Regulation of Care (Scotland) Bill: Stage 2
Agenda item 3 is stage 2 of the Regulation of Care (Scotland) Bill. I welcome Malcolm Chisholm and the bill team.
After section 27
Amendments 68, 70, 71, 72, 73, 74, 75, 133, 69 and 77 are all in the name of the minister and have previously been debated with amendment 62. Does any member object to a single question being put on the amendments?
No.
Amendments 68, 70 to 75, 133, 69 and 77 moved—[Malcolm Chisholm]—and agreed to.
Section 28—Constitution of Scottish Social Services Council
Amendment 220 is grouped with amendment 221.
Amendments 220 and 221 are in the spirit of previous amendments that Kate MacLean and I lodged to encourage equal opportunities in the bill and necessitate the observance of equal opportunity requirements in legislation.
I move amendment 220.
Members will recall that we discussed amendment 123, which was lodged by Kate MacLean, at the committee's first meeting at stage 2, together with amendment 99, which introduced equal opportunities provisions for the Scottish commission for the regulation of care. We accepted the equal opportunities provisions for the commission and it follows that equivalent provisions should also be inserted for the Scottish social services council. However, it is better to include the necessary provisions in section 28(2) rather than subsection (1) where amendment 123 would have placed them. Subsection (2) is about the functions of the council. Janis Hughes has recognised that by lodging amendment 220, which I am happy to accept.
Amendment 221 will require Scottish ministers to have regard to equal opportunities policy when deciding on appointments to the council. We support that principle and I am happy to accept the amendment. Amendment 102, which Janis Hughes also lodged, added a similar provision to schedule 1 on commission appointments.
The Scottish Executive is committed to promoting equality of opportunity for all. In support of that commitment, the Scottish Executive is taking a new strategic approach to ensure that equality of opportunity is at the heart of policy making. I am happy to accept amendments 220 and 221.
Amendment 220 agreed to.
Section 28, as amended, agreed to.
Schedule 2
Amendment 221 moved—[Janis Hughes]—and agreed to.
Amendment 21 is grouped with amendments 22, 23, 24 and 25.
The committee will recall that I lodged a series of amendments at our first stage 2 session to adjust the composition of the board of the commission. Amendments 21, 22, 23, 24 and 25 make similar provision for the board of the council.
Schedule 2 to the bill makes provision as to the constitution of the council. It specifies the groups that should be represented on the board and enables ministers to make regulations for the appointment of the convener and members of the council.
Amendments 21, 22, 23 and 24 will alter the proposed membership of the council's board. As it stands, schedule 2 requires appointments to balance the interests of various stakeholder groups. We now consider that such an approach would not provide the most effective model of management for the council. We therefore propose that the board should be relatively small and that members should be selected on the basis of their management abilities.
The requirement for a balance of interests creates a tendency towards a large board and makes it more difficult for ministers to appoint on the basis of individual ability. However, we want to ensure that those registered with the council and the users of services and their carers have a direct voice at the heart of the council.
To that end, the amendments provide that at least two places on the board will be reserved for users and carers and two for those registered with the council. Other members of the board will be appointed on the basis of their managerial abilities rather than as representatives of particular stakeholder groups.
Amendment 25 will enable the council—like the commission—to pay pensions, allowances and gratuities to its employees. As it stands, schedule 2 makes provision for the appointment of the council's staff, but does not allow the council to make those payments.
We expect about 16 staff who are currently employed by the Central Council for Education and Training in Social Work to transfer to the council and we have given an undertaking that they will do so on terms and conditions that are no less favourable than those they currently enjoy. That cannot happen unless we amend the bill to allow the council to pay pensions, allowances and gratuities. The council will also employ new staff and will need to be able to make such payments to them too.
In summary, amendments 21, 22, 23 and 24 are designed to ensure effective management and operation of the Scottish social services council. At the same time, they allow users of services and their carers and those registered with the council to have a direct say in the operation of the body.
Amendment 25 will give the council the powers necessary to pay pensions, allowances and gratuities to all of its employees.
I move amendment 21.
I have a question about user and carer involvement, which has been a contentious issue. User and carer organisations were concerned that they were not going to get the required level of representation. Is it fair to say that user and carer organisations are more satisfied with this new arrangement for representation?
I have not had any representations to say that they are dissatisfied with what is proposed—that is all that I can go by. I am not aware that they have been making that point to other members. My understanding is that they are satisfied with the proposals.
The selection process is not laid down; how will it work?
The positions will be advertised.
Amendment 21 agreed to.
Amendments 22, 23, 24 and 25 moved—[Malcolm Chisholm]—and agreed to.
Schedule 2, as amended, agreed to.
Section 29 agreed to.
Section 30—Applications for registration
Amendment 134 moved—[Malcolm Chisholm]—and agreed to.
Section 30, as amended, agreed to.
Section 31—Grant or refusal of registration
Amendment 78 is grouped with amendments 79 to 82.
Section 31(1) lists the conditions that an applicant must satisfy in order to be registered with the social services council. Once the application has been considered against those conditions, the council has the option of granting the application unconditionally, or subject to conditions. Otherwise, the application is refused.
