Education Committee, 09 Nov 2005

Meeting date: Wednesday, November 9, 2005

Official Report 203KB pdf

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Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill

Okay colleagues, we can resume the meeting. Agenda item 3 is the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill. I am pleased to welcome our second panel this morning.

I welcome the Minister for Education and Young People, Peter Peacock, back to the Education Committee. He is accompanied by Graham Donaldson, Her Majesty's senior chief inspector of education in Scotland; Maureen Verrall, the head of the children and families division in the Scottish Executive Education Department; and Jackie Brock, the head of the inspection and quality improvement branch of the children and families division in the Education Department. I thank you, minister, and your supporting cast for coming, although we are feeling under siege by the Education Department this morning.

That is not a bad thing.

I would be grateful if you could give us a few words to introduce the bill, explaining the reasons behind it and why the Executive seeks an accelerated timetable for it.

I will try to be brief, but, as you suggest, it is important to set things out for the record and so that members can ask legitimate questions. Members might want to ask about the timetable in particular. I think that I am returning to the committee on 23 November to give more evidence on the bill's policy content.

First, the bill seeks to secure powers that will allow the Executive's police, education, social work and health inspectorates and others to conduct joint inspections. Secondly, it will give powers to access information during those inspections and to share that information among inspectors and, when doing so at an organisation level is necessary, among inspectorates. Thirdly, it deals with powers for the Social Work Inspection Agency to conduct general inspections of social work services at the local authority level.

The committee will be aware that joint inspections of children's services and of child protection in the first instance are major planks in our child protection reform programme, which we are well through. We need the powers that we seek in order to proceed with our planned joint inspections programme.

The committee will rightly ask why we are so urgently seeking an accelerated process from the Parliament. I reiterate that we are committed to joint inspections, starting with child protection inspections, and that they should be completed by 2008. We have a clear timetable to allow that to happen; indeed, the Education Committee has pushed us hard on child protection reform and encouraged us to make progress for months and years.

A major consultation has taken place on the joint inspection process for children's services, which involved several hundred social work, police, education and voluntary sector professionals, as well as others. Graham Donaldson—who is leading the process for the Executive—and his people designed the inspection process as a consequence of that consultation. Pilot inspections took place in two local authority areas. They were highly successful; they generated lots of enthusiasm among people in a range of professions in the areas in which the inspections took place and gave us a clear signal that people want, and are enthusiastic about, inspections. People are enthusiastic about what they can contribute to improving practice and flushing out problems.

The pilots aimed to flush out issues relating to the design of the inspection process and how that process can be improved in the future. Issues to do with the practice of making inspections and how that can be improved were flushed out, as well as major issues to do with inspectors' current powers to access and share information and to work jointly.

Notwithstanding the fact that health boards in the inspection areas told the inspection team that they wanted to participate and to give information on health, we discovered that they did not have the power to give access to that information. That gave rise to an Executive exercise. We considered in fine detail the powers of all the inspectorates to access information in other areas and I was advised that the inspectorates do not, in effect, have the powers to operate jointly or to access or share information in a way that is required to conduct the inspection process. The inspectors need such powers to proceed with the planned inspection programme and are currently working to prepare the ground for that.

If the bill goes through the Parliament by the end of the year and receives royal assent early next year, we can get the inspection process fully back on track and it can be completed by the 2008 deadline. However, the timetable is tight and any significant delay will jeopardise the whole programme and its timetable.

The issues that came to light as a result of the pilots arose late in our planning process for our legislative programme and I know that the Education Committee has major legislative commitments later this year. We considered the possibility of tacking the issues on to another bill that is going through the Parliament, but that could not be done because of scope issues to do with the other bills—no easy vehicle was available.

We have deliberately produced a short, focused bill and its technical content is uncomplicated. We seek to get the bill through by the end of the year so that we have the necessary powers to meet the commitments and to improve child protection practice across the board.

