Regulation of Care (Scotland) Bill: Stage 2
I welcome the Deputy Minister for Health and Community Care and his team to the meeting. Before we start, I will apologise, as this is the first time that I have had to chair the committee when it is dealing with legislation at stage 2. I apologise in advance for any mistakes I make—please bear with me.
I advise members of a printing error on the marshalled list of amendments. At the top left of page 2, the number 147 should be disregarded. The first amendment on the page is amendment 182, in the name of Richard Simpson. I also advise members that we should cover only up to section 27 today, not to section 28 as we had anticipated.
Section 21—Inspections
Amendment 207 is grouped with amendments 145, 208, 161, 181 and 148.
This group of amendments relates to the powers of the proposed Scottish commission for the regulation of care to inspect and interview. I want the commission to put at the heart of its work the voice of the person using the service and that of the people caring for them. Therefore, it will be essential that inspectors can take a wide range of views on the quality of the services that are provided. It is not only the view of the person using the service that counts, but the views of other people close to them. That covers a range of people, from informal carers to the formal representatives of those who are not able to articulate views for themselves. Amendments 207 and 208 ensure that it is clear that inspectors have wide powers to conduct interviews as they consider appropriate.
I move amendment 207.
Do you wish me to speak to the other amendments in the group?
Yes, please.
Amendment 145 does not take account of the confidential nature of medical records or of the potential breach of human rights that would arise if the commission had the power that the amendment would grant. Inspectors are able to see medical records if the individual concerned consents. There is no need for statutory provision to achieve that, so I ask John McAllion not to move amendment 145.
Amendments 161 and 181 seek to add to the list of groups whom inspectors can interview in private. Amendment 161 would add carers and amendment 181 would add parents, carers, guardians and welfare attorneys. I welcome the principle behind the amendments, but there is no need for a provision to allow the interviews of such people to be held in private. They are not part of the care service and could well be interviewed off the premises and separately from the rest of the inspection. However, I make it absolutely clear that the inspectors' powers include being able to interview all relevant people. That is provided for by amendments 207 and 208, which I covered a moment ago. On that basis, I ask John McAllion not to move amendment 161, and Richard Simpson not to move amendment 181.
Although I have sympathy with an amendment that seeks to give people help with information technology, I consider amendment 148 to be too broad. If it relates to a need for staff training, that matter is being considered elsewhere in preparation for the setting up of the commission. If the intention is to require the provider to provide all the necessary assistance, I believe that the provision is too open-ended. Accordingly, I ask John McAllion not to move amendment 148.
I lodged amendment 145 on behalf of the National Association of Inspection and Registration Officers, which is the union that looks after inspectors in the care services sector. Its members believe that "(other than medical records)" should be deleted, because inspectors should see all records that are relevant to the care of a person who is receiving care. It is important to be clear about the difference between GP records, which will not normally be in a home, and care records, which will include GP and nursing advice that is essential to the good care of an individual and must always be in a home. Those records must be accessible to all authorised officers in the commission. That is the view of the practitioners.
Amendment 161 was inspired by the Convention of Scottish Local Authorities, which believes that inspectors should have the right to interview in private—with consent—any carer, and that that should be made explicit in the bill.
Amendment 148 was also inspired by NAIRO. It argued that such an amendment would prevent well-meaning but technically incompetent inspectors being unable to make use of the access offered or, worse, damaging the equipment or inadvertently deleting or amending records. That is NAIRO's view, not necessarily mine—it seems to know more about the matter than I do.
Those are the arguments behind the amendments that I have lodged. If the minister responds to them, I will consider what he suggests.
Amendment 181 and, indeed, amendments 182 and 183 in the next grouping deal with the same issue: persons with incapacity. My concern is that the role of such individuals and people associated with them as under the Adults with Incapacity (Scotland) Act 2000 should be specified in the bill. The role and rights of people with incapacity is not clear enough. That is why I have lodged amendment 181 and—for slightly different reasons—amendments 182 and 183, which I will address when we come to the next grouping.
To some extent, in winding up I am repeating points that I have made, but I remind members that amendment 207 makes it clear that the inspectors can conduct any interview. That was always implicit, but amendment 207 makes it explicit that they have the power to interview the people to whom Richard Simpson and John McAllion have drawn attention. No one can doubt that "any interview" covers the people who have been referred to.
That an interview may take place "in private" needs to be specified only in relation to people who are in a care service. Section 21(4)(c) makes it clear that a provider does not have the right to say, "You will not interview that care service user without my being present," and that private interviews are allowed. However, no uncertainty arises in the case of the people to whom John McAllion and Richard Simpson referred, as there is no question of a private interview not being allowed. It is not necessary to make "private" explicit, as we expect that interviews with such people will be in private.
On amendment 145, care records will be accessible but medical records are a different matter. There are human rights issues in relation to the confidential nature of medical records and consent would be required for inspectors to see them.
On amendment 148, inspectors will be trained in information technology. Staff training is being addressed elsewhere. That is the way to deal with the issue, rather than have a wide provision that appears to require the provider to provide all the necessary assistance. It would be reasonable to expect that inspectors will have been trained in IT prior to doing their work.
I accept what the minister says about amendments 161 and 148. Given that the GP and nursing advice that will be kept in care records in a home will be accessible to inspectors, I am happy not to move amendment 145.
Amendment 181 is probably covered, so I am happy not to move it.
Amendment 207 agreed to.
Amendment 145 not moved.
Amendment 208 moved—[Malcolm Chisholm]—and agreed to.
Amendments 161 and 181 not moved.
Amendment 146 is grouped with amendments 182, 13, 147, 183, 209, 210, 184, 14 and 211. Under the pre-emption rule, if amendment 146 is agreed to, amendment 182 cannot be moved, and if amendment 147 is agreed to, amendment 183 cannot be moved.
Amendments 146 and 147 are in essence the same amendment dealing with, respectively, medicine and dentistry. They relate to inspections under section 21, where the authorised person is a medical practitioner or a registered nurse.
