National Care Service (Scotland) Bill (Detailed)

It is noted in paragraph 69 of the Policy Memorandum that ‘a collaborative approach will be taken to developing a national framework via a multi-agency steering group co-chaired with COSLA and SOLACE.’ This framework will have, ‘an agreed vision and common understanding of improvement, co-ordinates evidence informed action key themes, agreed improvement principles and an improvement model and a consistent way of measuring improvement.’ Given the Bill proposes the transfer of all public protection strands, it is vital that this national framework recognises the distinctiveness of public protection from adult social care.

See reference in sections below to the work of the National Child Protection Leadership Group. This is an example of an alternative approach to improving quality and consistency of social work and social care services.

Clarity around the geographic coverage of each Local Care Board, their membership and their core functions would provide more certainty. The clarity on geographical coverage is vital. Without this, transition planning cannot begin in earnest. This is hugely significant for enabling the safe transfer of the management of all public protection risks as they relate to children and adults.

Section 30 of the bill makes it a pre-condition to transferring children services or justice services under section 27 that ministers first carry out a public consultation on the proposed transfer. Following publication of the Bill, Scottish Government announced the appointment of Professor Daniel to lead a review on children’s services. Whilst this is welcome, the review of adult social care and the review of children’s services ought to have been conducted concurrently.

In addition to the Daniel’s review, the Scott Review of Mental Health Law in Scotland is currently underway. And the Government, within the policy memorandum has committed itself to reviewing Child and Adolescent Mental Health Services (CAMHS) and criminal justice review. The Government’s response to these reviews could lead to significant changes to the Bill or to the secondary legislation.

There is no clarity on when all the above reviews are scheduled to be complete, the schedule for the subsequent public consultation and when any proposed transfer will be proposed to take effect from. Given the inter-connectedness of many of these services, its inadvisable to approach these services as standalone and to assume that they can be transferred at different stages

It should be noted that the statutory public protection duties placed on the agencies that make up the membership of Chief Officer Groups, on occasion, requires the removal of rights from an individual to protect them and those around them. It will not always be possible to allow every individual the ability to enjoy their rights without restriction. It is essential that the Scottish Government does not create an expectation that all persons will be able to enjoy all rights all the time. This is simply not possible without putting individuals and communities at risk of serious harm. Wade, Melamed and Goldhagen (2016) noted that with regards to children’s rights, the children’s rights and interests had to be weighed against other considerations, be that policy or other rights. Any reference to a rights-based approach and the content of the proposed Charter of Rights must be defined, appropriately qualified, from a public protection perspective, and communicated.

Planning for ASP is currently delegated to IJBs, and therefore the transfer of ASP to Care Boards instead of IJBs is likely to be neutral. There may be challenges where the strategic support arrangements for the delivery of Adult Protection Committees are hosted alongside other protecting people partnership capacities at the local level. This is most likely to impact in smaller local authority areas where officers lead on multiple strands of protecting people work. There is also a need to consider the specific practice governance requirements needed to competently oversee ASP practice and arrangements in Care Boards. Several areas have the CSWO role aligned to a post holder who is not operationally responsible for adult services and (subject to the further evidence work ongoing in relation to children’s and justice services) may not therefore transfer into Care Boards at defragmentation. Ministers will need to be reassured that, at local Care Board and national levels, the NCS is meeting its social work-related statutory functions, practice and regulatory standards. Moran et al. (2007), in a qualitative study of 29 social worker perspectives of multi-agency working, considered components required for successful multi-agency working. They identified the need for clear protocols and methods of negotiating and reviewing protocols, opportunities for informal as well as formal communication, and adequate financial support and timetabling of service developments. Legislation for the NCS needs to be clear on where individual statutory responsibilities sit and how the relevant agencies are to engage with one another to ensure the benefits of multi-agency working are maximised (Lymbery (2006)).

