National Care Service: consultation analysis

8. Regulation

Chapter overview

This section considers the regulation of services under the proposed NCS. It addresses: the core principles for regulation and scrutiny; strengthening regulation and scrutiny of care services; a market oversight function; and enhanced powers for regulating care workers.

There was a general agreement with the ten Principles proposed for regulation and scrutiny. Several respondents noted that care should be taken not to overburden providers with too much regulation or scrutiny and that regulation should be proportionate. The Scottish Human Rights Commission and the Equality and Human Rights Commission suggested that there should be explicit reference to human rights legislation in the Principles. Overall comments related to the need for the Principles to be clear and in Plain English and to reflect the views of people with lived experience.

There was also strong support for the proposals outlined for additional powers for the regulator in respect of condition notices, improvement notices and cancellation of social care services.

There was also strong support that the regulator should have a market oversight function with 170 of 202 (84%) of individuals and 113 of 130 (87%) organisations who responded to this question in agreement. Around nine in ten thought that this function should apply to all providers, not just large providers.

There was support for the proposal that the regulator should have formal enforcement powers which enable them to inspect care providers as a whole as well as specific social care services, with again nine in ten in agreement (295 of 320 respondents to this question).

A large majority of people agreed that the regulator's role would be improved by strengthening the codes of practice to compel employers to adhere, and to implement sanctions resulting from fitness to practise hearings.

There was a view that all workers in the care sector should be regulated, with Social Work Assistants and Personal Assistants mentioned in particular.

Introduction

The consultation considered arrangements for scrutiny, assurance and inspection of care services to be provided under the NCS and for the education and professional development of those working within these sectors.

The Scottish Government proposes that the scrutiny, inspection, and regulation of care services and the workforce should be undertaken independently of the National Care Service (NCS). The consultation document states that regulation should be guided by an important set of principles shared by people who use services and the sector and by a people centred and human rights based approach. It also set out proposals to strengthen and improve enforcement powers when services fail to provide the quality of care people require and to ensure the social care workforce is supported.

Core principles for regulation and scrutiny

Q73 Is there anything you would add to these core principles?

The consultation document proposed ten core principles for regulation and scrutiny. The majority of the 285 respondents to this question did not suggest any additions to these core principles. Comments relating to the core principles included common themes such as:

• Care should be person directed and there should be input from families and carers in the design and development of services.
• There should be negative consequences for failing to meet the principles
• How will the principles be measured?
• There should be a greater focus on driving improvement
• It should be clear to the public about how they can access inspection reports
• There should be a human rights-based approach to the workforce

Please note that this is not an exhaustive list. Respondents also highlighted the need to avoid overburdening providers and working in a collaborative fashion.

"The principle that regulation should not get in the way of delivering care but should enhance it. The regulator should acknowledge that bombarding care homes with lots of guidance and need for returns etc. gets in the way of delivering care" (Representative of a third sector provider)

"The impact of the process of regulation and scrutiny on the service and the people who use it should be minimal. Methods should be collaborative and focused on improvement rather than fault-finding." (North East Sensory Service (NESS))

Both the Scottish Human Rights Commission and the Equality and Human Rights Commission suggested a stronger and more explicit reference to human rights and equality law in the Principles, particularly in relation to Principles 1, 7, 8, 9 and 10.

Overall, an independent regulator was welcomed. The alignment of this regulator with other public bodies was also highlighted as important.

"We support the concept of introducing scrutiny principles which hold the NCS accountable for delivering consistently high standards of care. But the NCS' approach to improvement, scrutiny and regulation, training and development must take a human rights-based approach and be aligned to existing public health systems and materials e.g. the Care Inspectorate Scotland, Healthcare Improvement Scotland, Public Health Scotland." (Marie Curie Scotland)

"The proposed principles were welcomed but with much need to consider how these would be put into practice in reality. Under the NCS, consideration would need to be given as to how to deliver Children's Services and Adult Services in terms of governance structures under one agency." (Moray Council)

"Principle No. 4 needs to be further considered. The breadth of the proposed NCS and the number of professional groups that will fall within its remit, will require consideration to be given to how the various regulators work collaboratively to support the delivery of coherent professional standards." (Community Planning Aberdeen)

Q74 Are there any principles you would remove?

