Scotland, whenever they might need it. It is intended to provide services that are co-designed with people who access and deliver care and support, respecting, protecting, and fulfilling their human rights.

The National Care Service (Scotland) Bill was introduced to Parliament in June 2022. If approved by Parliament, it would represent one of the most ambitious public services reforms in generations, having significant implications for how social care services are commissioned, delivered, and governed in Scotland. The Bill proposes some limited changes in the powers of the Care Inspectorate and Healthcare Improvement Scotland but raises important questions in how regulation and improvement will operate and be strengthened under the NCS.

It was in this evolving context that, in September 2022, Scottish Ministers announced an Independent Review of Inspection, Scrutiny, and Regulation (IRISR) would look at how social care support services are regulated and inspected across Scotland.

The terms of reference for the IRISR were to:

• make recommendations as to how inspection, scrutiny, and regulation of social care, and linked services, have a basis in human rights and trauma informed practice, is inclusive of people with lived and living experience and how best to ensure continuous improvement is standard practice;
• consider what the inspection, scrutiny, and regulation of social care, and linked services landscape needs to look like to ensure it meets the requirements of the National Care Service (NCS);
• consider how any new arrangements will meet the needs of and interface with services that are not part of the NCS;
• ensure that any new approach to inspection, scrutiny, and regulation of social care, and linked services is future proofed and flexible;
• consider what data will be needed for regulation and improvement and how data sharing can be improved, standardised and tied into wider work considering the data requirements for the NCS in line with the UK General Data Protection Regulation (UK GDPR);
• be inclusive of wide-ranging engagement with stakeholders including people with lived and living experience, and unpaid carers;
• consider if there is a need for an independent scrutiny body for inspection and regulation of social care and support services in Scotland similar to that of the Professional Standards Authority in England or otherwise, taking account of the reserved nature of professional regulation of the clinical professions; and
• complete the Independent Review and publish findings and make such recommendations deemed appropriate across all considered areas and any other recommendations considered appropriate, in accessible formats.

It is important to note at the outset that this Review supports a human rights- based approach to inspection, scrutiny, and regulation and explores this in more detail in subsequent chapters. The Review is clear that the PANEL Principles of Participation, Accountability, Non-Discrimination, Empowerment and Legality are ones that should underpin systems. The Review acknowledges that barriers exist for some groups accessing social care support services and taking a human rights-based approach empowers people to know and access their rights.

How does inspection, scrutiny and regulation currently work?

The legislative foundation of inspection is provided by the Public Services Reform (Scotland) Act 2010 which has its origins in the Regulation of Care (Scotland) Act 2001. The main aim of the Regulation of Care (Scotland) Act 2001 was to improve standards of social care services and the Act established the Scottish Commission for the Regulation of Care and the Scottish Social Services Council (SSSC).

The inspection, scrutiny, and regulation of social care support services in Scotland is predominantly carried out by three main bodies.

Care Inspectorate (CI) is a non-departmental public body (NDPB) and is the national regulator for care services in Scotland. The CI provides independent public assurance about the quality of social care, social work, and early learning services. It is responsible for the registration and regulation of care services (including childcare services) in Scotland and its role is to scrutinise, inspect and support improvement in services to ensure the quality of care meets high standards.

The CI inspects each of the circa 14,000 registered care services in Scotland, higher-risk services are inspected more often. The CI also works with other scrutiny bodies to look at how local authorities, community planning partnerships and health and social care partnerships are delivering a range of services in their communities.

Scottish Social Services Council (SSSC) is like the CI, a NDPB and acts as the independent professional regulator for social workers, social care and early learning and childcare practitioners. It sets standards for their practice, conduct, training and education, and by supporting their continuous professional development. Where people fall below the standards, the SSSC will investigate their fitness to practise and take action accordingly.

Healthcare Improvement Scotland (HIS) is a Health Body. Its broad remit and general statutory duties are to further improve the quality of health and social care through evidence, scrutiny, public participation, redesign of services, and inspecting any service provided under the health service. HIS duties include the regulation of independent hospitals and clinics. HIS are also responsible for providing information to the public about the availability and quality of services under the health service. This includes providing advice to current and prospective providers, users, carers and Local Authorities regarding health services. Where a service provided under the health service and social services are provided by virtue of an integration scheme approved in the Public Bodies (Joint Working) (Scotland) Act 2014, HIS may inspect the planning, organisation or coordination of those services.

Although HIS is the inspection and improvement body for health, it does carry out a number of strategic and thematic inspections with the CI, for example, inspections of Health and Social Care Partnerships and, with His Majesty’s Inspectorate of Constabulary Scotland (HMICS), of Adult Support and Protection services.

Whilst not a regulator, the Mental Welfare Commission (MWC) has responsibilities to ensure people with a mental illness, or learning disability, and those that lack capacity, have their human rights upheld. The MWC carry out their statutory duties by focusing on five main areas of work. They are visiting people, monitoring the Acts, investigations, giving information and advice, and influencing and challenging. The MWC has wide powers to raise matters of general concern with a range of bodies, including the CI, as well as a duty to raise any particular service concerns.

The Regulation of Care Act (Scotland) Act 2001 sets out the statutory functions of the role of the SSSC in the registration and regulation of social care workers. The SSSC have Codes of Practice for Social Service Workers and Employers that set out the behaviours and values expected of social service workers and their employers. If either party does not meet the standards in the codes of practice, the SSSC can take action.

The healthcare workforce is registered with different professional regulators, such as the General Medical Council and the Nursing and Midwifery Council, and do not fall under the same system as social care support. The regulation of the majority of healthcare professional groups is reserved, though new groups of healthcare professionals and those regulated since the Scotland Act 1998 is devolved to the Scottish Parliament. In practice there is a four-nations commitment to ensuring regulation is consistent UK-wide.

The roles in the social care support sector that currently do not require to be registered are also explored in more detail under Theme 2 (page 39).

In the chapters that follow, the Review works on the underlying principle that future arrangements for inspection, scrutiny, and regulation must work constructively for everyone who uses or who delivers social care support.

The Professional Standards Authority for Health and Social Care (PSA) oversees the nine statutory bodies that regulate health professionals in the United Kingdom and social care in England. It includes the principles, which the Review would support, that regulation should aim to be Proportionate, Consistent, Targeted, Transparent, Accountable and Agile.

Scotland needs a system of inspection, scrutiny, and regulation that is focused on the type of social care support and wider sector that people want to see, embedded in human rights. It needs to be able to reflect the changing roles of the workforce, for example, the move towards hybrid models of working. There is an identified need to address long-standing and well documented issues along with exploring how inspection, scrutiny, and regulation can best contribute to improving outcomes for people.