National Care Standards Review: Consultation Analysis

6 Accountability And Enforcement

Background

6.1 The Scottish Government proposes that the new overarching standards should sit above all existing standards, principles and codes of practice for health and social care. They also propose that the CI and HIS should hold services they regulate to account for meeting these essential requirements and use the aspirational elements of the standards to help services improve where needed.

6.2 Some services are not regulated by the CI and HIS and consideration needs to be given to how these services comply with the standards.

6.3 The Scottish Government considers that there is a role for the CI and HIS to take forward the development of the suite of specific standards for particular aspects of care, circumstance or need, in consultation with partners, professionals and people using services to ensure they are firmly focused on best practice and meeting users' needs. These specific standards would set out in detail the essential components that a service regulated by the CI and HIS must demonstrate.

Question 4a): Do you think the CI and HIS should hold services they regulate to account for meeting the proposed overarching standards, the general standards and the suite of specific standards?

6.4 423 respondents (89% of all respondents) provided a response to this question (although several others provided related commentary but did not indicate clearly whether they agreed or disagreed with the proposal). Of these, 373 (88%) agreed that the CI and HIS should hold services they regulate to account for meeting the proposed overarching standards, the general standards and the suite of specific standards. 12 respondents (3%) disagreed, 2 respondents had mixed views and 36 respondents (9%) did not know. Five individual respondents were amongst those opposing the proposal, with the remaining seven representative of a range of different sectors.

Views in favour of the CI and HIS holding services they regulate to account for meeting the standards

6.5 The most common reason to support the proposal was that without this, the standards would be rendered ineffective, with patchy take up. Holding services to account was seen as a way of supporting improvement in provision of care. Typical comments included:

"We would ask, if providers are not held to account then why have a set of standards?" (United Kingdom Homecare Association).

"There is no point in developing standards if they are not implemented and achievement against them measured" (Individual respondent).

6.6 Several respondents commented that the proposal represented a transparent, independent scrutiny process which would promote consistent standards of care. This was seen as particularly important for users moving between different settings, for example, supported accommodation to hospital. A few respondents highlighted the importance of both regulatory bodies holding services to account, in view of the integration of the health and social care domains.

6.7 Some respondents expressed surprise at the question, stating that this falls clearly within the remit of the CI and HIS anyway and will not require additional inspection services to be established.

6.8 A dominant theme was that incorporating these standards within these regulatory regimes will help to make expectations of service provision clearer for both service providers and service users.

6.9 Another prevailing theme throughout many responses was that there needs to be a consistent approach to inspection. Some felt that this has not been achieved, but the proposal could help to promote greater consistency in inspection approach.

6.10 Two respondents considered that the proposal would boost public confidence in health and care service provision, in the knowledge that services are being held to account for delivery of the standards by these regulatory bodies.

Views on how best to implement the proposal

6.11 A dominant view was that there should be clarity on the criteria against which providers will be held to account, what good practice looks like, and what evidence is required to demonstrate that standards are being met. A typical comment was:

"It is ..... vital that the Scottish Government, the Care Inspectorate and Healthcare Improvement Scotland, as well as any other regulatory body who may be involved in scrutiny of services, ensure that the expectations and practicalities for service delivery are clearly defined, including support for providers in relation to how practice may be evidenced" (Alzheimer Scotland).

6.12 Some suggested that examples of areas of excellence are identified and rolled out nationally or shared across providers.

6.13 A few individuals recommended a bedding in period during which existing services are given time to understand the new requirements and put in place provision to achieve these. One private organisation suggested that the proposal be piloted in the first instance to see if it is feasible and robust in practice.

6.14 Several respondents urged that commissioners of services in addition to service providers are included in the inspection regime.

6.15 An emerging theme was that of the need to implement the new scrutiny processes within a supportive context in which services are supported in their actions to work towards the standards. Some felt this could require additional resources to finance services; others identified making reviews easy to comprehend, clear and accessible, with help such as staff training offered where services fell short of meeting standards.

6.16 Another prominent theme was that of making the scrutiny process more than simply a paper exercise, by ensuring that the regulators involve users, carers and staff in their inspections, seeking their views on more qualitative aspects of the standards. One respondent remarked:

"There was general agreement that Inspectors should spend more time speaking to the people and reduce the amount of paper checking that is done at present" (Scottish Consortium for Learning Disabilities).

