Official Report 189KB pdf
Agenda item 2 is the concluding oral evidence session in our scrutiny of the Public Services Reform (Scotland) Bill. I refer members to paper HS/S3/09/24/1—a very full paper, as members will appreciate—which summarises some of the key issues that have emerged from our evidence sessions so far.
Yes.
There you go—we have a bid already. That was a pre-emptive strike.
After I have made a short opening statement, Adam Ingram and I will be happy to take questions.
This is not mandatory—it is discretionary—but would it be useful for us to ask questions about part 4 before dealing with part 5? Such an approach might assist us in preparing our report. However, members may want to blend questions on the two parts; it is up to them.
I have read further into the bill and would like to ask some questions about section 13, on burdens, as well as about part 4 and part 5. That is an important issue for the national health service. I would also like to ask some questions about the scrutiny provisions in part 6, which are hugely important to the NHS. I am happy to leave my questions to the end, if you wish.
That is fine, as part of a sweeping-up exercise. I was merely offering guidance on how we might bring together evidence easily for our report, as a secondary committee, to the lead committee on the bill, which is the Finance Committee. We have only one day in which to do that.
I do not know which minister will answer my question—I leave it to them to decide.
On the issue of consultation with regard to the Crerar review, there was no doubt that everybody could see the direction of travel; it was not a secret that the proposals were around. People were aware of the main thrust and focus of the proposals, if perhaps not the detail.
It was about the external scrutiny priorities for health. Crerar took the view that delegation to an external scrutiny body should take place only once those priorities had been identified. What are those priorities?
Are you referring to the quality improvement Scotland standards?
In discussing the establishment of a national scrutiny body, Crerar recommended that
The scrutiny priorities for health have been identified. There has been a particular focus on the establishment of the healthcare environment inspectorate—we have decided that that is a priority for the new healthcare improvement Scotland body. Such a focus is right and proper, given the high-profile cases and the concerns that have been expressed.
I want to expand on the question.
I will let you back in, but I have a list of members who want to ask questions. Please make your question short.
Infection is obviously a big issue for us all. It was a matter of concern for NHS Greater Glasgow and Clyde, which questioned what would happen when HIS and another body overlapped, for example in the work of Health Protection Scotland. What would happen in that situation?
At the moment, NHS QIS and Health Protection Scotland work closely together. They have had to do that because of some of the challenges that we have faced. Those working relationships are very much in place. In fact, when I conducted the annual review of NHS National Services Scotland, of which Health Protection Scotland is a part, it spent a great deal of time talking about the work that Health Protection Scotland had done around health care acquired infection. Those links are very much there. That is one of the reasons why it is important that HIS is and remains a health body, albeit that it will be a non-departmental public body. It remains part of the health family, if you like, and that is important given the important relationships that have been built up over time. I see HIS not only maintaining those relationships with Health Protection Scotland, but enhancing them. There is the opportunity for that to happen.
I would like to come back in later with further questions.
Yes. I want to let other members in at the moment.
I have a question on the independent health care sector. We received evidence that the Regulation of Care (Scotland) Act 2001 had allowed for regulation and inspection but that that had not happened for high street health care providers, laser clinics and the like. The fact that such providers are not subject to regulation and inspection is quite worrying, given the number of new treatments that are being offered in the cosmetic industry, for example. Those treatments can be quite dangerous if they are not properly regulated to ensure that they meet standards.
What has happened since the 2001 act falls under previous Administrations and our Administration. We should not underestimate the complexities of taking that work forward; I will say more about that in a moment. You are right to point out that the environment has changed since 2001, with the burgeoning of cosmetic procedures that were not around on the same scale when the legislation was enacted.
You said that definitions in the legislation may require to be amended. For clarification, does that apply to the Regulation of Care (Scotland) Act 2001 or the Public Services (Reform) Scotland Bill?
It applies to both.
I understand that health care practitioners are members of professional bodies and are subject to regulation. What is more worrying is the high street cosmetic industry that involves not health professionals but people who, if we are lucky, have done a one-day course on delivering a treatment, which means that things can go desperately wrong. I leave you to think about that.
