Community Care and Health (Scotland) Bill: Stage 2
Item 2 is stage 2 consideration of the Community Care and Health (Scotland) Bill. The Deputy Minister for Health and Community Care, Hugh Henry, joins us.
Section 4—Accommodation more expensive than usually provided
Amendment 59 is grouped with amendment 69.
Amendments 59 and 69 are purely technical. Together, they allow references in the bill to the National Assistance Act 1948 to be referred to as the "1948 Act". Such references are made in sections 2 and 4.
I move amendment 59.
Amendment 59 agreed to.
Section 4, as amended, agreed to.
Section 5—Local authority arrangements for residential accommodation outwith Scotland
Amendment 60 is grouped with amendments 61 and 62.
Amendment 60 clarifies section 5 and was lodged in response to a request by the Subordinate Legislation Committee, which the Health and Community Care Committee noted in its stage 1 report. The amendment makes it clear that any arrangement for a care home place outwith Scotland that is made following a direction under section 5 must comply both with the regulations that govern the making of such placements and with any conditions of that direction.
Amendments 61 and 62 apply to section 6, which deals with deferred payment agreements. Amendment 61 aims to ensure consistency with the change to section 5 that is proposed by amendment 60. It clarifies that a deferred payment agreement made following a direction under section 6 must comply with the conditions of that direction as well as with any regulations made under that section.
Amendment 62 ensures that a deferred payment agreement may cover either normal payments due under section 87 of the Social Work (Scotland) Act 1968 or top-up payments due under section 4 of the bill—or a combination of both. The proportion of each type of payment that may be deferred will be calculated in accordance with regulations to be made under section 6(3).
Amendment 62 has been lodged to ensure that regulations that are made under section 6 can deal separately with normal and top-up payments. We consider that it is important that the deferred payment agreement facility should not be limited in its availability. If the facility must always cover top-up payments and cannot be defined so as to cover normal payments, people may be excluded if their top-up payments are too high to be secured against the value of the home. The power needs to be sufficiently flexible to cover a range of situations and to set separate rules for normal and top-up payments.
The deferred payment scheme will provide people with greater choice on how to pay for their care. In doing that, we need to set rules that help people in a range of different circumstances while ensuring the proper use of public funds. Amendment 62 allows us to do that. I ask the committee to support the amendments to sections 5 and 6.
I move amendment 60.
Amendment 60 agreed to.
Section 5, as amended, agreed to.
Section 6—Deferred payment of accommodation costs
Amendments 61 and 62 moved—[Hugh Henry]—and agreed to.
Section 6, as amended, agreed to.
Section 7—Direct payments
Amendment 63 is grouped with amendments 64, 65, 66, 67 and 68. I ask the minister to speak to the amendments and to move amendment 63.
Independence is not necessarily about doing everything for yourself. It is about being able to choose what to do when, and if, you need help and about being able to choose who should provide that help. It is about having choices and about exercising control over the choices that you make.
We believe that whether you have such control over your life should depend not on where you live, or on whether you are a wheelchair user rather than someone who suffers from dementia, or on whether you are under a certain age. That kind of control should be everyone's right. We know that direct payments can help to improve independence as well as aid social inclusion. However, they can do so only if people know about them.
Section 7 will make it a duty on local authorities to offer money so that people can arrange their own services instead of having them provided by the local authority. We hope that the section will address some of the difficulties that exist in certain localities. We want to put it beyond doubt that it is the responsibility of the local authority to ensure that eligible people are made aware of their entitlement to receive direct payments.
People should be given time to consider the full implications of using direct payments. We recognise that the choice is sometimes not easy and has responsibilities associated with it. Therefore, people must be given the time and the necessary support, advice and information to help them reach the right decision.
That support role should be provided independently of local authorities. It might come either through friends or family or through a supporting organisation that is experienced in encouraging and advising on aspects of independent living. We recognise that such a service is available only in certain areas in Scotland, but the Direct Payments Scotland project is helping to develop effective support services throughout the country. We hope that more people will soon be able to make that choice with the proper support.
We recognise that direct payments will not be everyone's cup of tea and that many will be happy for their local authority to arrange services for them. The most important thing is that people have the right to make that choice for themselves. Amendment 63 will ensure that people have that right by amending, in section 7, section 12B(1) of the Social Work (Scotland) Act 1968. The amendment will mean that the bill is explicit about a local authority's duty to offer direct payments.
