7. Theme 3 – how should inspection, scrutiny, and regulation be carried out?
The Review heard consistently that a more streamlined system of inspection, scrutiny, and regulation is needed to reduce duplication, increase consistency, be inclusive of all services, and support the delivery of high-quality services. Inspection, scrutiny, and regulation can be the catalyst for improvement and is widely recognised by providers, commissioners and regulators as critical for the delivery of safe, agile and effective community health and social care support services.
The Review wanted to understand the current challenges in how inspection, scrutiny, and regulation operates in Scotland, and what would help improvement become more routinely embedded into the work of regulators and services delivering social care support.
The Review asked a number of key questions under this theme, these were:
- Who should be responsible for undertaking inspection, scrutiny, and regulation?
- Would a system work where the same regulator inspected all services?
- Should there be different regulators for inspection and improvement?
- How can we ensure that regulation and inspection processes are underpinned by a commitment to improving services?
- Should regulation, scrutiny, and inspection have an emphasis on services continually improving? What might that look like?
- What should happen if something goes wrong in a service?
- Who should be responsible for making improvements to services?
- How do we make sure regulatory bodies are doing a good job?
Streamlining inspection and improvement
The Review heard that the current system of inspection, scrutiny, and regulation has evolved little in recent years, despite significant changes in how social care support services are delivered, not least through the introduction of Self-Directed Support.
An individual’s engagement with social care support can be complex and involve interaction across multiple services over a considerable period of time. The Review was told that this sometimes fragmented journey and its impact on individuals is not always captured by current approaches to inspection. This can result in findings that accurately reflect high-quality service provision but do not necessarily capture the impact on the person at the centre of the process.
One example might be a child or young person being placed in several different services over a short space of time. Each service might be deemed to be of high quality, but the overall impact on the person of moving between services may be less positive despite each individual service acting appropriately. Examples shared with the Review about people’s experiences of using social care support and linked services underline the importance of looking at how inspection processes can more fully reflect a person’s journey through the social care support system.
The Review was told by some that inspection and regulation is overly complicated and that there is a lack of clarity and transparency around the roles of relevant inspection and regulatory agencies. This point was raised many times at events hosted by the Review and attended by individuals, including those with lived and living experience, who said that continuity was important for building relationships.
Feedback related to communication, information sharing and inclusivity were also highlighted to the Review under Theme 1, in response to the question about how inspection, scrutiny, and regulatory processes could be more person-centred. Similar concerns were raised in IRASC, which noted duplication in the information requested from services by the Care Inspectorate and local commissioners, which wastes time that could be better used to improve quality.
… outcomes for people rather than provider compliance with policy and process.
To explore this further, the Review completed a high-level strategic mapping exercise (as illustrated on page 56) to understand the inspection, scrutiny, and regulatory landscape. This provided further clarity of the scale and complexity of the current system and illustrated how confusing it is, not only for the regulators and services but, more importantly, for the people and families who want to access social care support.
To ensure that inspection, scrutiny, and regulation takes account of the wider impact of social care support on people, not just the quality of individual services, the Review recommends the following:
Recommendation 16 – It is recommended that inspection, scrutiny, and regulation processes more fully take account of an individual’s experience of service delivery and their overall care journey to understand, follow and evaluate the person’s social care support experience over time and their impacts.
Recommendation 17 – It is recommended that clear and accessible information about the agencies and their roles, responsibilities and accountabilities is provided for all those who require social care support services.
An example highlighted to the Review was from Early Learning and Childcare (ELC) and School Age Childcare (SAC). ELC settings are subject to inspection, scrutiny, and regulation by Education Scotland and the Care Inspectorate. The Muir Review heard that, “… there is duplication in the roles of the Care Inspectorate and HMIE within Education Scotland which was seen as particularly challenging for the ELC sector.” Individuals have indicated that this is adding pressure and additional bureaucracy to the sector and impacts on recruitment and retention of the workforce.
