National Care Service: business and regulatory impact assessment

Options

The options considered for establishing the National Care Service are set out in the Policy Memorandum for the Bill and will be considered in detail in the Strategic Outline Case which will be published around the same time as the Bill and the future Programme Business Case for the National Care Service.

The Bill makes Ministers accountable for the delivery of social care and social work to be delivered through local care boards. At a national level, the NCS will provide leadership, oversight, and accountability for social care, social work and community healthcare. It will set standards and frameworks at the national level, and will be responsible for ensuring these are put into practice on the ground through performance monitoring of the local care boards and by leading improvement nationally. Health services will continue to be delivered by health boards as at present. Social care services may be delivered by a range of public, private and third sector organisations as they are now. This could include local authorities continuing to provide social care, through contracting or other financial arrangements with the local care boards. Alternatively, a local care board could take over direct delivery, with staff transferring to the care board. These will be decisions to be taken locally as the local care boards are established.

The details of the way the NCS will be established nationally and locally will be developed in collaboration with people with lived and living experience of the community health and social care system, including unpaid carers, to ensure that it operates in a way that supports those it is designed to help. The National Care Service principles set out in the Bill will drive the way that the NCS works.

The Bill provides for a new system for complaints about social care and community health services to be put in place, backed up by a Charter of Rights. The NCS Charter of Rights will set out what rights people have when accessing NCS services. The Charter will summarise these rights and provide a clear pathway to empower people to claim their care specific rights. The Charter will not, in itself, create new rights or services that the NCS or the local care boards should provide. We are proposing that a national complaints portal is established to improve accessibility and provide a clearer pathway to make complaining easier and minimise complaints being directed to the wrong organisation. At national level, the NCS will be able to provide directions and guidance on the handling of complaints by the local care boards and oversee their performance on complaints. It will also review where complainants remain dissatisfied following local processes. There will be further co-design with people with lived and living experience and key stakeholders such as organisations from sectors impacted to develop the details of this new system.

The Scottish Government recognises the importance of independent advocacy in supporting people to access the care they need. Further co-design and engagement of stakeholders is needed to determine what independent advocacy will be needed to safeguard people's rights when the NCS is established with proposals to be set out in secondary legislation. Any secondary legislation relating to independent advocacy services will be subject to further business and regulatory impact assessment.

The Bill requires Scottish Ministers and the local care boards to have a strategic plan which will include an ethical commissioning strategy for delivering care. The Policy Memorandum provides further information on the requirements of an ethical commissioning strategy, but in summary, there must be appropriate consultation and the latest version of the strategy must be made public.

In addition, service provision must be designed to reflect NCS principles, including the implementation of Fair Work, and a person-centred care first/human rights approach, ensuring that strategies focus on high quality care. Ethical commissioning also includes climate and circular economy considerations, financial transparency and commercial viability of outsourced services, involvement of people with lived experience, and shared accountability between all delivery partners.

Information sharing and information standards

The Bill provides for Scottish Ministers to have a power to set up a statutory scheme through regulations to permit data sharing for the efficient and effective provision of services by, or on behalf of, the NCS and NHS. Scottish Ministers will also have the power to set information standards (covering data and digital) which will set out how certain information is to be processed and will be made publicly available. Both are needed to facilitate the creation of a nationally-consistent, integrated and accessible electronic social care and health record which provides a significant opportunity to address the current issues around information sharing, and ensure professionals get timely and accurate information to enable them to safeguard people at risk of harm and provide the highest levels of care. There will be further co-design and engagement with stakeholders, and business and regulatory impact assessment as this is developed.

An alternative option to a new regulation making power to create a scheme that allows information to be shared would be to rely on existing powers to share data between organisations. Some data sharing already exists, including for example the sharing of personal data between primary medical services and emergency responders. However, information sharing is inconsistent across social care and health – information might be shared in different formats and rarely in full with the individual concerned. It is difficult for providers to be sure that information is up-to-date. The creation of the nationally-consistent, integrated and accessible electronic social care and health record will ensure up-to-date and relevant information is available, shared in a safe and secure way and shared under agreed data standards. Setting out in regulation an effective and efficient scheme for sharing information, coupled with information standards, will ensure there is a consistent approach across Scotland.

