A National Care Service for Scotland: consultation

Regulation

BSL version of Chapter 6: Regulation

The case for change

National regulators will continue to play an important role in ensuring consistent and high standards of social care and support. Through regulation we will continue to scrutinise the quality of care in Scotland to support consistent and high standards. It is important that the role of regulating both services and the workforce remains independent of the National Care Service (NCS). This independence will also allow the regulator to operate and to regulate any services commissioned directly by a NCS.

Once established the NCS will be responsible for setting national care standards, which will provide the framework for regulation moving forward. Future regulation at its heart needs to support better outcomes for people. The views of individuals accessing services and people supporting individuals to access services should be embedded and prioritised within the process.

This chapter sets out what we need from a modern and ambitious regulation process that drives quality, improvement, and the best outcomes for people. It covers arrangements for scrutiny, assurance and inspection of care services provided under the National Care Service (NCS) and for the education and professional development of those working within these sectors. It sets out proposals for how 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.

The Care Inspectorate, Scottish Social Services Council, and Healthcare Improvement Scotland.

The Care Inspectorate is the national scrutiny body responsible for the registration and regulation of care services. It scrutinises and inspects services, to ensure they meet high standards. Where the need for improvement is identified, they support services to make positive changes. Improvement notices can be issued and enforcement action taken.

The Scottish Social Services Council (SSSC) is the professional regulator of social service workforce and maintains registers of social workers, social care and early years workers. The SSSC has a statutory role in setting standards for their practice, conduct, training and education and by supporting their professional development and collecting workforce data from across the sector. Where people fall below the standards of practice and conduct they can investigate and take action.

Both the Care Inspectorate and the SSSC are established in statute, by the Public Services Reform (Scotland) Act 2010 and the Regulation of Care (Scotland) Act 2001, respectively. They are independent bodies which report directly to the Scottish Ministers.

During the pandemic the Care Inspectorate has worked even more closely with a range of health and social care partners, including Chief Social Work Officers and Healthcare Improvement Scotland, on a wide variety of important social care matters.

Healthcare Improvement Scotland (HIS) was set up under the Public Services Reform (Scotland) Act 2010 (PSRA) and took over the functions of NHS Quality Improvement Scotland and the regulatory functions of the Care Commission in relation to independent healthcare services. HIS is the national scrutiny and improvement body for all health services and is accountable to Scottish Ministers for the delivery of its strategic objectives.

The establishment of HIS was part of the drive to improve the scrutiny of public services in Scotland, following the Crerar review, and was intended to promote the use of improvement and evidence to support the scrutiny process and to identify, develop and implement continuous quality improvement at ground level rather than focus solely on compliance against minimum standards.

Issues and problems

A number of issues have been raised, through the Independent Review of Adult Social Care (IRASC) and previously, highlighting improvements which could be made to national scrutiny of the quality of community health and social care to ensure consistent and high standards of care and support for everyone using community health and social care. Some of these issues, for example, in relation to the regulator's enforcement powers, are likely to require changes to primary legislation, and therefore the Bill for creation of the NCS offers an opportunity to address them.

Relevant Independent Review of Adult Social Care Recommendations

Recommendation 24: The role of existing national care and support bodies – such as the Care Inspectorate and Scottish Social Services Council – should be revisited to ensure they are fit for purpose in a new system.

The Review envisaged these agencies becoming national care bodies for social care under the NCS. However, we believe it is more appropriate for regulation and scrutiny functions to operate independently of the NCS.

Recommendation 36: The care home sector must become an actively managed market with a revised and reformed National Care Home Contract in place, and with the Care Inspectorate taking on a market oversight role….

Core principles for regulation and scrutiny

We propose that scrutiny, inspection, and regulation of care services and the workforce should be undertaken independently of the National Care Service (NCS). The design and arrangements for regulation should be guided by an important set of principles shared by people who use services and the sector. A people centred and human rights based approach should be at the heart of the principles and inform their design. These arrangements should ensure consistent and high standards of care and support are delivered and robust and effective action is taken, particularly when there is a risk to the safety and wellbeing of people.

We propose the following core principles. We have numbered these to make it easier when answering the questions, but they are all equally important.

