Introduction of the National Care Service (Scotland) Bill

This article was originally published on ALARM, July 2022.

On 20 June 2022, the Scottish Government introduced the National Care Service (Scotland) Bill to the Scottish Parliament. The Health, Social Care and Sport Committee of the Scottish Parliament called on interested parties to submit responses to the published Bill by 2 September 2022. That window of opportunity has now closed, and the Committee will take those responses received into account in their Stage One consideration.

The Bill’s stated purpose is to improve quality and consistency of care services by centralising responsibility with Scottish ministers for promoting, monitoring and improving care, via a single National Care Service (NCS). The NCS is described by Scottish Government as “one of the most ambitious reforms of public services since the creation of the National Health Service”.

Integration authorities

Integrated coordination of current social care responsibilities of local government, and health responsibilities of Scottish ministers exercised via local health boards, was the aim of the Public Bodies (Joint Working) (Scotland) Act 2014. This created integration authorities (IAs) to that end. However, IAs do not hold a budget or employ staff, and the local authority and health board remain responsible for service provision.

Under the NCS, Scottish ministers, or care boards as directed by Scottish ministers, would fulfil those functions which Scottish ministers choose to transfer from local authorities or health boards to themselves or care boards. Ministers or care boards could procure services from external providers or directly employ local workforces. This could include TUPE transfer of local authority employees, but not employees of third sector providers or health boards.

Aspects of this complex Bill are controversial

One issue is The Promise. A key report of the Independent Care Review on children’s services, The Promise, was published in February 2020. Work was already underway on #KeepingThePromise when, in February 2021, the Independent Review of Adult Social Care (IRASC) recommended an NCS to overcome any ‘postcode lottery’ of service provision, to simplify complex governance, facilitate strategic collaboration and leadership, and move from a service reacting to crisis, towards crisis prevention. In keeping with the Review’s remit, this recommendation addressed adult services only. The Promise made no such recommendation for children’s services.

Certain responses to government consultation preceding the Bill (from COSLA, Social Work Scotland and the Care Inspectorate) noted a lack of evidence for inclusion of children’s services in the NCS, and some concern was expressed about the impact on #KeepingThePromise. However, the published Analysis of Consultation Responses recorded over 75% of individuals’ and organisations’ responses favouring inclusion of both services.

Secondly, among the statutory functions which can be transferred to care boards or Scottish ministers, the Bill includes services related to fostering, adoption, criminal justice, management of offenders, and human trafficking and exploitation, in addition to adults with incapacity, mental health, and drug and alcohol services.

Of concern to some is the emphasis on central control and consistency over local knowledge or accountability and individualised service provision. Central control of a mixture of locally procured and employed service providers may create a multi-tier governance structure, and differing terms and conditions for workers. The NCS model creates potential for disputes over the adequacy of local provision with those centrally in control, those delivering services locally, or both.

Also, the final shape of the NCS system is not clear; the Bill gives Scottish ministers powers, but whether and how these will be used is uncertain. It is the express intention of Scottish Government to work with service users to design an effective system, and the Bill identifies key principles to act by, including recognising care services as an investment in society, focusing on early intervention to prevent or reduce care needs, and promoting dignity and equality.

Implementation of an NCS will take time but is likely to commence during the present parliamentary term, by 2026. Further details may emerge in parliamentary scrutiny of the Bill, and of secondary legislation it enables. That will be kept carefully under review, and we will report on it further. No doubt lawyers, policymakers and politicians south of the border will follow this Bill with interest too.