There is a need to proceed with urgency—hence the timelines that have been suggested. In view of the circumstances, we took the fairly unusual step of speaking to all the party spokespeople in the different parties and arranged briefings by officials for them all on the detail of the bill and the logic behind what we seek to do. We also gave Opposition members copies of the draft bill before it was lodged in the Parliament to allow them to see what we were considering. We have subsequently made available to the Parliament all the regulations that are attached to the bill, so that members can scrutinise them at the same time as they consider the bill. One of the sets of regulations gives rise to an operating protocol, which we have also made available. Those steps will be significant in enabling members to scrutinise the bill. We have tried to ensure that members get all the data that they require to allow proper parliamentary scrutiny, notwithstanding the fact that we are on an accelerated timetable.

We have also made significant efforts to contact and have dialogue with all the key interests, including the police, social work, education and the various parts of the health service that the bill will affect. There have been full briefing sessions. Andy Kerr chaired a meeting with health interests to talk through all the issues. Those groups are being consulted about the detail of the bill, the protocols and the regulations. When I come back to the committee on 23 November, I will be able to tell members about the comments that we have received, although I am sure that the committee will have taken evidence from a number of those groups before I come back.

We have specifically created a requirement in the bill for the main regulations to be dealt with by the affirmative procedure, to give the Parliament the opportunity to scrutinise them separately from the bill. Therefore, the bill does not conclude the process; it gives rise to further parliamentary scrutiny. That is the broad position. I am happy to answer members' questions.

Thank you. Before we have questions, perhaps Graham Donaldson would like to comment on the pilot projects.

I will sketch out some of the work that we have been doing on the matters that the minister mentioned. The commission that I and colleague inspectorates were given was twofold. By 2008, we are to have a much more streamlined and integrated approach to children's services inspection, but initially we are—as the minister said—to lead with a programme of child protection inspections.

We have devised an inspection methodology for child protection. That essentially involves taking the local authority area as the unit that we examine, but we consider all the relevant services that operate within that area, such as health boards and the police.

We examine the way in which child protection operates in the area at three levels. At a strategic level, we consider the broad intent in respect of child protection and, at an operational level, we examine the processes that are used to try to ensure that young people are protected. A crucial part of the process is to look directly at the experience of individual young people and to establish to what extent the theoretical structure and the management processes have operated together to serve them well.

As the minister said, we held two pilot inspections—one in Highland and one in East Dunbartonshire—in which we tried out the methodology. The results of the pilots were positive. The people involved in those inspections—those who inspected and those who were inspected—have played a crucial part in letting other people know about the inspection process; they have participated in consultation conferences throughout the country to discuss the nature of what we are doing.

The overall response to the process has been extremely positive, as the minister said. My assessment is that those who are engaged in the system want the inspection process to be put in place as quickly as possible—a number of people have said that to me very directly.

The pilots were only partially successful, however, as we could not get access to medical information. I am not talking just about the information itself; on the ground of patient confidentiality, the health service staff who were engaged in the process were instructed by the chief executives of the health boards not to discuss individual cases with members of the inspection team. The chief executives believed that, in the context of their responsibilities, it would not be appropriate to release that information.

All the other services that were engaged took the view that the public interest was served by allowing the inspection team access to information, as that enabled us to establish how well the system had operated for individual children. I have to say that the chief executives of the health boards and many of the health professionals on the ground reluctantly said that they could not participate in the process; they indicated that they would like to participate but believed that it would not be appropriate for them to do so under the current legislation.

As a result of those two pilot inspections, I was able to say that we had tested a methodology that had worked well as far as it went. However, I could not report with confidence that children in those two areas were fully protected, because we had not been able to pursue that critical interface between the health service and other services.

There have been a variety of tragic cases in the United Kingdom, recently and stretching back over 25 years—there have been 26 child deaths in that period as well as other cases of serious abuse. We know from that experience that one of the critical interfaces has been between medical professionals and other professionals on issues to do with the sharing of information. A number of issues emerged during the pilots that we would have liked to follow through and discuss with medical professionals, particularly health visitors, but we could not do so.

I have been given responsibility by ministers to put in place a child protection inspection process, but I am in a position in which I cannot confidently say that the process, operating within the existing powers, would give the kind of assurance that we need to give about whether children in a particular area are being protected. It is my judgment that, in such circumstances, inspection could do more harm than good. If we give false confidence about the way in which the child protection system is operating in a local area, inspection could be counterproductive. That is why I came to ministers and said that, in order to proceed, we need to resolve the issue of access at the specific interface between health and the other services. Legal advice was taken on that, hence the bill that is before the committee today.