1. Scrutiny and assurance should support human rights-based care, focus on outcomes for people, and the positive impact community health and social care services are making to their lives, including the relationships staff have with them.

2. Activity should be targeted, proportionate, intelligence-led, and risk-based. This approach will allow the regulator to choose different types of scrutiny, assurance, or quality improvement intervention relative to the individual service and how it is performing.

3. The NCS should generally seek to review, update, and improve standards and practices as an organisation and across the care sector on a regular and ongoing basis (this is a separate role and process from any improvements which those who have responsibility for delivering social care services (or overseeing those) may be required to make arising from enforcement or other action by the regulator).

4. There should be a strong link between the regulation of the workforce and their professional standards and the inspection and scrutiny of the services they work in.

5. Overall national scrutiny should involve the regulator working collaboratively, where possible, with other professions and agencies and continue to be informed by lessons learnt and good practice arising from the experience of the pandemic.

6. Regulation is fundamental to ensure a qualified and skilled social care workforce which enables employers to deliver high quality, responsive care and support.

7. Regulation is a key element in ensuring the safety of vulnerable people, ensuring high standards for practice, conduct, training and education across the workforce.

8. Scrutiny and assurance should aim to reduce inequalities with an emphasis on people, prevention, partnership and performance.

9. Where possible, regulators should involve people in the development and delivery of scrutiny approaches and amplify the voice of people experiencing care.

10. Where appropriate, scrutiny and assurance should take account of legislative requirements, Scottish Government policy, national standards, and codes of practice.

Questions

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

BSL Version of Question 73

Q74. Are there any principles you would remove?

BSL Version of Question 74

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

BSL Version of Question 75

Strengthening regulation and scrutiny of care services

The enforcement powers at the disposal of the Care Inspectorate, as the current regulator, are set out in the Public Services Reform (Scotland) Act 2010 and originate from the Regulation of Care (Scotland) Act 2001.

Since the enforcement provisions were enacted, the shape of care in Scotland has changed. For example, we have seen a shift towards more people being supported to live at home and those living in older people's care homes having increasingly complex needs. This has required a corresponding shift in the approach to scrutiny and the skills and professional knowledge required by regulators and care workers, with an increased focus on clinical needs and, for example, provision of care and support to people with dementia.

Experience of using enforcement powers both prior to, and during COVID-19, raises issues of whether or not they are fit for purpose in a changed care environment and if they provide the best way to ensure people who use care and support services are protected from poor practice and failing services.

There are a range of options to strengthen the enforcement powers of the regulator. These should be considered alongside work already underway to enable the remodelling of scrutiny and inspection with changes to the frequency of inspection and a review of care service definitions. There may also be scope to create a new market oversight function for the regulator and views are welcomed on what shape this might take.

Enforcement powers

The Public Services Reform (Scotland) Act 2010 (the 2010 Act) sets out current enforcement options including: (a) Condition Notices, (b) Improvement Notices, (c) Cancellation of registration, and (d) Emergency cancellation of registration. As currently formulated, each one has its limitations which can hinder the ability of the regulator to support strong oversight.

A number of issues concerning the current powers have been identified. These include:

• Condition Notices – These notices enable parameters to be placed around the operation of a care service, for example, by preventing the use of parts of premises. Appeals against their imposition can be lengthy and cumbersome. If an appeal is lodged, the decision does not take effect until the appeal is determined or abandoned. A condition notice is likely to take around 4 weeks to impose if not appealed. A separate process is available for "emergency" conditions but the test for that process is the same as that for "emergency" cancellation of registration (serious risk to life, health, or wellbeing). There are situations where a faster approach may be needed albeit the "emergency" test is not met, but this also needs to be proportionate to the enforcement action which is proposed.
• Improvement Notices – These notices set out that services must improve in certain ways by designated dates or registration may be cancelled. In some cases, they are not properly promoting sustained improvement. Services can receive several Improvement Notices (which may identify a consistent pattern of breaches or in some cases new breaches) which are never fully resolved or are only resolved for a short period before re-emerging. The 2010 Act sets out that the service must make "a significant improvement" or the Care Inspectorate can seek cancellation under section 64. There is no reference to a requirement for improvements to be "sustained" so these services do not currently reach the bar for cancellation but may consistently perform poorly over time.
• Cancellation of service registration– (following failure to comply with Improvement Notices) can be a protracted process. Any cancellation decision made does not take effect until the period for lodging an appeal with the sheriff elapses, or until any appeal is determined or abandoned. Getting to this point in the process can take several months and sometimes years.
• Emergency cancellation – The statutory test is predicated on "serious" risk to life, health, or wellbeing. Poorly performing services may expose those receiving them to multiple risks of a lesser nature, or to poor living conditions which are wholly unacceptable, while not constituting serious risk. In certain cases (particularly those involving child protection issues) there is a delay before an emergency cancellation application can be heard by a Court when service users could be left at serious risk.

