6. Health and Social Care
The COVID-19 pandemic brought into sharp focus the difficult decisions that we may be required to make in times of crisis to protect the right to health. An overarching commitment to human rights, equality, and social justice sat at the heart of the Scottish Government’s response to the pandemic, and the Scottish COVID-19 inquiry will be investigating the impacts of the Scottish Government’s handling of the pandemic on the exercise of rights set out in the ECHR.
In times of crisis and in times of normality, everyone has the right to the highest attainable standard of physical and mental health, the right to be treated with respect and dignity without discrimination, and the right to access the appropriate care when it is needed. The Scottish Government is committed to respecting, protecting, and fulfilling these rights across its health and social care policy, and to addressing the underlying causes of health inequalities, including those exacerbated by the COVID-19 pandemic.
A) COVID-19 Protective Measures
In confronting the threat posed by COVID-19, the Scottish Government is determined that no member of Scottish society will be forgotten or left behind. This approach aligns with our overarching commitment to human rights, equality, and social justice. Scotland’s Strategic Framework sets out our approach to managing the pandemic. The Scottish Government had in place a package of legally-mandated and guidance-based protective measures to help deliver our strategic intent to suppress the virus to a level consistent with alleviating its harms while we recover and rebuild for a better future.
Legal requirements and guidance were in place in order to keep the virus under control, as set out in the Health Protection (Coronavirus) (Requirements) (Scotland) Regulations 2021. The regulations to comply with these requirements were revoked in April 2022, including:
- the requirement to collect and share visitor information;
- the requirement to have regard to Scottish Government guidance about minimising the risk of exposure to coronavirus on its premises;
- the recommendation to take reasonably practicable measures, as set out in the guidance, to minimise the incidence and spread of coronavirus;
- a face covering requirement in most indoor public places and on public transport, which was in regulations but is now strongly recommended in guidance;
- domestic COVID-19 status certification (see Section 6(D)).
In addition to these legal requirements, published guidance supports people, businesses and other organisations to reduce the risk of transmission.
COVID-19 affects everyone but the harms caused by the pandemic are not felt equally. All decisions made in the development of measures under the COVID-19 emergency powers have included careful assessment of the necessity and potential impacts of the powers and their compatibility with the ECHR rights set out in the Human Rights Act 1998. Regulations made using COVID-19 legislation were reviewed at least every 21 days by Scottish Ministers.
Decisions on legal requirements in response to COVID-19 involved a careful assessment of whether they were necessary and proportionate. The Framework for Decision Making was published in December 2020 and set out the “four harms” process which was central in making this assessment. The “four harms” are the direct harm of the disease itself, the wider health harm, and the broader societal and economic impacts of both the virus itself and of our necessary responses to it. This process draws on evidence and analysis to assess both the current and future direct and indirect health impacts and the social and economic impacts of the pandemic and of proposed regulations.
In making decisions about protective measures the Scottish Government carefully considered the equality and human rights implications. Ministers and officials engaged with human rights, children’s rights and equality stakeholders representing each of the protected characteristics in the Equality Act 2010. Their views and evidence have been taken into account and reflected in our suite of EQIAs and CRWIAs.
B) COVID-19 Vaccination Inclusion
It is vital for vaccination programmes to reach everyone and that no one is left behind, both for individual health and our collective community wellbeing. We are ensuring that people who may experience barriers, or feel less confident, are able to come forward for vaccination. We facilitate the National Vaccine Inclusive Steering Group so that information and learning can be shared and solutions to issues can be co-produced with those who know their communities best.
The Scottish Government works with a range of national, local community, third sector, and faith organisations supporting minority ethnic communities to ensure positive messaging about the vaccine is promoted. We have provided over £80,000 of funding to trusted organisations within communities to support vaccine uptake within minority ethnic groups.
All NHS Boards actively consider inclusion in their vaccination plans, including how they will proactively offer vaccination to people who may face barriers to uptake. Work to reach under-served communities has included offering vaccinations in places of worship and trusted venues and the provision of information translated into multiple languages and accessible formats on NHS Inform. NHS Inform hosts a page where people in any health board can find out more information on how they can request interpreter support at their appointment, and our national vaccine helpline also offers an interpreter service for those who need it.