Another agreed:

"The most comprehensive reflection of our service has always come from the people who use our services. They are able to give a realistic and honest account of what we do and how we do it. It is vital that people are consulted well within this process and the written feedback forms need to be improved to make them more accessible to people with learning difficulties" (Edinburgh Cyrenians).

6.17 Several respondents called for an open process in which concerns can be raised by users, families and staff to feed into the regulatory process It was felt that "whistle-blowers" should be protected and some form of systematic and independent complaints procedure should be in place to support the proposal. One voluntary organisation emphasised the need for clarity on who to complain to, in view of the different regulatory bodies involved.

6.18 One individual respondent urged that users and their families are informed by the regulators of any interim measures that will be put in place should a provider fail to meet the new standards.

6.19 A few respondents considered that greater liaison between regulators and service providers would be beneficial in promoting compliance with the standards, particularly in helping to move towards the aspirational aspects. Greater collaboration in working was viewed as relieving the pressure which can build for providers around inspections. Six respondents recommended unannounced visits by inspectors; one voluntary organisation advocated "secret shoppers".

6.20 A recurring theme was that the proposal required to be implemented consistently by CI and HIS inspectors, with some respondents providing their view that that this is not always the case at present.

6.21 Issues were raised by respondents over the relationship between existing codes of practice and regulatory regimes and the proposed regime. Views were divided on whether rationalisation is required, with some respondents calling for all other standards such as those relating to health and safety, environmental health, children and young people, and so on, being incorporated within one inspection process to avoid duplication and promote streamlining. However, others expressed concern that the proposal may result in current standards, such as Care for Dementia, becoming sidelined.

6.22 Several respondents highlighted areas of provision which they felt required specialist advisors to assist the CI and HIS. Included in these were equality and human rights issues and learning disability and autism, where some respondents felt that inspections could benefit from expert knowledge.

6.23 Other views on implementation were put forward by only a few respondents:

• The proposal will only work if the standards are supported with penalties for non-compliance.
• The proposal will need to work within the current variety of accountability models such as the Scottish Government's management of the NHS Boards, and as such will require other bodies to develop complementary improvement and action plans.
• More inspectors will be required to carry out the proposal.
• The education model of inspection is one from which lessons can be learned.
• Implementation of the proposal should be proportionate and not result in a burden on service providers.

Concerns over the proposal

6.24 A broad concern was that the proposal could lead to confusion and duplication, with inspections of all three sets of standards imposed over and above existing regulatory regimes and inspections. Some felt that holding services to account for meeting the standards constituted just a "tick-box exercise" focusing too much on paperwork instead of examining the day-to-day experience of users.

6.25 Two voluntary organisations cautioned that the overarching standards may not be readily measurable. A housing association considered the proposal to represent a challenge for both sets of inspectorates to apply consistently across all of the environments they covered.

6.26 One representative organisation commented that the National Care Standards cannot be enforced as part of a regulatory regime, as they constitute "good practice" only, without the backing of legislation.

Additional queries raised

6.27 A small number of additional queries were raised in response to the question:

• How can services appeal against conclusions of inspectors?
• Should commissioners of services be assured that the services they procure meet the National Care Standards before going forward with the commission?
• Who will monitor the inspectors to ensure they are carrying out their inspections consistently?
• What will happen if a service is not meeting standards due to lack of funding? Will they get funding support?

Question 4b): How should we ensure that services not regulated by the CI and HIS comply with the new standards?

6.28 347 respondents (73% of all respondents) provided a response to this question. Several more respondents (largely individuals) felt that they could not respond as they were unclear about aspects of the question such as the difference between regulated and non-regulated services and the remits of the regulatory bodies. It was highlighted by respondents from a range of sectors that the implementation of self-directed support makes it much more likely that non-regulated services may be procured by users, increasing the current challenge around ensuring compliance with standards.

6.29 Amongst those who responded, two day care centres argued that there is no reason for insisting on compliance with the new standards for services that are not regulated. Two other respondents (Vol, Ind) commented that compliance will be virtually impossible to ensure amongst non-regulated services. A local authority remarked that if the standards are to be applied to non-regulated services then these will need to be very clearly defined, with subsequent monitoring of compliance difficult in the absence of any contractual specification. Three further respondents (two local authorities and one individual) cautioned that imposing the national standards on services run largely by volunteers could be discouraging and could result in a fall in numbers of volunteers. One respondent (Vol) argued that service users should have the right to be able to choose their service from a regulated or non-regulated body.