There were 205 responses to Q74. The majority of people did not suggest that any of the principles should be removed. Some comments to this question related to common themes such as:

• There are too many standards
• The text could be edited down or simplified
• Regulators should act to support improvement

"There is a need to shorten, streamline and clarify the principles as set out. Rather than a simplistic view of whether they should be added to or removed, they need to be much clearer in terms of purpose and intent." (Association of Directors of Education in Scotland)

"The creation of the NCS offers us all the opportunity for a renewed focus on the need for clear and consistent regulatory oversight and practice rooted in the National Standards and in a non- clinical approach to care. It has to articulate the appropriate role and balance of regulation in providing assurance and scrutiny as well as driving and supporting improvement." (North Ayrshire TSI)

Q75 Are there any other changes you would make to these principles?

When asked whether there are any changes which need to be made to the principles (Q75), there were 225 responses, many of which said "no". There were however a small number of comments, which included the following broad themes:

• The Principles are very general
• The Principles should be clear and in Plain English
• The Principles should be person-focused
• More value needs to be place on the opinions and voices of people with lived experience
• Regulation and scrutiny should be proportionate and relevant
• The regulator should add value to the bodies scrutinised
• The Principles should evolve over time

Several respondents noted again the difficulty of commenting on the Principles. In some cases, this was attributed to the need for more detail or the fact that the respondent disagreed with the concept of a NCS.

Three quarters of the Easy Read respondents (31 out of the 39 (80%) who responded to the question) agreed with the list of principles (Q18).

Strengthening regulation and scrutiny of care services

Q76. Do you agree with the proposals outlined for additional powers for the regulator in respect of condition notices, improvement notices and cancellation of social care services?

	Individuals	Organisations
Yes	186 (90%)	98 (84%)
No	21 (10%)	19 (16%)
Total	207 (100%)	117 (100%)

A majority, 285 out of 325 respondents (88%), to the question on the proposals outlined for additional powers for the regulator in respect of condition notices, improvement notices and cancellation of social care services stated that they agreed with the proposals. These can be found on page 112 of the consultation document and in Appendix 2 of this report.

A slightly higher proportion of individuals agreed with the proposals compared to organisations. There was no real difference in subgroups.

There were 168 respondents to this question who gave a reason for their answer. Their comments here tended to refer to the need for a timely and effective response from regulators to protect vulnerable people and that giving the regulators more powers is to be welcomed.

Q77 Are there any additional enforcement powers that the regulator requires to effectively enforce standards in social care?

There were 189 free text responses to Q77. Additional potential enforcement powers that were suggested for the regulator to effectively enforce standards in social care included:

• Legal powers to enforce that required changes are made
• Ability to bar providers with previous poor performance
• More unannounced and more frequent visits by the regulator
• More detailed inspection of providers that closed down voluntarily and then reopened

A majority of respondents to the Easy Read consultation agreed that the Care Inspectorate powers should be stronger (24 out of 38 respondents (63%)) although a sizable proportion had no preference (11 out of 38 respondents (29%)). These respondents (those that agreed that powers should be stronger) thought that the Inspectorate's powers should be exercised more frequently, especially in relation to "repeat offenders" (Q19).

Market oversight function

The majority of the 333^[4] respondents that answered this question agreed that the regulator should develop a market oversight function, with strong levels of support from both individuals and organisations.

Q78. Do you agree that the regulator should develop a market oversight function?

	Individuals	Organisations
Yes	170 (84%)	113 (87%)
No	32 (16%)	17 (13%)
Total	202 (100%)	130 (100%)

There was also strong support for this market oversight function to apply to all providers (280 out of 309 respondents overall (91%)) and not just large providers (Q79).

Q79. Should a market oversight function apply only to large providers of care, or to all?

	Individuals	Organisations
All	176 (91%)	103 (90%)
Large providers only	18 (9%)	13 (11%)
Total	193 (100%)	115 (100%)

It was also thought that social care service providers should have a legal duty to provide certain information to the regulator to support the oversight function (283 out of 313 respondents overall (90%)) (Q80). There were similar levels of agreement between the 195 individuals and the 117 organisations that responded to this question.