NAIRO's position is that it is no part of an inspector's duty to carry out a medical examination, nor should some inspectors be able to access medical records and others not. However, different parameters may be appropriate in the inspection of independent health services, where the service being regulated is explicitly and mainly medical. That does not apply to nursing homes. With amendments 146 and 147, NAIRO seeks to establish a level playing field for all inspectors, rather than single out those who are authorised medical practitioners, registered nurses or, indeed, dental practitioners.
I move amendment 146.
Do you wish to speak to amendment 147?
The argument for dentistry is the same as for medicine.
Amendments 182, 183 and 184 are to do with incapacity. Amendment 182 makes it clear that if someone
"is incapacitated, but does not express, indicate or demonstrate any unwillingness"
to be examined, an examination can be conducted. It is important to state that clearly in the bill. Amendment 183 applies the same argument to dental care. Amendment 184 links the presence of third parties at examinations to the Adults with Incapacity (Scotland) Act 2000, so that the bill is aligned with that act.
I will speak to amendments 13, 209, 210, 14 and 211 and respond to the other amendments in the group.
Amendments 146 and 147 would prevent suitably qualified inspectors from making immediate examinations of individuals whom they believe are not receiving proper care. That does not make the best use of time or available expertise and undermines the main thrust of the bill, which is to provide better protection for the public. If an inspector who happens to be a qualified doctor or nurse has serious concerns about the condition of an individual in, for example, a care home, it is unnecessarily bureaucratic to require them to send for another doctor or nurse before determining whether their concerns are justified. Accordingly, I invite John McAllion to withdraw amendment 146 and not to move amendment 147.
Amendments 182 and 183 raise complex issues. They attempt to provide for examinations to take place when a person is incapacitated but does not demonstrate any unwillingness. In such circumstances, it would not always be possible to determine the motivation behind any expressions of willingness or unwillingness.
If medical treatment, including any related examination, is necessary for an incapable person, part 5 of the Adults with Incapacity (Scotland) Act 2000 allows it to be carried out in the absence of the consent of the patient or an authorised person, but subject to stringent safeguards. It would be inappropriate to bypass those safeguards on examinations without consent. Such examinations could constitute assault. In addition, they might be contrary to article 8 of the European convention on human rights. However, I recognise that it would be helpful to clarify in the bill that the most vulnerable people can be protected by examination, subject to any safeguards the law might require. That is my fundamental point. We just need to follow part 5 of the Adults with Incapacity (Scotland) Act 2000, rather than change the bill as Richard Simpson suggests. Amendment 211 provides clarification on that point. Accordingly, I ask Richard Simpson not to move amendments 182 and 183.
Amendment 184 would allow the decision on whether a third person can be present at an examination to be taken by someone authorised to do so under the Adults with Incapacity (Scotland) Act 2000, or by a parent or guardian. That would not be appropriate. The intention is to allow a comforter or supporter to be present, but not to require one to be present, and certainly not to set up bureaucratic arrangements to secure consent for such a presence when the service user cannot give it themselves. However, we propose that section 21(9) should be extended to allow a third party presence at the request of the inspector, provided that the service user consents. That might be useful, for example, when an inspector examining a service user of the opposite sex wishes a third party to be present. Amendments 209, 210 and 211 achieve that aim. I commend them to the committee and ask Richard Simpson not to move amendment 184.
Amendments 13 and 14 are technical amendments that are proposed as a result of consultation with interested professions. Strictly speaking, a nurse cannot carry out a medical examination—only a qualified medical practitioner can do that. We want to provide for an inspector who happens to be a nurse to be able to conduct a physical examination with the consent of the person cared for. Amendment 13 deletes "medical" and replaces it with "appropriate" to allow for a medical practitioner or nurse to use his or her skills when necessary. Amendment 14 simply defines the meaning of "appropriate examination", when the authorised person is either a medical practitioner or a nurse.
I invite the committee to agree to the Executive amendments.
Provided that the minister is totally convinced that the alignment between the Adults with Incapacity (Scotland) Act 2000 and the Regulation of Care (Scotland) Bill is clear and that there are no risks to those who are most vulnerable, I will accept that the links do not need to be spelled out.
I accept the minister's comments about unnecessary bureaucratic hurdles.
The alignment is clear and in such situations we must follow what is outlined in the Adults with Incapacity (Scotland) Act 2000.
Amendment 146, by agreement, withdrawn.
Amendment 182 not moved.
Amendment 13 moved—[Malcolm Chisholm]—and agreed to.
Amendments 147 and 183 not moved.
Amendments 209 and 210 moved—[Malcolm Chisholm]—and agreed to.
Amendment 184 not moved.
Amendments 14 and 211 moved—[Malcolm Chisholm]—and agreed to.
Section 21, as amended, agreed to.
Section 22—Further provision as regards inspections
Amendment 148 not moved.
Amendment 162 is grouped with amendments 163, 164, 165, 149, 166, 214, 212, 150 and 215. If amendment 212 is agreed to, amendment 150 will be pre-empted.
The basic principle that underlies amendment 162 applies to amendments 165 and 166.
Amendment 162 provides that following an inspection the commission will produce, in the first instance, a draft report. The reason is that although the bill provides for appeals against non-registration or deregistration, there is no right to review or appeal in connection with the outcome of any inspection. An adverse inspection report could have significant consequences for care provision and may ultimately lead to deregistration. A negative report that was unfairly compiled could have a detrimental effect on a person's livelihood, particularly within the private sector. It is essential, therefore, that the constitution and operation of the commission in the determination of those issues should comply with article 6 of the ECHR, which deals with the right to a fair hearing. To that end, I ask that a draft inspection report be prepared initially, allowing the service provider 14 days within which to make written representations. The service provider could make a formal request to have the report changed in areas in which he or she perceives there to be inconsistencies. If the commission rejects the service provider's comments, provision should be made to enable the provider to appeal against the terms of the report. Amendments 162, 165 and 166 seek to put such procedures in place.
Amendment 164 alters the terminology of section 22 in relation to the service of the inspection report. It ensures that consistent terminology is used in the bill in relation to the serving of reports and notices. The serving of the inspection report will conform to the rules that are set out in section 27.
The amendments were suggested by the Law Society of Scotland.
I move amendment 162.
Amendments 163, 149 and 150 deal with access to inspectors' reports.
