Health Committee, 20 Apr 2004

Meeting date: Tuesday, April 20, 2004

Official Report 124KB pdf

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Subordinate Legislation

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Food for Particular Nutritional Uses (Addition of Substances for Specific Nutritional Purposes) (Scotland) Amendment Regulations 2004<br />(SSI 2004/90)<br />Regulation of Care (Fees) (Scotland) Order 2004 (SSI 2004/93)

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Regulation of Care (Requirements as to Care Services) (Scotland) Order 2004<br />(SSI 2004/94)<br />Regulation of Care (Applications and Provision of Advice) (Scotland) Amendment Order 2004 (SSI 2004/95)

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Regulation of Care (Registration and Registers) (Scotland) Amendment Regulations 2004 (SSI 2004/96)<br />National Health Service (Optical Charges and Payments) (Scotland) Amendment Regulations 2004 (SSI 2004/97)

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National Health Service (General Ophthalmic Services) (Scotland) Amendment (No 2) Regulations 2004<br />(SSI 2004/98)<br />National Health Service (Dental Charges) (Scotland) Amendment Regulations 2004 (SSI 2004/101)

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National Health Service (Travelling Expenses and Remission of Charges) (Scotland) Amendment Regulations 2004 (SSI 2004/102)<br />National Assistance (Assessment of Resources) Amendment (Scotland) Regulations 2004 (SSI 2004/103)

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National Assistance (Sums for Personal Requirements) (Scotland) Regulations 2004 (SSI 2004/106)<br />National Health Service (Primary Medical Services Performers Lists) (Scotland) Regulations 2004 (SSI 2004/114)

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National Health Service (General Medical Services Contracts) (Scotland) Regulations 2004 (SSI 2004/115)<br />National Health Service (Primary Medical Services Section 17C Agreements) (Scotland) Regulations 2004 (SSI 2004/116)

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National Health Service (Tribunal) (Scotland) Amendment Regulations 2004 (SSI 2004/122)<br />Natural Mineral Water, Spring Water and Bottled Drinking Water Amendment (Scotland) Regulations 2004 (SSI 2004/132)

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Jam and Similar Products (Scotland) Regulations 2004 (SSI 2004/133)

Item 2 on our agenda is subordinate legislation. I refer members to paper HC/S2/04/10/1, which you all have. You are asked to consider—and I take a deep breath here—the 17 instruments that are listed on the agenda, which are all subject to the negative procedure. For the Official Report, they are: Scottish statutory instruments 2004/90, 93 to 98, 101 to 103, 106, 114 to 116, 122, 132 and 133.

The Subordinate Legislation Committee has no comments on SSIs 2004/90, 94 to 97, 101 to 103, 106, 132 and 133. It has, however, commented on SSIs 2004/93, 98, 114 to 116 and 122. The committee's comments have been circulated to members. No members of this committee commented before the meeting, but does any member wish to comment now on the SSIs? I see that David Davidson and Shona Robison wish to comment; I may comment too, depending on what they say.

I am sorry that I did not notify the clerks of this earlier, but I have just come back from vacation. I wish to comment on SSI 2004/93, which is the Regulation of Care (Fees) (Scotland) Order 2004. The Subordinate Legislation Committee raises a very serious issue, which is causing great concern among those who provide care and among some of the carers and families of those who receive care.

We ought to take evidence from the Scottish Commission for the Regulation of Care, so that it can explain why it needs the funding; from the providers; from the Convention of Scottish Local Authorities, which obviously has a big interest in the care sector; from carers organisations; and from the minister. I believe that we should not just go ahead with the order today. We ought to reflect on it carefully.

Like David Davidson, I apologise for not notifying the clerks of my comments in advance. Concerns arise over the practicality and feasibility of the fee structure becoming self-financing. I am aware that the timescale has been pushed back, but a number of organisations are still concerned that fees will be passed on to them and, as a result, to the users of the services. Some of the smaller organisations are saying starkly that that could put them out of business and that they might not be able to continue if the order goes ahead. Like David Davidson, I feel that we should hear further evidence from the minister to clarify the situation. We should also get more information from the organisations that have said that the order is a threat to their continued operation.