The need for clarity is supported by Claiborne et al. (2013) which was a US study involving 356 direct care and clinical child welfare workers employed at 8 not-for-profit child welfare agencies. It explored staff perspectives on their agency's readiness for change, organisational climate, and job satisfaction. The study highlighted that workers observed that organisations may have a higher level of readiness to implement successful change initiatives when: (1) workers feel their role is clear, supervisors articulate change goals, and job performance is held to a high standard and is measurable; (2) agency leaders establish organisational communication that is explicate, and they encourage workers to develop ideas and try new ways of doing the job; and (3) the greater the number of years workers are in their current position, the more likely change initiatives are perceived to be successful. Additional clarity in the Bill on the points raised above would enhance the stakeholders’ readiness for change by allowing more time to test the proposals and to take a more holistic approach prior to the implementation of an NCS during this parliamentary term. This would reduce the risk of unintended consequences and help to ensure the Scottish Parliament delivers the new legislation right first time.

A formal shadow period before an official go live is essential and should be stipulated within the Bill. This will enable clarity to be developed at a local level on the points raised by Claiborne etc al. (2013).

Given the proposals include the transfer of all public protection services, it would be appropriate for the Care Inspectorate to be given a role in verifying that local areas are appropriately prepared to transfer these services over to the new local care board. And that the newly formed care board is ready to accept the transfer of the management of significant risks. The Bill rather than secondary legislation should place this duty on the Care Inspectorate to confirm the readiness for the transfer of public protection arrangements.
This is particularly case when neither the use of the affirmative or negative procedure for secondary legislation allows proposed wording to be amended. If there is an continuing preference to use secondary legislation it would be more appropriate, although still not the preferred option, for the secondary legislation creating the framework and substantive aspects of the NCS to follow what is known as the Super-affirmative procedure. This procedure requires the secondary legislation to have a formal consultation on the draft proposals which may alleviate some concerns regarding the lack of scrutiny of the secondary legislation. We would also ask that Scottish Government consult and liaise with local authorities and appropriate agencies (such as Social Work Scotland and SOLAR) as well as specialist practitioners, on the detail of such secondary legislation in advance of its publication so that their knowledge and expertise can inform the detail.

It is also submitted that Scottish Ministers should ensure proportionately in the refreshed 3-year inspection programme put in place before the go live date for the NCS in recognition of the need to balance the inspection of the current public protection systems, processes and practices versus the local capacity required to manage the transfer of these systems, processes, and practices to the NCS. This proposal would be best mandated via secondary regulations to the primary legislation which determines the functions of the Care Inspectorate.

A clear distinction needs to be made between Adult Care and Adult Support and Protection; and between Children’s Services and Children’s Social Work. The Feeley review was an assessment of adult social care – it was not an assessment of adult support and protection – these are distinct and different and yet the distinction and understanding of the distinction is not clear in the Bill. More clarity between these services is required in the draft Bill and the accompanying supporting documentation to justify the transfer of the public protection services into an NCS.

In the context of this Bill, it is not only a question of whether consistency and quality of services will improve, but one whether people (children and adults) are more likely to be safer under this proposed legislation. Significant risk is being introduced to the system of public protection because these proposals will change the public protection structures without any apparent evidence base to support a case for change. In fact, a contrary view is provided in the sections below where the case is made that it is leadership that is the critical factor in public protection arrangements.
An important aspect of protection includes clear integration and partnership across the wider preventative and universal service landscape. In the context of the Bill, there is no reference to how the risk of disaggregation of critical protecting people services from the wider preventative and universal service landscape will be managed. It is this whole system thinking, alongside a clear focus on the protecting people specific services and processes, that will keep people safe as the governance and delivery landscape changes.