The Review recognises that a commitment to a shared framework for ELC services has been accepted further to the Inspection of Early Learning and Childcare and School Age Childcare Service in Scotland: Consultation Analysis (March 2023). The shared framework is aimed at providing an integrated approach to inspection with the goal of minimising duplication and improving the quality-of-care services for children and young people.
Another example comes from the Care Home Review - A rapid review of factors relevant to the management of COVID-19 in the care home environment in Scotland published in November 2020, which found:
A Memorandum of Agreement is in place with HIS to undertake joint inspections with the Care Inspectorate, with HIS staff providing support for Infection Prevention Control and clinical considerations. It was clear to the Review team however that the process is not fully integrated, and that the methodologies employed, grading and reporting structures for CI and HIS differ; this brought inconsistency and challenges in agreeing applicable grades for one of the care homes in this Review.
The Review notes that the CI produces an annual inspection plan and as part of this planning process, the CI considers any collaboration with other scrutiny bodies, for example, Education Scotland or HIS, within the plan.
A single regulator and joint inspections
Section 115 of the 2010 Act details powers for the CI to carry out joint inspections with other bodies. These inspections are carried out by strategic inspectors across four themes:
- scrutiny of services for children and young people;
- integrated health and care services and services for adults;
- justice services; and
Strategic inspection is usually led or co-led by the CI, in conjunction with partner agencies including HIS and His Majesty’s Inspectorate of Constabulary in Scotland. Strategic inspection is carried out in a complex landscape and some of the issues and challenges raised can be evidenced by the examples on page 58.
Across Scotland, Phase 1 of the Adult Support and Protection Joint Inspection programme (CI, HIS, HMICS) has recently been concluded with reports from 25 HSCPs' inspections being published. The programme’s intention was to provide assurance of the ongoing protection for adults at risk of harm, while managing the risk to individuals. This was done under two main quality indicators: strategic leadership, and adult support and protection processes. On the CI website it is stated:
We provide a rationale for the elements of adult support and protection our inspection methodology is designed to scrutinise. We say what constitutes very good adult support and protection practice, and what constitutes weak practice.
Joint inspections also take place for children and young people at risk of harm. Inspection teams include inspectors from the CI, HIS, HMICS and Education Scotland, along with Young Inspection Volunteers, who are young people with direct experience of care or child protection services. Young inspection volunteers receive training and support and contribute to joint inspections using their knowledge and experience to help evaluate the quality and impact of partners’ work.
Joint inspections can offer a more holistic approach, reflecting the multi-agency, multi-disciplinary landscape across the health and social care landscape; this can be especially true around areas of public protection. Challenges do arise with this type of inspection, including the capacity of local partnerships to engage and the co-ordination of scrutiny work across multiple partnerships (for example, when one health board area includes multiple local authorities or HSCPs).
The Review heard that inspections including thematic inspections are not consistently addressing or suggesting recommendations to resolve systemic problems. Where there are areas of weakness identified in thematic areas, wider systems challenges may be posing obstacles to improvement. If these are not considered and addressed as part of inspection outcomes, recommendations are less likely to be either acted upon or sustained. Therefore, while there are clear benefits of taking a joint inspection approach, they do not resolve some of the fundamental issues relating to inspection the Review heard about.
The Review notes that the Muir Review recommended that inspection that covers more than one area should be carried out jointly via a shared framework. Other services can impact directly on social care support such as education and learners and these may need to be considered and evaluated at the same time.
The Muir Review also recommended that a national structure is desirable, with a flexible approach tailored to individual, community, and regional needs, alongside an emphasis on collaboration and improvement. In taking forward joint inspections, it will be helpful to consider co-ordinating inspection across a number of policy areas to reduce burden on local partnerships, enable more efficient use of inspection resources, and prioritise improvement at local and national level.
The Review was also keen to understand if there were consistent views across the sector about whether having one regulator inspecting and scrutinising all services would help reduce duplication and confusion. The analysis report by Why Research found that opinion was evenly split.