I understand that the care commission is now obliged to be self-funding. That policy has been endorsed by the Parliament, as is explained in our papers. If the committee wants to take evidence, the most appropriate organisation from which to do so would be the care commission.

I, too, had concerns about the matter even before the order was published. I think that I raised a question in Parliament about Executive papers that mentioned unintended consequences, such as small care homes finding it impossible to continue because of the level of fees.

Some months ago, at a conference of the National Association of Inspection and Registration Officers—the association of inspectors who work for the care commission—I learned that people were most concerned about self-funding. The obligations that have been placed on the care commission are much greater than had been anticipated, as I think is said in our papers. The commission must cover all areas, not only care of the elderly.

However, as the lead committee, we must report by 26 April. The options available to us are to write to the minister in the first instance to raise some of the concerns that have been expressed. We could then take evidence from all sides and not simply from the care commission. We might want to take evidence from care providers, for example. If members think that that would be useful, the decision is in their hands. We need to deal with the funding issue, which I am sure has been raised with other members.

Given that we have to respond by 26 April, will the clerks clarify how it would work procedurally if we decided today to seek further information from the minister in the first instance?

The report will have to go to Parliament on 3 May. Our next meeting is on 27 April and so our deadline for consideration is 26 April. There is nothing to prevent members from getting more information for their own benefit, but the order will be reported to Parliament on 3 May.

Subject to committee's approval, we could write to the minister to raise the concerns about the care commission being self-funding, but without making any particular judgment. We could also ask the minister to comment on the impact of self-funding because, if I recall correctly, it was said in one of the Executive's documents that some of the smaller care providers are saying that they cannot carry the burden of the fees. I can find that Executive document for members.

I seek further clarification. If we decided to do that, would the report still go to Parliament on 3 May, irrespective of when the minister replied?

Yes, but we can at least raise those concerns with the minister. We can, on receipt of his response to our questions, proceed to take evidence on the impact of self-funding if we wish. Members will note from the Executive figures that it is staggering the increases in fees because of the impact that the fees would have had if the policy had been implemented in full in 2004. There might be an issue there.

I feel strongly that one of the committee's roles is to look at the impact—whether intended or unintended—of legislation that Parliament considers. Although many of us raised concerns about the self-financing fee structure when we were considering the Regulation of Care (Scotland) Bill, perhaps the consequences of the measure can be seen only when the policy is implemented. In light of procedural constraints, the best way forward at this stage would be to write to the minister and, in the light of his response, to consider whether further action is required.

I am not sure whether what Shona Robison suggests is the way forward. My understanding is that we agreed some time ago that we would carry out post-legislative scrutiny into the Regulation of Care (Scotland) Act 2001, under which the care commission was established. When we do that, we could consider whether it is realistic for the commission to be self-funding after two to three years. I agree absolutely that we should carry out that post-legislative scrutiny, but if we start picking away at bits of it now, we will compromise our work on it later. Because of the timescale, we can do nothing about the order, unless we lodge a motion to annul it.

What is your view about writing to the minister about our concerns?

I am ambivalent about that. I do not see the point in doing it. If we are going to have a post-legislative inquiry into the Regulation of Care (Scotland) Act 2001, we will take evidence from ministers at that stage. There is no harm in writing to the minister now, but I worry that, if we start picking away at bits and pieces, we will compromise what we are going to do at a later stage.

Do you suggest that we leave the proposal for hearing further evidence and that a letter to the minister would be sufficient?

I am ambivalent about such a letter—it will not do any harm, but it will not do any good.

I am sorry, but I thought that the purpose of the committee was to scrutinise each and every piece of legislation that comes before it. If there is an opportunity for members to be enlightened when a vote or whatever is to be taken in Parliament, we should be seen to be doing our duty to obtain the information that is required, so that members—not only members of the committee, but all members of Parliament—will be better able to understand what they are either agreeing to or disagreeing to. The issue is not about taking sides—I simply think that that is an important factor for the committee.