Before I invite members to ask questions, I remind everyone that there will be another opportunity to question the minister on the detail of what is proposed; what we are considering today is the general need for the legislation and the timescale involved.

I have just one question, but I want to provide a little background because, as we know, the committee has been interested in the issue. I appreciate that speed is required at this stage and I welcome the minister's commitment to act. However, there has arguably been some tardiness and I would invite officials who have been involved in the matter to comment.

In November 2002—three years ago—Scotland led the United Kingdom in suggesting that, in our child protection reform programme, we would move towards joint inspections. It was another year before the United Kingdom made the same commitment; it made the commitment to joint inspections in 2003. However, England legislated for joint inspections in the Children Act 2004. Consultations on regulations were held between March and June of 2005. Joint inspections were introduced in September this year and there is a commitment to complete joint inspections for the whole of England—with a population 10 times the size of Scotland's—by September 2008.

As I said, although in Scotland we made the commitment to joint inspections in 2002, before England did, the timetable that we have before us gets us to the position where we will be embarking on a full range of inspections only by the end of 2008. By that time, a full range of inspections will have been completed in England. I am looking for an explanation. A year ago in committee, I asked on a number of occasions whether legislation comparable to the Children Act 2004 would be necessary and I was assured that legislation was not necessary. I am happy to see movement, but I have some concerns.

We started ahead of the UK and, as things stand, although it is important to make progress, the rest of the UK will have completed the first complete joint inspections when we are just embarking on our all-Scotland inspections in 2008. The committee has raised the issue in the past; perhaps we should invite officials to comment on it. However, it is encouraging that there will be speedy progress henceforth.

I think that I should comment before I invite my officials to speak. There is a danger that I will be drawn into making comparisons between the English and Welsh inspection process and system and our process and system. We have sought to integrate the thinking about children's services inspection with, in this instance, the much wider child protection reform programme. We have been thorough in carrying out all the consultations with people and in undertaking the pilot schemes. I am not sure that the same process has been followed in England. We have sought to move the matter forward in a thorough and comprehensive way as quickly as we could.

If the implication of your question concerns tardiness, it would be fair to ask why we did not spot the legislative gaps three years ago. My answer to that would be that I would much rather not be here today answering questions on that. Nobody at any point questioned whether we had the powers and we acted in good faith throughout. It was only on close examination, following one issue arising, that we flushed out the wider issues. As soon as we knew that we did not have the powers, we had a clear obligation to come to the Parliament and seek those powers. As I say, I would rather not be in this position. In the best of all circumstances, we would have spotted the gaps and taken the powers much earlier so that the question would not have arisen. However, we are where we are and we are trying to sort it out now.

Graham Donaldson may have more insights into what is happening in the south and what is happening here.

In England, child protection inspection forms a relatively small part of a children's services inspection. Child protection inspections are not as rigorous as they are here—the process is different. The judgment here—one that I have been taking forward—is that it is critical for child protection to ensure that the services are working together in a way that provides the maximum support that those services can provide for individual vulnerable young people. That is seen as a priority.

That does not mean that the children's services inspection process is on hold until 2008. We have produced a framework of quality indicators and a self-evaluation guide. Between now and 2007, when we will undertake pilots of children's services inspection, we will work with the services throughout Scotland to get them to evaluate their own performance on children's services in the context of the developing policy agenda. An interesting issue is whether inspection leads policy or whether inspection reflects policy. In this case, it is important that the inspection process is able to take place in the context of a developing children's services regime. That is more effective than our simply going in and saying, "You have not yet implemented the policy," which would be unsurprising, given the timescale.

Child protection inspections will be done in 2008, assuming that we get the powers. Children's services will be inspected in parallel. A programme of pilot inspections will start in 2007 and joint inspections involving all the relevant inspectorates will be under way in 2008.

