National Care Service: business and regulatory impact assessment

Consultation

Public consultation

A public consultation on the proposals for a National Care Service ran from 9 August to 2 November 2021. There were over 100 engagement events during this time including 35 open public meetings and a small number of face to face meetings. In total, around 3,000 people engaged with the Scottish Government at these sessions. Just under 1,300 responses to the consultation paper were received, just over 700 from individuals and just over 570 from organisations. An independent analysis of the consultation responses has been published alongside individual responses where people gave permission for them to be published.

The headline findings of the consultation demonstrated broad agreement with the Government's proposals to bring together social care, social work and community health services for all ages under a National Care Service accountable to Scottish Ministers. Most people who responded to the consultation agreed with the changes and agreed that the scope of the National Care Service should extend beyond adult social work and social care. There was broad agreement that this would lead to more consistent outcomes for people accessing care through better co-ordination and that more guidance and standards would mean more consistency in the way care was provided. There was also broad agreement with the proposals to reform the integration authorities to become local delivery bodies of the National Care Service to be the single organisation with responsibility for community health and social care locally with their own dedicated budgets and staff.

There were concerns and risks raised in the consultation responses about:

• The loss of local accountability for social care and concerns about centralising services and a one size fits all approach which would not be right for everyone or suit people's local circumstances;
• Particular concerns about whether the needs of remote, rural and island communities would be met or understood within a National Care Service;
• Concerns about too much political interference in the way services are run and excessive bureaucracy;
• Impacts on local authority workforces of the potential move of social care and social work from local authorities to Scottish Ministers;
• Whether human rights and equality would be respected within the way services were provided by the National Care Service; and
• The potential for disruption to people's care and support during the transition to the National Care Service.

People and organisations responding to the consultation were also broadly supportive of the proposals for ethical commissioning, increased market oversight of social care provision, strengthened regulation, strengthened complaints and redress for social care and the development of an integrated electronic social care and health record. Where concerns were expressed about these they were usually to do with the need to respect local circumstances and take account of people's individual needs. There are further details in the Policy Memorandum and in the consultation analysis report.

Right to breaks from caring

The NCS Consultation consulted on options to amend the Carers Act to establish a right to breaks from caring. This showed support for a hybrid approach, combining rights to:

• Easy-access support for carers with low levels of need, similar to existing Time to Live grants accessed via carer centres; and
• Personalised breaks support for any carer who is not currently able to access sufficient breaks from caring – accessed via their personalised plan under the Carers Act.

As part of the NCS consultation the Scottish Government funded Carers Parliament 2021 was run as a consultation event, with over 200 carers taking part, providing detailed feedback on the consultation proposals. (This covered the whole NCS consultation, not just the right to breaks from caring proposals.)

Anne's Law

The public consultation on delivering Anne's Law launched on 24 September 2021 and closed on 5 November 2021. Two-hundred and eighty-three responses from a combination of individuals and organisations were submitted via the Citizen Space platform with one further response being submitted. In addition, five workshops were held.

The analysis of the consultation results showed clear and almost unanimous agreement with the overall aim of Anne's Law; i.e. that people living in adult care homes should have the right to see and spend time with those who are important to them in order to support their health and wellbeing. Support for the proposals came from a wide range of stakeholders that included care home providers, groups representative of residents and families, NHS and Local Authorities and third sector organisations.

The preference is for legislation to give effect to the aims of the proposals. This is considered to be rooted in human rights legislation with respondents indicating that these rights should be reinforced in statute, particularly since people in residential care are not well placed to challenge any breaches of the European Convention on Human Rights.

The consultation process has also prompted suggestions that Anne's Law should be extended to cover other settings such as hospitals, adults' supported accommodation and also children's care settings.

Within Government

The Bill touches on a wide range of areas of responsibility within the Scottish Government. A cross-Government programme has been set up to ensure coherent development of policy to underpin the Bill.

Business

Establishment of the National Care Service

Of the care provider organisations that responded to the NCS consultation:

• 21 were private sector providers
• 122 were third sector care providers
• 16 were independent health care providers

Local authorities, health boards, integration authorities and other public sector bodies also responded. Businesses and public sector bodies also took part in the consultation events and are represented on a key stakeholder reference group that has been established to inform the National Care Service Programme.

Some key findings from consultation responses from care providers, local authorities and public sector bodies and subsequent engagement are:

• Support for the overall aims of the reforms, in particular the moves towards rights based person centred care and Fair Work in the social care sector;
• Support for the proposals for changes to commissioning and procurement to be put on a more collaborative, ethical footing as this could help address market instability and introduce longer term funding arrangements;
• Concerns about a loss of local accountability, loss of local knowledge and expertise and about the impacts on the workforce and assets of local authorities;
• Concern that the National Care Service could disrupt working relationships at local level and about widening the scope of the NCS beyond adult social care; and
• Funding shortfalls in social care would need to be addressed for the benefits of the NCS to be realised.

The public consultation showed high levels of support for proposals for using data to support care with:

• a large majority of respondents agreeing or strongly agreeing to 'there should be a nationally consistent, integrated and accessible electronic social care and health record';
• strong support for 'information about your health and care needs should be shared across the services that support you'; and
• strong support for the question: 'should legislation be used to require all care services and relevant parties to provide data as specified by the National Care Service, and include the requirement to meet common data standards and definitions for that data collection?'

The provisions in the Bill will enable the creation of the electronic social care and health record. We are committed to co-design of the electronic social care and health record which includes engaging with providers (which includes private sector businesses).

As discussed below, the provisions in the Bill that establish the National Care Service are unlikely to directly affect businesses. There will be full consultation and engagement with businesses as further policies are developed. We will, in particular, engage with care providers as we develop the proposed approach to ethical commissioning and procurement, the details of the new system for complaints and redress, and a new approach to oversight of, and shaping of, the market for social care provision.

Right to breaks from caring

While preparing the consultation proposals we consulted with a range of third sector organisations affected by the new legislation. These organisations included carer and user support groups, such as local carer centres and young carer projects. The national carer organisations (Carers Scotland; Carers Trust Scotland; Coalition of Carers in Scotland; Minority Ethnic Carers of Older People Project (MECOPP); Scottish Young Carers Services Alliance; Shared Care Scotland; and Family Fund) played a key role in helping to inform the alternative right to breaks from caring options.

Anne's Law

Workshops were held during the public consultation, and care home providers, as well as their representative groups, have been engaged both during these workshops and on a regular basis since. Care home providers sit on several stakeholder groups that have been established to develop the work on Anne's Law and shape the approach.

In addition, three one-to-one meetings have taken place with care home providers to talk specifically about the impacts of Anne's Law and one such meeting has also taken place with the Care Inspectorate given its role in inspecting and regulating care homes in Scotland. In addition to this, Public Health professionals have been similarly engaged in relevant stakeholder groups to inform the development of Anne's Law.

Care Inspectorate – Enforcement and related powers

No discussions have been had directly with care providers in addition to those held during the consultation period. However, we plan to hold discussions with stakeholders, including care service providers, as part of the development of secondary legislation resulting from the Bill on regulation.