We have developed journey mapping and service blueprinting to demonstrate the complexities of the public protection environment. The journey maps look at the experiences that the recipient of support has, from their point of view, experienced. The service blueprint looks ‘behind the scenes’ at the processes, policies and communication between stakeholders that together provide the appropriate support to those who have experienced harm. For example, we have considered scenarios relating to child protection and adult protection as well as scenarios where those two systems collide. Our mapping work has demonstrated the interdependency of various systems and agencies. It has demonstrated the emphasis on strong leadership at all levels, the importance of relationships, capacity, and capability far more than structural change. It has also provided an oversight of the crossover of different legislation and guidance that applies to any one scenario. Our mapping and blueprinting have also exposed the sensitivities of the system to change. Should one element of the public protection system fail the consequences to an individual or individuals can be severe. It would be useful to establish what journey mapping and service blueprinting work the government has undertaken on the journeys of those being subject to public protection arrangements as distinct from an adult social care journey

The Case for Change in Public Protection Arrangements
It is worth noting the findings and commentary of recent activity in the field of child and adult protection to date. We strongly encourage the Scottish Government to give due regard to these findings and to demonstrate cognisance to the findings of these reports. There does not appear to be evidence that due regard has been given to them.

i) Justice

The Care Inspectorate carried out a Justice Overview report for the period 2018-2021. This reflected on the five inspections of Justice Social Work during this period. It concluded that it was ‘not possible to reach conclusions on whether one arrangement [i.e., HSCP led or local authority led] was more efficient and effective than the other’ when it came to the integration of health and social care. It therefore does not seem that there is an immediate link between structure and performance. What was noted to make a positive difference was effective leadership. The report notes that ‘leadership was particularly effective when there was explicit ownership of, and responsibility for, the justice social work service. A clear vision and aspiration for the service was important. Consistent oversight of performance supported innovation and helped leaders direct investment to where it was most needed and had the greatest impact.’ It’s clear that performance is more likely to improve where local leaders feel empowered to direct investment to where it can make the greatest impact. The ability to take a locality based whole system approach to the delivery of such services must not be adversely impacted should public protection arrangements transfer to a national body such as the NCS. Local autonomy must be retained to prevent the creation of risk-averse environments which may stifle creativity and innovation leading to poorer outcomes for the people we are seeking to protect (Carey 2015).

The Hard Edges Scotland report of June 2019 highlighted the interplay between homelessness, substance dependency and offending/reoffending as core domains of serious and multiple disadvantage. Poverty, and childhood trauma are highlighted as significant factors underpinning likelihood of experiencing one, or more, of those three Severe and Multiple Disadvantages (SMDs). The report’s case studies identified that criminal justice social work services were the most likely to be lead case holders for this client group, and the fact that a person was on a court order acted to ‘passport’ access via criminal justice to other appropriate support services (drug and alcohol, mental health etc.). This highlights the importance of Criminal Justice Social Work services, as part of their core function to assess and manage risk, to be closely connected to a range of health, and local authority services within communities. Any arrangements that disconnect or silo services for those involved in the justice system may have the unintended consequence of increasing risk.

Glasgow HSCP 2021 research indicates that mental ill health, drug and alcohol use, and criminal justice have a strong correlation. There is strong evidence that multi agency collaboration at a local level can support good transition planning from prison to community and improve outcomes. The key is local multi-disciplinary teams that work and train together (Perkins et al 2007).


ii) Child Protection

A National Child Protection Leadership Group, chaired by the Minister for Children and Young People, was established to support, strengthen, and improve activity on child protection. The group oversees implementation of the recommendations of the Child Protection Improvement Programme (CPIP) Report and reviews arrangements for child protection across current planning and service delivery processes. The group reports to and is accountable to Scottish Ministers. In turn, the Scottish Government has provided regular updates through a series of blogs. These illustrate that, whilst improvement continues, progress has exceeded the initial expectations of the CPIP and Child Protection System Review reports. The Care Inspectorate reported on the findings of Joint Inspections held over a three-year period from 2018-2020. The improvement delivered was apparent in the overarching findings of the Care Inspectorate report. The report does not provide any evidence for, nor does it recommend, any significant change to local or national structures to further the pace of improvement.

iii) Adult Support & Protection

It is worth noting the findings of the most recent set of Adult Support and Protection (ASP) inspections which have highlighted ways in which local adult protection partnerships are currently delivering well. Arrangements are proactive, thorough, effective, professional, and inclusive of supported people and their families and carers. There is evidence that strong leadership can be delivered through local Chief Officers’ Groups (COGs) and Adult Protection Committees.