Amendment 163 is inspired by COSLA. Although COSLA welcomes the provisions under section 22, it points out that the commission should have a responsibility to make reports available in other formats and, where required, in minority ethnic languages. COSLA also argues that, while the committee and the minister have often referred to the need to make copies available in either large print or Braille, which are well-known alternative formats, local authorities have developed other formats, such as graphic reports for those with learning disabilities. COSLA believes that amendment 163 would enable the commission to make reports in all possible forms.
Amendments 149 and 150 are inspired by NAIRO. Their intended effect is to increase the profile of the commission's duty to give priority to the need for service users, carers and their representative groups and those with responsibility for purchasing those services to have ready access to the inspectors' reports.
Amendments 214 and 215, which are in my name, are self-explanatory and I will not speak to them, as I do not want to take up the time of the minister or the committee.
I call the minister to speak to amendment 212.
Section 22(5) requires the commission to prepare a report on the inspection of a care service and to send that report to the service provider as soon as is practicable. The main purpose of that is to allow the provider to act on the report as soon as possible. It was also intended to give the provider the opportunity to comment on any inaccuracies in the report, with a view to having them corrected by the commission before the report is finalised and published more widely. I agree that it is fair to allow providers to check for errors or omissions in inspection reports, and we would expect the commission to do that. However, amendments 162, 165 and 166 would provide for a more elaborate scheme of commenting on draft reports.
As I understand it, amendment 149 would mean that comments on reports could be made only after the reports were in the public domain. There would be no obvious advantage in an approach whereby providers could be subject to embarrassment and their commercial viability could be damaged through the publication of a report containing a significant error or omission. There is nothing in the bill to prevent the commission from showing the report to a person if the commission considered that that person should have the opportunity to comment. I assume that amendment 149 is about sending a report before publication and that amendment 150 is about sending it after publication.
The detailed process and timing issues are operational matters for the commission to determine. To set them out in the bill as has been suggested would be inappropriate and unnecessarily inflexible. However, a simpler amendment that makes specific what the amendments intend—providing for the commission to send a draft to the provider—would be helpful. Amendment 214 is such an amendment, and I am happy to accept it. On the ground that I am prepared to accept amendment 214, I ask John McAllion not to move amendment 149 and I ask Mary Scanlon to withdraw amendment 162 and not to move amendments 165 and 166.
Amendment 164 suggests that the commission's staff would personally have to present reports to providers, rather than sending them by post, e-mail, courier or other means. In many cases, the inspector will produce the report on site at the end of the inspection, but other reports may require some time for consideration. Having to present them by hand would lead to unreasonable logistical pressures on the commission for no obvious benefits. Accordingly, I ask Mary Scanlon not to move amendment 164.
Section 22(6) requires the commission to make inspection reports available to the public at its offices and allows for the commission to take any appropriate steps for publicising such reports. The effect of amendment 150 is essentially the same. Users, carers and the public are already covered by the term "any person" in section 22(6), but amendment 150 would give the commission a duty, rather than a power, to publicise reports. I agree with John McAllion that there should be such a duty and have accordingly lodged amendment 212 to that effect.
The commission should also be required to ensure accessibility of reports. I am happy to accept what I take to be the principle of amendment 150 on publicising reports. The same point is covered in amendment 163. However, I believe that John McAllion's concerns are covered by amendment 215, in the name of Margaret Jamieson, which will ensure that copies of reports are
"made available or provided in such a form as the person may reasonably request."
I believe that that amendment is clearer. I am therefore happy to accept amendment 215 and I ask John McAllion not to move amendments 150 and 163.
What is the difference between amendments 162, 165 and 166, in my name, and amendment 214, in Margaret Jamieson's name? Amendment 214 states:
"Before finalising a report … the Commission shall give the person providing the service inspected an opportunity of commenting on a draft of the report."
Is that significantly different from the amendments that I lodged?
How much is up to the discretion of the commission? Will all providers have an opportunity to comment on the draft of a report before it is finally published and in the public domain? That would cover all my concerns.
I certainly accept the principle behind the amendments that Mary Scanlon lodged, but I feel that they are a bit bureaucratic and that the details are too explicit. However, the principle is important. A draft report should be available so that the provider can comment, particularly on inaccuracies. Other issues may be involved; the provider may disagree with a judgment that has been made, for example. However, providers should certainly have the right to draw inaccuracies to the attention of the commission and, if the point was objective, the commission would take it on board. That seems fair to the provider, which is why I do not think that reports should be widely distributed in draft form. A report should go to just the provider in draft form, so that inaccuracies can be sorted out. Afterwards, other measures in the section would come into play for the wide dissemination of an accurate report.
Will it be standard practice for each provider to be given that opportunity?
Yes. Each provider will be given the opportunity to see a draft of the report. That is the effect of amendment 214.
That would meet my concerns.
I welcome amendment 212 and the fact that the minister will accept amendments 214 and 215. However, I want to be clear about what "available for inspection" and "publicising the report" mean. Do they mean that a member of the public who is interested in the report can ask for a copy to be sent to them? The phrase "available for inspection" does not make it clear whether it is up to the commission to say whether the report will be publicised in any other way. As a member of the public, can I write to ask for a copy of the report?
You could, or—I know that you are an information technology person—you could find it on the web.
Amendment 162, by agreement, withdrawn.
Amendments 163 to 165, 149 and 166 not moved.
Amendment 214 moved—[Margaret Jamieson]—and agreed to.
Amendment 212 moved—[Malcolm Chisholm]—and agreed to.
We cannot deal with amendment 150 because we have agreed to amendment 212.
Amendment 215 moved—[Margaret Jamieson]—and agreed to.
Section 22, as amended, agreed to.
Section 23—Regulations relating to the Commission, to registration and to registers
Amendment 66 moved—[Malcolm Chisholm]—and agreed to.
Section 23, as amended, agreed to.
Section 24—Regulations relating to care services
Amendment 151 is grouped with amendments 152, 153, 15, 218, 154 and 20.
Amendments 151 to 154 deal with the right of Scottish ministers to make regulations that impose conditions and requirements on care services. Amendments 151 and 153 substitute the word "may" with the word "shall". I would be interested to know why the minister does not want all the requirements under section 24 to be imposed through regulations. He has already conceded that, in section 22, "may" should be replaced by "shall", so I do not see why he cannot concede that in section 24.