Restricting the invitation to tender for social care contracts to mutual organisations

The Bill proposes to transpose Article 77 of the founding EU Procurement Directive (2014/24/EU) enabling the reservation of NCS contracts to mutual organisations as qualifying organisations.

At the time of transposing the procurement Directives into Scottish law in 2015, this article was not included as public consultation responses did not identify any particular advantage or reason for doing so in Scotland. The largest number of responses to the consultation were undecided, and 28 [of 140] respondents saw advantages in implementing this proposal.

Organisations who operate in the third sector are part of the social care and social work sector, and have a history and expertise in providing social care, social work and community health services and support. The Scottish Government recognises the role this part of the social care and social work sector can offer alongside other sectors in supporting the NCS ambitions, and therefore sees merits in now providing this option.

The Bill enables Scottish Ministers to make regulations to change the definition of qualifying organisations and the category of service contracts this provision applies to in order to give effect to this change. There will be further engagement, consultation and impact assessments about any regulations to that effect.

Right to breaks from caring

The NCS consultation asked consultees which elements they considered most important in shaping a right to breaks. The elements considered included flexibility, certainty, meeting acute need, providing preventative support, personalising support, guaranteeing standard entitlements, ensuring universal rights or creating rights based on the intensity of caring roles.

The consultation then asked about several options for establishing a right to breaks, each of which would deliver a different balance between these elements. The options included:

• Standardised entitlements to a flat rate breaks package or graded packages linked to intensity of caring;
• Rights to personalised support, built into the existing Carers Act system for carers not otherwise able to access sufficient breaks from caring; or
• A hybrid approach combining the above, enabling easy-access support for carers with low levels of need and the option of personalised breaks support under the Carers Act for those in more intensive caring roles.

Consultation responses showed clear support both for the principle of a right to breaks from caring and for the hybrid approach outlined above. Respondents valued personalised support and the option of easy-access support for those with less significant needs.

Anne's Law

There were three options considered for the introduction of Anne's Law.

• Option 1: Do nothing. Care home providers have been asked about the option of maintaining the status quo and doing nothing. However, there is no support that we are aware of for this option. Providers support Anne's Law because it will provide them with clarity in the context of uncertainty about visiting restrictions during the pandemic. A requirement to allow for residents to name and see those who they wish to maintain contact with during an outbreak situation removes any doubt as to whether such visits are possible.
• Option 2: Non-legislative solution. This option is based on the possibility of updating the Health and Social Care Standards to give effect to the aims of Anne's Law (the Standards form the basis of the inspection and regulation of care homes). To an extent this has already been achieved as the Standards were separately consulted on around the same time as Anne's Law and subsequently updated on 31 March 2022. However, care home providers (and other stakeholders) are clear that, although welcome, this non-legislative solution is not sufficient and legislation is required to give the clarity that everyone is seeking.
• Option 3: Legislative solution. This is the option favoured by care home providers and their representative groups as it offers the most clarity and certainty with regards to the visiting arrangements in adult care homes. This has come across clearly through the public consultation, subsequent engagement with stakeholder groups and in direct discussions with individual providers.

Care Inspectorate – Enforcement and related powers

The Bill proposes to strengthen the ability of the Care Inspectorate (CI) to regulate and scrutinise social care through:

• Powers for the Inspectorate to set out further criteria to determine when the Care Inspectorate might propose to cancel a service's registration, including on the basis of previous enforcement action.
• Additional powers to enable Healthcare Improvement Scotland (HIS) to provide assistance to the CI in carrying out an inspection.
• Enhanced data sharing powers to support a new market oversight by Scottish Minsters and the local care boards. Market oversight will inform commissioning decisions, and allow for early intervention or contingency planning by acting as an early indicator of deterioration in service quality and of likely failure of care providers.

An alternative legislative approach considered to strengthen regulation and scrutiny of care services was to use secondary legislation powers currently available under the Public Services Reform (Scotland) Act 2010. However, this approach would have been limited in scope, and to make the fundamental changes required to strengthen the Care Inspectorate's enforcement regime, primary legislation is required.