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ScotGov Delays Care Bill Amendments

Nick Kempe

On Thursday 28th March, just before the holiday weekend, the Minister leading on the National Care Service (Scotland) Bill, Maree Todd, wrote to the Convener of the Scottish Parliament’s Health, Social Care and Sport (HSCS) Committee to inform her that the Scottish Government wouldn’t after all be publishing their proposed amendments to the bill before the end of March as promised. Instead, Maree Todd stated “The full text of amendments intended to be lodged at Stage Two; a marked-up version of the Bill as introduced (incorporating the amendments in a highlighted format); an updated Policy Memorandum and Explanatory Notes, will be sent to the Committee no later than June 2024”.

The news release came out at the end of the day before the Easter Weekend and as a result there was almost no media coverage. This was unsurprising because the letter represents another U-turn by the Scottish Government and more seriously a breach of the promises Maree Todd had made to the Scottish Parliament.

MSPs working through the Scottish Parliament’s Committee system had been raising concerns about the lack of detail about how the NCS bill would work since it was first published. They had also been asking the Scottish Government what amendments it intended to introduce following the Verity House agreement with Cosla, in which it had been forced to agree local authorities should retain some responsibilities for care provision, and the wider co-design process rather than Ministers taking sole control over Care. The Scottish Government’s responses to these requests was consistently evasive before they adopted the position that they would only provide further information once the NCS Bill had passed Stage One.

This was without constitutional precedent. The function of Stage One Readings is to decide whether or not the Scottish Parliament endorses the purpose and broad principles of the proposed legislation. In the case of the NCS Bill MSPs were being asked to endorse a bill many of whose provisions were not yet known: effectively the Scottish Parliament was being asked to hand back to the Scottish Government a sheet with blanks where it could add whatever it wanted. It is not surprising many MSPs baulked.

The HSCS Committee only agreed to finalise and publish its report recommending the bill be passed at Stage One on condition that the Scottish Government agreed to publish its proposed amendments by the end of March. Maree Todd accepted the Committee’s recommendations in a letter date 28th February – the day before the Stage One debate. Re-assured by this commitment, MSPs approved the bill after the Stage One debate by 15 votes. Four weeks later Maree Todd reneged on that promise.

Maree Todd’s justification for this U-Turn is that the Scottish Government has decided to set up an Expert Legislative Advisory Group (ELAG) to consider the Scottish Government’s proposed amendments to the bill. Her letter stated the Scottish Government expected this work to take 8-10 weeks and she offered to work with the HSCS Committee to agree a new timetable to consider these amendments. A slightly different timetable was set out in an email sent out to NCS stakeholders later on 28th March. This stated the Scottish Government expected to be able to provide the information the Scottish Parliament had requested by the end of June.

The first meeting of the ELAG, to decide its remit, was on 28th March, the same day as Maree Todd’s letter. Preparations for creating the group had, however, been going on for some time as the Common Weal Care Reform Group knows because we are pleased to be represented along with 60 other stakeholders.

Given these timescales, it seems extraordinary that Maree Todd never advised the HSCS Committee back in February that the Scottish Government intended to ask the ELAG to consider the amendments before they were brought back to the Scottish Parliament. Had MSPs known this it is likely they would have had something to say, not least because an initial group of 61 stakeholders to discuss the legislation is unlikely ever to reach agreement. On past performance this will allow the Scottish Government to pick and choose the advice it accepts. The current group does not even include the Care Home Relatives Group, with whom the Scottish Government has been discussing Anne’s Law (the right of relatives to visit family members in care homes.

The best that can be said about the whole process by which the Scottish Government has managed the NCS Bill is that it is utterly shambolic and reflects a complete absence of ideas about what needs to be done. With the Scottish Government’s amendments delayed until the end of June at the earliest and with the Scottish Parliament’s summer recess to follow, it very hard now to see how the bill could possibly be ready for the Stage Two debate before this time next year. Meantime the crisis in care gets worse by the day.
The less charitable interpretation of the process to date is that this is a Scottish Government which cannot be trusted and may have its own secret reform programme, informed by private sector consultants like KPMG, which it is still hoping somehow to get through the Scottish Parliament.

The Common Weal Care Reform Group prepared a comprehensive set of amendments to the NCS Bill as published back in November 2022. We never published our amendments because we anticipated the bill would be revised before the Stage One debate and then, more recently, accepted Maree Todd’s promises to the Scottish Parliament. We therefore restricted ourselves to providing a briefing to MSPs before the debate.