Amendment 152 would insert the word "registered" before the phrase "care services". I am sure that that is what the minister intends. Amendment 154 would remove the word "or" between section 24(2)(k) and section 24(2)(l) and replace it with "and". It would be interesting to know why the minister thinks that the requirements set out in paragraph (l) should be an alternative to those set out in paragraph (k) rather than supplementary to them.
I move amendment 151.
Before I speak to the amendments that I lodged, I will deal with amendments 151 to 154.
There is sometimes a case for changing "may" to "shall". I did that with amendment 212 in the previous grouping, but I do not think that logic demands that every time "may" appears in the bill it should be changed to "shall". Section 24 enables ministers to make regulations that will apply to care services. Subsection (1) provides a general power to make regulations, imposing any relevant requirements. Subsection (2) amplifies that, providing for regulations to be made that will be key to the registration of care services. The regulations will ensure that care services are suitably managed, staffed and equipped and that premises are fit for their purpose.
Amendment 151 would require ministers to make regulations under section 24. Amendments 153 and 154 would require that the regulations made under section 24(2) cover all the aspects set out in that subsection. On the word "or" in section 24(2)(k), paragraphs (k) and (l) are not alternatives. With such a list of requirements, there has to be an "or" rather than an "and"—the word "and" would mean that the regulations must cover everything in the list. The use of the word "may" means that word at the end of the list has to be "or"—that is the nature of the list.
It is not necessary to place a duty on ministers to make the regulations. We are committed to introducing regulations under the section. Together, the regulations and the national care standards will underpin the new regulatory system. It is not necessary for the regulations made under section 24(2) to cover each of the areas set out in that subsection. The subsection gives examples to ensure that the regulation-making power is sufficiently wide. As I have said, the regulations will link closely with the national care standards. The detail about what the care standards should cover and what should be covered by regulations has still to be finalised. What is decided about the balance between standards and regulations may be reviewed and changed in the future. Ministers therefore need a flexible power, rather than a duty, to make the regulations, to enable them to respond to changing circumstances.
The care standards will constitute an important document. I am sure that members have examined the ones that been issued already. The care standards contain a vast amount of detail, which makes it inappropriate for them all to be included in either primary or secondary legislation. Members will probably have recognised that it would be difficult to capture some of the care standards in legislation. The standards may, for example, say that care service users should have a tasty breakfast; it would be difficult to translate that into secondary legislation.
As members know, the commission for the regulation of care will, under section 5, have to take the care standards into account in making its decisions. Even making all the regulations mandatory would not necessarily secure John McAllion's objective, as that would not determine what was covered by the regulations. We could end up with regulations that covered only one or two points. In the bill, we are proposing a balance between the regulations and the care standards. A different view could be taken over time about which of the care standards should be translated into regulations. No doubt the committee, among others, will have a view on that. I hope that John McAllion will not press amendments 151, 153 and 154.
Amendment 152 is unnecessary. All care services, as defined in section 2, must be registered with the commission or they will be operating illegally. All such services will be caught by the provisions of the bill and must comply with the relevant regulations. If a service does not fall within the definition in section 2, it would not need to register with the commission or meet the requirements of regulations under section 24. Moreover, the use of the word "registered" before "care services" is not consistent with the rest of the bill; to insert "registered" here would mean that it had to precede all other references to care services. On those grounds, I hope that John McAllion will not move amendment 152.
Amendment 15 deals with day care for children. The decision to regulate fully day care for children up to the age of 16 was announced in December 2000, so it is now appropriate to require that any person in a childminder's household should be fit to be in the proximity of children up to the age of 16 rather than just children up to the age of eight. The amendment corrects that anomaly.
Amendment 20 will allow regulations to be made under section 24 that apply to, or exclude, certain services. For example, regulations in relation to a childminder may be different from those in relation to a large care provider. The amendment gives the flexibility that is necessary so that not all regulations need apply to all care services. For example, regulations under 24(2)(i) may not require the commission to examine the financial position of childminders. However, we will want the commission to assess in detail the financial position of those providing care home services. The amendment will allow greater flexibility and ensure that services are governed by appropriate regulations. The provision is sensible and I hope that the committee will accept it.
Amendment 218 is unnecessary. There is no need to have regulations to allow the commission to issue guidance. The commission will already be able do so under its general powers provided in the bill. If the commission were to be required to issue guidance, the appropriate mechanism would be by regulations under section 23(1)(a), conferring an additional function on the commission. The commission might want to issue case studies that illustrated how good-quality care services met the costs of the national care standards. However, that is rather different from the guidance that Richard Simpson is proposing in amendment 218.
The commission will be a powerful body for change. First, it will comment from its unique viewpoint on the state of the care market in general and on overall trends, so that the Parliament, ministers and local authorities can take its views into account when considering funding issues. Secondly, it will focus on ensuring that only care services that meet the national standards are able to operate. That will be a powerful lever for change. Local authorities will not be able to meet the needs of their areas unless they enable care providers to meet the required standards and so be allowed to operate. If the commission tries to balance funding and quality issues itself, it will be hamstrung and the drive to improve care services for users will run into the sand. That argument also relates to amendment 219, which we will debate in a later grouping. I hope that Richard Simpson will agree not to move amendment 218.
Having heard the minister, I will reserve my arguments for amendment 219, which will be debated shortly.
I seek clarification from the minister on the registration of childminders. Will the provision cover all the people who live in the home of someone who is applying to be registered as a childminder? I am concerned about individuals living in the household who might hold a firearms certificate. Given the experience in Dunblane, some authorities, such as South Ayrshire Council, have taken that on as a specific policy issue.
The provision should cover that. I know that a councillor in Ayrshire has concerns about the issue and I will look into it in more detail.
Thank you.
I accept the minister's comments on amendment 152 and I understand the technical nature of the word "or", which amendment 154 deals with.
I seek an assurance from the minister that the examples of areas in which ministers may introduce the regulations that are set out in subsection 24(2) are not optional. The fitness of employees to provide services, the fitness of premises and the welfare of the users of the service are not optional things that ministers may or may not regulate about. I seek reassurance that there will be regulations to cover all those areas.