I acknowledge that that situation exists; that is exactly why I want to consult in the spring. Many cosmetic services do not involve general medical practitioners or general dental practitioners, so they are not caught by the 2001 act or, indeed, by the current bill. It is important that we get the definitions right, so that we can then regulate. I am happy to give a commitment to do that.
The bill could provide an opportunity for regulation and standards to be streamlined. Certainly, any plans for building new hospitals in my part of the world involve creating hubs with community services. At the weekend I visited Barra, which has a care home and a hospital together. However, both sides have to jump through hoops regarding the shared services of laundry and catering, because there are different standards and regulations on each side. They are subject to different inspections and have to tick every box for both. It seems to me that there is a missed opportunity in the bill for streamlining, so that both sides would have similar standards.
We can consider whether a review of that area would be appropriate, taking account of the work that is being done on standards and outcomes for the new scrutiny bodies. I am not sure whether legislation would necessarily hamper progressing locally the issues that you describe. We may wish to consider such issues as part of our work on reshaping services for older people and considering different models of care, and to assess whether there are barriers to more joint services being developed and delivered locally. I am not sure that we need to address that issue in the bill, but I am happy to consider it.
It would certainly be an issue for the regulations and the inspection regime.
I think that—
Ah, welcome! I know that you have been paying attention.
Yes. Rhoda Grant has made a relevant point about establishing consistency of practice and making standards consistent across the piece, in health or social care. We have an opportunity to move in that direction. We perhaps see that most clearly in the proposed integration of the care commission and the Social Work Inspection Agency. We are not looking for one to replicate the other, but trying to combine the best features of both.
I suspect that it would be better for the new bodies to do that once they are established. A lot of the direction of travel is towards outcomes-based approaches. I imagine that considering how they might achieve more consistency across the standards that apply could be an early priority for the new bodies. I am not sure that that is an issue for the bill; I think that it is an issue for the new bodies to think about. If, down the line, legislative change is required, I am sure that we would consider that, but it might not be required.
I think that Richard Simpson has a supplementary.
Yes, Rhoda Grant picked up one of my questions.
How dare she!
I am ticking off my questions.
I think that I am right in saying that Community Care Providers Scotland raised an issue around that in its evidence.
That is a slightly different issue, which is about whether the tendering process takes into account the quality assurance work that has been done. As you know, the Local Government and Communities Committee is looking into such matters following the "Panorama" programme, which indicated clearly that tenders are awarded to providers that offer poorer quality but lower costs. However, that is a separate issue.
So SCSWIS would have a list of approved providers, if you like.
Yes. It would not determine the tender outcome, which is a separate matter.
I am with you; I understand.
That approach has not been considered and it ought to be. That is something that we should take away with us and perhaps address in stage 2 amendments.
I have not forgotten that Mary Scanlon has a supplementary on duplication.
Yes, I do. It is an appropriate time to raise the point that Rhoda Grant mentioned. The hospital in Barra is an ideal example of the issue, because it is both a hospital and a care home. I refer you to the Mental Welfare Commission's evidence, which points out that
I assure you that the regulations will be drafted before stage 2.
The minister might not agree with the Mental Welfare Commission for Scotland. However, in its own evidence, QIS says:
But QIS is absolutely right. The governance arrangements will be different. HIS, as you have outlined, will regulate the independent health care system in a particular way. The NHS's governance arrangements might be different, but that does not mean that they are any less effective. In fact—
But we do not know what the arrangements are. That is the problem.
I have just explained what they are. QIS, as is, or HIS, as will be, can be required to examine a particular situation in the NHS; indeed, QIS looked at the issue of health care acquired infections in its report on outbreaks at the Vale of Leven and other hospitals. That work led to the establishment of the healthcare environment inspectorate, which has significant powers and responsibilities.
That is the problem. As you say, action will be taken after failings come to light. What we want is a service that will be scrutinised equally, that will be proactive and that will try to prevent failings.
Mary—
It is important that I come back on that, convener.
I will let you answer the question, minister, but I must tell Mary Scanlon that she has had a very long supplementary and that I am now going to let in other members, who have been waiting quite a while.