In summary, there are options to reform current enforcement powers in the following areas:

(a) Condition notices under section 66 of the 2010 Act (this process is too slow)

The test could be made less stringent, or an "intermediate" category could be added.

(b) Improvement notices under section 62 of the 2010 Act (this process is too weak)

Changes to require sustained improvement would strengthen this provision. For example, one possibility is that even if improvements are made, the notice could remain "on the service's record" for a set period, and further action provided for, if the same issue arose while the notice remained extant.

(c) Cancellation of a service under section 64 of the 2010 Act (this process is too slow)

The statutory process is fair and reasonable and allows the opportunity for representations by services affected, but appeals in the Sheriff court are likely to be protracted. One possible solution is to review court processes to govern the conduct of proceedings, as is the case with other types of court actions. Such a review could provide for clear timetabling of action with a view to avoiding the lengthy appeals currently experienced by the regulator.

(d) Emergency cancellation of a service under section 65 of the 2010 Act (the legal bar is too high)

The Sheriff considering an application for cancellation of registration under this provision has a wide discretion. They "may" (and therefore may not) make the order, even if satisfied that there will be serious risk unless the order is made. We would also highlight that in a number of cases there may be issues relating to the length of the process in which applications for emergency cancellations are heard by the court.

We welcome views on the impact, effectiveness and speed of the current enforcement powers set out above and the proposals for improving them. In making changes to current legislation the regulator would be enabled to ensure they can speedily take action with poor performing services, better protect residents of care homes and other social care users, and drive up the consistency and quality of care expected across all social care services in Scotland.

Questions

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

BSL Version of Question 76

• Yes
• No

Please say why.

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

BSL Version of Question 77

Market oversight function

A lack of strategic understanding of the care market, and the sustainability of providers, can prevent effective contingency planning and other action by Health and Social Care Partnerships (HSCPs), Scottish Government and other partners that would prevent users of care services and care workers being impacted by care service closures and other market failures.

The Independent Review of Adult Social Care (IRASC) also proposes that the care home sector becomes a more actively managed market. In making this recommendation, the IRASC advocates the regulator taking on a new market oversight function that provides a long term strategic vision and an overview of the care home market, taking into account local needs and the balance of providers in the market.

Developing an oversight of the market, through gathering financial information, developing market intelligence, and assessing financial risk would enable the regulator to map the social care sector, the vulnerabilities and the good practice within it. It would also enable the identification of where specific support and/or action is required to ensure that outcomes for people experiencing care can be fully met.

The development of an effective market oversight capability could potentially contribute to the following:

• Identifying financial risk – The regulator could gather intelligence on financial risks at a strategic level in the sector through the collection of financial data, comparators and trend analysis. The regulator could determine the level of scrutiny and/or improvement support required using detailed financial metrics to assess the level of risk associated with a provider. This could support an anticipatory approach and determine the interventions required. Further, this information could be used to inform commissioning discussions and support HSCPs in the planning and provision of care.
• Scrutiny, assurance, and quality improvement – The regulator could build on information gathered through scrutiny and other means to assess financial and operational threat at the registration, service, provider, and strategic levels to target improvement at appropriate levels. This could increase the ability to identify potential issues associated with providers and help the regulator to focus their resources effectively in providing scrutiny, assurance, and support where it is needed most. There is potential for the regulator to be provided with a statutory power to further enable scrutiny of providers as a whole, in addition to inspection of discrete care services.
• Collaboration and market insight – Working across the sector, the regulator could capture, evaluate, and consolidate its knowledge, expertise, experience, and information from dialogue and engagement with others, potentially through an extended relationship-manager role, and use that information to build a wider intelligence picture. This could enable them to assess the market's utility and capacity to provide for the population's needs in order to inform government, and to influence, target, and evidence quality improvement at a strategic level. Working with local and national teams, the information can be shared with commissioners and procurement professionals to support ethical commissioning, decision making on procurement routes, and processes and contract management to minimise the risk of supplier failure.
• Contingency Planning – The regulator could inform contingency planning arrangements to achieve a risk-based focus on intervention to establish facts and support improvement or manage closure, as appropriate.