Basically, there will be regulations and there will be care standards. What might change over time is which care standards are translated into regulations. Care standards will cover all the matters that you mentioned.
Are you saying that some of the areas detailed in section 24(2) might not be covered by regulations?
That is clearly why the word "may" is used in section 24(2). If it were not, I would accept amendments 151 and 153. That said, there is no doubt that regulations will be introduced to cover the persons and premises mentioned in 24(2)(a), (b) and (c).
Why detail those aspects in the bill and then say that you might not issue regulations on them after all?
We must specify them in the bill in order to give the Executive the power to make regulations through subordinate legislation. However, that does not mean that we are immediately required to make those regulations.
Which of the areas mentioned in section 24(2), paragraphs (a) to (l), may not be covered by legislation?
I knew that you were going to ask that question. If I had been sensible, I would have had an answer ready. [Laughter.]
As I said in my opening remarks, the question is the balance between care standards and regulations. For example, I am not sure whether the stipulation in section 24(2)(i) to
"impose requirements as to the financial position of a provider of a care service"
would require regulation. On the other hand, some measures such as making
"provision as to the fitness of premises to be used for the provision of a care service",
which is outlined in section 24(2)(c), will be regulated on. People might not think that regulating on
"the financial position of a provider"
was quite so fundamental, although it is included in that section of the bill.
Who will monitor whether or not you should regulate on such areas?
Obviously, John, you are part of the monitoring process in the new Scotland, so I am sure that you will keep a careful eye on things.
For the moment, yes.
Although I am not completely satisfied by the minister's answer, I am prepared to withdraw amendment 151 because the committee will continue to monitor what ministers get up to.
Amendment 151, by agreement, withdrawn.
Amendments 152 and 153 not moved.
Amendment 15 moved—[Malcolm Chisholm]—and agreed to.
Amendments 218 and 154 not moved.
Amendment 16 is grouped with amendments 17 and 18.
Amendment 16, in my name, ensures that regulations can be made on the provision of NHS services in premises where a care service is provided. For example, such regulations might require care home providers to arrange for residents to receive services from chiropodists, physiotherapists and so on. Amendment 17, in my name, is a technical amendment that removes unnecessary wording.
Amendment 18, also in my name, is also a technical amendment and has been added for the avoidance of doubt. It ensures that palliative care—which includes hospices—is regulated by the commission as independent healthcare provision.
I move amendment 16.
Amendment 16 agreed to.
Amendments 17, 18 and 132 moved—[Malcolm Chisholm]—and agreed to.
Amendment 19 is grouped with amendment 167.
Section 24(10) deals with consultation on regulations that are made under section 24. Amendment 19, in my name, will strengthen the Executive's commitment to continued consultation. It will require ministers to consult anyone whom they consider appropriate on all regulations that are made under section 24 and it will remove ministers' powers to decide not to consult on amending regulations that do not effect substantial change.
We lodged the amendment in response to concern that the Subordinate Legislation Committee expressed at stage 1, that what constituted substantial change would be unclear. The amendment will mean that all regulations that are made under the section shall be subject to consultation.
Amendment 167 would require ministers to consult local authorities and health boards on regulations that are made under section 24. At earlier meetings, we discussed the virtues of requiring those organisations to be included in consultations. I am sure that John McAllion will not be surprised to hear that I remain opposed to the wording of the amendment. Regulations under section 24 will affect all care service providers, not just local authorities and health boards. It would be wrong to single them out in the suggested way.
Amendment 167 also suggests that the views of providers are more important in this context than the views of service users. Ministers already have a duty under section 24(10) to consult all those whom they consider it appropriate so to do. That will include service providers. We are committed to the consultation process and will ensure that, as part of it, local authorities and health boards have the chance to comment on the regulations.
I remind the committee that the Executive will consider all the consultation provisions in the bill before stage 3 to ensure that they are consistent and appropriate. I made that promise at previous meetings. On that understanding, I hope that John McAllion will not move amendment 167.
I move amendment 19.
Amendment 167 was inspired by COSLA. It seeks a guarantee that ministers will consult local authorities and health boards. I hear what the minister says about the technicalities of restricting consultation to some bodies and about the fact that those bodies will have the chance to comment. Will the minister guarantee that the Executive will consult local authorities and health boards before making the regulations?
Absolutely. We will consult them and many others. We are studying all the consultation provisions to ensure that they are consistent and make it clear that local authorities and health boards will be consulted, among others.
The word "guarantee" is now on the record. On that basis, I will be happy not to move amendment 167.
May I seek further clarification of section 24(10)? It says:
"Before the Scottish Ministers make regulations … they shall consult any other person they consider appropriate."
If it is appropriate for local authority providers to consult local authorities and health boards, may I take it from what the minister says that private, voluntary and charitable-sector providers will be consulted, as well as carers' organisations? What is the definition of appropriate?
In speaking to amendments 19 and 167, I said that the regulations will cover all providers. We are considering whether the bill is drafted to be clear and consistent about who will be consulted. We will conclude that consideration before stage 3.
Will users, as well as providers, be consulted?
Absolutely. I made clear the importance of consulting users.
Do you wish to wind up, minister?
I dealt with John McAllion's point in my brief exchange with him. I gave him the guarantee that he sought, so there is nothing further to say.
Amendment 19 agreed to.
Amendment 167 not moved.
Amendment 20 moved—[Malcolm Chisholm]—and agreed to.
Section 24, as amended, agreed to.
After Section 24
Amendment 219, in the name of Richard Simpson, is in a group of its own.
Amendment 219 seeks to insert a new section into the bill. It both gives the commission power and places a requirement on it—the word "shall" is included—to examine and comment on contracts.
There are a number of separate issues in the proposed section, but its main thrust is to ensure that, while care standards are set and maintained by the care commission and public funding continues to be made through the local authorities, some effort should be made to join those arrangements up so as to ensure transparency in the funding arrangements. Post-Sutherland, when nursing care and personal care are to be free, the local authority will effectively become a monopoly purchaser. I favour a scheme similar to the pharmaceutical price regulation scheme, as that type of arrangement creates broad agreement between the various sectors that are involved, including on levels of profitability. The local authorities will purchase care services from their own providers and from the voluntary, charitable and private sectors.