It is important that I reassure Mary Scanlon on this point. We do not simply react to incidents—although I should stress that we certainly do react to any incidents that arise. The system is very proactive; it is, after all, a performance management system with constant monitoring and evaluation from the centre—perhaps far more than you realise—of the performance of services and boards and indeed of every aspect of the NHS. We are, therefore, able to pick up at an early stage if things are not going to plan or standards are not being met as they should be. I assure you that, if that is the case, swift action is taken to address that. The system will be proactive.
I will deal with some of the practicalities of the proposed reforms, particularly around the merger of some organisations. As ever, the process of change management is never easy or smooth, and I suspect that bringing together different organisations that have different cultures, methodologies and approaches can result in difficulties, particularly around the time when they are starting to work as a single unit.
Obviously, the key objective of bringing together organisations such as the care commission and SWIA is to integrate the methodologies, standards and programmes of scrutiny. However, the focus is clearly on improving outcomes for service users. For that to happen, we need a whole-systems approach to issues such as the planning, commissioning and delivery of services. For example, a care commission inspection of an old folks home does not tell us whether a person who is in that home should be there in the first place—it might be that there would have been a better outcome for that user if they had had a community care placement or support at home, for example.
The second point that I want to raise is a matter that was brought to the committee's attention by CCPS. It pointed out that the care commission, acting on an independent basis, is responsible for investigating complaints that are made against the voluntary or independent sector around the quality of service provision, but that there is no similar approach in relation to the quality of commissioning and service provision by local authorities, as complaints in that regard are handled by the local authorities themselves, which CCPS says compromises the independence of that investigation process. CCPS seeks a level playing field.
As I said in my previous answer, looking at planning, commissioning and delivery across the spectrum will be one of the tasks of the new body, SCSWIS. I refer to the report of the fit-for-purpose complaints system action group—that is a bit of a mouthful. The group was established in response to Crerar. Interestingly, its report suggested that, as a general rule, the complaints-handling function should not be embedded within bodies that have an inspection and regulation role, but that an exception could be made to protect particularly vulnerable service users. That is what happens with the likes of the care commission. Because vulnerable people in a care home may not wish to make a complaint direct to the provider, it is possible for them to complain direct to the care commission. There is no intention to change that. It will still be possible for vulnerable service users to go direct to the care commission.
Just to be clear, my understanding is that, if a family is concerned about the commissioning aspect, they can pursue the matter locally with the commissioning service, such as the local authority.
Yes.
If they are dissatisfied with the outcome, they can go to the Scottish Public Services Ombudsman. What will be different? Will the ombudsman set out what the pathway should be within the local authority and how the matter should be handled?
The ombudsman will work with the bodies to design a new complaints-handling system. The preferred outcome is to address complaints more efficiently, effectively and timeously. The idea is to reform the complaints-handling system to improve outcomes for service users, and the ombudsman's office will now have another string to its bow. As well as handling complaints, it will help to design the complaints system in each of the bodies, such as the local authorities.
Will the same design be applied across all 32 local authorities for consistency in approach?
Absolutely. That is the intention.
I make it plain to the committee that, although we will not scrutinise the bill at stage 2—it will be for the Finance Committee to deal with it—any member can go along to the Finance Committee to discuss the particular aspect that we are dealing with. The complaints process is of substantial interest to the committee. Members can also move amendments to the bill at that stage.
The process does not prevent someone from raising a complaint against an individual professional with the regulatory body if they have concerns about their professional conduct. That, again, is somewhat different from the independent voluntary sector.
Yes, absolutely. That is correct.
Ian McKee has not asked any questions, yet. I will let other members back in if they are itching, but I will let Ian ask his questions first.
As for anyone who comes in lower down the batting order, some of the points that I was going to raise have been partially dealt with.
We have some experience of this. In the previous session, we passed primary legislation to allow the joint inspection of children's services. The same arguments, points and comments were made then. The British Medical Association, the General Medical Council and others were concerned about such issues as access to health records. However, those issues were resolved by establishing a code of practice for access to health records and I expect the same type of thing to happen for the joint inspection of adult services.
I hope that that will be the case, although, given the functions of HIS, there might be far greater need for bodies to look at individual case notes, which causes some worry among professional bodies—and it will probably cause worry among patients when they discover it.
That is where the code of practice is imperative. The intention is to consult on this and to try to get consensus across the piece. It is vital that we have access to these kinds of records.
