Subordinate Legislation
Regulation of Care (Scotland) Act 2001 (Minimum Frequency of Inspections) Order 2009 (Draft)
Item 3 is subordinate legislation. We have before us two affirmative instruments for consideration. I welcome Adam Rennie, who is deputy director, community care, Scottish Government. He will give evidence on the instruments along with the Minister for Public Health and Sport.
I remind members that we will take evidence first; after that, the minister will move the motion and there will be a debate, so there are two sections to the item. [Interruption.] Pardon? I was about to read it out.
What I am reading is highlighted in green. I do that myself; the clerk does not do it for me.
We come first to evidence on the draft order—
Is that highlighted in green?
I look forward to reading the Official Report of this item.
I am now miming to the official reporters.
The committee is getting hysterical.
As is usual practice, I invite the minister to make some opening remarks.
I am pleased to support the draft order, which will amend the minimum frequency of inspection by the Scottish Commission for the Regulation of Care for a further group of care services. The Parliament granted the Scottish ministers the power to do this in the Smoking, Health and Social Care (Scotland) Act 2005, as I recall from my membership of the Health Committee at the time. The power was used in 2007 to amend the minimum frequency of inspection for types of care services for which the commission had evidence that the required frequency was unnecessarily high in the light of the risks in those service types.
Reducing the frequency of inspections by the commission provides more flexibility in regulating care services. It supports a more proportionate, risk-based regulatory framework. It does not mean that all the services in any category will be subject to less inspection, because the care commission retains the ability to use its resources to target poorer-quality care services for improvement.
The order that the committee is considering builds on the foundation that was laid in 2007. It extends the commission's regulatory flexibility to more care service categories. The new minimum frequency of inspection for childminders will be at least once every 24 months rather than once a year. Independent hospitals and hospices will be inspected at least twice in every 24 months rather than twice a year.
For school care accommodation services, the new minimum frequency will be at least twice in the first 24 months following registration and at least twice in every 48 months thereafter, rather than twice a year. However, because of the particular risks in the sector, the reduction does not apply to special residential schools, which the care commission will continue to inspect at least twice every 12 months.
The last category is the remainder of housing support services that are not delivered in conjunction with any other care service. They will be inspected at least once in every 36 months rather than once a year. That matches the frequency of inspection for such services provided by registered social landlords, which was reduced in the Regulation of Care (Scotland) Act 2001 (Minimum Frequency of Inspections) Order 2007.
The changes are based on sound evidence from the care commission, including the number of complaints against services and regulatory activity by the commission, such as its recommendations and requirements on services, its risk assessment of them and the grading that it gives them following inspection. The vast majority of respondents to the public consultation supported the proposals.
Members will have noted that care homes and secure accommodation services are included in the draft order. That is a technical requirement because of the way that the power in the 2005 act was drafted. However, I reassure members that the order does not change the frequency of inspection for those services. They will continue to be inspected at least twice every 12 months, as shown in the order.
I emphasise that the inspection frequencies in the order are the minimum. The care commission retains its power to inspect all care services without notice at any time they are operating. In practice, it inspects care services that are new to regulation more frequently than the minimum.
I commend the draft order to the committee.
I will ask about day care for children aged three and over. If I wrote down your remarks correctly, you said that there was evidence that the required frequency should be more proportionate for this risk-based service.
I did a little bit of work on nurseries in Inverness about a year ago when my granddaughter came back to stay. The ones that we looked at were not inspected twice a year.
Whenever I have lodged parliamentary questions on the care commission, nine times out of 10 the answer has been, "This is an operational matter for the care commission." I got the same answer from the previous Government. When I try to find out who audits the care commission, that is impossible. When I looked at reports, I found one from 2005 that contained recommendations that had not been implemented by 2007, when the same matter was reported again. When the inspector returned, they accepted that what they had said was inadequate in 2005 was all right. Earlier this morning, we expressed concern about physical education and activity in schools, but I am talking about staff who were not trained, premises that were not right and infection control that left a lot to be desired.
I will not vote against the draft order, but I am seriously concerned that the care commission's work is not properly monitored and audited. Little information is available in the Parliament about what it does. I read its annual report, but that is just a glossy document that praises everything that it does.
An answer that I received from either the minister or Nicola Sturgeon said that only 15 per cent of carers and users of care services are aware of the care commission. If people do not know what it is or what they should expect, they will not know whether they should make a complaint or whether it would be justified.
I am happy that the care commission is to be merged with or taken over by NHS Quality Improvement Scotland. That is a good move. However, I have serious concerns about the operation of the care commission, particularly in relation to vulnerable children, parents who do not know what to expect, and the grading of nurseries. If there is a lack of complaints, we know the reason—it is because people do not know what to expect.
