National Care Service: Charter and the Law

5 Involvement, participation and choice section

5.1 ‘You have rights to information about the support that is available to help you make decisions.’

5.1.1 Although not a right in itself, in a health context, the effect of section 3(1) and 3(2)(d) of the Patient Rights (Scotland) Act 2011 is that the health care received by a patient is to have regard to the importance of providing such information and support as is necessary to enable the patient to participate as fully as possible in decisions relating to their health and wellbeing, taking all reasonable steps to ensure that the patient is supplied with information and support in a form that is appropriate to the patient's needs.

5.1.2 In a social work context, section 27(1)(ac) of the Social Work (Scotland) Act 1968 stipulates that a local authority must provide a service for “the provision of advice, guidance and assistance for persons who are in prison or subject to any other form of detention…and who on release from such imprisonment or detention, it appears to the local authority, will be required to be under supervision”, and section 27(ZA) states that local authorities must, if and to the extent directed by Scottish Ministers provide advice, guidance and assistance to any person who is arrested/detained in police custody or has their sentence deferred.

5.1.3 Additionally, Annex B of the Throughcare for long term prisoners and prisoners subject to supervised release orders: social work guidance states “For those prisoners not subject to supervision on release the local authority will be able to be proactive in the provision of advice, guidance and assistance prior to release. For example, it is envisaged that local authorities might explain the range of services available to certain categories of offender, e.g sex offenders, young offenders and women and the offender can then request it if he/she so wishes.”

5.1.4 In a social care context, section 9 of the Social Care (Self-directed Support) (Scotland) Act 2013 places a duty on local authorities to provide information about the options for organising and managing self-directed support and section 10 provides for the same duty with respect to children and young carers. The authority must give the explanation and information required in writing and, if necessary, in another form appropriate to the needs of the person to whom they are given.

5.1.5 Additionally, for unpaid carers, sections 9 and 11 of the Carers (Scotland) Act 2016 require local authorities to provide carers with information concerning support for them and the person they care for. Sections 15 and 17 of the Act mirror these rights for young carers. Section 34 of the Act provides that each local authority must establish and maintain, or ensure the establishment and maintenance of, an information and advice service for relevant carers.

5.1.6 In relation to children, Article 13 of the United Nations Convention on the Rights of the Child (which is incorporated in domestic law by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024) provides that the child shall have the freedom to seek, receive and impart information and ideas of all kinds, through any media of the child’s choice. This may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

a) For respect of the rights or reputations of others; or

b) For the protection of national security or of public order, or of public health or morals

5.2 ‘You have rights to be listened to and have your views respected and responded to’

5.2.1 In a health context, section 3(2) of the Patient Rights (Scotland) Act 2011 provides for a right that health care be provided in a way which will allow and encourage the patient to participate as fully as possible in decisions relating to the patient’s health and wellbeing.

5.2.2 In a social work context, section 12A(1)(b)(ii) of the Social Work (Scotland) Act 1968 provides that, “in so far as it is reasonable and practicable to do so”, the views of the person whose needs are being assessed during a social work assessment are to be taken into account in the decision as to whether services should be provided, while there is no right to a particular treatment or outcome as a result.

5.2.3 In a children’s services context, section 17(3) of the Children (Scotland) Act 1995 stipulates that “[b]efore making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the views of” the child, and certain other categories of person including their parents and anyone with parental rights in respect of the child. Section 17(4) states that the local authority must, in the case of the child, “have regard so far as practicable” to those views, taking account their age and maturity.

5.2.4 Article 12 of the United Nations Convention on the Rights of the Child (which is incorporated in domestic law by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024) provides a child who is capable of forming his or her own views the right to express those views freely in all matters affecting them and for these to be given due weight.

5.3 ‘Local councils have a duty to assess your care and support needs and decide if they need to arrange any services for you’

5.3.1 Section 12A of the Social Work (Scotland) Act 1968 stipulates that where it appears to a local authority that any person may be in need of community care services, the local authority –

a) “shall make an assessment of the needs of that person for those services; and

b) shall then decide, having regard to the results of that assessment…whether the needs of the person being assessed call for the provision of any such services.”

5.4 ‘You have rights to be as involved as possible in planning and decisions about your support and how it is delivered’

5.4.1 In a social care context, sections 5(2) and 8(2) (for adults and children respectively) of the Social Care (Self-directed Support) (Scotland) Act 2013 places a duty on local authorities to give the supported person the opportunity to choose one of the options for self-directed support, unless the authority considers that the supported person is ineligible to receive direct payments.