During evidence, concerns were expressed that there is an inequity between the purchase of provision from the local authority and purchase from the voluntary, charitable and private sectors. One of the aims of the new section inserted by amendment 219 is to achieve equity between the sectors. The facts of the current inequity are borne out in a number of different ways. One is the gap between occupancy rates in the public and private sectors; even the rates that are published are not accurate. I have recently learnt that, in the non-public sector, there are repeated changes in the level of registered beds. That is done to cope with low occupancy rates and the changes in staffing that are required to maintain the funding arrangements for the voluntary, charitable and private sectors.
My other main concern has also been expressed by unions such as Unison. They have expressed concerns about levels of remuneration and employment terms and conditions in the voluntary, charitable and private sectors. My concern is that there should be some mechanism to ensure that wage levels are maintained. It seems to me that a major gap exists. As no one is commenting on the contracting arrangements, we should put pressure on those involved.
Credence is given to suggestions that low wages are being paid by the complaints from a few owners about the introduction of the national minimum wage. Paying professional care workers something below the current or the future national minimum wage seems to me to be inappropriate. If we are serious about standards and about increasing the professionalism of staff, including their employment terms and conditions and training arrangements, we must ensure that standards of care are met in all respects and that funds are available for that.
I seek to give the commission the power to comment. The committee has had reports in evidence—and I have received private reports—that in the past few years some local authorities have given either no increase or below-inflation increases to voluntary providers. If that is the case, how can those voluntary and charitable-sector providers continue to provide an adequate standard of care without squeezing the wages of those who are employed in the sector?
The entire and rather complicated additional section is designed to ensure that there is transparency in funding arrangements. That will open up for debate the question of the examination of contracts for care services. Involving the commission in the way that I propose would allow us to do that.
I move amendment 219.
Amendment 219 is interesting and raises important issues. It reminds me of earlier discussions that we had about the appropriate role of the commission and the appropriate role of local authorities. My feeling is that, once again, an attempt is being made to transfer the responsibilities of local authorities to the commission, which is inappropriate. The issue of wages is important, but clearly it is a matter for national Government to ensure that the minimum wage is observed. There are interesting aspects of the wage argument that overlap with arguments about best value.
We all want a fair and equitable system for the funding of care services, which is why I understand the principles behind the amendment. For many years, voluntary and private-sector providers have complained about inadequate funding from local authorities and other major purchasers of care services. At the same time, they see that local authorities' own services can be relatively well funded, and that sometimes local authorities' places are filled before they consider commissioning from other providers. Moreover, the need for a level playing field between local authority and other providers in relation to inspection was one of the main motivating factors behind the bill.
As members are aware, the care development group, which I chair, is examining all current funding streams for the care of older people and will recommend any changes that it thinks are necessary. Some of the streams referred to in the amendment are being considered, along with new factors, such as the cost of care standards. To help with that, a survey has been commissioned from PricewaterhouseCoopers on the cost of care homes and the likely cost of implementing the new national care standards.
The Scottish commission for the regulation of care will have an important role in contributing to thinking on the funding of care, as it reports to ministers and Parliament through its annual report. As you know, it is intended that the commission will fulfil the recommendation of the Royal Commission on Long Term Care for the Elderly that there should be a national care commission to take a strategic overview of the care system and its funding, and advise on trends. The commission will be well placed to do that, as it will have detailed and authoritative knowledge of every care service.
However, it would not be appropriate for the commission to consider funding alongside quality issues when looking at an individual care service. It is for the democratically elected local authorities, which can consider the interests of their local population overall, to decide the proportion of their resources which should be spent on purchasing care. Local authorities must also take best value into account. The commission should not be attempting to second-guess such decisions in relation to any particular care service.
Richard Simpson's new section does not indicate what would happen if the commission looked at a particular care service and considered that the local authority funding was inadequate. There are no provisions in the proposed section to require the local authority to take any action to increase the funding, and it is presumably unlikely that it would do so, just because the commission suggested it. Having come to its view, the commission would not logically be able to impose any conditions on the care service or take any enforcement action. That is inconsistent with, and cuts across, the commission's overall function of applying and enforcing care standards. The commission will have accepted that the problem is financial and not within the provider's power to resolve, so there would be stalemate.
Moreover—and this is an important practical point—providers would quickly realise that the way to avoid conditions on their registration would be to require the commission to examine their contracts. We would find that every private provider with a grievance would immediately ask the commission to investigate the contract. The result would be a dilution of the value and importance of care standards and no improvement in the care service. That cannot be in the interests of service users.
I remind the committee of the phrase "a lever for change", which I used when talking about an earlier grouping of amendments. The commission's report will be a lever for change. The care standards will have to be met and in that sense local authorities will have to respond to what the commission says, because they will be obliged, in whatever services they commission, to ensure that the standards are met.
It is an interesting and quite complex argument, but I do not think that amendment 219 is the way to address the problem, which we are considering in the care development group. It is a big issue, but one to address in other ways. I therefore ask Richard Simpson to withdraw the amendment.
Amendment 219 is important and I support it in the light of the evidence that we heard. The issue that voluntary organisations in particular voiced time and again was the instability of their funding streams. When the minister discusses funding and quality issues as not being connected, I disagree. I think that they are absolutely connected. That is the point of the amendment.
We are discussing cases where a voluntary organisation fails to meet standards for no other reason than the fact that they do not have the funds to maintain those standards. I would have thought that, even if it is only a matter of the commission highlighting that as the reason for a failure of standards—if there is no reason apart from funding—putting that into the public domain would itself be an important measure. When the minister mentions a lever for change, I would say that putting the lack of funds as a reason for failing on standards into the public domain may itself be a lever for change. It could be flagged up that a local authority is not providing adequate resources to a voluntary organisation, which may, up to that point, have provided a very good level of service. I think that amendment 219 is important, and have not heard anything in the minister's response that has satisfied me.
I also fully support the amendment. I do not think that it would be right to wait for the care development group to be set up, irrespective of whether it is addressing the matter. Amendment 219 is a serious proposal that addresses many of the issues that we face.
