Will a Rights Based Approach get the National Care Service Back on Track?

Nick Kempe - Common Weal Care Reform Group

 Influenced perhaps by the joint letter Common Weal, the STUC and a number of other organisations set to Nicola Sturgeon, all three candidates in the SNP leadership contest have now committed to pausing the National Care Service (NCS) Bill following widespread calls to do so.  This is very welcome but raises the question of what now?

Suspending the bill won’t in itself stop the process of developing a National Care Service or change the thinking that lay behind its disastrous proposals let alone create the type of National Care Service Common Weal advocated in Caring For All https://commonweal.scot/policies/caring-for-all-a-national-care-service-for-scotland/.  Nor will it address the workforce crisis that has engulfed both health and social care.  A raft of other commitments and actions are therefore required not just from the SNP leadership contenders but from the Scottish Government as a whole.

A good start would be to commit to a public service like the NHS, but designed and controlled by stakeholders, and to terminate the contracts with the private sector management consultants such as KPMG who have been designing the NCS behind the scenes.  Stemming the flow of funds into the private sector is something that is within the Scottish Government’s power to deliver and would enable more investment in actual care provision.  Committing to do that through local authorities and re-invigorating local democracy in the process would be even better.

But behind all this, the current conceptual policy framework for care provision needs to change,  from one based almost entirely on a “human rights approach” to one based on “need”, delivered within the context of the 4 Rs, Rights, Responsibilities, Relationships and Resources which we set out in Caring for All. 

It is not a coincidence that the Human Rights Bill appears to be unravelling at the same as the NCS Bill https://healthandcare.scot/stories/3392/scots-law-first-minister-alliance.  Many in the voluntary sector have been pinning their hopes on human rights driving solutions to the problems in social care but that requires tangible and enforceable rights.  The draft NCS Bill included provision for a Charter of Rights, so long as this created no new legal rights, and two new rights:  a right to respite and Anne’s Law, a right for care home residents to have visitors.  Both new rights were highly qualified and the bill included no mechanisms for enforcing them.  As representatives of the legal profession argued in their evidence to the Health and Social Care Committee https://healthandcare.scot/default.asp?page=story&story=3286 the clauses were “unhelpfully vague” and unlikely to work.

What has been happening in homelessness services, which provide for one of the basic necessities of life, should serve as a warning to anyone who still believes that rights, taken in isolation, can provide a solution to social care problems.  In Scotland, despite people having a legal right to be housed, Councils have been failing in their legal obligation to ensure they have enough suitable temporary accommodation and last year failed to house a record number of homeless people.  Not only that but this week it was revealed 36 homeless people, many of whom need significant social care support, had died in privately run hotels in Glasgow since March 2020 – totally unsuitable places for meeting the needs of vulnerable homeless people. 

Even if the cuts in the legal aid scheme, one of the original pillars of the welfare state, were reversed and homeless people had ready access to lawyers the challenge of enforcing the rights of these homeless people would be considerable as organisations like the Govan Law Centre have been saying for some time https://www.heraldscotland.com/news/18154569.experts-warn-homeless-law-may-not-enough-end-scotlands-temporary-accommodation-scandal/.   The underlying problem comes down to resources, a lack of suitable housing and a lack of support staff.  But that is a problem afflicting the whole of social care. If you try to enforce rights in one area, without adequate resources across the system, you will remove resources from another.  It is for this reason that Common Weal argues that the NCS should be based on needs and any revised Bill must include provisions for the collection of data on care needs across the system and mechanisms to allocate the resources necessary to meet those needs.  

Pam Duncan-Glancy MSP, Scottish Labour’s spokesperson for social justice and social security, was recently quoted (in Healthandcare.scot - link above) as saying that for rights to make a positive change fundamental shifts in resources and power would likely to be required:

“We have to get real about the fact that that will mean moving resources, people, systems, structures to places that they might not have been before and places that [Scottish government] might not want them to go.

“I don’t know that they [Scottish government] have made that leap to understand that, in particular for disabled people, to call in human rights is going to mean tangible movements of money, probably movements of power and resource and is likely to result, if it’s to be meaningful, in a redistribution of income and wealth.”

The suggestion that there needs to be “a redistribution of income and wealth” is  a welcome acknowledgement of the need for more resources to be invested in social care even if focussing on rights alone will not achieve this.  If the terms of the debate about the NCS Bill are to shift, those advocating for human rights need to insist the word “approach”, which is meaningless, is dropped and to link rights to both responsibilities and resources.

Only then will care, which is founded on relationships (the fourth “R”), improve.  In response to the 36 homeless deaths a Glasgow City Council spokesperson was quoted as follows in the Herald:

“It is regrettable that people who experience homelessness and have complex healthcare needs die while residing in temporary accommodation.  However, accommodation is not the cause of death”

It is hard to conceive of a more heartless response and it could only have come from someone who had little or no relationship or empathy with homeless people.   

The challenge is to create a National Care Service which is sufficiently well resourced to enable ALL those working for it to care.   That won’t stop every drugs death or suicide but it should be the starting point for care provision.  It means all those working at the front-line need to have the time and training to care and to form caring relationships with those in need of help.  If that happened – and it is dependent on a properly paid workforce - many of the rights issues would be resolved.  

Before the NCS Bill is “unpaused”, it should be redrafted.  The first key change required is to give the National Care Service an overriding purpose, to meet the care needs of people in Scotland that would otherwise be unmet.  The second is that it should be based on the Four Rs, Rights, Responsibilities , Relationships and Resources and not just on the first of these.