I appreciate the minister's candour. These things happen and we should move forward. However, the committee has an on-going concern that, whereas the rest of the UK will be finished in three years from now, we will just be starting in three years and two months from now. The process may be less rigorous elsewhere, but it is easy to allege that other places are less rigorous. Perhaps that is something that, in the subsequent evidence stages, you can write to us about or which we can explore further. However, I am happy to leave the matter there.

Joint inspection to ensure that child protection is working is one of the key recommendations of the 2001 report "It's everyone's job to make sure I'm alright". We raised the issue with the minister in May last year as part of our child protection inquiry, looking at the outcomes and outputs of that report. I asked specifically about the need for legislation in the context of what was happening down south. Obviously, the joint reviews there recognised the different authorities, such as Her Majesty's Inspectorate of Education and the Healthcare Commission, as entities in themselves. I am assuming—from the explanations and briefings that we have had, for which I am grateful—that the reason why we cannot progress in Scotland is that the joint inspectors are not recognised as a body in law, which means that they must be established as such. The point that Wendy Alexander made was that 150 local authorities in England will have been inspected by 2008. My understanding is that you still intend that all 32 of the Scottish local authorities will have received a joint inspection by the end of 2008. Is that correct?

Yes.

We have a delay in the process that we are having to rectify in law. The committee has to deal with a lot of legislation from the Executive and does not invite extra legislation but, in this case, the committee highlighted the need for the law to be rectified. I hope that the Executive reflects on that fact.

I have a concern about the issue of confidentiality. Graham Donaldson made an interesting point about whether policy leads or reflects inspection. Is it your view, based on your pilot studies, that the concerns about sharing confidential medical information with the joint inspectorate that does not yet exist in law reflect a deeper concern about sharing medical information? We know from tragic case studies that this is the interface. If there is a reluctance to share confidential medical information with well-regarded and professional inspectors who have been sent in from the Executive, what chance does the health visitor or social worker on the ground have of receiving that support? I understand the need to legislate on this matter in order to get the national body recognised, but do we need to legislate to ensure that practitioners on the ground have access to this vital information?

I will get Graham Donaldson to address the points that Fiona Hyslop specifically addressed to him.

If we get the powers that we are seeking, child protection inspection will be completed by 2008. It is all set and ready to go. I think that Wendy Alexander was referring to the wider children's services inspection, not just child protection inspection.

I confirm that your description of the legal powers that we are seeking is correct. As I said to Wendy Alexander, I would rather that we were not in the position of seeking these powers, but that is where we are.

It is better that Graham Donaldson deals with the issue of confidentiality, but I might add something once he has spoken.

In a sense, the issue that Fiona Hyslop raises relates to one of the key reasons why we need the inspection process. The advice from the chief medical officer is quite clear. Child protection trumps confidentiality and information on an individual patient should be shared where that is in the interests of the patient. We do not know the extent to which that is happening across the country. We know of examples in which it has not happened, but we do not know whether those are exceptions or are indicative of a steeper problem. That is one of the key reasons why we need this inspection process. We need to find out more about what is happening at the interface and what might be inhibiting people from sharing information. In due course, I suppose that the inspection process could inform the answer to your question about whether we need legislation to ensure that that is taking place.

Graham Donaldson has covered the situation adequately, but I should say that I have no reason to believe that the operational tools that are in place should inhibit the proper sharing of information anywhere in Scotland if that is what is in the interests of a child. As Graham Donaldson said, from inspection reports and other forms of inquiry, we know of cases in the past where that has not happened. That is part of the reason why we need the inspection process. If, at any point, we felt that we needed further clarifications, we would not hesitate to seek them. At the minute, however, we are clear that there is no inhibition on the proper sharing of information, operationally, where that is required to protect children.

I think that I am correct in saying that we have issued guidance on the implications of data protection rules for the issue that we are discussing. Maureen Verrall can confirm that.

There is no end of guidance about agencies' ability to share information for the purpose of providing a service to a child. To return to Graham Donaldson's point about policy and inspection being part of a piece, another set of issues that have been raised relates to the agenda of integrating children's services. Integrated children's services planning and the proposals that are set out in "getting it right for every child" for collective case conferences that will lead to one assessment, one record, one care plan and one individual who is responsible for delivering it are part of the package of ensuring that services work together properly.