It is important that local authorities provide equity of treatment for those who accept direct payments and for those who accept services arranged by the authority. For financial arrangements, that means that, if any personal contribution is due, there must be the opportunity for payment to be made after the services have started. Requiring the authorities to make gross payments will mean that there is equity of treatment between those who receive direct payments and those who receive services but do not receive direct payments. It will enable the recipient to contest an assessed contribution without holding up payments. It will also give care managers the security of knowing that the person has the means to purchase the services that are required.
Section 87 of the Social Work (Scotland) Act 1968 gives a local authority the power to charge for the services that it provides under that act and also provides local authorities with powers to recover that charge. The powers do not extend to direct payments because the local authority will no longer arrange or provide the services.
The bill gives local authorities the powers they require to recover any personal contributions where gross payments have been made. No duty will be placed on local authorities to make gross payments, nor will recipients be forced to accept them. There should, however, be flexibility about whether payments are made on a gross or net basis. The outcome should be determined by the wishes of the service user, who will have discussed the matter with the authority.
We would all agree that, when a local authority agrees to make gross payments, it must have a means of recovering the assessed contribution. Amendments 64, 65, 66 and 67 make it clear that payments can be made on a gross basis. When that happens, the local authority will have the power to seek recovery of a person's contribution—whether the assessment of that contribution is made before or after the direct payment is made.
Amendment 64 will enable a local authority to make a gross payment after assessing the person's ability to contribute to the cost of the services. Amendments 65 and 66 are minor technical changes. Amendment 67 will ensure that, prior to recovery of the contribution, an assessment of the person's ability to pay will take place. That assessment will take place either before or after the gross payment begins. Amendment 68 will give people who receive gross payments the same recourse as recipients of net payments have in order to satisfy the authority that they cannot meet the balance to secure the services that they need. Net recipients already have that avenue of appeal under section 12B(2) of the Social Work (Scotland) Act 1968; it is only fair that gross recipients should have the same facility.
The amendments are minor, but they remove any doubt about equality of treatment and ensure that people are given real choice. They also demonstrate our commitment to making direct payments more widely available.
I know that members of the committee have been concerned about practice in their areas. We hope that our proposals will address their concerns. I ask members to support amendments 63 to 68.
I move amendment 63.
What mechanisms will be put in place to ensure that local authorities offer the choice that you have spoken about? In my area, the level of direct payments is abysmal. I want my constituents to be offered choice. How will the Executive ensure that individuals are aware that they have a choice? If people are made aware only through their local authority, things may continue as they are. How will the Executive monitor whether choice is offered?
We will certainly try to monitor what develops in practice. We are now talking about a duty rather than discretion in section 7. We hope that local authorities will respond to that. If anyone has concerns about their local authority, or disputes what the authority is doing, the complaints and disputes mechanisms for local authorities will be available to them.
It would be wrong for the Executive to try to exert central control over every individual decision taken in local authority areas. However, the point that Margaret Jamieson raises would be of concern if local authorities were blatantly trying to avoid their duty. That duty will be a duty in law, so local authorities will be open to legal challenges if they fail to implement it. We will keep a close eye on the situation.
But how will the Executive ensure that the public is aware of the options that are available to them? Recently, good publications in relation to the Regulation of Care (Scotland) Act 2001 have let people know exactly what choices and what level of service they will have. I wonder whether the minister would consider making similar information available on this bill before 1 July so that people know what choices they will have.
We have already made a substantial amount of money available to the Direct Payments Scotland project, which will be engaged in publicity. Beyond that, I am not aware of specific proposals to engage in the kind of publicity of which you speak. We will reflect on what you have said and, if appropriate, try to respond, but we believe that the money given to Direct Payments Scotland is significant and can be put to good use.
Can the minister think of any exceptional circumstances in which the Executive might intervene with a local authority that consistently appeared to be out of step with the direct payments scheme by not promoting it or not making the system available to local people?
I do not propose to start engaging in speculation at this stage. We developed the proposals that are before you and believe that the fact that local authorities will have a duty is significant progress. We hope that the duty will work well in practice. I am unsure of the benefits of speculating idly, which could set hares running all over the place.
We would not want you to speculate wildly. What I am getting at is where the lines of accountability are. You seem to be indicating that there are none. What sanction is there? What is the bottom line for addressing concerns when a local authority is consistently out of step with direct payments or other elements of the bill? I hope that that does not occur, but where is the ability for you to intervene if that is required? At what stage would you do so?