These changes are intended to enable the further development of an intelligence led risk based approach to scrutiny and inspection and support the sustainability of the sector. This helps to ensure that scrutiny and quality improvement support is targeted where it is most needed to protect people accessing social care services and help to prevent and manage disruptions to services.

In England, the Care Quality Commission (CQC) maintains a 'market oversight' function that acts as an early warning system to protect people using adult social care services from having their care interrupted where a large or specialist care provider that could be difficult to replace is at risk of financial failure and has to close or sell one or more its services. Under the scheme, providers are legally required to provide the CQC Market Oversight team with financial information which will inform the level of engagement required. The CQC may also consider enforcement actions against providers should they fail to comply with the requirements of the market oversight scheme.

In Scotland, the Care Inspectorate does not have a similar function to CQC and they do not have the legal powers to require care providers registered in Scotland to routinely submit financial information, in a prescribed form, for this market oversight purpose.

We welcome views on the necessity of a market oversight function for the regulator, its scope and the potential form of any additional powers the regulator should have to ensure this function is effective.

Questions

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

BSL Version of Question 78

• Yes
• No

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

BSL Version of Question 79

• Large providers only
• All providers

Q80. Should social care service providers have a legal duty to provide certain information to the regulator to support the market oversight function?

BSL Version of Question 80

• Yes
• No

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

BSL Version of Question 81

• Yes
• No

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

BSL Version of Question 82

• Yes
• No

Please say why

Enhanced powers for regulating care workers and professional standards

The Regulation of Care (Scotland) Act 2001 established the Scottish Social Services Council (SSSC) as the regulator of the workforce in Scotland. This founding legislation has been in place with little change thereafter. Whilst this has supported the registration of the workforce, the legislative powers relate largely to the individual worker (through the conditions for registration) rather than the employer's role in supporting this. The current powers therefore have limitations which hinder the ability of the regulator to ensure that employers fully support the workforce in meeting the requirements of registration.

Currently the vast majority of the social services workforce are regulated through SSSC, however there are some groups that remain unregulated including health care assistants, day care of adult services and personal assistants – the latter being highlighted by the Independent Review of Adult Social Care (IRASC) as an issue. Given the overarching purpose of regulation is public protection there is merit in further considering the expansion of regulation to additional categories working with vulnerable groups.

Employers are required to adhere to the SSSC's codes of practice, however there is no power for the SSSC to enforce this, nor is there any statutory obligation on employers to ensure staff attain the qualifications required for registration within the necessary timescale. Where SSSC have investigated the fitness to practise of an individual, SSSC can impose a range of sanctions on them but has no power to compel or support the employer to ensure these sanctions are implemented within the required timescale. The provision of these additional powers will ensure staff are supported by employers in meeting their regulatory requirements.

Strengthening the requirement on employers to fulfil their obligations in line with the codes of practice would be improved by enhancing regulatory powers to ensure that employers have a duty to ensure that any fitness to practise decisions relating to employees are fully implemented, and to support those employees to undertake all necessary qualifications and continuous development within the required timescales to achieve and maintain registration.

In undertaking fitness to practise investigations, SSSC are required to gather information from a number of external organisations to support their enquires. A failure to provide this information can, and does, impact on their ability to conduct fair and transparent investigations, impeding their ability to investigate cases, with knock-on consequences for public protection. Additional powers to compel these organisations to provide the regulator with the required background information when investigating cases of a worker's fitness to practise is also recommended.

Questions

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?

BSL Version of Question 83

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

BSL Version of Question 84

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

BSL Version of Question 85

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

BSL Version of Question 86