6.30 A common concern was that some bodies providing health and social care (particularly where they are responsible for vulnerable people such as those with learning disabilities) are not regulated. 55 respondents (38 of them individuals) considered that any health and social care service provider should be required to become regulated. Two private organisations suggested that ancillary workers within a registered service and those working under 2 hours each week, neither of whom are currently subject to regulated requirements, be brought within the umbrella of the regulations

6.31 A few respondents acknowledged that some small providers did not require to be regulated, and that the cost and bureaucracy associated with regulation could be disproportionate in some circumstances. Instead, ideas were put forward on various compromises involving registration with some form of quality scheme which members of the public and commissioning bodies could view and take into account in their choice of procurement. Recommendations included:

• kite mark
• certificate of merits
• quality status
• affiliation to a body already regulated
• quality assurance scheme
• voluntary registration with a code of conduct (it was highlighted that Codes of Practice for Social Service Employees applies to all workers, not just those subject to regulation)
• time-limited "licensing.

6.32 35 respondents (26 of them individuals) proposed that the inspectorate bodies have their remits extended to encompass monitoring of compliance amongst non-regulated service providers, even if this is conducted on an "informal" basis (LA). One respondent (Ind) suggested that non-regulated providers be offered the opportunity to pay (a small sum) to request an inspection on a voluntary basis, thus providing them with the chance to be recognised as adhering to the standards. A few professional representative bodies commented that the inspectorate bodies could work in collaboration with other regulators such as the Scottish Housing Regulator, Mental Welfare Commission, or Scottish Public Services Ombudsman to undertake some form of monitoring of non-regulated services.

6.33 Another common recommendation (34 respondents across a wide range of sectors) was for commissioners of services (e.g. local authorities, local health and social care partnerships) to be responsible for monitoring adherence to standards amongst the services they procure, with compliance specified in the service contracts. Comments included:

"All services which fall within the scope of the care standards should be held accountable whether or not they are regulated. Anyone commissioning these services should inspect and assess the service being provided for them. It should not always be left to the regulatory body to follow up, there should be constant reviews to ensure standards set do not drop below what is contracted for in accordance with the relevant standards" (Association of East Lothian Day Centres).

6.34 One local authority, however, questioned the integrity of this, suggesting that there may be a possible conflict of interest if the commissioner is also the regulator. Another commented that they would prefer to adopt a best practice model than be required to regulate the services they had procured. One respondent (CHCP) argued that non-regulated services should not be commissioned in the first instance.

6.35 A prevailing theme was that awareness-raising of the standards amongst service providers and service users could go some way to ensuring shared, high expectations of service provision with failure to achieve these more readily identified by all. One voluntary organisation remarked:

"While non-regulated services cannot be made to comply with the new standards, correct presentation of the standards and the communication of their importance could encourage non-regulated services to strive towards meeting the minimum requirements. By establishing a good knowledge of the standards amongst service providers, and by encouraging service participation in the employment of the new standards, a culture of adherence could be naturally fostered" (Scottish Consortium for Learning Disabilities).

6.36 To support this, recommendations were made for emphasising the merits of self-regulation by non-regulated bodies with reports on findings made accessible, perhaps strengthened by a requirement that the reports be submitted to regulators. Calls were made for provision of staff training, and ongoing support and advice to non-regulated providers to help them understand and comply with the standards. Others argued for discreet complaints procedures in which users and whistle-blowers can air their grievances in confidence without fear of retaliation. One respondent recommended "citizen models of regulation" (Ind); others (Vol, Ind) suggested that independent advocacy be made more available to help users to understand their rights and identify if these are being breached.

6.37 A few respondents (six clear mentions) alluded to the possibility of establishing another independent review/regulatory body to carry out the function of monitoring compliance to the standards amongst non-regulated services.

6.38 Six respondents considered that the current legislation (e.g. Equality Act 2010) and various codes of conduct provided a strong framework in which non-regulated bodies could be held to account for standards grounded in human rights.

Question 4c): We suggest that the CI and HIS, consulting with others, should develop the suite of specific standards. Do you agree with this?