I do not know whether things could be achieved by expressing concern in a note to the minister at this point. The debate has taken place and the convener herself has said that she asked about the possible impact of this stage of self-funding of the care commission. Therefore, there have been concerns. Surely we will be able to assess the impact of the measure only after it has been implemented and has run for some time. I would have thought that dealing with it as part of post-legislative scrutiny, as Kate Maclean suggested, would have been ideal. We are going to get back into the debate involving opinions on whether the measure will have an impact and whether homes will close. We can assess matters factually only after implementation, not before it. Otherwise, we will simply repeat the debate.

Subject to the committee's agreement, I suggest that we write to the minister. Issues have been raised and concerns have been expressed in Parliament about self-financing. As a first step, we could simply write to the minister about concerns that relate to self-financing that members have raised and ask for his comments. I am content to send a copy of the document that I mentioned, which I can locate once I have found the Official Report of the relevant meeting. The report was an Executive report that spoke about unintended consequences and the possibility that some care homes might not be able to continue. We can ask the minister to comment on that matter again. If members agree to that proposal, we can thereafter consider the response and whether there are issues that we should hear more about. There will be an inquiry, but the trouble is that it might be a year away. However, we could come back to the matter, subject to what the committee thinks about the response. A reasonable issue is involved.

If members wish, we could also write to the National Association of Inspection and Registration Officers—the staff association that represents the inspectors who work for the care commission—to ask for its views. I have told members what I was told at the conference that I mentioned and I am simply trying to think of how to deal fairly with the matter and not let it slip through.

I have a question that might be a little naive. If, as we monitor matters, we find that an unintended result of the legislation is that small care homes go to the wall, what can the Executive do? We can highlight the matter, but the Executive has already stated what could happen. I am a bit confused. Perhaps there could be a letter to highlight what we have said about unintended consequences, which has already been highlighted in the report. It would be a dreadful tragedy to see homes go, because we need them. We must make some comment, but I do not know how useful our comments will be.

Kate Maclean made a valid point about the proposed post-legislative scrutiny that we want to carry out. That might be some time away, but I do not see when any other scrutiny that we propose to undertake as a result of today's discussion could be fitted into our work plan in the near future.

I do not have any major objection to the committee's writing to the minister to elicit further information that may assist with discussion of the issue in Parliament. However, if we start to consider writing to organisations such as NAIRO, we are getting into the realms of picking away piecemeal at the scrutiny that we agreed that we wanted to do properly. At this stage, the best course of action would be to write to the minister, get a response—before the parliamentary debate, I hope—and bear things in mind when we do our post-legislative scrutiny.

There will be no debate in Parliament unless we agree to a motion today.

I agree that we should write to the minister. Perhaps we should seek from him an assurance that he will review the situation and report his predictions to the committee as soon as possible. The instrument does not have the financial memorandum that would accompany a bill, whose effects—whether intended or not—would have full scrutiny.

I have received letters from all over Scotland, as I am sure have other members, which say that not only small homes, but many homes, are concerned about the scale of charges and the recovery aspects and about continuing to pay a fee although they are being over-investigated on issues that are of almost no relevance. That is a question of the procedures that the minister has laid down for the care commission to reach an end point on.

A financial memorandum would have accompanied not the instrument but the primary legislation, so David Davidson will have to look for it there.

The consensus is that we should write to the minister. A draft letter that raises the issues will be passed to members for agreement, and then sent to the minister. We hope to have a response within a week. Are members content with that?

Members indicated agreement.

Once we have a response, we can return to the matter if members wish it. There is merit in what Janis Hughes says about picking at bits. On the other hand, I am concerned that our inquiry is a year away.

The recommendation is that the committee has no recommendation to make on SSIs 2004/90, 2004/93 to 2004/98, 2004/101 to 2004/103, 2004/106, 2004/114 to 2004/116, 2004/122, 2004/132 and 2004/133, subject to what we have said. Do members agree?

Members indicated agreement.