We are very aware of sensitivities and we need to reassure people about that. Nothing in the bill is contrary to the Data Protection Act 1998. The code of practice is a good solution; it has been tried and tested. It is a case of reassuring people while that is being developed. As Adam Ingram said, it is important that we ensure that the services are as effective as possible, without any barriers.
I accept that you are looking for integration, which we have all agreed is a good idea, but why do you persist in saying that there will be a Scottish health council, which seems to be the opposite of integration, especially considering that, with the advent of directly elected health boards, the function of a Scottish health council would seem superfluous?
The Scottish health council has had an important role, not least because it has been developing participation standards, which will be extremely important in ensuring proper consultation and involvement of the public in health board activities. The governance arrangements around the Scottish health council may change as it becomes part of the new HIS body. I understand where you are coming from. The governance arrangements of health boards would of course be modified by direct elections, although we should remember that the elections are being piloted and that change will not happen overnight. The role of the Scottish health council within the existing structure will be important for some time. Regardless of whether the health board is directly elected, it is still important to have a body that ensures that public involvement is of a sufficient quality to meet the participation standard, for example. Even with direct elections, there is a role for a body to ensure that the public are involved, particularly in relation to service change and redesign. That role should continue.
I have a final short question. If you think that that is important, would it not be a good idea to say that the Scottish health council "shall" be established, rather than that it "may" be established? Under the bill, you are leaving it to HIS to decide whether it is established.
I do not think that you should read anything untoward into that wording in the bill. It is to do with the way that legislation is phrased. There is every intention that the Scottish health council will continue, albeit with amended governance arrangements within HIS. The Scottish health council is doing a lot of important work around the public involvement standard, which we want to continue. The word "may" is merely a word in the bill; it does not give any indication of any direction of travel. We are very committed to having the Scottish health council, albeit under the new arrangements of the new body.
I do not know that we all agree that "may" is just a word in the bill. "May" and "shall" are big words in legislation. So is an "and" or an "or" in a list of clauses.
We have taken evidence from a number of bodies—including NHS Quality Improvement Scotland and the Mental Welfare Commission for Scotland, as well as a written submission from the Law Society of Scotland—that expresses considerable discomfort at the breadth of the ministerial powers in the bill for creating, altering or even disbanding bodies without there being further recourse to Parliament. It has been pointed out that many of the bodies concerned were set up by primary legislation that was approved by Parliament, but the Government will now take powers that will enable it to do pretty well what it likes with them. Having been one, I understand that ministers wish to seek as many powers as they can in order to be as flexible as possible in addressing the changing circumstances that health and social care services face, but some of us—not only those who have given evidence—feel a little uncomfortable at the breadth of the powers that the Government seeks.
I will try to reassure you on that point. The order-making powers in part 2 of the bill provide an alternative parliamentary procedure that allows ministers to introduce proposals to improve the exercise of public functions—and for that reason only—without the need for primary legislation. It is not the case that ministers would be able to make any changes without recourse to Parliament, because changes would be made under the affirmative procedure. In fact, we are describing it as a super-affirmative procedure in that it could not be done without full statutory consultation, parliamentary scrutiny and approval by affirmative resolution of the Parliament. That should reassure you that Parliament would have to approve any changes before they were made.
It is extremely helpful to have that on the record, minister. You gave a clear reply and good examples.
We will check that and come back to you on it.
The Law Society of Scotland has expressed concern that, notwithstanding the withdrawal of the Mental Welfare Commission for Scotland from the process so that there can be further consultation on precisely how it will slot into any new arrangements, the commission still appears in a number of parts of the bill. It has been suggested that the commission should be entirely removed until consultations are completed and new proposals are made.
We have just discussed the power to improve the exercise of public functions that relates to schedule 3. It would be wrong to remove the Mental Welfare Commission for Scotland from that schedule. I have given members an example of an active discussion that is under way between the commission and the Mental Health Tribunal for Scotland. I think that it be would be wrong to exclude any public body from the schedule and hope that I have reassured members about our intention. Of course, changes could not be made without parliamentary approval, but it is not intended that the power should be used to alter fundamentally the functions of any of those public bodies. It is about the ability to look around the edges, tidy up and make more efficiencies in public bodies. It is sensible, in the current climate, to have that ability.