6.39 412 respondents (87% of all respondents) provided a response to this question. Of these, 350 (85%) agreed that the CI and HIS, consulting with others, should develop the suite of specific standards. 35 respondents (8%) disagreed, 1 respondent had mixed views and 26 respondents (6%) did not know. Amongst the 35 respondent who opposed the suggestion were 14 individuals, eight private organisations, seven voluntary organisations and four local authorities.

Views in support of the suggestion

6.40 Many of the respondents who supported the suggestion provided their reasons for expressing support:

• These inspectorates are well placed to take part in developing the standards in view of their expertise and experience.
• They are also well placed to ensure wide engagement with stakeholders.
• Developing the standards in consultation with others will ensure common understanding of the final standards.
• The standards developed in this way will be meaningful, realistic and achievable and cover all the relevant aspects of care.
• This process will engender trust and confidence in the standards.
• The standards will be easy to understand if a wide range of stakeholders are involved in their development.
• In keeping with public service reform.
• In keeping with a rights-based approach.
• Inspectorates should be involved in developing the standards they subsequently inspect.
• This will ensure the suite of specific standards will be affordable (the view of one private organisation).

6.41 Many respondents emphasised their view that the process of developing the standards should go beyond "consultation" which implied, for some, the inspectorate producing the first draft for others to comment on. They advocated a co-productive process with collaborators working alongside each other, and engaging specialists where greater expertise is required relating to some standards (for example, learning disability).

6.42 13 respondents called specifically for the process to be meaningful and not simply tokenistic. One commented:

"Includem would welcome discussion to develop meaningful involvement of, and consultation with service users, in the development of specific standards. However if not given sufficient attention this risks becoming a tokenistic exercise with little benefit or sense of real empowerment or ownership to those involved" (Includem).

6.43 Three respondents recommended flexibility in response formats if service users are involved in providing input, with one specifically requesting that responses are accepted both on-line and also in other formats (Vol).

6.44 Other suggestions were made for formats for consultation:

• organisations hold their own national meetings which feed back to the development team
• reference group of users
• core groups of stakeholders consulted
• multi-staged consultation, with further consultation following initial drafts
• not dominated by professionals and service providers.

6.45 Whilst a few respondents remarked that the word "others" was vague, many made recommendations for who the "others" should be:

• service users
• service providers
• carers/families
• professionals/regulators/education/social work/statutory bodies
• members of the public
• staff
• self advocacy groups
• other stakeholders receiving only a few specific mentions: NHS/Health Boards; GPs, commissioners of services; police; those in the criminal justice system.

Concerns regarding the suggestion

6.46 The most frequently raised concern was that scrutiny bodies should not be involved in developing the standards they will subsequently scrutinise, as this lacks independence and rigour. 11 respondents from a range of sectors alluded to this. A typical comment was:

"Regulators should not be responsible for developing standards. They should confine themselves to regulation. The development of standards is part of a democratic process to be done by the Government not independent bodies" (Braeburn Home).

6.47 A few respondents commented that Scottish Ministers should be responsible for preparing and issuing the standards which is aligned to the principle on which the Regulation of Care Act 2001 National Care Standards was based, separating the responsibility for standards from the upholding of them.

6.48 One local authority felt that the two inspectorates did not reflect the breadth of service provision with a voluntary organisation remarking that in their view they do not have sufficient expertise and experience in equality and human rights relating to minority ethnic communities.

6.49 A question was asked about how conflicting views would be balanced in the consultation (Ind). Another respondent (DC) expressed concern that wide consultation could result in the standards trying to achieve too much. One individual respondent cautioned that involving others in developing the standards may result in undue influence given to affordability (although one respondent reported in 6.37 above considered this to be an advantage).

Summary of main findings

• A large majority of respondents agreed that the CI and HIS should hold services they regulate to account for meeting the proposed overarching standards, the general standards and the suite of specific standards.
• Many respondents called for greater consistency in approaches to inspection and clarity on the criteria against which providers will be held to account.
• Common views amongst individuals (as opposed to organisations) were that all providers of health and social care services should become regulated; or that inspectorate bodies should have their remits extended to encompass the monitoring of compliance amongst non-regulated service providers.
• There was much support for the CI and HIS to lead on the development of the specific standards, in order to ensure they had credibility, were meaningful and realistic.