I represent the Lothians, where we had the case of Michael McGarrity. I hope that the lessons in the report on that case will help to inform the on-going discussions and reflections on the bill.

The purpose of any report in whatever form on any case is exactly that: to flush out procedures that we need to tighten up. We constantly tighten up procedures, practices and guidance to ensure that perceived loopholes are removed. The recent case in the Western Isles has given us cause to consider some of the guidance that has been issued in case it in any way gives the impression that people should not act in particular ways. In that case, the issue was not about sharing confidential information; it was about the interpretation of other parts of the law. We are always learning about how we need to move forward.

It is not guidance that protects children, but people.

Indeed.

I have a question on an issue to which we will return in more detail later. The reason for part 1 of the bill is self-explanatory, but why is part 2 included? I know that you want to deal with the matter speedily—you will have the committee's co-operation in that—but will you explain the reason for part 2? I suspect that it could have been included in another bill. Does part 2 arise from a reflection on the Borders case?

When the health board issue came to light, we considered the legal issues in great depth and in doing so realised that the Social Work Inspection Agency does not have all the powers that it requires to carry out general inspections of social work authorities. Given that knowledge, we thought that we should seek those powers in the bill, because we need progress on that matter, too.

What has led you to think that the agency does not have the power to carry out general inspections? It seems odd that a national agency that was set up to inspect social work does not have the power to inspect social work services.

Indeed, but that is the advice that we have received and exactly why we now seek the powers explicitly. The Social Work Inspection Agency has many powers through other acts of Parliament. For example, in the work that was done on the Borders case, ministers used their power to commission a specific piece of work. However, the agency is only now moving into the territory of general inspections of local authority social work functions—HMIE has begun similar inspections, although only recently. The purpose of the inspections and the way in which they are conducted are new territory. We must be certain that the agency has the necessary powers, which is why we seek them in the bill.

The explanatory notes state that inspections will be done at three levels: strategic, operational or individual, where there are concerns about specific children. I presume that the concerns about sharing medical information without consent relate to the individual level of inspection, because it is difficult to anonymise them at that level. Will the medical records that can be accessed without consent only be those of the child, or will they include records of the parents or people who care for the children?

I ask Graham Donaldson to answer that, as he has considered the specific details.

We would look at the medical records of the child, to follow a child protection audit trail. The critical issue is to be able to look at, discuss and analyse what has happened in relation to an individual child. I emphasise that that investigation is not about second-guessing how the child was dealt with; it is about considering how the process operated, whether people understood the necessity of sharing information and whether the right interchange took place. In the pilot inspections that we undertook, we found references in social work records to discussions with health staff, but those discussions had not been followed through and nor could we follow them through in the inspection process. The critical point is that we will look at children's records.

I raise the issue because if a parent or a carer has an addiction problem, that may show up in their medical treatment. Someone who has been on a methadone programme may no longer be on it and it may be necessary to establish why that is the case. Someone may be abusing prescribed drugs. Information in the medical records of the carer could indicate that there is a child protection issue, but the bill would not change the situation.

I am not clear whether you are talking about the situation in an operational sense now.

My point is more about the sharing of information for child protection. In many of the tragic cases that have taken place, a parent or carer has had an addiction. If that information could be shared with social services, it might alert people to the fact that there is a possible child protection issue.

I do not think that there is any difficulty in sharing such information operationally now. In fact, where intelligence about the way in which a family operates or does not operate indicates that the family has become dysfunctional, it would be expected that that would be included in the everyday dialogue between professionals in the interests of the child. The bill is to do with having access to information after the event and picking things up during inspection.

So it is currently possible for a social worker to ask a general practitioner whether there is an addiction problem within the family and the GP cannot hide behind data protection or whatever and refuse to give the information to the social worker.

We are getting into very specific and complex matters. If it were judged that the interests and protection of the child were in any way jeopardised because of certain factors, the GP should share the information. The interests of the child must drive the approach. We know from some inspection records that such dialogue properly takes place to try to protect the child, but we also know that it sometimes does not take place. That is often the root cause of something going wrong. I am in no doubt about the contemporary capacity of people to share the information if that is in the interests of the child.