Whilst the number of responses were small and many individuals and organisations did not answer this question or were unsure (including all 5 regulators who submitted evidence), a narrow majority of organisations providing a view (particularly health and social care partnerships/local authority consultees) thought a system would work with the same regulator, while a small majority of individuals did not.
The analysis report found that of those who thought the same regulator could inspect all services, the main advantage (quoted by a large minority of call for evidence consultees across all sub-groups and a point made often at events) was that:
this would offer a consistent or streamlined approach to regulation (e.g. over how standards are applied).
Some respondents to the call for evidence felt that having a single regulator could result in reducing perceived inter-agency tensions and conflicts in terms of policy and data sharing. In the Why Research Analysis Report it is stated:
Significant minorities of a broad mix of respondents felt there would be the benefit of a reduction in inter- agency tensions and conflicts in terms of policy and data sharing.
The introduction of a single regulator would help to avoid confusion over who is responsible for what, as the current system was viewed as overly complicated. More efficient use of resources was also highlight by some people in favour of a single regulator.
For those who did not support a single regulator, reasons given included:
Each regulatory body has its own area of expertise and it will be therefore prove too much of a challenge to have only one regulator with the necessary spread and depth of knowledge, skills and expertise.
In having a single inspection body, the Review heard that some felt expertise would be lost, with people highlighting different organisations, services providing social care support and types of user (e.g. child and adult social care, social work services, health services) needing to be scrutinised by bodies familiar with each area’s needs and priorities.
Responses submitted as part of the call for evidence and at several engagement events supported an improved partnership approach between regulators as opposed to having a single regulator.
The Review also considered if there was a preferred option between a single regulator or some other approach. The Review was conscious of the complex and evolving landscape in social care, and in inspection, scrutiny, and regulation, which is detailed at various points within this report. Merging existing bodies, or setting up one or more new ones would inevitably involve legislation, and the disruption of organisational change, as well as potential disruption to service provision as the workforce was being retrained to work in unfamiliar areas.
Evidence provided indicated some concern at the potential for disruption. The analysis report found:
A greater use of joint inspections by regulators was seen as preferable to the disruption caused by merging existing bodies, and this approach was seen to work well during the Covid pandemic.
As well as improved partnership approaches between regulators, some responses submitted suggested that these, along with joint inspections, might be an alternative to having a single regulator. It was felt this would enhance the clarity of regulatory roles, and would help promote consistency and avoid duplication and confusion.
The Review agrees with these perceptions, and considers it could also support other culture change aspects such as embedding continuous improvement, and better involvement of people who receive social care support in inspection, scrutiny, and regulation.
It would also go some way to addressing concerns about subject and specialist expertise, which would continue to sit with different bodies, and through joint and shared inspections, which would also facilitate learning across disciplines.
In light of this, the Review felt that it would be possible to implement this quickly and with fewer immediate costs than would be required with mergers or new structures. It would improve inspection, scrutiny, and regulation in the ways indicated, whilst not ruling out the creation of a single regulator at an appropriate time, particularly once a number of changes in the landscape have been planned and introduced in a strategic approach alongside the NCS.
Joint Inspections would provide a rapid response to these concerns with improvements in a number of areas, and offer flexibility during a period of widespread change in legislation, across the social care and regulatory environments.
However, the Review heard that this joined-up thinking does not always translate to areas, where more than one agency inspects services and what is required to address these issues is to strengthen and streamline the approach to partnership working; therefore, the Review recommends:
Recommendation 18 – It is recommended that Scottish Government work with the regulators to clarify roles and responsibilities between organisations to streamline inspection activity, remove repeat inspections by different agencies and to reduce duplication and omission. This should include reviewing how joint inspections are currently carried out, encouraging more partnership working and joint inspections, and greater involvement of people in receipt of social care support in inspection, scrutiny, and regulation.
Shifting the culture: regulation for improvement
The Review consistently heard about the need for a cultural shift in the sector, away from what is often seen as inspection, scrutiny, and regulation focused on identifying problems and risks, to one that recognises assets and seeks to support continuous improvement. The Review is clear that the responsibility for improvement sits across the sector, including with commissioners of services, and those providing services, and not just with regulators and improvement bodies.