NHS Boards have also used a variety of outreach approaches to reach groups unlikely to be contacted by letter, such as Gypsy/Travellers, people experiencing homelessness and rough sleepers, asylum seekers, refugees and migrant workers, including by vaccinating at community venues. Those living in areas of deprivation have also been targeted through drop-in and pop-up clinics located within communities, for example near food banks and homeless hostels, and marketing assets have been shared with charities across Scotland via Third Sector Interfaces.
Information is also available on help to travel to appointments. Procedures are in place for when the nature of an individual’s condition means they cannot travel, so that a home vaccination appointment can be organised, and health boards are also able to offer assistance to those with mobility issues in travelling to and from their vaccination appointment.
We use data and evidence to inform our approach, including Public Health Scotland’s regular publication of equality data, which includes a breakdown by ethnicity and also of deprivation in its regular COVID-19 statistical reports. The Scottish Government has commissioned in-depth qualitative research to understand vaccine user journeys, particularly in communities with lower uptake.
We know that people with questions or concerns about the vaccine like to have information and reassurance from trusted community representatives. That is why we have been working with community organisations across Scotland. For example, the Scottish Government National Clinical Director, Professor Jason Leitch, took part in a Polish translated Facebook Live question and answer session hosted by Feniks, which supports people from Eastern European communities, and he has answered listener questions on Jambo! Radio, Scotland’s African and Caribbean radio station.
A video for minority ethnic communities was developed which looks to address barriers to vaccine uptake identified by ethnic minority communities. The video was produced in multiple languages and provides key facts about the vaccines for those who may be hesitant, or for those more likely to have been exposed to myths or misinformation. The content has been shaped by engagement with BEMIS and the Ethnic Minority National Resilience Group.
In November 2021, the autumn/winter COVID-19 and flu vaccination programme began to collect ethnicity data at vaccination appointments. This is in response to the recommendations made by the Expert Reference Group on Ethnicity and COVID-19 and is intended to help tackle racialised health inequalities. This collection has since been extended to pneumococcal and herpes vaccinations. Recording this data will help us to better design and tailor services to improve people’s outcomes.
To ensure informed consent and to encourage prisoners to take up vaccination, we have created tailored resources with Public Health Scotland which have included a letter from the Scottish Government Chief Nursing Officer, the Chief Medical Officer and the National Clinical Director. The National Clinical Director also attended HM Prison (“HMP”) Barlinnie for a Q&A session which was aired over prison radio.
C) Inclusive COVID-19 Testing
We know that the impacts of COVID-19 and of COVID-related interventions did not fall evenly across the population. The accessibility of COVID-19 testing has been a key priority for Test and Protect, and the Scottish Government’s iterations of our Testing Strategy have highlighted our approach to ensuring COVID-19 testing was accessible to different groups of people.
Some of our key testing accessibility adaptations have included:
- working with the UK Health Security Agency and National Services Scotland to ensure that 96% of the population was within a 30-minute drive of a test site (or 99% of the population was within a 30-minute drive of a Mobile Testing Unit);
- working with health boards and local authorities to plan the locations of walk-through local test sites in areas of higher deprivation and low car-ownership. These sites had disabled access routes, accommodated families and those who required privacy while being tested, and adapted to local community needs by providing instructions in languages other than English. 32% of the population was within a 30-minute walk from a local walk-through test site;
- developing a network of 26 small-scale test sites in partnership with NHS Highland, NHS Grampian, the Scottish Fire and Rescue Service, and the British Red Cross to provide access to testing for rural communities;
- ensuring access to postal polymerase chain reaction (“PCR”) tests for those unable to travel to a test site or in locations where there was not a convenient local test site nearby, and extending this coverage to mainland highland and island communities across NHS Highland;
- ensuring local partners could request Mobile Testing Unit deployments to respond to demand in remote and rural areas, with NHS Boards providing PCR testing in Shetland, Orkney, the Western Isles, and Iona and Colonsay;
- working with local partners to establish community testing sites to reach underrepresented groups, including asymptomatic test sites in mosques and churches;
- working with local partners to distribute PCR and lateral flow device (“LFD”) kits to high-prevalence neighbourhoods when new variants of concern appeared in Scotland;
- making lateral flow tests available through a home delivery network and available to collect at over 1,000 pharmacies across Scotland, which research shows are highly trusted services among ethnic minority groups;
- ensuring people without digital access could phone the 119 Freephone service to order PCR and LFD kits, report their LFD test result, or receive their PCR test result;
- providing copies of instructions for the use of COVID-19 test kits translated into 15 languages as well as easy-read and large-print formats, and offering support in up to 200 languages if required, including BSL, via the 119 helpline.