The bottom line is that I am concerned that the number of inspections of nursery schools will be reduced.
You raised quite a lot of points there. I will respond to them, although not necessarily in the same order.
For clarification, the restructuring will create two separate bodies. One merger will bring together the Social Work Inspection Agency, part of HMIE's function and the care commission, except the part of it that deals with independent hospitals, to form the social services body. The health body will be formed by merging NHS QIS with the remaining part of the care commission.
On the point about raising awareness of the care commission's function, it has been doing quite a lot to make people aware of its work. That is probably partly in response to the fact that only 15 per cent of carers and users know about it. It has been going round and doing a lot of local radio to try to make people aware of its existence and its important role in picking up on any concerns and complaints. We will need to wait and see whether that has an impact on the awareness among carers and users of care services.
The requirement is for nurseries to be inspected a minimum of once a year. Obviously, the care commission can inspect a nursery more frequently if it has concerns about it. That will not—
Is that an announced visit?
The care commission can make an unannounced visit if it wants to do so in the light of concerns, or it can make an announced visit followed by an unannounced visit if it—
But generally the visit will be announced.
Yes, but if the care commission has concerns, it can make an unannounced visit, or it can follow up an announced visit with an unannounced visit. That will not be changed by the order.
I will meet the care commission later this month. I am happy to make it aware of the concerns that you raise and ensure that it responds to you directly.
I am not saying this just because I am the minister responsible—I felt that the care commission was doing a pretty good job when I was in opposition and my view has not changed. There is room for improvement in every organisation, but when I have raised concerns with the care commission—as I know other members have done—about services in its area, its response has been robust. It has ensured that any issues that have been raised are followed up and addressed. In fact, the care services sometimes complain that they are under too much pressure and too much scrutiny. It is a difficult balance to achieve, but I will certainly raise with the care commission the concerns that you have raised with me and will ask it to respond directly.
I have three points. First, the concept is right. The assessment of risk is very important and when risk is shown to be low, on the basis of a number of reports, it is inappropriate for there to be continued inspection and a continuing requirement for care homes, in particular, to fill in bits of paper. I therefore welcome the order, because it sets the minimum frequency of inspections but does not fix the number of inspections so, if risk is detected or reported, the care commission can still go in. What will happen when there is a change in the ownership of any of the organisations to which the order refers? A change of ownership sometimes results in a change in standards or in the conditions of work for those involved.
Secondly, I am concerned that awareness of the care commission will decline rather than improve once it is merged. I want to be sure that its role will continue to be self-evident and promoted within any new set-up, because I have concerns about the number of different inspection organisations that are sometimes involved.
Thirdly, are you taking any steps, not in the order but as part of the change in the regulatory framework, to ensure that reporting, for example to local authorities on contracts as well as to the care commission, is co-ordinated to reduce the regulatory load on the organisations that are involved and to redefine the requirements on the basis of risk in the way that the care commission proposes?
The issues that have been raised are change of ownership, knowledge of the role of the care of commission when it merges—because there is apparently a lack of knowledge out there—and the number of inspections.
I will work backwards. The regulatory load is one reason why Crerar looked at what efficiencies and better practice could be introduced to the system—the resulting merger is only a part of that. I accept that there is still a dialogue to be had about what more can be done to reduce the regulatory burden, to reduce the bureaucracy and to make it easier for services that are being regulated and inspected, so that is still work in progress, although I suggest that the mergers following Crerar represent a fairly large step in that direction.
Dr Simpson asked about the effect that the merger will have on knowledge and awareness of the care commission, which relates back to Mary Scanlon's point. That is an important issue. I want to ensure that users and carers will notice no difference in the service that the care commission provides, but we need to address practical matters such as getting across the new name of the organisation and ensuring that people know how to contact it. People should experience the same response as they get now, but there is a bit of work to be done to ensure that the public are aware of the new organisation when we get to that stage.
Dr Simpson asked whether the inspection frequency would change in the event of new ownership. I said in my opening remarks that the care commission might pay particular attention to a new body. I am sure that if it had any concerns about new owners—because, for example, it had had concerns about them in a previous context—the inspection frequency would increase. Those are matters that the care commission will deal with on a day-to-day basis.
I make it clear that the order will not alter the inspection regime for care homes; it affects only the services that are laid out. We had to include care homes because of the way in which the previous legislation was drafted.
It might be that in trying to understand the order, I have become a little confused, so I will try to obtain some clarification. Am I correct in saying that the inspection regime for nursery provision for children of three or over will change from an annual inspection to one inspection every 24 months?