You know that we operate on the principle of subsidiarity, which you and your party support strongly. In this case, we believe that the local authority should have the obligation and duty to carry out certain functions. Indeed, it is local authorities' responsibility to carry out other delegated functions. We do not have the power to intervene directly. We are changing the law in the bill to impose a duty on local authorities.
As with other duties in which we do not interfere directly—for example, those under the Social Work (Scotland) Act 1968—the local authority is open to challenge by normal legislative means. I doubt that the purpose of the bill is to seek more and more central powers and to impose diktats on local authorities. I hope that the bill will be taken in the spirit in which it is intended. A duty is a significant move forward from where we were.
I am a little confused because, when she tried to clarify something that she said to the committee that she seemed to have got wrong, your colleague Mary Mulligan said in a letter:
"Scottish ministers have very limited powers to intervene and may do so only in very exceptional circumstances."
I am struggling with the definition of "very exceptional circumstances". I think that the committee is entitled to a bit of clarification, given that Mary Mulligan outlined a position that is clearly not the case. You now seem to be saying that you cannot identify any of the exceptional circumstances that Mary Mulligan has said could possibly arise. I am a bit confused about what the position is.
I think that you are referring to something entirely different. We can correspond with the committee on the general powers that ministers have to intervene in various aspects. I reiterate the point that we work on the basis of subsidiarity. We do not seek to centralise powers so that we dictate to and instruct local authorities. We seek to create a legislative framework within which local authorities can properly carry out their functions. I think that that is the right way to move forward.
I would be hesitant to create a framework in which the Executive or the Parliament can intervene directly and start instructing local authorities. I am sure that you and your colleagues would also be concerned about that. The duty is a duty on local authorities. The bill says clearly that the responsibility is a local authority duty, not an Executive duty.
I very much support the encouragement for the greater uptake of direct payments, but I seek clarification. I was involved in a case in the Highlands in the early days of direct payments in which the carer was told that she had to become the employer. She has since come to an arrangement with the council, so that it remains the employer and she buys in the care services. Can you confirm who employs the care worker when a carer uses direct payments to buy in services?
That would depend greatly on the individual's circumstances. In some cases, where an individual buys in a service from the local authority, the local authority will continue to be the employer. Similarly, if the individual buys in a service from a voluntary or charitable organisation, that organisation would be the employer. I am not an expert on employment law, but it is conceivable that an individual could seek to employ someone to work directly and exclusively for them, which might have legal implications. It would be foolish of me to speculate on that, but I will try to get further information. The principle is that if someone buys in services from another organisation, that organisation remains the employer.
I would welcome any further clarification. The carer that I referred to was initially put off because of the onerous responsibility of dealing with sickness payments, maternity leave, tax forms and whatever else.
The provision is not intended to authorise or instruct the local authority to become the employer of someone who is currently not employed by them, or indeed instruct any other organisation. If someone exercises their choice to take on someone who, for legal definitions of employment, becomes an employee, that person would have a duty towards the individual. However, if we can do anything to clarify that, we will.
I understand that, but if someone buys in their care services from an organisation, the employment of the care worker is the responsibility of the organisation. Is that correct?
That is my understanding.
I appreciate that Hugh Henry does not want to seem to be bossing around local authorities, but he seems to be giving the public no recourse other than a judicial review. Very few people would want to engage in that tortuous process. Cannot the Executive create a halfway house or at least declare its right to powers of supervision? The Executive also has the power to audit the situation in Scotland to ensure that there is fairness. If a council is not being co-operative, the Executive can investigate the council to a certain extent. Am I right?
Yes, some of those things pertain. However, I do not think that the situation is very different from what it was previously under the Social Work (Scotland) Act 1968, under which the local authority had a duty under section 12 to assist people in individual circumstances. It could not be the responsibility of central Government to instruct the local authority how to carry out that duty.
I remember controversial circumstances in which Strathclyde Regional Council social work department interpreted its obligation under the Social Work (Scotland) Act 1968 to help single miners during the miners strike. The situation was subsequently clarified legally. It would not have been right for central Government to instruct the local authority on what to do. Similarly, in cases involving homeless people, children and families, local authorities in different areas interpreted their duty in different ways. It would be dangerous for us to impose a duty on local authorities and then say that every time someone disagrees with their decisions we will come in and tell them how to implement the duty.
There are certain checks and balances on how local authorities perform generally. There is a right to judicial review and there are other legal processes for people to challenge performance if they are not satisfied. The provision is not about introducing control mechanisms for local authorities; rather it seeks to empower local authorities and individuals. That is the context in which it should be considered.