We no longer believe it is advisable for anyone with a stake in the NCS to wait. We are planning therefore to publish our proposed amendments to the draft bill – in “highlighted format” just as the Scottish Government was asked to do by the Parliamentary Committee – in the next few of weeks along with an explanation of their purpose. We hope that these will be considered by the ELAG, along with those being proposed by the Scottish Government. Our intention is to promote discussion and ideas among all those with a stake in the NCS, including MSPs. Our message is that it is time the Scottish Government stopped wandering aimlessly through the social care crisis, as if this were a matter outside its control, and that the people needing care and those supporting them need to develop alternative proposals.

3 thoughts on “ScotGov Delays Care Bill Amendments”

  1. Ian Davidson

    Useful update, thanks Nick. Personally I have zero faith in the integrity of most Scot Gov Ministers and senior officials; only a prolonged cold shower of being out of office for a while is likely to cure the disease? Social care in meltdown; nobody cares for the carers?

  2. Campbell Duke

    I am a Member of The Care Home Relatives Scotland Group. I created this Post on the CHRS Page on 3rd April making broadly similar points to those of Nick Kempe.
    I too am alarmed at the creation of ELAG. I had recently attempted to discover who the ‘Stakeholders’ were, and was advised such information could not be divulged. I am concerned that CHRS are not involved. As a private citizen with a powerful emotional stake in the matter of 🌻ANNE’S LAW🌻 I feel increasingly marginalised as this whole NCS business gets increasingly mired in bureaucratic delay. It is incredibly frustrating.
    “This Post is entirely my own. I greatly appreciate the opportunity for sharing thoughts and opinions via the CHRS Facebook Page. I have little opportunity to discuss these matters and welcome an exchange of ideas on this Page. It helps to keep me better aware and more able to engage in conversation with friends and family. It is good to be well informed. Often I benefit from other perspectives. Sometimes that will be others helping me understand things better. Or even telling me I’m wrong! “It’s good to talk!”

    🌻On 22 February 2024 the Parliamentary Health Committee published it’s Stage 1 Report on The National Care Service Bill. It recommended that The Bill be approved, though expressed many concerns. Specifically, it requested that the Government respond with details of potential amendments (and by implication to s.40 – the Anne’s Law section), and asked that these details be provided by 28 February or if not, by 29 March.

    🌻As we know, the Bill received it’s Stage 1 Approval after the Parliamentary Debate on 29 February, during which Anne’s Law was frequently and positively referenced.

    🌻The Government has proven unable to respond to the Health Committee’s request by the 28 February Deadline, nor for the 29 March Deadline.

    🌻On the 28 March the Health Minister wrote to the Health Committee, which has the lead role in scrutinising the Bill at Stage 2 and considering any Amendments. (The Letter is shown attached to this Post)

    🌻In her letter the Health Minister notes….(my comments are given in BLOCK CAPITALS),

    “we recognise the benefit of establishing an Expert Legislative Advisory Group (ELAG) to supplement and augment the current engagement and to bring specific focus, on this occasion, to the process for the further development of Stage 2 amendments. I am therefore pleased to advise you that an ELAG to support the next stage of work has been established, with the first meeting on 28 March 2024.”
    (IF IN DOUBT – FORM A COMMITTEE AND HAVE A MEETING! I UNDERSTAND GOVERNANCE CAN BE A TOUGH GIG BUT….SERIOUSLY!? AND WILL WE AS ‘STAKEHOLDERS’ BE PERMITTED SOME INPUT IN THIS PROCESS?😱)

    🌻The Minister also says….
    “Whilst we have committed to providing the information requested….as soon as possible, that material will require to be informed by the
    work of the (ELAG) group and it will not be possible to do that by 29 March 2024.(AS REQUESTED BY THE HEALTH COMMITTEE)
    The full text of amendments intended to be lodged at Stage 2….will be sent to the Committee no later than June 2024.
    (YES. AGAIN. THE ENTIRE PROCESS IS EXTENDED BY AT LEAST 3 MONTHS!!😱)

    In attached Notes the Minister further adds,
    *I welcome the Committee’s overwhelming support for Anne’s Law which the Scottish Government remains absolutely committed to delivering within the NCS Bill.
    (THERE WILL BE “NO” DECOUPLING OF ANNE’S LAW FROM THE NCS BILL?? IT HAS INCREASINGLY BEEN THE CASE THAT ANNE’S LAW HAS BEEN CONFLATED WITH s.40 AS WORDED AND THIS IS MOST DEFINITELY NOT WHAT WE HAVE BEEN CAMPAIGNING FOR!😱)