A clear message from the call for evidence and engagement sessions was that a culture change was needed regards supporting and celebrating continuous improvement, and this needs to be based on mutual trust between providers, commissioners, regulators, and inspectors. Far greater emphasis on developing relationship-based practice would help to create an environment which supports learning and drives improvement across social care support services.
The Review identified a clear need to move away from a bias towards criticism to a more open approach that provides the opportunity to reflect on challenges, learning and successes. This would be aided by creating better systems to obtain feedback from the social care workforce about their experiences and, as set out earlier, for them to be more involved in the inspection processes, which in turn would support the development of good practice.
One response to the call for evidence summarised it succinctly:
A fundamental weakness of the current system is that it is scrutinising services, not outcomes.
Identifying and sharing good practice
There is not currently a commonly agreed definition of good practice or a clear set of quality indicators or outcomes for social care support. There is a need to define, illustrate and share good practice, including what that looks like at practitioner level, more effectively.
It has been suggested that the development of an accessible framework that benchmarks and encourages the sharing of good practice would create more consistency across services. Feedback from the Review stated that focusing on positive and flexible examples of good practice, along with assessing the quality of service delivery, would help people receiving and delivering social care support develop a better understanding of what ‘good’ looks like.
Under the Public Services Reform (Scotland) Act 2010 the CI has a duty of furthering improvement in the quality of social care services, which enables services to adapt, learn and improve practice. They have a dedicated, Care Inspectorate Hub, which hosts their improvement programmes, improvement support and upcoming events.
On the CI website it is stated:
Our job is not just to inspect care, but help the quality improve where needed. This means we work with services and support them, offering advice, guidance and sharing good practice to help care reach the highest standards.
A focus for HIS is to encourage and support continuous improvement in healthcare practice, and they do this by encouraging both patients and staff to challenge and change healthcare services for the better. HIS has worked with a range of partners to create an improvement resource, called the Improvement Hub (or ihub for short). This resource supports Health and Social Care Partnerships and NHS boards to improve the quality of health and social care services.
On the HIS website it is stated:
We work collaboratively with the staff of healthcare providers, partner organisations and the public to drive improvements which can be sustained and measured.
The SSSC states on their website:
We support quality improvement (QI) learning and leadership development at all levels in the social service sector, working collectively with our partners to support these activities. The wellbeing of staff underpins effective leadership and improvement and is also a priority area of work for our team.
The Review is also aware of a variety of initiatives that have taken a collaborative and supportive approach to improvement and the sharing of good practice. Scrutiny bodies and providers have supported improvement by hosting online resource hubs, training and networking events, and undertaking a range of partnership and pilot projects to make improvements in numerous areas, including waiting times and pain management.
An example of an effective approach is from an Early Learning and Childcare (ELC) improvement programme supported by the Care Inspectorate. The programme works to help services to meet the national standards and to help local authorities to improve ELC in their area and has provided targeted support to 214 ELC settings caring for 13,000 children.
In 2022, evaluation of the programme found positive change across 33 settings, with 31 maintaining a good standard of service delivery. Some improvement initiatives and examples of good practice may be local or smaller in scope. Where there is the potential to share more widely, scale up, or build on successful approaches, this should be explored.
Further evidence shared with the Review highlighted that inspectors having more regular visits to services as part of follow up visits, offering higher levels of support, and understanding of the ethos of organisations would result in the social care workforce and providers feeling more supported. The Review also heard strong feedback that there needs to be better visibility and accessibility of improvement support indicating that what is currently in place is not always translating into support on the ground.
In response to the evidence shared, the Review recommends:
Recommendation 19 – It is recommended that inspectors and regulators, whilst fulfilling their statutory duty to identify shortcomings in improvement, should also place equal weight on identifying good practice, innovation and improvement across the sector.