As outlined in our Test and Protect Transition Plan published in March 2022, our strategy for COVID-19 testing has changed from population-wide testing to reduce transmission to targeted testing to support clinical care and protect the highest risk settings, in addition to surveillance, outbreak management, and responding to significant developments such as a new variant.
D) Domestic COVID-19 Status Certification
In October 2021, the Scottish Government introduced mandatory domestic Covid Status Certification requiring customers to show evidence of being either “fully vaccinated” or “exempt” to gain entry to a limited range of “higher risk” settings such as large indoor and outdoor events and late-night venues. Covid Status Certification was less restrictive than measures designed to reduce the number of contacts that people have, such as business closure, limits on household numbers, or mandatory physical distancing.
Throughout the development and implementation of Covid Status Certification the Scottish Government carefully considered the equality and human rights implications. Ministers and officials engaged with human rights, children’s rights and equality stakeholders representing each of the protected characteristics in the Equality Act 2010. Their views and evidence have been taken into account and reflected in our suite of EQIAs and CRWIAs.
In December 2021, Covid Status Certification was amended to allow customers to show a record of a negative test within the previous 24 hours as an alternative to proof of full vaccination. In January 2022, in recognition of vaccine effectiveness waning against the Omicron variant, Covid Status Certification was amended further, requiring customers to show they have had a booster to be considered “fully vaccinated” if their last vaccine dose was more than 120 days ago.
Covid Status Certification was limited to higher-risk settings such as late-night venues and large outdoor and indoor events, where the balance of public health risk meant this was proportionate. The Regulations provided exemptions in which persons would be permitted to be on premises falling within the scope of the scheme. Provision was made for under-18s, participants in vaccine trials, and customers who for medical reasons were unable to be fully vaccinated, as well as the person responsible for the premises, people working, volunteering or performing in the venues, and emergency services responders and regulators carrying out their work.
Guidance also made it clear that businesses not covered by the Government’s mandatory Covid Status Certification who chose to voluntarily use Covid Status Certification were required to meet their obligations under all relevant law including data protection law, the Equality Act 2010, and relevant human rights legislation. The Inclusive Vaccination and Inclusive Testing programs were critical to ensure universal access to vaccination and testing (see Sections 6(B) and 6(C)).
In February 2022, the Scottish Government published an updated Strategic Framework, signaling a move from the strategic intent to “suppress the virus to the lowest possible level” to the objective to “manage COVID-19 effectively, primarily through adaptations and health measures that strengthen our resilience and recovery, as we rebuild for a better future”. That month, the legislation providing for the mandatory domestic Covid Status Certification scheme was therefore revoked.
In April 2022, given the change in guidance on asymptomatic testing and the ceasing of the universal testing offer as set out in the Test and Protect Transition Plan, the decision was taken that it would no longer be appropriate for Covid Status Certification to be used voluntarily.
Covid Status Certification required the use of the NHS Scotland Covid Status app which is free to download. The app was initially developed and released for the purposes of supporting international travel for adults in September 2021 but it was also used to support domestic Covid Status Certification for over 18s. The app is now accessible for over 12s by providing non biometric ID verification. The domestic function of the app was switched off alongside the rest of the UK in May 2022. The app will continue to be used to facilitate international travel for the foreseeable future until it is no longer required. Alternatives to the app are available via NHS Inform in the form of paper and downloadable PDF certificates for those unable to access the app or who may prefer to use the alternatives.
E) The Scottish COVID-19 Inquiry
In December 2021, Scottish Ministers established an independent Scottish COVID-19 Public Inquiry to provide scrutiny and answers to the issues of public concern and learn lessons about the handling of the pandemic. The Inquiry’s terms of reference set out 12 areas of investigation, each covering a strategic element of the handling of the pandemic, and set out that the Inquiry will, as the Chair deems appropriate and necessary, consider the impacts of the handling of the pandemic on the exercise of rights in the ECHR (as defined in Section 1 of the Human Rights Act 1998) and any unequal impacts on people.