The wider context within which ASP services operate was helpfully set out in January 2022 by Audit Scotland (https://www.audit-scotland.gov.uk/publications/social-care-briefing). Their assessment noted that ‘high turnover of senior staff in Councils, NHS and Integration Authorities [is] impacting leadership capacity’. Leadership capacity is currently compromised. That limited capacity is being tasked with reform in the creation of an NCS. The Scottish Government must plan to boost local leadership capacity to ensure the NCS is successfully delivered. This is supported by the review of police and fire reform detailed further below.

iv) MAPPA

In 2015, Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS) and the Care Inspectorate agreed to work together to undertake a proportionate, risk based, intelligence led review of MAPPA in Scotland. The report’s main findings were: ‘there is strong evidence that MAPPA is well-established across Scotland and that Responsible Authorities, through joint working and information sharing discharge their duties effectively under the terms required by the Management of Offenders etc. (Scotland) Act 2005.’ It was however acknowledged that there was a need for a more cohesive response across the country to planning for the ageing population of registered sex offenders and the potential impact on health care, housing and other social or care services. It was also suggested that the NSG was less effective in progressing national cross-cutting issues. An NCS may help to address these areas of improvement. However, any transition to a national structure must ensure that there is no detrimental impact to the connections and relationships at a local level that help ensure local partners achieve the best for their local communities. It is noted that services such as housing, social care, health services and residential care are increasingly relevant to the ageing sex offender population. This may increasingly bring other services into the MAPPA arena. The defragmentation of these services across an additional national structure must not increase the risk to the local population nor the flexibility of local partners to devise the right approach for their communities.

The University of Dundee carried out a Joint Thematic Review of MAPPA in Scotland (‘A Review of the Research and Literature’) (Kelly & Jackson). The following points, amongst others, were highlighted:
• Responsibility sits across a range of agencies with different strategies.
• The quality of relationship between the service user and the professional was crucial.
• No one agency can be responsible for all factors that contribute to risk in a Registered Sex Offender (RSO) context.
• Higher levels of multi-agency collaboration brought greater positive experience for victims, especially regarding legal, medical, and mental health needs.
• The tensions that can exist between the political pressure to share information versus the reality of legal thresholds that exist and must be met or complied with.
• Ethical and professional tensions that professionals operate under against a backdrop from the media and public of a culture of blame.
• The centrality of housing to MAPPA and offender management alongside notions of re-integration, stability, and environmental risk assessments.
In respect of MAPPA, the Responsible Authorities currently set out in the Management of Offenders etc. (Scotland) Act 2005 are currently: Police Scotland; Local Authorities; Scottish Prison Service; Health Boards; and Special Health Boards. The 2005 Act creates a duty to co-operate on, or between, both Responsible Authorities and certain other organisations. There are 10 MAPPA boards across Scotland which assess and manage offenders and in turn are accountable to a MAPPA Operational Group and a MAPPA National Strategic Group which meets quarterly to provide national oversight of the MAPPA Boards. Any inclusion of any of the services and/or roles that currently play a vital part in current MAPPA structures and process in the NCS must be very carefully considered so as not to make the MAPPA process any less effective, less efficient, or more challenging to operate. Unintended consequences in this area have the potential to be severe.

As set out above, it is important that the draft Bill provide a clearer distinction between Adult Care and Adult Support and Protection, and between Children’s Services and Children’s Social Work. Any proposal to change public protection arrangements must be supported by a robust evidence base that has been adequately tested. To that end, it is suggested that the Scottish Government has due regard to the reports referenced above together with learnings from ASP Significant Case Reviews (SCRs) and Initial Case Reviews (ICRs). Thereafter, absolute clarity on the role of the NCS in respect of public protection arrangements should be clarified.

Lessons to Learn from other relevant Reforms
Further learning can be drawn from the reform of police and fire service in Scotland. In that regard, it’s worth referencing the Evaluation of Policy and Fire Reform reports .