Embedding and promoting improvement
While excellent examples of good practice and improvement exist, current improvement initiatives often lack scale, are not always based on a clear evidence base and are not adequately evaluated to understand their impact and potential for roll out across the sector. The Review is therefore encouraged by the establishment of the National Improvement Framework for Adult Social Care Support and Community Health, co-chaired by the Scottish Government, CoSLA and Society of Local Authority Chief Executives and Senior Managers (SOLACE), and with the inclusion of wide representation across sectors.
The National Improvement Framework for Adult Social Care Support and Community Health is developing a national improvement framework to improve outcomes for people who use services, unpaid carers, and the workforce, through supporting clarity and consistency of action across the improvement system. It is understood that the framework will include evidence of improvement based on qualitative and quantitative data on experiences and outcomes for people.
Whilst the Review welcomes the establishing of the National Improvement Framework to help foster greater coordination and focus on improvement, the current emphasis on regulation for improvement is not sufficient and without being addressed poses significant risks to enabling a culture that focuses less on what has gone wrong to one that encourages innovation and sharing of good practice.
There is a need, for instance, for inspectors and regulators to have the necessary skills, training, qualifications, and expertise, to be supportive in improvement and improvement methodology. The Review was also told of a significant gap in local capacity to support and embed improvement activity. This holds for those commissioning, delivering and managing services. If continuous improvement is to be embedded, it is absolutely vital that the social care workforce is supported and empowered through the principles of Fair Work; this is considered in more detail in Theme 5 (page 83).
Using current inspection terms, more emphasis needs to be put on the capacity for services deemed to be “adequate” to become “good” or those that are “excellent” to maintain or exceed. Improvement should drive inspection, scrutiny, and regulation activity, though this is not to imply that immediate and effective action should not be taken to address poor practice.
The Review noted frustration from scrutiny bodies that requirements and recommendations are not always implemented. For example, a provider may make short-term improvements based on recommendations from a scrutiny body but may not maintain them. This can require repeat or additional action by the CI/regulator or partner agencies such as Health and Social Care Partnerships.
Making improvement a more integral part of the inspection and regulation process could reduce the need for additional or repeated inspection action and lead to better outcomes for people accessing social care support. The Review heard that this could be supported by regular feedback, reviews and monitoring. Examples were given such as ensuring all improvement initiatives are actioned appropriately, having an overview of performance outcomes and regular data collection and analysis.
In response to the evidence shared with the Review that continuous improvement needs be a more integral part of the inspection and regulation process, the Review recommends:
Recommendation 20 – It is recommended that an emphasis on outcomes and continuous improvement becomes a central focus of inspection, scrutiny, and regulation.
Recommendation 21 – It is recommended that there should be a duty on the regulator/inspector to work more closely with the provider on agreeing action plans and timescales for continuous improvement recommendations that are additional to regulatory requirements and improvement notices.
The National Improvement Framework is intended to link to the Scottish Government’s National Performance Framework (NPF). The Review found that the NPF facilitated a clear understanding of Scottish Government priorities, and encouraged delivery bodies to be self-aware and self-evaluative in terms of performance, and the delivery of outcomes.
The Review also heard, however, concerns that organisational strategies and scrutiny activity, are not always aligned with or measured against the NPF, thus there was a perceived risk of focusing only on performance management at the cost of performance improvement. On balancing the evidence gathered, the Review recommends:
Recommendation 22 – It is recommended that the Scottish Government updates and clarifies its expectations regarding the National Performance Framework (NPF) in relation to publicly funded delivery bodies, particularly with respect to outcomes for social care support services.
The analysis of NCS consultation responses highlighted strong support for strengthening inspection, scrutiny, and regulation with a high number supporting additional powers for the regulator in respect of condition notices, improvement notices and cancellation of social care services.
Currently an improvement notice is issued and then a service is given time to rectify, this new power in the provision in the draft NCS Bill would support the cancellation of a service where appropriate without having to wait.
If there are concerns about a service as the main inspection agency for social care support the CI can use the following statutory measures as outlined in the Public Services Reform (Scotland) Act 2010.