I want to follow up Richard Simpson's questions. The Subordinate Legislation Committee considered these matters yesterday. The Mental Welfare Commission for Scotland was considered in our papers, and it was pointed out to us that we must remember that justice aspects as well as health aspects need to be taken on board. Colleagues around the table will bear in mind that not only health responsibilities are involved, which is another reason why it might be inappropriate to do what Shona Robison suggests.
The Parliamentary Bureau allocated the work.
Huge issues have been raised for the public, though. A very big bill is going through; indeed, it is so big that Michael Clancy of the Law Society of Scotland, the Lord President of the Court of Session and others highlighted that when they wrote to us. There are suggestions that our parliamentary bodies could be abolished, although they ought not to come under ministerial responsibility. We hear what the minister is saying, but we are certainly not happy. Does she want to respond to what I have said?
On the Mental Welfare Commission for Scotland, I stress again that the power cannot be used to remove any necessary protection in the existing legislation. The preconditions in section 12 provide safeguards. I am talking about the exercise of public functions, and have given good examples to illustrate that. Of course, nothing can happen without the say-so of Parliament through its use of the affirmative or super-affirmative procedure.
The issues about order-making powers and whether the procedure is affirmative, super-affirmative or simply negative have huge significance. When a minister proposes such changes, committees will not carry out the same scrutiny as they do with primary legislation. I am sure that other members also feel disquiet about the potential for huge issues of principle simply to go through in an order. As Richard Simpson rightly pointed out, ministers love to have such powers, but Parliament has the right to scrutinise their use on behalf of the public that it represents.
I reassure Helen Eadie again—
Sorry, but I want to make a point about the affirmative procedure. Under that procedure, the committee would take evidence if an issue was relevant to us.
We have not done that very much in the time in which I have been a member of the committee—once, I think.
We can do it, though. We are perfectly able to do it. It is a matter for committee members.
The only time in the eight years for which I have been a member of the committee that we have done that was in relation to prescription charges. The issue is important, although it is a matter for Parliament to decide, not for me. It is a political argument.
I want to move on but, to return to the process, it is always a matter for the committee to decide when it wants to take evidence. If anyone has been remiss, it has been the committee: it is not a matter for witnesses or Government ministers whether a committee tests instruments under the affirmative procedure. That is a matter for us.
The Law Society of Scotland, the Lord President and many public organisations have raised huge disquiet in submissions to this committee and to the Subordinate Legislation Committee. That must be borne in mind.
Make them short, please, because we want to make progress.
The bill is important. If we do our homework and prepare our questions, we are entitled to ask them.
Indeed—but I want to move on and let Mary Scanlon in, too.
I want to return to the points that were raised earlier about the independent sector and ask about points that have been raised with us about dental services. Dentists are saying that the bill has huge resource implications. The question that needs to be asked is whether the Government plans to amalgamate the inspections of dental premises with HIS. That work is currently undertaken by NHS boards and NHS Education for Scotland. There are many issues for dentists, who are concerned about the proposal to give authorised persons the powers to enter and inspect premises at any time, which would result in disruption to practices and patients. There are also concerns about what thought has been given to the definition of the term "authorised persons". What persons would be included for dental services and would they hold a regulatory qualification, which is currently required for officers in the Scottish Commission for the Regulation of Care? That was part of the question that Richard Simpson asked earlier. The Government must respond to those concerns, which were submitted to us in evidence from dental practitioners throughout Scotland.
I have two things to say about dental services. First, dental services that are wholly private, of which there are not many, will come under the ambit of the independent health care services regulation that we talked about earlier. There will be a consultation in the spring on how we will proceed with that. Secondly, the vast majority of dental services are mixed practices that are part NHS and part private. The NHS element is already part of the process of visits to premises that NHS boards undertake to ensure that they comply with the required standards.
The intention is to ensure through regulation who the authorised person is.
There is no intention to disrupt dental practitioners' practices. However, there is an intention to ensure that the appropriate regulations are in place. As I said, the complexity is that many dental practices are shared, in that they are partly private and partly NHS. The intention is to consider regulations in the spring for practices that are wholly private.