Amendments 78 and 79 will ensure that the options that are open to the social services council for granting applications for registration are stated clearly at the start of section 31 and in a way that leads logically to the decision making and appeal process. That would improve the clarity of the bill.
Section 32 allows the social services council to give notice to a registered person that it proposes to vary or remove an existing condition of registration. Alternatively, the council could impose a new condition. No such notice is needed when the council completes its initial assessment of an application and decides to grant an application subject to conditions, or to refuse an application. We think that such notice is desirable.
Amendment 80 will require the social services council to give notice to an applicant of a proposal not to grant an application unconditionally, and so require the same of the council at the outset under section 31 and later under section 32.
We are committed to openness and transparency in all aspects of the work of the social services council. It is therefore important that the council gives reasons to applicants and registered people for proposals to refuse an application for registration, impose conditions on registration or vary or remove such conditions. Amendments 81 and 82 would require the council to provide reasons for such proposals.
Amendment 82 would also remove section 32(2), which requires the social services council to set out in rules how procedures under section 32 will operate. That is to allow the provision to be clarified and strengthened. The next group of amendments that we will discuss—amendments 83, 84 and 85—replace section 32(2) and place appeal procedures in the bill for applicants and registered people who are given notice under sections 31 and 32.
Each of amendments in the group will strengthen the bill and, accordingly, I urge the committee to accept them.
I move amendment 78.
Amendment 78 agreed to.
Amendments 79, 80 and 81 moved—[Malcolm Chisholm]—and agreed to.
Section 31, as amended, agreed to.
Section 32—Variation etc. of conditions in relation to registration under this Part
Amendment 82 moved—[Malcolm Chisholm]—and agreed to.
Section 32, as amended, agreed to.
After section 32
Amendment 83 is grouped with amendments 84 and 85.
As I said when we discussed the previous group, the amendments in this group clarify and strengthen the provisions that were in section 32(2), which we have just agreed should be removed.
Amendments 83 and 84 would provide an applicant with a right to make written representations against a decision by the social services council to refuse an application or to grant an application subject to conditions. The amendments would also provide a registered person with a right to make written representations to the council about a proposal to vary or remove a condition of registration, or to impose a further condition, or about a decision to remove, suspend, alter or restore an entry in part of the register.
The amendments would provide a staged process for an applicant or a registered person to appeal to the social services council against its decisions. They would allow the council to reconsider its decisions on the basis of written representations from an applicant or registered person.
The amendments would avoid the need for matters that could be resolved between an individual and the social services council to be referred unnecessarily to the sheriff. They would relieve the courts from being burdened with cases that should rightly be considered by the council in the first instance. The inclusion of deadlines for representations and appeals should ensure that matters are dealt with promptly and that final decisions are not delayed.
Amendment 85 follows from amendments 83 and 84. It clarifies the circumstances in which an applicant or a registered person can appeal against the decisions of the social services council to the sheriff, and provides a time scale. A staged process of appeal is beneficial and cost effective for all involved. The amendments will strengthen the bill.
I move amendment 83.
Amendment 83 agreed to.
Section 33 agreed to.
After section 33
Amendment 84 moved—[Malcolm Chisholm]—and agreed to.
Section 34—Appeal against decision of Council
Amendment 85 moved—[Malcolm Chisholm]—and agreed to.
Section 34, as amended, agreed to.
Section 35 agreed to.
Section 36—Codes of practice
Amendment 216 is grouped with amendment 217.
I make a declaration that I work for Nursing Home Management, which is a company that operates nursing homes in England and Wales.
Amendment 216 seeks to provide a guarantee of consultation to care service providers. That is of particular importance to providers in the voluntary sector, under the terms of the Scottish compact. The voluntary sector has suggested to me that the amendment should be moved to guarantee their rights of consultation.
Amendment 217 makes a similar amendment to section 40.
I move amendment 216.
Section 36 requires the social services council to prepare and publish codes of practice for social services workers and employers of such staff. Before publishing any codes the council must have the approval of ministers and consult the commission and any other persons that the council or ministers consider appropriate. Section 40 deals with the council's powers to make rules about registration. That includes powers to require particular groups of registered staff to undertake additional education and training. Before making or varying rules about such education and training, the council must consult staff who are likely to be affected by the rules, and other persons as appropriate.
Amendment 216 would require the council to consult employers and potential employers of social services workers before publishing a code of practice. Amendment 217 would require the council to consult employers of people on the relevant part of the register before making or varying rules about additional training and education. Although consultation will almost certainly include employers or potential employers, it might also include for example, registrants, training providers or—in the case of the codes—service users. It might include training providers in the case of the rules that are outlined in section 40(3).
It would be inappropriate, therefore, to single out employers or potential employers in the bill as if they were the most important group but, as I said several times during stage 2, we will consider all the consultation provisions in the bill to ensure that they are appropriate and consistent, before we reach stage 3. I will bear in mind what Richard Simpson said about the compact with the voluntary sector as we do that. The provisions will be included in the general review of the consultation procedures. On that basis, I ask Richard Simpson to withdraw amendment 216.