Would the Executive have the authority to conduct an audit if it received persistent complaints about a particular authority?
If there were persistent complaints about an authority, any action would be taken under existing powers and we would respond in the way that we do at the moment; the situation would be no different.
Amendment 63 agreed to.
Amendments 64 to 68 moved—[Hugh Henry]—and agreed to.
Section 7, as amended, agreed to.
Section 19—Interpretation
Amendments 69, 9, 48 and 49 moved—[Hugh Henry]—and agreed to.
Section 19, as amended, agreed to.
Section 20—Regulations
Amendments 50 to 53 moved—[Hugh Henry]—and agreed to.
Section 20, as amended, agreed to.
Section 21 agreed to.
Section 22—Minor and consequential amendments
Amendment 28 is grouped with amendments 30, 31, 32, 33, 34, 35, 36, 37 and 40.
This group of amendments will make changes to the NHS tribunal provisions in the National Health Service (Scotland) Act 1978. The major proportion of the amendments will complete the extension of the jurisdiction of the NHS tribunal to general practitioners whose names do not currently appear on health board lists. Before I go any further, it might be helpful if I remind committee members of the means by which GPs may be referred for discipline; that is, the listing system. Currently, GPs who own practices must be on the medical list that is held by the health board for the area in which they provide general medical services. Once a GP is on the list, he or she may be referred to an NHS discipline committee for minor breaches of his or her terms of service, and to the NHS tribunal for more serious matters.
Section 15 of the bill provides for GPs who are not currently listed to come within the listing system, and therefore within the disciplinary arrangements. Those GPs are general medical services non-principals, GPs who work for GP principals, including locums, and GPs who perform personal medical services. Most of the amendments that are required to the National Health Service (Scotland) Act 1978 to bring those GPs within the tribunal regime are already included in the schedule of the bill, which is given effect by section 22, but some further amendments were identified that would complete the extension of the tribunal's jurisdiction to GPs who perform personal medical services. Those amendments are included in this group, which are technical and clarifying.
Amendments 28, 36 and 40 are interlinked. They will correct a cross-reference to a section in the National Health Service (Scotland) Act 1978 that appeared in the amendments that were made to that act by paragraph 52(b) of schedule 4 of the Health Act 1999. The section to which cross-reference is made in paragraph 52(b) of the 1999 act is the wrong section. The original paragraph will therefore be repealed by amendment 40, which will also extend the schedule to one that lists both amendments and repeals.
The repealed paragraph will be substituted by amendment 36, which contains the correct text that cross-refers to the section that was originally intended. Amendment 36 seeks to amend the National Health Service (Scotland) Act 1978 as it reads without paragraph 52(b) of schedule 4 of the Health Act 1999 having been brought into force, rather than to amend the words that paragraph 52(b) of schedule 4 of the 1999 act was to insert. We can do that because paragraph 52(b) has not been commenced. Amendment 36 also seeks to correct in section 32B of the National Health Service (Scotland) Act 1978 an incorrect cross-reference to another section of that act. The correction is needed because the section to which cross-reference is made does not exist.
Amendment 30 is entirely technical. It will delete the definition of pilot scheme from new section 17EA to allow that term to be included in the definitions in section 108 of the National Health Service (Scotland) Act 1978, which is the interpretation section of that act.
Amendment 31 will extend to services lists the lists from which a GP may be disqualified from inclusion by direction of the NHS tribunal.
Amendment 32 will clarify the reference in section 30(4) of the NHS (Scotland) Act 1978 to correspond with disqualification provisions in England, Wales or Northern Ireland.
Amendment 33 will clarify that the GP who is disqualified from inclusion in family health service lists in England, Wales or Northern Ireland will be disqualified from inclusion in similar lists in Scotland.
Amendment 34 will amend section 31(2) of the NHS (Scotland) Act 1978 to add to the reference to services personal medical services arrangements and pilot schemes.
Amendment 35 will amend section 32A of the NHS (Scotland) Act 1978 to include those GPs who perform personal medical services—including those under pilot scheme arrangements—in the group of GPs who may be suspended from providing services to patients by direction of the NHS tribunal.
Amendment 37 will extend the lists in Scotland from which a GP will be disqualified from inclusion when he or she has been disqualified from inclusion in a list in England, Wales or Northern Ireland, by virtue of the fact that he or she has been made subject to interim suspension in any of those countries.