That is helpful. It ties in with Rhoda Grant's earlier point about different services in her local community. The Royal College of Nursing and others have raised the issue of invasive cosmetic procedures that could be set up by another type of health professional. Would the bill cover such procedures? Do you plan to have the bill also cover alternative health practitioners? Some procedures might be regarded as cosmetic—for example, laser treatments—but others might be considered alternative health treatments.
That question illustrates the complexity of the situation and is why the consultation will be around definitions, so that we can come to conclusions and clarify who will come within the ambit of the regulations.
That is helpful. The committee, like the public at large, has concerns about the proliferation of various kinds of treatment. I want to let Mary Scanlon in now.
I have more questions, so can you come back to me afterwards?
Let us hear whether Mary Scanlon covers your questions.
We heard information earlier about new functions for the Scottish Public Sector Ombudsman. Given that, I have a supplementary question on the points that Michael Matheson raised about Community Care Providers Scotland, which said in its submission:
I think Adam Ingram has answered that.
I made the point earlier that the SPSO will have additional strings to his bow in terms of designing complaints-handling systems. I therefore hope that Michael Matheson's points will be addressed at stage 2 by amendments that we will lodge.
So they will be included—that is helpful. I listened carefully to Richard Simpson's points about section 12, which is entitled "Preconditions". I would like clarity on the provision to remove burdens in section 13, which is a sweeping power. Section 13(1) states:
What that means is what I referred to earlier by way of example: the merger of payroll or finance functions, the collection of information on orders by both the Mental Welfare Commission and the Mental Health Tribunal for Scotland and back room functions. Those are the type of measures that I was talking about.
There is tremendous scope for the sharing of services, not just within the NHS but between councils. However, I would like it on record that the phrases "any burden", "any person" and "any legislation" relate only to economies of scale in relation to shared services.
That is laid out in the preconditions in section 12.
It is in section 13(2).
Thank you.
We have a chorus of help. The definition of "burden" is in section 13(2).
Let us move on to part 6. Ian McKee opened up the line of questioning on scrutiny and user focus. Can you give us some clarification of how you see the public involvement? Sections 92(6) and 93(4) state that ministers may or must consult any
I think that it is just a legal term that covers the organisations that have a bearing on and a relevance to the issue. It is just a legal expression.
My final question is one that I raised last week, regarding NHS QIS's written submission. If the regulation of independent health care is to be extended beyond the existing arrangements, it is essential that provision is made for full cost recovery. What do you expect in that regard?
The same principle would apply to a fee-charging regime, in that we would expect the costs to the sector to be covered by the fees.
On that point, in evidence to us, Community Care Providers Scotland said that the funding for the care commission should be re-examined and perhaps scrapped because it would cut out transaction costs that are charged for at various stages. It also said that SCSWIS should be centrally funded.
I hear the argument, but I suppose that the counter-argument is that, because the transaction is between the local authority and the care provider, there is some transparency about the fee. If we were going to fund the body in its entirety from the centre, there would be a £13 million funding gap. If you are asking why we do not take the fees directly rather than through the local authority, the counter-argument is that, if the local authority collects the fees, there is a transparency about the fees in the relationship between the local authority and the care provider.
A number of witnesses who submitted evidence to the committee cited the fact that, although they had been involved in discussions with the Scottish Government, those discussions were not about whether the proposed bodies were needed or suitable. That is a matter of some concern.
Although HIS will be established under health legislation, it will be independent. With regard to discussions about the proposed bodies, I return to my earlier answer. The Crerar review was an extensive piece of work that gave organisations the opportunity to feed into the process, and there is now an extensive parliamentary process in which bodies can give their views on the detail of the proposals.
I have a question that has not so far been raised. The clerk's paper for today's meeting states:
We are consulting next spring, and we will then need to draw up a timetable for the implementation of the Regulation of Care (Scotland) Act 2001. Adjustments will need to be made through regulation, as the act covers—as members might recall from our discussion—only services that involve a general medical practitioner or a general dental practitioner. The other examples that we discussed, such as cosmetic functions, would also need to be adjusted through regulation. We will work on the timetable for that implementation, but I am not sure whether it will be feasible before HIS is up and running. We will consult and consider what can be achieved in a reasonable timeframe, and we will act as quickly as we can.
I thank everybody, even those who have played a silent but very supportive role. We will move on to the next item on the agenda.
Next
Petitions