Adam Rennie (Scottish Government Primary and Community Care Directorate):
The inspection regime that the commission will operate for the day care of children between the ages of three and 16 will involve a minimum of one inspection every 24 months. An additional 10 per cent of services in certain positions will be randomly selected for inspection. For childminders, the regime will be one inspection every 24 months.
My previous answers probably confused Michael Matheson, because I said that there would be an inspection every 12 months.
That is the regime for services that are provided to children under three.
Providers of those services will be inspected every 12 months.
That is fine; that is what I thought. There will be a minimum of one inspection every 12 months for services for children under three.
I agree with the risk-based approach that is being adopted with the proposed changes in minimum inspection frequencies, but I wonder how the new regime will work out for a nursery school that provides care for children from six months to a year and a half, that has a unit for children of between a year and a half and three and that also has a unit for three to five-year-olds. For example, my son attends a nursery where he is in the two-to-three unit—the tweenies. I am conscious of the fact that—[Interruption.]
I am so sorry—I am being distracted by the Arctic draught that is coming in at our backs. It is very rude of us to be murmuring about it, but I think that it is time that we made this public: for the record, the computer says that the window is closed; it probably also says that we are all warm. Neither of those things is true.
My concern is that such an establishment will now be in a situation in which two parts of it will be inspected annually, but one part of it might be inspected only every two years. People from the care commission come along to the nursery that my son goes to and we benefit from a comprehensive report on the full unit. There is a single inspection regime for the different parts of the establishment. If there were two separate inspection regimes, that might involve extra time for such units, which are quite common.
Let me explain. It depends on how the nursery is registered. If it is registered as one unit—in other words, if it serves all age groups—it will be inspected once a year, because its children will include under-threes. However, it could be registered as two separate units—there might be a pre-school unit for three to five-year-olds, as well as a unit for younger children. If that is the case, the pre-school unit will be inspected every 24 months, but the other unit will be inspected once a year. It depends on how the nursery has registered itself. If it is registered as a single unit, it will be inspected once every 12 months because it caters for younger children.
What is the common approach to registering those types of units?
It varies.
We need to ask the care commission about that.
We can certainly get you that information.
I am conscious that if the majority register as one unit, the effect of the order may be minimal.
The inspection frequency will remain at once a year.
That is what I am conscious of, but if a significant number register as separate units, in some areas it could increase the resource that will have to be spent on inspecting establishments.
I appreciate that. Maybe we could follow up with a note on what the balance is in the registration of units.
Like others, I agree that inspections should be proportionate, but I have a couple of niggling concerns. Obviously, risks will evolve in real time, and I would be interested to know how the care commission will monitor those, given that it will not be inspecting as frequently. What circumstances would trigger an inspection on a timeframe that is much quicker than the one that is set out in the order?
That can happen now. A risk might emerge in a service that has just been inspected and given a clean bill of health. The important thing is that, no matter what the frequency of inspection, there are safeguards to pick up on any concerns. That is why we encourage staff working in care services to raise any concerns with the care commission, through the whistleblowing avenues. We very much encourage users of services, such as families, to do likewise.
In my experience, once people are assisted in doing that, the reaction is pretty swift. The care commission will follow up those concerns. Issues can be raised anonymously. The care commission has seven years of experience, so it knows how to probe, and it knows how to deal with vexatious complaints—if someone has a grudge against a service. It is able to get through that.
Those are issues that stand, no matter what the frequency of inspection is. Risks can emerge at any time, and it is important that people have confidence in the system and know that if they raise a complaint, it will be acted on.
We move to the formal debate on the order. I invite the minister to move motion S3M-3509.
Motion moved,
That the Health and Sport Committee recommends that the draft Regulation of Care (Scotland) Act 2001 (Minimum Frequency of Inspections) Order 2009 be approved.—[Shona Robison.]
Motion agreed to.
Regulation of Care (Fitness to Register, Provide and Manage Care Services) (Scotland) Amendment Regulations 2009 (Draft)
I invite the minister to make any opening remarks on the regulations.
Thank you for the opportunity to speak in support of the regulations.
Ensuring that the right people provide care services is an essential element of ensuring that those who use services receive good-quality care. It is part of the care commission's responsibility to ensure that potential providers are fit to carry out that role. Under the current arrangement, the commission has no discretion when someone who has a conviction applies to register as a care service provider: if an applicant has a conviction that resulted in a sentence of not less than three months—whether or not it was suspended—the commission must refuse their application. It does not matter what the sentence was for or how long ago it was.