Condition notices (s.66) – A condition notice may be served to impose an additional condition or to vary an existing condition of registration enabling parameters to be placed around the operation of a care service. Details of the service provider’s right to make representations against the imposition of the condition will be provided. A separate process is available for emergency conditions where a serious risk to life, health or wellbeing exists.
Improvement Notices (s.62) – Improvement notices are issued when the Care Inspectorate considers standards have not been met, requiring the care service provider to make significant improvements by designated dates. This can escalate to cancellation of registration being proposed if the required improvements are not made.
Cancellation Notice (s.64) – Where the timescale for meeting the terms of the s.62 improvement notice has expired without compliance, the Care Inspectorate may move to giving notice of proposal to cancel registration under s.64. The service provider will be informed of the legal basis of the action and details of the service provider’s right to make written representations against cancellation will be included.
Emergency cancellation of registration (s.65) – The statutory test for emergency cancellation is predicated on “serious” risk to life, health, or wellbeing. The Care Inspectorate may apply to the sheriff at any time seeking an order to cancel a care service’s registration where it considers there is such a serious risk to people.
There are provisions laid out in s.42 in the draft NCS Bill regards stronger enforcement powers for the CI. They relate to being able to take immediate action, where necessary, rather than using the current time element for improvement notices. The new power in the draft Bill will allow the cancellation of a service where appropriate, without having to wait.
The Review notes the provision in the draft NCS Bill but is aware that this Review goes wider than the NCS alone. Other legislative challenges are noted in this report, including those relating to the definitions of care and under Theme 5 (page 83), limitations to the powers of the SSSC. In light of this the Review recommends:
Recommendation 23 – It is recommended that Scottish Ministers should review legislation to ensure that regulatory bodies have adequate enforcement powers.
Duty to self- report
The Review recognises the need for more emphasis on self-awareness and self- evaluation by service providers with the potential introduction of the ‘duty to report’.
This is consistent with other regulated sectors – for example, charities have a duty to report notifiable issues to the Office of the Scottish Charity Regulator (OSCR). This has a significant effect upon the regulated service in that the ownership of issues and empowerment associated with self-regulation can be capacity building and can reduce the balance being tipped towards it being the responsibility of an inspection or regulatory agency to find things out. It is the opinion of the Review that this approach will help to develop a culture of ‘right touch regulation’ which is proportionate to the performance of service providers.
Under The Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 some notifiable events already have to be reported to the CI for services and staff registered with them. The CI must be told of:
- Accidents, incidents or injuries.
- Outbreak of infectious disease.
- Death of person using a care service.
- Allegations of abuse.
- Allegation of misconduct by a provider or employee.
- Criminal convictions resulting in unfitness of a manager.
- A provider becoming unfit.
- Absence of manager.
- Planned refurbishment/alteration/extension of premises.
- Change of registration details.
Social care support services have a duty under the Regulation of Care (Scotland) Act 2001 to refer to SSSC anyone whom they have dismissed, or if the employee leaves before a disciplinary concludes, and otherwise, dismissal would have been considered or implemented, on grounds of misconduct. Service providers also have a duty under the SSSC Codes of Practice about anyone whose fitness to practise they are concerned about, to follow SSSC’s guidance on referrals. The CI will also remind employers to refer to SSSC when appropriate, or if the employer won’t make the referral, then the CI will make the referral directly to the SSSC. If there is a disagreement between an employer and the Care Inspectorate on the need to report, and if due to the circumstances of a situation, it could take time to resolve, the Care Inspectorate has a mechanism in place to ensure SSSC are appropriately informed as soon as possible.
Social care support staff have responsibility under the SSSC Codes of Practice to raise issues and also have responsibilities arising from the The Duty of Candour Procedure (Scotland) Regulations 2018. Joint guidance by the CI and SSSC can be found here.
As noted earlier in the report, HIS duties include the regulation of independent hospitals and clinics. As part of their conditions of registration, services must notify HIS regards:
- Notification of IR(ME)R incident.