Q81.If the regulator were to have a market oversight function, should it have formal enforcement powers associated with this?

	Individuals	Organisations
Yes	162 (85%)	90 (83%)
No	29 (15%)	19 (17%)
Total	191 (100%)	109 (100%)

The majority of respondents to the question on formal enforcement powers for the regulator (253 out of 301 respondents (84%)) agreed with this proposal.

Q82. Should the regulator be empowered to inspect providers of social care as a whole, as well as specific social care services?

	Individuals	Organisations
Yes	188 (92%)	106 (92%)
No	16 (8%)	9 (8%)
Total	204 (100%)	115 (100%)

A large majority (295 out of 320 respondents overall (92%)) agreed that the regulator should be empowered to inspect providers of social care as a whole, as well as specific social care services.

There were 193 respondents who provided a reason for their response to Q82. These reasons included:

• The need for inspection to be done holistically
• To drive high quality of care across the entire sector and promote consistency across all sectors and geographic areas
• To enable the regulators to monitor patterns and trends

"Providing the regulator with this market oversight function would provide assurance nationally to allow better scrutiny, risk and contingency planning across private, voluntary and the public sector provision of these services." (East Ayrshire Council and East Ayrshire Integration Joint Board)

Of the respondents to the Easy Read questionnaire, 24 out of 35 (69%) agreed that the Care Inspectorate should have powers to better understand the care market (Q20). A few respondents stated that this would be important to ensure fair treatment for all. Others, however, questioned the premise, based on the view that the regulator would not have sufficient understanding of the market to be able to provide an oversight role.

Enhanced powers for regulating care workers and professional standards

Q83. Would the regulator's role be improved by strengthening the codes of practice to compel employers to adhere to the codes of practice, and to implement sanctions resulting from fitness to practise hearings?

The majority of people who responded to the open ended question "Would the regulator's role be improved by strengthening the codes of practice to compel employers to adhere to the codes of practice, and to implement sanctions resulting from fitness to practise hearings? " (329 respondents) appear to be in favour. Specific comments referenced themes such as:

• The need to sanction employers as well as employees
• It will help to raise standards
• It will encourage employers to provide more training opportunities for staff

"We believe the regulator's role would be improved by strengthening codes of practice to compel employers to adhere to the codes of practice and to implement sanctions resulting from fitness to practice hearings." (See Me)

"NES welcomes any strengthening of the requirement on employers to fulfil their obligations in line with the SSSC codes of practice specifically in supporting employees to undertake all necessary qualifications and continuous development within the required timescales to achieve and maintain their professional registration." (NHS Education for Scotland)

Other comments highlighted the pay levels of care staff and their levels of responsibility while another suggested that any sanctions should be proportionate.

Q84 Do you agree that stakeholders should legally be required to provide information to the regulator to support their fitness to practise investigations?

Nearly all of the 319 respondents to this question stated that stakeholders should legally be required to provide information to the regulator to support their fitness to practise investigations (Q84). Comments here related to the need to focus on the rights of people accessing care and support; the need to have a firmer regime and clarity around who the stakeholders are.

Q85 How could regulatory bodies work better together to share information and work jointly to raise standards in services and the workforce?

When respondents asked how regulatory bodies could work better together to share information and work jointly to raise standards in services and the workforce, there were 229 comments. These respondents referenced a number of themes including:

• A much greater emphasis on information and data sharing
• Co-ordinated standards
• A single regulatory body or a single inspectorate

Q86 What other groups of care worker should be considered to register with the regulator to widen the public protection of vulnerable groups?

When asked what other groups of care workers should be considered to register with the regulator to widen the public protection of vulnerable groups (Q86), the general answer was all care staff or all those that work with vulnerable children and adults. There were 230 responses to this question.

Social Work Assistants and Personal Assistants were mentioned in particular. One respondent suggested that the regulator should focus on a framework for workforce development rather than protection as protection would follow through.

When respondents to the Easy Read consultation were asked what groups of care worker should be considered to register with the Scottish Social Services Council (Q21), the general suggestion was that all care workers should be registered.