The year 4 report made several findings and consideration should be given to those findings and their context ahead of the implementation of an NCS. The findings included the following points:
• There was a sense of diminishing local resources due to resources being targeted to central costs.
• There was an awareness of community engagement and locally based joint initiatives being under pressure from other demands within the system.
• It was a challenge to maintain levels of performance when established structures and processes were being re-configured.
• The pressures to deliver short term financial savings and a focus on the immediate aims of reform made it challenging for the police and fire and rescue services in Scotland to develop clear, long-term strategies during the early phases of reform.
• Communication with local service users, partner organisations, communities and staff throughout reform was not adequate.
• Professional experience alone is not often enough to achieve programmes of reform. It is essential that the necessary skills and leadership required to implement the reform at local and national levels are identified and secured.
• Throughout the process, there is an ongoing requirement to balance localism and centralism.

The Scottish Government should identify and apply lessons from their experience of police and fire reform.

No.

Consideration should be given to a principle capturing the protection of adults and children. For example, section 1(e)(ii) could include a reference to advancing equality and non-discrimination whilst also recognising the need to balance the enjoyment of equal rights against the needs of public protection. As detailed in responses to other questions, in the sphere of public protection, removing rights from individuals occurs daily to protect said individuals and those around them.

As set out in response to other questions, clarity is required on what is meant by a ‘rights-based approach.’ It is noted in section 9 of the Policy Memorandum that there is a strong emphasis on ‘services that are co-designed with people who access and deliver care and support, respecting, protecting and fulfilling their human rights.’ This statement does not appear to recognise that these human rights will bring up issues which are directly contradictory where an individual’s freedoms must be curtailed in the interests of their and others’ safety and countervailing rights. A caveat to the above statement could be, ‘in so far as is consistent with the rights of others and the needs of individuals and public protection.’

The provisions laid out in the NCS Bill are akin to the existing arrangements for health (with ministerial responsibility in place and that responsibility delegated to local NHS Boards).

There are notably different provisions (in contrast with the NCS Bill) within the Police & Fire Reform (Scotland) Act 2012 to protect the independence of the Chief Constable of the Police Service of Scotland and to ensure no political interference in the Service’s operational matters.

The contrast between the proposals within the NCS Bill, which provide a framework for Scottish Ministers to successively take in to scope the provision of more services directly under their control, is marked with Chapter 1 of the Police & Fire Reform (Scotland) Act 2012.

The Scottish Police Authority is responsible for the governance, oversight, and administration of the Police Service of Scotland (as well as the provision of Forensic Services and Independent Custody Visiting).

The Scottish Police Authority acts as an independent agency between the Scottish Ministers and the Chief Constable. The Scottish Ministers appoint the SPA Board members, the SPA Board is responsible for the budget and personnel policy of the Police Service of Scotland and is accountable to the Scottish Parliament, but the Chief Constable is operationally independent and is accountable to the SPA Board and not Scottish Ministers. The Chief Constable is also not formally accountable to Scottish Parliament but will be, and is regularly, called to describe the actions of the Police Service of Scotland.

Section 5 of the 2012 Act provides that the Scottish Police Authority (not the Chief Constable) may be directed by Scottish Ministers (and there are provisions about ensuring transparency of any such direction) and the SPA must comply with any such direction, however, s.5(2) provides:
A direction may not be given in respect of—
(a) a specific operation being or to be carried out by the Police Service, or
(b) the way in which the Police Service is carrying out (or is to carry out) a specific operation.
In other words, the Scottish Ministers may not direct the Chief Constable directly. Through a Section 5 Direction to the SPA, the Ministers cannot seek to influence the Chief Constable on operational matters via the SPA, thus preserving the operational independence of policing and the separation of powers between government and this key function of the state.

This is further emphasised through the provisions of section 17 of the 2012 Act that sets out the responsibilities of the Chief Constable, with Section 17(2)(a) providing that the Chief Constable has ‘direction and control’ of the Police Service.

Whilst Section 17(4) provides a list of who the Chief Constable may be instructed by, namely the Lord Advocate, appropriate prosecutors, the Lord Justice General or a sheriff principal, Scottish Minsters are not included in this finite list. Even as far as the SPA is concerned, Section 17(5) arguably also qualifies the SPA’s authority to specifically direct the Chief Constable, stating that the Chief Constable must ensure policing ‘is done with due regard to any recommendations made or guidance issued by the Authority on the policing of Scotland’.