The current system is not fair and equitable. As Stewart Sutherland said when he addressed the committee, there is "bad practice" but "also some good practice" in the public and the private sectors.
What we seek—and I agree with what the minister says about best value—is best value for the community care pound. For example, in the Highland Council region, private charities and the voluntary sector have been given a 1.8 per cent increase in funding. They are starved of referrals and funds, yet are faced with higher water rates and inspection costs, and need new investment in order to meet standards. In the Highland Council region, it costs more than twice as much to have a person cared for in a council home as in a private home. It is not a level playing field. Council homes are fully funded, whether they contain one person, 50 people or are full; in the private sector, homes are funded only per patient.
The Highland Council's social work services operate on a home care basis, from nine to five. Any work outwith those hours is given to the private sector. People may have to go 30 miles up a glen to tuck someone into bed. They will get paid for one hour's work, but will not receive reimbursement for their travelling time. I ask the minister to re-examine amendment 219 because it addresses some of the serious issues that we are faced with. It is a reasonable amendment, and I ask him to reconsider it.
I echo Shona Robison's sentiments. There are two issues arising from this amendment, and I am not sure whether the minister, in his comments, has properly grasped the strength of feeling that has been expressed to the committee on this issue, nor—because of the problems of funding—the potential impact on what the bill is trying to achieve.
The first point, which has already been touched on, relates to the fact that it was raised with us time and again that the level of fees that local authorities have paid to private voluntary providers simply does not reflect the nature of the service that they offer. The impact of that is threefold. First, there is an impact on the viability of some of the providers. Secondly, there is the impact that Richard Simpson raised: that on the pay and conditions of staff working in care homes. Thirdly, unless the approach to the problem is realistic, we create a situation in which the translation of the objectives of the bill into practice will be difficult in some settings. There is a feeling that, if there are problems with the level of fees now, once the bill introduces standards that are—we hope—higher, those problems will only get worse. That is why it is important that we address the problems fully at this stage.
The second issue is the discriminatory treatment, on the one hand, of some local authority care homes and, on the other, of those in the private and voluntary sectors. I agree with Shona Robison that it is absolutely impossible to divorce funding from quality. The two are inextricably linked. If a provider—perhaps an excellent provider—is prevented from implementing the higher standards that the Scottish commission for the regulation of care might want it to implement simply because it does not have realistic funding streams from local authorities, there surely must be some way of dealing with that.
I have listened to the minister's objections. There may be valid objections to how amendment 219 is worded, but there must be a way of dealing with the problems. The minister's opening remarks did not convince me that the Executive has a full enough appreciation of the issue or that it is doing any real thinking about how we address the issue in the short term while the bill is going through the Parliament.
I accept that there is a genuine problem, particularly with the funding streams to the voluntary and charitable sector. I do not accept that amendment 219 addresses that problem effectively.
First, I am very unhappy with about notion that an unelected quango can be used as a weapon against a locally elected authority, particularly by the private sector. That causes me a great deal of alarm.
Secondly, I do not think that the use of the quango would be effective in addressing the problem. The fact that the commission would be able to write to a local authority to say that it did not think that it was funding a provider enough does not solve the problem; it just exacerbates what is already a difficult problem. Democracy then comes into the issue.
Thirdly, such issues are essentially political. They must be decided by elected politicians, whether locally or nationally. If local authorities are not funding the voluntary and independent sectors properly, that is probably because, the local authorities would argue, they are not being funded properly by the Scottish Executive. That then becomes a matter for the politicians in the committee and elsewhere in the Parliament. If the local authority is falling down on its responsibilities, that is a matter for the local electorate and the local councillors. A quango that has been appointed by ministers is not in a position to get embroiled in such political matters in any effective way.
I will resist amendment 219 because it would make a bad situation worse rather than better.
One point that I did not mention is that the private, charitable and voluntary sectors are not getting a fair hearing. Amendment 219 would give them a fair hearing. I refer again to article 6 of the ECHR.
I start by disagreeing with Shona Robison. I did not say that funding and quality are not connected—they self-evidently are connected. The issue is how we address that. Amendment 219 highlights a problem, but although it is right to highlight the problem, it proposes the wrong solution. The amendment would simply not have the desired effect. It would not even have the effect that the private and voluntary sectors, who might ostensibly benefit from it, desire it to have.
As I indicated in my opening remarks, just because the commission could point out that, in its view, a local authority did not give enough money to a provider, that would not necessarily lead to the local authority giving more money. It might lead to the local authority deciding not to use that provider at all but to commission services from some other provider or use more of its own.
There is therefore no connection between what the amendment proposes and the solution to a real problem. I agree entirely with John McAllion, who put in even stronger language than I did my point about the distinction between the role of the commission and the role of local authorities. Some members perhaps think that the amendment would be to the benefit of particular providers or assume that it would improve wage rates. Who is to say that it would improve wage rates?
It may be the view of the commission that, as long as people have the minimum wage, that is all that they will factor in to meet the care standards and that they will not build in any other costs. Perversely, it could have a negative effect on the workers in care services. It is certainly not the role of the commission to express a view about an appropriate wage rate; that is the role of the unions and democratically elected authorities in response to the demands that are made.
I strongly resist the approach taken by amendment 219, although that is not to say that I do not recognise the problems that it addresses. The function of the commission is to ensure that we have new uniform standards throughout Scotland. That will be thoroughly beneficial for service users throughout Scotland. When it issues its reports, the commission will be a lever for change. When reports are issued, the status quo is not an option.
The commission will also be making general comments in line with its function as a national commission along the lines suggested by the Sutherland report. However, to move from that to commenting on individual contracts is a very big step. Mary Scanlon mentioned the ECHR, and I think that a right for the commission to examine individual contracts may well be against the ECHR. We should remember that it is not just local authorities that have contracts; individuals who use care services have contracts as well.
Finally, no appropriate regulations are listed under section 24(1) to cover what is proposed by amendment 219. In that sense, even if the amendment were passed, it would not actually work technically to achieve its intended effect.
Before I respond to the minister's comments, I have to ask whether I have to continue to make the declarations of interest that I made at the beginning of the bill's progress. I should draw people's attention to my written declaration and to the declarations that I have made on previous occasions.