I move amendment 28.
The minister referred to several cross-references to the wrong sections of other legislation and even to sections that do not exist in any legislation.
Given that parliamentary draftsmen drew up the bill in the first place, when and how did the mistakes come to light?
They came to light when we were preparing for stage 2 of the bill. When the relevant sections were being reviewed, they were recognised to be wrong. Much of that took place pre-devolution. However, I do not blame John McAllion or his Westminster colleagues in any way, shape or form.
That does not get him off the hook.
I withdraw any criticism that was implied in my remark.
Were you short of draftsmen during the process? An enormous amount of potential legislation is being worked on and I suspect that we are sometimes short on numbers in our very good civil service.
It would not be appropriate for me to comment on staff levels. That can be taken up elsewhere.
The matter is relevant to processing bills.
That will be noted in the Official Report.
Do you wish to wind up, minister, or have you covered everything that you wanted to say?
I have said enough, convener. I do not want to embarrass Mr McAllion any further.
I was kept off the Westminster committees by the whips; it was not my fault.
Amendment 28 agreed to.
Section 22, as amended, agreed to.
Before the schedule
Amendment 55, in the name of the minister, was already debated with amendment 41.
Amendment 55 moved—[Hugh Henry]—and agreed to.
Schedule
Amendments 29,30 and 31 moved—[Hugh Henry]—and agreed to.
Amendment 70, in the name of the minister, is grouped with amendments 71 and 72.
When Malcolm Chisholm appeared before the committee on 19 December, he informed members of further discussions that the Scottish Executive had held with the British Medical Association and the Scottish General Practice Committee on the question of listing requirements. As a result of those discussions a modification was agreed to, which would allow a GP who was already on a list within a health board area to provide other primary care medical services within that area without, in most cases, joining a second list. However, under the modified arrangements we must ensure that it will continue to be possible to subject a GP to a disciplinary referral and for a disciplinary sanction to be imposed where there is reason to do so.
On 19 December, Malcolm Chisholm undertook to lodge an amendment at stage 3 to ensure that the rules about NHS tribunals would continue to operate under the altered arrangements, after consultation with the Council on Tribunals. In the event, three consequential amendments will be required to enable the tribunal regime to continue to operate. The Council on Tribunals has given an early response indicating that it is content with those amendments. Consequently, the amendments are being lodged now rather than at stage 3.
Amendment 70 is the first of those consequential amendments. It will allow the NHS tribunal to impose the sanction of local disqualification on a GP who is referred to it by a health board, even where the case against that GP relates to medical activity within a health board area that is not associated with a particular list on which the GP's name appears.
Amendments 71 and 72 relate to the tribunal sanction of national disqualification. Where that sanction is imposed, a practitioner will not be permitted to practise in any area of Scotland. Amendment 71 distinguishes ophthalmic medical practitioners from other medical practitioners, given the way in which national disqualification will now be imposed on those other medical practitioners.
Amendment 72 will allow the tribunal to continue to direct the national disqualification of family health service practitioners, including ophthalmic medical practitioners, from lists that are similar to that which is mentioned in a case that is before the tribunal.
The amendments will ensure that the NHS tribunal may continue to impose the sanctions of local and national disqualification on GPs and on other family health service practitioners, where such sanctions are warranted.
I move amendment 70.
Amendment 70 agreed to.
Amendments 71, 72, 32 to 38, 10, 39 and 40 moved—[Hugh Henry]—and agreed to.
Schedule, as amended, agreed to.
Section 23 agreed to.
Section 24—Short title and commencement
Amendment 54 is in a group of its own.
Amendment 54 is a technical amendment. The bill currently provides that only section 24 will come into force on the bill's receipt of royal assent. Section 24 provides that the other provisions of the bill might be brought into effect on such days as ministers may appoint by order.
However, section 20, which makes provision for the making of orders, would not yet be in force. That would mean that the section 24 power to commence other sections of the bill would not be clearly defined. Amendment 54 will therefore bring the order and regulation-making powers in section 20 of the bill into force at the same time as the commencement provisions in section 24.
Amendment 54 moved—[Hugh Henry]—and agreed to.
Section 24, as amended, agreed to.
Long title agreed to.
That ends stage 2 consideration of the Community Care and Health (Scotland) Bill. I thank the minister for his attendance today and in previous weeks.
At this point, I will call a short adjournment for members to take a comfort break.
Meeting adjourned.
On resuming—