5.4.2 For unpaid carers, section 7(2) of the Social Care (Self-directed Support) (Scotland) Act 2013 places a duty on local authorities to give an adult carer of the supported person the opportunity to choose one of the options for self-directed support unless the authority considers that the supported person is ineligible to receive direct payments.

5.4.3 In a health context, section 3(2)(c) of the Patient Rights (Scotland) Act 2011 provides the right for patients to be allowed and encouraged to participate as fully as possible in decisions relating to the patient's health and wellbeing.

5.4.4 In a children’s services context, section 59(1) of the Children’s Act 1975 stipulates that in reaching any decision relating to a child in their care, a local authority shall give first consideration to the need to safeguard and promote the welfare of the child throughout their childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to their age and understanding.

5.4.5 Additionally, in a children’s services context, section 17(3) of the Children (Scotland) Act 1995 stipulates that “[b]efore making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the views of” the child, and certain other categories of person including their parents and anyone with parental rights in respect of the child. Section 17(4) states that the local authority must, in the case of the child, “have regard so far as practicable” to those views, taking account their age and maturity.

5.5 ‘The local council must provide you with information about your options and how to manage your support.’

5.5.1 In a social care context, section 9(2) of the Social Care (Self-directed Support) Act 2013 places a duty on local authorities to provide the following when they are giving a person an opportunity to choose one of the options for self-directed support:

a) an explanation of the nature and effect of each of the options for self-directed support,

b) information about how to manage support,

c) information about persons (including persons who are not employed by the authority) who can provide-

i. assistance or information to the person to assist the person in making decisions about the options

ii. information about how to manage support, and

d) in any case where the authority considers it appropriate to do so, information about persons who provide independent advocacy services (within the meaning of section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003.

5.5.2 In relation to children, Article 13 of the United Nations Convention on the Rights of the Child (which is incorporated in domestic law by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024) provides that the child shall have the freedom to seek, receive and impart information and ideas of all kinds, through any media of the child’s choice. This may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

c) For respect of the rights or reputations of others; or

d) For the protection of national security or of public order, or of public health or morals

5.6 ‘You have rights in relation to the personal information held about you.

Your rights include the right to:

• Be informed about how your data is being used
• Access your personal data
• Have incorrect data updated
• Have data erased
• Stop or restrict the processing of your data
• Data portability (allowing you to get and reuse your data for different services)
• Object to how your data is processed in certain circumstances ’

5.6.1 Section 45 of the Data Protection Act 2018 and Article 13 to 14 of the UK General Data Protection Regulation provides the right for a person to be informed of how their personal information will be collected and used.

5.6.2 Section 45 of the Data Protection Act 2018 and Article 15 of the UK General Data Protection Regulation provides the right for a person that is the subject of personal data to access the personal data that an organisation holds.

5.6.3 Section 45 of the Data Protection Act 2018 and Article 16 of the UK General Data Protection Regulation provides the right for a person to ensure the personal data held about them is correct and places an implication on the controller to rectify this if not.

5.6.4 Section 45 of the Data Protection Act 2018 and Article 17 of the UK General Data Protection Regulation provides the right for a person to request the erasure of their personal information which the data controller must comply with, unless the data controller can present legitimate grounds for continuing to do so.

5.6.5 Section 45 of the Data Protection Act 2018 and Article 18 of the UK General Data Protection Regulation provides the right for a person to restrict the continued use of their data, if one of the following considerations is met:

a) The accuracy of the data is contested by the person it relates to, or their representative;

b) The person has objected to the use, while the data controller considered if legitimate grounds are maintained;

c) The processing of the information is considered unlawful;

d) The data controller no longer need the personal data but they are required by the person, whom the information relates, for the establishment, exercise, or defence of a legal claim.

5.6.6 Section 45 of the Data Protection Act 2018 and Article 20 of the UK General Data Protection Regulation provides the right for a person to receive personal information held about them in a structured, commonly used, and machine readable format. They provide the right for the person to transmit this information to any other data controller, without hinderance by the initial provider.

5.6.7 Section 45 of the Data Protection Act 2018 and Article 21 of the UK General Data Protection Regulation provides the right for a person to object to the processing of their personal information, on grounds relating to their personal situation, at any time unless the data controller can present legitimate grounds for continuing to do so.