Given the minister's assurances, I am happy to withdraw the amendment.
Amendment 216, by agreement, withdrawn.
Amendment 185, in the name of John McAllion, is in a group of its own. John is in Westminster today. Does anyone else wish to speak to and move his amendment?
John McAllion has raised the issue the amendment concerns with the minister on several occasions.
I move amendment 185.
Section 36, to which the amendment relates, requires the council to prepare and publish codes of practice for social services workers and for employers of such staff. The purpose of the codes is to increase the professionalism of the work force and improve public protection. In the case of care services that are regulated by the Scottish commission for the regulation of care, adherence to the codes will be enforced through inspections that are carried out by the commission, as provided for in section 5(3). For local authorities employing field social workers, the social work services inspectorate, as part of its normal inspection programme, will review—alongside other issues—local authorities' performance against the code for employers and their methods of assuring that fieldworkers adhere to the code for staff.
Amendment 185 would place a particular responsibility on chief social work officers in local authorities to ensure that local authorities comply with any code that is published by the council. It is not appropriate to single out local authorities or to tie their hands in that way. They will require to adhere to any code in the same way as all other employers of social services workers. It should be for employers to determine how to ensure compliance with the codes within their own organisations. In the case of local authorities, chief executives should be able to delegate that responsibility to the appropriate officer or officers. The appropriate person will not always be the chief social work officer. In the case of early-years provision in schools, the appropriate person will be in the education department. For housing support services, they will be part of the housing department.
I invite Margaret Jamieson, on behalf of John McAllion, to withdraw amendment 185.
John McAllion did not give me any instructions, but I am happy to withdraw the amendment.
Amendment 185, by agreement, withdrawn.
Sections 36 agreed to.
Sections 37 to 39 agreed to.
Section 40—Power of Council to make rules
Amendment 217 not moved.
Section 40 agreed to.
Section 41—Functions of the Scottish Ministers under this Part
Amendment 186, in the name of John McAllion, is grouped with amendment 187.
Amendment 186 would underpin some of the work-force planning issues that have been raised in the consultation on the bill. It would allow that proper cognisance be given to work-force planning and that training and staff development was in place. The belief behind the amendment is that it will result in a better-trained and better-qualified work force, which would assist in bringing about confidence in the social care work force and among the public.
Amendment 187 would block a potential loophole whereby unqualified social workers could be employed to undertake inappropriate tasks. There are areas where only qualified social workers are required to provide reports, especially in relation to the courts and the Adults with Incapacity (Scotland) Act 2000 and for the children's hearing system.
I move amendment 186.
Section 41(1) lists the functions of the Scottish ministers with regard to work-force planning for the social services. The intention is to delegate all those functions to the social services council, as provided for in section 41(4). The functions are central to the work of the council. Ministers will be kept informed of progress through the council's annual report and corporate plan, and through its regular contact with the sponsor division in the Executive.
Amendment 186 would add promotion of the work done by social services workers to the list of functions. That promotional work, however, needs to be a shared responsibility. Employers, professional bodies, unions, national training organisations—including the NTO for the personal social services—the Scottish ministers and the council all need to be involved. It would therefore not be appropriate to legislate for ministers to carry that responsibility alone.
Accordingly, I ask Margaret Jamieson to withdraw amendment 186.
We acknowledge that the council will need to undertake work to clarify the functions of social workers, as background to its activities in relation to registration, education and training. We do not agree, however, that it is appropriate for the functions to be set out in regulations, as is suggested in amendment 187. Service users and employers increasingly require a flexible response from social workers. To set out their functions in regulations would inhibit what must be a dynamic service. The functions will undoubtedly develop and change over time. Regulations would also present a barrier to multi-professional working, which is crucial to the sector.
It would be difficult to determine functions that could be carried out only by social workers. Many of their activities are quite properly also carried out by other social services employees and other professionals. Counselling, for example, is often a major part of the work of social workers, but they do not have a monopoly on counselling skills. Another example is care assessment. Joint working means that social workers often share assessment work with nurses, occupational therapists and others. While the social worker brings particular skills and perspectives to that work, it would be inappropriate to specify in regulations that care assessment is an activity that is exclusive to social workers. A flexible approach that encourages joint working is required.
In trying to describe functions that are exclusive to social workers, it is likely that any regulations would lead to a very narrow definition of social workers. That could lead to individuals with appropriate qualifications and experience being unable to call themselves social workers. I should add that I see protection of title as a different issue. While the regulations proposed by the amendment would hinder the profession, protection of title—as provided for in section 35—is an important way of increasing professionalism and raising standards. Protection of title can be achieved through allowing only individuals who hold an appropriate qualification—a diploma in social work or its equivalent—to call themselves social workers.
I invite Margaret Jamieson not to move amendment 187.
Amendment 186, by agreement, withdrawn.
Amendment 187 not moved.
Section 41 agreed to.
Meeting closed at 11:55.