This seems to be in contrast with the NCS Bill with Section 16 requiring a Care Board and presumably its Chief Executive to comply with Directions which may be issued by Ministers.

The Policy Memorandum sets out that Chapter 4 of Part 1 of the Bill also makes provision for the Scottish Ministers to be able to ‘take appropriate action in the event that things go wrong’. This includes the power to hold an inquiry into a care board and remove its members. Ministers will also be able to direct that any social care function within the remit of the NCS is delivered by another care board or by the Scottish Ministers themselves in the event of an emergency or service failure. The powers provided to politicians and government to intervene in local operational matters are significantly different to the protections afforded to policing.

In a 2019 report HMICS stated that the operational independence of the Chief Constable has never been successfully defined and suggested that “operational responsibility” was a more accurate description of the position where the Chief Constable has sole responsibility for the direction and control of police officers and staff.

Chief Constable Iain Livingston provided oral evidence to the Commission on Justice in Wales in 2019 highlighting various matters relative to a single national police service. He described the intense daily press, media and political scrutiny and the thirst for information (undoubtedly referring to the volume of freedom of information requests, responses to politicians, the prominence of policing in First Minister’s Questions).

There can be little doubt that any National Care Service would endure similar scrutiny at a national level. This is transparent and healthy but requires significant resource and time to service to ensure a balanced factual understanding.

There are very marked differences in the NCS proposals with the safeguards that have been afforded to operational policing which are not being afforded to public protection colleagues working within an NCS. As noted in Isham et al. (2021), public protection can be complex, and judgement based. Safeguards to the exercise of local judgement should be established to minimise the risk of inappropriate or disproportionate interference from Scottish Government Ministers.

Schedule 3 appears to contain the key primary legislation regarding public protection functions. A meaningful analysis on the impact of the proposals contained within chapter 6 and schedule 3, in respect of public protection, cannot be provided until it is clear what functions will transfer.

It is worth noting, however, a potential impact on vulnerable persons subject to no recourse to public funds. Presently there is a growing demand on social work services to provide accommodation and assistance to persons with no recourse to public funds including asylum seekers. Presently local authorities can provide accommodation using powers under the Social Work (Scotland) Act 1968 or the Children (Scotland) Act 1995 using their existing housing stock. Duties to provide social housing will remain with the local authority should the Bill be enacted. It is presumed that the National Care Service will not have an available stock of properties to house vulnerable persons or families who have no recourse to public funds. It is not clear what residual power local authorities would have to assist the National Care Service in terms of discharging its duties to persons with no recourse to public funds. Local authorities may be limited in terms of providing assistance by the prohibition on providing homelessness accommodation and social housing to persons with no recourse to public funds contained within the Immigration and Asylum Act 1999. This may be an example of an unintended consequence of transferring public protection legislation to a new legal entity which does not have the same powers as the organisation from which a power was transferred. In the design of the NCS a stakeholder reference group should be established to ensure that at each stage of the redesign the government is able to use expertise within the current system to minimise unintended consequences.

Specifically, cognisance must also be given to the roles of the various public protection groups, including:
• Chief Officer Groups;
• Adult Protection Committees;
• Child Protection Committees;
• Multi-Agency Public Protection Arrangements;
• Community Justice Partnerships;
• Community Safety Partnerships;
• Alcohol and Drug Partnerships; and
• Violence Against Women Partnerships.

Many of these groups have a statutory basis and/or operate to national guidance. Relevant guidance must be reviewed or replaced in adequate time ahead of the introduction of the NCS. It would be helpful for the Scottish Government to address this point in future consultation to ensure that the Scottish Government and stakeholders have a shared understanding of what requires amendment.

We look forward to seeing the outcome of Professor Daniel’s review as there is currently no detail to draw a conclusion on this matter.

No additional comment beyond what is referred to in response to previous questions.