It seems a little odd that the inspectors can get access to the information but individual practitioners would not feel themselves to be bound by law to share the information. Such sharing of information does not always happen; in many cases information has not been shared properly.

We seek to give the inspectors these powers to make it clear what access to information exists and the legitimacy of such access. When members look in detail at the protocol and the regulations that structure it, they will see that we seek to ensure that client confidentiality is upheld and that information on clients' circumstances and interests remains within the confines of the confidential bond that unites all inspectors, who are—as Fiona Hyslop rightly said—highly expert professionals. Every day, inspectors undertaking investigations in schools and social work look at children's records and they are already bound by rules of confidentiality. We will go to great lengths to maintain the overall protection of an individual's information, while ensuring that we can track what happened to a child and learn the lessons from things that have not been done.

I am sure that the committee will hear some detailed, intricate arguments about the issue when it takes evidence. There are obvious concerns as we must ensure that we protect information about clients generally while enabling the processes to go forward.

I have two brief questions. First, will the minister tell us whether he would be prepared to consider a sunset clause in case any imperfections in the bill were to become evident in the 12 months after enactment?

Lord James Douglas-Hamilton has written to me on the issue and we have considered the matter. We genuinely hope that, with the committee's help, there will be no imperfections in the bill by the time that it is passed. We want the legislation to be a solid piece of law on which we can depend. Having said that, I am aware that the committee is still to take a lot of evidence on the matter; although I am not inclined to bow to Lord James's point, I will listen to what the committee says once it has heard the evidence.

Does the minister accept that it is my position and that of the Tory group—of some 17 members—that the bill must go ahead, because we believe that the overwhelming and paramount consideration must be the protection of children, but that we should have the right to revisit the subject a year after enactment if, in spite of all our efforts, any imperfections were seen to arise?

I recognise that that is the position that is taken by the Tory group. However, I thought that it had 18 members.

"Had" is the appropriate word.

Now, now.

The minister has answered one of the questions that I had. What is the status of the robust protocol on protecting medical confidentiality? Does it qualify as subordinate legislation? Is it a guide? Is it a code of practice?

Why is the power to create offences being delegated to subordinate legislation rather than being included in the bill? The matter is quite serious and I would therefore expect it to be dealt with in the bill. The Subordinate Legislation Committee raised that issue as well.

On your latter point, we depend on advice about how bills should be structured and drafted. Our advice was that that was the most appropriate way of dealing with the issue. If, in the course of taking further evidence, you want to make mention of that again, you should do so. I will go back to the ranch now and get some information that will enable me to give you a firmer answer on what the position is.

On your question about the protocol, one of the sets of regulations sets out clearly the framework for the protocol, but the protocol itself will be a flexible document that will be able to adapt to changing circumstances and times. The protocol per se is not subject to parliamentary approval, but the regulations under which the protocol is agreed are clear about what it ought to contain and what issues it ought to cover.

We will come back to this issue at a later evidence-taking session, because many aspects of the proposals will be dealt with in subordinate legislation rather than in the bill. It is important that we get a grasp of what status that will have.

That is precisely why we have published the regulations at the same time rather than sequentially, which would be the normal practice. We want the committee to have a complete picture of what we are seeking to do and be able to debate it.

Adam, did you want to ask a question?

The questions that I wanted to ask have already been asked and answered.

Minister, what consultation are you conducting on the draft regulations? When do you expect to be able to report back on that? You mentioned the matter briefly in your evidence, but it would be helpful to have the information clearly on the record.

I will ask Maureen Verrall to answer that.

The bill, the regulations and the draft protocol have gone out to all the various health interests and to organisations such as the Association of Directors of Social Work, the Convention of Scottish Local Authorities and the Association of Chief Police Officers in Scotland. The bill, the regulations and the protocol had been consulted on informally before they were prepared and now they are available. They were sent out in writing in the week in which they were submitted to you and we have asked people to let us have comments on any element, particularly the protocol, which contains the detail of how information will be handled, by 17 November. We will be in a position to answer any questions about what people have told us about the various aspects by 23 November.

As there are no further questions, I thank the minister and his team for coming along this morning. We look forward to seeing them again soon, perhaps in two weeks' time.

Meeting continued in private until 12:54.