The committee's first thought might be that anyone who has any conviction cannot possibly be fit to provide a care service to vulnerable people. I understand that, but there are circumstances in which convictions do not affect a person's ability and suitability to provide a care service. I shall give you an example. A couple apply to provide a childminding service. The husband has a spent conviction for a driving offence from his youth, since when he has married and been in steady work and the couple have successfully raised their own family. He has had no further convictions, and all the other indicators suggest that the couple should be registered. Their references are good and their health is fine but, under the present rules, the commission must refuse to register them. It has no discretion in the matter.
The proposed amendments to the fitness requirements give the care commission the discretion to decide whether a given conviction is relevant to an application to provide a particular care service. In the example that I have just given, the commission would consider carefully the circumstances of the conviction and decide whether it made the husband unfit to provide a childminding service.
The changes will bring the requirements on providers' fitness into line with those of the Scottish Social Services Council, which has the discretion to consider convictions when registering social services workers. In practice, that means that someone with a conviction can be registered with the SSSC as a social worker and carry out that role but, if they applied to provide a care service, under the current arrangements the care commission would have to refuse their application.
In proposing the power for the care commission, I make it clear that it will not be a charter for unsuitable or unscrupulous people to register care services. The commission will be required to come to a reasonable opinion, having regard to the circumstances of the conviction. It is currently preparing guidance for potential applicants who want to register care services, which will explain the criteria that will be taken into account and how the commission will exercise the power fairly and transparently. My officials will scrutinise the guidance carefully before it is published.
I support the regulations, which will amend the provisions on fitness to register, provide and manage care services.
I have a question, although it might not be necessary. It is common sense that the commission should have discretion, given the example that you gave involving a de minimis offence, but if somebody applies to register and they are refused on the basis of that discretion will there be an appeal procedure?
Do you mean an appeal against the refusal of an application?
Yes—against a refusal to register.
I do not think that there is such a procedure, but we will get back to the committee on that. I am sorry that I do not have the information with me.
Once a discretion is introduced, decisions will be taken at the edges. The minister gave an easy example, but there will be some cases that are on the cusp.
We will have to clarify that. We would look to the SSSC to find out whether there is something in line with what it does.
It might simply be an application to the sheriff court relating to a decision by the commission. An appeal procedure is important when discretion is introduced.
We will get back to the committee on that.
That is a general point. The commission already takes all sorts of decisions that potential providers might or might not want to appeal against.
But it is absolute at the moment, is it not?
We are discussing another type of decision that the commission might take. I am sorry that I do not have the answer to that question.
We will get back to you on that.
I was going to raise the same point. As soon as discretion is introduced, some recourse will have to be introduced for those who wish to dispute the way in which the care commission applies the discretion. I encourage the minister to consider that. If the care commission's decision is to be final, that will have to be made clear to people when they apply for consideration under the discretionary power.
My point goes back to one that I made previously. Given that we know so little about the care commission, as it is monitored so lightly and audited even more lightly, how can we be sure that it will always come to a reasonable decision about who is a fit and proper person? The example that the minister gave was excellent and I fully understand that situation, but we are asked to recommend that the regulations be passed when we have no idea how the commission will exercise the discretion. We have no way of checking on the operational guidance for the care commission.
Ultimately, the care commission is accountable to me as the minister. I am happy to raise with it any concerns that members have, but I do not share the member's view about the commission. In the past seven years, it has built up a real competence in dealing with difficult situations, and it has produced a practical set of proposals to deal with a situation that was perhaps not envisaged when the Regulation of Care (Scotland) Act 2001 was drafted. It is common sense that the commission should not have to rule out people from running a care service for something that is absolutely unrelated to their ability to run a care service. The guidance that the commission is drawing up will come to me before it is published. There are enough checks and balances in the system to ensure that the care commission carries out its work with all due probity and professionalism.
As we have no more questions, I invite the minister to move motion S3M-3511.
Motion moved,
That the Health and Sport Committee recommends that the draft Regulation of Care (Fitness to Register, Provide and Manage Care Services) (Scotland) Amendment Regulations 2009 be approved.—[Shona Robison.]
Motion agreed to.
I thank the minister for her evidence; it has been a long morning for her. Mr Rennie will remain to answer any questions on the negative instrument that we will consider next.
Regulation of Care (Miscellaneous Amendments) (Scotland) Regulations 2009 (SSI 2009/32)
The regulations follow the draft Regulation of Care (Fitness to Register, Provide and Manage Care Services) (Scotland) Amendment Regulations 2009, which the committee has just discussed. As the Subordinate Legislation Committee indicates, they are intended to ensure that the terminology used in the relevant regulations is consistent.
Members have indicated that they have no questions for Mr Rennie—it is easy-peasy lemon-squeezy for him today. Do members agree that the committee does not wish to make any recommendation in relation to the instrument?
Members indicated agreement.
The cold is getting to me so I will rattle through the agenda in the interests of our health.