    *I have noted the Committee’s recommendation that Anne’s Law should be implemented swiftly.
    Once the NCS Bill has passed and is enacted, the Scottish Government will look to implement Anne’s Law as soon as is practically possible.
    (THERE IS AGAIN NO APPARENT INTENT TO EXAMINE THE CRUCIAL WORDING OF s.40 AND NO SUGGESTION YET THAT THE CONTROL AND POWER OF VETO ACCORDED TO MINISTERS AND PUBLIC HEALTH BE REMOVED OR OTHERWISE ALTERED😱)

    *As the Committee has noted, steps have been taken to lay the foundations of Anne’s Law already using our existing powers by strengthening the Health and Social Care Standards and updated guidance for care homes.
    (AGAIN, AN IMPLICATION THAT THE DEAL IS ALREADY MORE THAN HALF DONE BY SUGGESTING THAT A “STRENGTHENING” OF STANDARDS WAS MORE OR LESS ALL THAT WAS REQUIRED!!😱)

    *The Committee has suggested that consideration be given to a number of amendments for Anne’s Law
    …. the Scottish Government is currently reviewing the provisions within the Bill, to ensure they reflect the aspirations of Anne’s Law that people remain connected to their loved ones.
    (A REFERENCE TO “AMENDMENTS FOR ANNE’S LAW” TO REFLECT THE “ASPIRATIONS OF ANNE’S LAW” BUT NOT NECESSARILY THE DETAIL AS CONSISTENTLY ARGUED FOR BY CHRS.
    THE “AMENDMENTS” PRESENTLY UNDER CONSIDERATION SEEM TO REVOLVE AROUND A “COMPLAINTS PROCESS” WHICH IN ANY CASE THE GOVERNMENT CLAIMS TO HAVE “WORKED REASONABLY WELL IN THE PANDEMIC”!! I SUSPECT MANY OF US HERE WOULD BEG TO DOFFER!!😱)

    This is ME(😎) now. There is, I fear, a bit of ‘mission creep’ from the Government taking over this process and the fog of ‘Never- Ending Committee’ may yet turn Our thoroughbred Anne’s Law “Horse” into Their proverbial bureaucratic “Camel”….😱

    This ain’t over yet!! 💪 What can I do to help?

  3. Regarding Anne’s Law the most appropriate and best legislative process would be by additional Regulation and not through the NCSB as Regulations with similar macro objectives already exist and are enforceable by the Care Inspectorate.
    In any case the wording of Sec 40 of NCSB offers no rights to family and bares no resemblance to the wording of the specific SNP manifesto commitment.

    The key current most relevant Regulation for care homes to Annes Law is “Regulation 4 Welfare of users” One option is to add in a new section e) to Regulation 4 along the lines of this draft:
    “4.— (1) A provider must— (e) where a provider of a care home service, not restrain a service user’s family and significant others contact when similar prevention and control of infection procedures as care home service staff are followed.”

    Guidance could then expand on this new expanded Regulation to ensure contact is in person, indoors, in service users bedroom, numbers at each visit, etc etc.
    https://www.legislation.gov.uk/sdsi/2011/9780111012321/regulation/4

    The key to successful implementation of Anne’s Law is to firstly agree that both care home staff and family have EQUALLY valid claims to have access to care homes and that both groups will follow any restrictions needed such as PPE or Testing. Care home staff require access for employment and to support residents. Family require access for maintaining vital family relationships love and support. There is NO HIERARCHY OF ACCESS where family or care staff have a higher or lower need or right of access. One group is not a higher risk to the other or vice-versa and that narrative misusing ECHR to single out family as having a lower priority than care staff for access to care homes, or that only family can pose a risk to life, must be rejected firmly.

    The key to Anne’s Law is implementing the wording of the SNP manifesto promise. “This will include delivering ‘Anne’s Law’ – giving nominated relatives or friends the same access rights to care homes as staff while following stringent infection control procedures, as called for by Care Home Relatives Scotland”
    It is reasonable to expect SG to honour a manifesto pledge as written. The only way to successfully achieving Anne’s Law is linking care home staff access to family access. Then if care staff get into care homes then so do family and vice versa. .Any consideration of mitigations for “exceptional circumstances” should apply to both staff and family – such as deploying PPE and testing – while some mitigations/restrictions would be slightly different such as “barrier nursing” or family visiting only in the bedroom. The wording of Sec 40 of the NCSB or wording of changes to the Regulations administered by the CI should follow the wording of the SNP manifesto pledge which would then deliver Anne’s Law. .

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