Please specify your declaration.
I am director of a nursing home company that operates in England and Wales, not in Scotland. I am also a member of the Manufacturing, Science, Finance union, although I do not know whether that is pertinent in this case.
I am not convinced by the minister's arguments. If he had undertaken to lodge another amendment to give powers, either to ministers or to the commission, to examine contracting processes within what will be a monopoly purchaser after the Sutherland recommendations are implemented, I would have been more prepared to withdraw amendment 219. However, as things stand, I am not prepared to do so.
The situation that we are faced with now is one of increasing complexity in relation to the purchasing arrangements. Until now, we have had residential homes registered, and they tended to be paid for at a specific level within the voluntary, charitable and private sectors. The arrangements vary from local authority to local authority, which may be appropriate for their individual circumstances, but there has been one level of purchase for residential homes. The same is true of nursing homes: there has been one level of purchase for nursing homes.
Now, we are going to move to a situation in which there is a single home registration and there will no longer be a differential. That has been welcomed by everybody who has come before us, but we will end up with individual care packages. Unless those care packages are costed properly and equitably between all providers, we will be faced with an extremely difficult situation. For the minister not to want to give powers, either to himself or to the commission, even to comment on those care packages is, in my view, a singular weakness of the bill.
I entirely accept the minister's point that the wording of amendment 219 may not be appropriate. It is my amendment, which I prepared without help from any outside group, and I do not have access to lawyers. If the committee agrees to the amendment today, it would be up to the minister to amend the wording further or to delete it at stage 3. However, it is inadequate that we have not had an undertaking from the minister to introduce powers to scrutinise the contracting process and that he proposes to leave it to the care development groups.
Let me make it quite clear that, if we were to give it the function of considering the purchasing of care services as well as their quality, the commission's impact would be greatly reduced. It would no longer be able to focus principally on the interests of service users, which is what the commission is fundamentally about. It would have to take account of a range of other factors and could not press for improvements in quality. It could not be seen as the guarantee that no service is allowed to operate in Scotland that does not enhance the quality of care and the quality of life for our children and vulnerable adults.
There are other mechanisms that can and will be used to consider the difficult issues around commissioning and finance. The bill was intended to address issues of quality. We must ensure that it does so in the most straightforward and effective way possible. The national care standards are of critical importance. They offer a way of ensuring that, for the first time, all services are designed around people's needs and wishes. That is a prize well worth achieving. The commission is not intended to and cannot be expected to resolve every problem with the care system in Scotland. Only the commission can resolve the issue of quality. We must let it do that simply and unequivocally. That will be the lever for change that I referred to earlier. The other mechanisms can then come into play to ensure that quality is raised and the other issues that Richard Simpson is concerned about are dealt with. I once again ask him to withdraw his amendment.
Do you wish to press the amendment, Richard?
Yes.
The question is, that amendment 219 be agreed to. Are we agreed?
No.
There will be a division.
For
Robison, Shona (North-East Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Simpson, Dr Richard (Ochil) (Lab)
Sturgeon, Nicola (Glasgow) (SNP)
Against
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
McAllion, John (Dundee East) (Lab)
The result of the division is: For 4, Against 3, Abstentions 0.
Amendment 219 agreed to.
Section 25—Transfer of staff
Amendment 121 is grouped with amendments 122 and 156.
Amendment 121 is another example of changing "may" to "shall". Amendments 121 and 122 were lodged to take account of the first two paragraphs of section 25. Changing "may" to "shall" would more firmly enshrine in legislation the protection afforded to staff. The same argument was used previously that the word "may" implies "may not"; "shall" firms that up.
I move amendment 121.
Amendment 156 deals with the schemes for the transfer of staff. It would add an additional part to those schemes to include arrangements for time-limited secondments rather than permanent transfers at the date of transfer. It would also include voluntary redundancy or early retirement options. Schemes should also include arrangements for secondments or employee exchanges between the commission and local authorities, health boards and the independent sector organisations, where the commission considers such arrangements to be beneficial to recruitment for and development of its service. At present, the legislation appears to rule out, by not ruling in, a range of constructive options that will enhance employee security and remove the starkness of a choice of transfer to the commission or loss of employment.
What the amendment is getting at is that we do not want the situation to develop where those serving on the commission deal only with regulation and have no practical experience of good practice in the field. The amendment would allow and facilitate exchanges between providers in the field—people who have experience of good practice who could then serve on the commission to the mutual benefit of everyone concerned.
Section 25 of the bill makes provision for the transfer of local authority and health board staff to the commission. As it stands, under section 25(1), ministers have the power to make a transfer scheme for staff moving to the commission but they are not required to do so. Amendment 121 will place a duty on Scottish ministers to make a transfer scheme. We fully support the principle that the terms and conditions of staff transferring to the commission should be protected by such a scheme. I am therefore happy to accept the amendment.
Amendment 122, although relating to the same issue, would have the effect of applying any transfer scheme to all staff currently employed on registration and inspection work. However, there are staff for whom registration and inspection form only a small proportion of their work. Such staff are unlikely to transfer to the commission. Also, some staff may simply choose not to transfer to the commission. Any transfer scheme should not apply to those people. I therefore ask that amendment 122 be not moved.
Amendment 156 would provide for the transfer scheme to include arrangements for staff to be seconded to the commission, for staff exchanges and for the voluntary redundancy and early retirement of staff from the commission. Amendment 156 is not required because staff exchanges are covered by paragraph 6(1) of schedule 1, which provides for the commission to appoint employees. Staff should not be forced to take a secondment or transfer. Issues such as voluntary redundancy and early retirement are covered by employment law, which the commission would need to comply with, and are therefore not required in the bill. I hope that I have met John McAllion's concerns and that he will not move amendment 156.
Amendment 121 agreed to.
Amendments 122 and 156 not moved.
Section 25, as amended, agreed to.
Section 26 agreed to.
Section 27—Giving of notice
Amendment 67 moved—[Malcolm Chisholm]—and agreed to.
Section 27, as amended, agreed to.
That concludes today's business. We are well within the time scale. I thank you all very much.
Meeting closed at 12:17.