- Reopening of a service after a temporary closure.
- Events which threaten a service provider’s ability to continue providing an independent healthcare service.
- Change of address of service or service provider.
- Introduction of controlled drugs within a service.
- Serious injury or complication to service user.
- Drug error including systematic anti-cancer therapy.
- Controlled drug incident.
- Change of name/appointment of a new manager.
- Cancellation of a service.
As can be seen from the variety of duties to report “notifiable issues” for different sectors these are broad, and can include financial and public health issues as well as deficiencies in care systems and individual care. Some further work will be necessary to identify what the range of relevant issues will be for the social care sector, therefore the Review recommends:
Recommendation 24 – It is recommended that a duty to self-report should be reviewed to ensure that self-reporting is inherently linked to continuous improvement, whilst also ensuring the regulatory bodies have appropriate powers to act when issues are identified.
Making things right
The Review heard that the current complaints system can be an exhausting and complicated process for individuals to navigate, which can have a negative impact on them. Feedback to the Review was that there should be channels available and processes in place that enable people to raise issues easily and safely.
The Review recognises the work that is ongoing by the Scottish Government in co-designing a ‘Charter of Rights and Responsibilities’ that is committed to embedding equality and human rights in the National Care Service. This will set out people’s rights and responsibilities when accessing NCS support and provide a clear pathway to make a complaint if their rights are not met. Sections 11 and 12 of the draft NCS (Scotland) Bill place a statutory duty on Ministers to prepare and publish the Charter which, in practical terms, will raise awareness of people’s specific rights and support people to assert these rights with regards to social care support.
In line with recommendation 8 (page 3) people should have access to independent advocacy support both to help them to understand their rights, and when necessary, to provide support to navigate raising concerns as well as complaints processes. The impact making complaints can have on people should also be recognised, especially when those complaints are complex or are particularly serious in nature.
Accountability regards respecting people’s rights should be built-in across the system, not just via formal complaints processes. Whilst it is important to have legal remedies available it is crucial that a human rights-based approach is taken to systems of complaints and feedback.
Feedback received during the call for evidence demonstrated a view that the investigation into any concerns raised needs to be person centred, appropriate, timely and proportionate. Human rights cannot be restricted by resources or based on the level of funding services are commissioned to deliver on, human rights is a principle, a practice, and a responsibility that should be embedded into overall systems for people to raise concerns or provide feedback. There should be a culture of being expected to be taken seriously, and get appropriate action, which embeds good practice, quality social care support services, and confidence in systems.
Collating and learning from complaints was also highlighted as well as supporting services to understand what went wrong and what improved provision/what good would look like, with the importance of preventative measures noted to prevent reoccurrence. Many suggestions were made including putting remedial plans in place and the retraining of staff if required, and agencies working together to achieve solutions. The Review also heard that updating those who raised a complaint about improvements made and actions taken to rectify the situation, was something people wanted and that this does not always exist. This would result in better outcomes for the individual and for the service. In the Why Research analysis report this is summarised as:
There were recommendations for providing and implementing solutions, along with appropriate actions and changes to solve problems. That said, respondents felt that investigations should be at an appropriate or proportionate level depending on the issue raised. Accountability was seen to be important, although there should not be a “blame” culture. A collaborative approach to problem solving with services which provide social care support was thought best where possible, along with timely remedial action. After resolution, learning reviews were strongly advocated as well as introducing preventative measures to reduce the reoccurrence of problems.
In responding to the evidence shared by individuals that there is a need to strengthen and improve the current complaints system and its focus on a human rights-based approach, the Review recommends:
Recommendation 25 – It is recommended that there is clear and accessible public information about how to raise a concern and systems of complaints. Those systems of complaints should be easy to use, have accessible detail about routes of escalation with clearly defined outcomes that can include redress for people.
Accountability - who regulates the regulator?
The Review, as part of its terms of reference, was asked to consider if there is a need for an independent scrutiny body for inspection and regulation of social care support services in Scotland similar to that of the Professional Standards Authority (PSA) in England or otherwise, taking account of the reserved nature of professional regulation of the clinical professions.
The PSA is an independent body, which is accountable to the UK Parliament. Its statutory duty is to protect the public by improving the regulation and registration of people who work in healthcare across the UK, as well as social care in England. As noted in the Background chapter, the PSA oversees the decisions of the nine statutory bodies that regulate health professionals in the UK and social care in England. The PSA also carries out annual reviews of the statutory regulators against its Standards of Good Regulation.
The Scottish Government previously contributed proportional financial support for the PSA’s funding; however, it is now self-funding through contributions of the statutory regulators, as well as ad hoc international work undertaken on a commercial basis. The PSA examines the decisions of Fitness to Practise (FtP) panels of the healthcare regulators across the UK and has the legal powers to refer their decisions to the High Court or Court of Session where concerns arise. The Scottish Ministers can ask the PSA for advice about professional regulation, but there is currently no body in Scotland with equivalent powers of oversight of the Scottish Social Services Council’s devolved regulation of the social care services workforce.
The call for evidence and engagement events asked, “How do we make sure regulatory bodies are doing a good job?” In the analysis of the findings, it was found that a large minority from across all sub-groups thought regulators should be subject to independent scrutiny, with suggestions for an independent board of scrutiny from across social care, which would help to ensure accountability.
We undertake an annual self-assessment of our progress using an adapted version of the PSA’s Standards of Good Regulation. We also maintain regular dialogue with many of the regulators the PSA oversees such as Social Work England and the Nursing and Midwifery Council. We would welcome the opportunity to have a further discussion about the case for and role of an independent scrutiny body.
In discharging its regulatory functions, the CI must have regard to the Scottish Regulators’ Strategic Code of Practice. This code of practice outlines how Scottish regulators should apply regulatory principles and build good practice when setting regulations.
The Review heard about the importance of openness, transparency and communication about regulators’ activities and roles. This included guidance about inspection processes, information about the complaints process, and the sharing of knowledge. Suggestions were made about performance reviews and reports, mostly in a context of self-reporting and self-assessment.
The Review also heard instances where individuals and organisations felt they had no route to redress or escalation processes in relation to decisions made by regulatory and scrutiny bodies.
On considering potential recommendations in this area, the Review is mindful that the proposed establishment of the National Social Work Agency as part of the draft NCS Bill will provide standards for social workers and as a result there will be professional oversight and scrutiny.
Other areas/linked services that are relevant to this Review have different regulators, therefore, any revised system would need to function in conjunction with these bodies. For example, the Scottish Housing Regulator (SHR) is the independent regulator of Registered Social Landlords and local authority housing services in Scotland established by the Housing (Scotland) Act 2010. SHR’s statutory objective is to safeguard and promote the interests of:
- Tenants who live in homes provided by social landlords.
- Over 120,000 homeowners who received services from social landlords.
- People and their families who experience homelessness and seek help from local authorities.
- Gypsy/Travellers who can use official sites provided by social landlords.
In setting out the various scrutiny bodies, and the role of the PSA which covers some of the UK regulatory bodies operating in Scotland, as well as providing resources which are used by bodies in Scotland, the Review considered whether or not a separate body such as the PSA was required for Scotland.
Oversight of regulation and inspection bodies is important. In light of the evolving landscape, the Review believes there should be appropriate scrutiny and, in highlighting the importance of this for individuals who receive social care support as well as service providers, wishes to ensure Scottish Government can respond quickly to developments to ensure maximum coverage. Therefore, the Review recommends:
Recommendation 26 – It is recommended that the Scottish Government should make arrangements to ensure appropriate oversight of regulatory provision of social care support and consider whether there should be separate arrangements put in place for Scotland, in this respect.
In addition to these views, the Review also considers a mechanism which ensures the independence of regulators and inspectors from Scottish Government in their operational function as essential, as is the achievement of consistency through regulation of regulators in a cost-effective way.
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