Scottish Ministers’ intention in designing the terms of reference for the Inquiry has been to ensure that the Inquiry learns lessons from the strategic handling of the pandemic in order to prepare for any future pandemics. The terms of reference were informed by public engagement before being announced by Scottish Ministers, and were subject to a period of reflection by the inquiry’s Chair, who made suggestions for adjustment to Ministers which were announced in June 2022.
The Inquiry has been established and will operate in accordance with the Inquiries Act 2005 and related subordinate legislation. This enables the Inquiry to compel the provision of documents and evidence of witnesses. Under the Act, the procedure and conduct of the Inquiry, including its schedule of reporting, are matters for the Chair alone to decide on.
The Public Inquiry in Scotland will operate within a wider context of the independent investigation of deaths which is led by the Lord Advocate. The terms of reference require the Chair to respect the independence of those investigation processes. The Scottish Government is also committed to working with the UK Government on the separate UK-wide public COVID-19 Inquiry, and where possible it will be important to avoid duplication.
F) Access to Services
In 2018, the Scottish Government published guidance for General Practitioner (“GP”) practices making clear that everyone who lives in Scotland can register with a GP to receive NHS general medical services regardless of citizenship or proof of address. This includes refugees, migrant workers, Gypsy/Travellers, students, and those joining their families. Asylum seekers who have made an application to the Home Office are entitled to the full‐range of NHS healthcare services on the same basis as a UK National resident in Scotland while they remain in Scotland. This is regardless of whether their application is pending or unsuccessful.
Most NHS services, including those provided by GP practices, local pharmacies, hospitals or clinics and emergency services, are provided free of charge. There is also a right to free NHS eye examinations and free NHS dental examinations.
NHS Boards are expected to design and put in place service models that best reflect local circumstances, and are responsible for ensuring that primary medical services in Scotland recognise cultural diversity and respond to the healthcare needs of all ethnic groups and communities. Healthcare staff have a duty to ensure that information and services are accessible to all, for instance through arranging interpretation or advocacy services for those who need them.
G) Health Inequalities
In Scotland, the wider causes of health inequalities are being tackled through measures such as providing free school meals, investing in affordable housing, and continuing commitments like free prescriptions, concessionary travel and free personal care. The measures detailed in the Healthy Living Strategies published in 2018 will help to reduce the stark social gradient to the harms of alcohol, tobacco and the inequality of access to opportunities to be active and to have a healthy diet.
Scotland has adopted a place-based approach to local health improvement to support joint working across the wider public and third sectors, to improve health and wellbeing, and to reduce inequalities. The Scottish Government is also working to enable Scotland’s health and social care providers to play their full role as ‘anchor institutions’ as part of the roll-out of Community Wealth Building. These institutions are well positioned to support their communities through local procurement, through providing access to fair work, and through use of their land and property, and the Scottish Government is working with them to understand the practical changes needed to build local economic resilience as a means to deliver better outcomes for local people.
Data and evidence clearly demonstrate that some of the most significant and entrenched health inequalities in Scotland are experienced by minority ethnic groups, and the Scottish Government is taking robust action to address this. The Racialised Health Inequalities & Health Equity Team has been established to support targeted improvements for specific groups, with an explicit early focus on minority ethnic communities. The team plays a pivotal role in responding to recommendations set by groups like the Expert Reference Group on COVID-19 and Ethnicity and leads on the coordination of the Health & Social Care commitments within the Race Equality Immediate Priorities Plan.
The team’s work also includes development of an overarching policy on the collection and use of health ethnicity data to support and monitor action to address inequalities in health outcomes as well as in access to and experience of health services. The team has a specific work-stream focused on Gypsy/Traveller health outcomes, supporting the delivery of health commitments included in the Scottish Government’s Gypsy/Traveller Action Plan, Improving the Lives of Gypsy/Travellers: 2019-2021. The lifespan of the Plan has been extended and will now run until April 2023 to take account of delays to various commitments as a result of COVID-19.
H) Mental Health
The rights of those with mental health illness are set out in the Human Rights Act 1998 and the Equality Act 2010. Under the 2010 Act, a mental health condition is considered a disability if it has long-term effects on normal day-to-day activity.
In October 2020, the Scottish Government published a Mental Health Transition and Recovery Plan outlining its response to the mental health impacts of COVID-19 and to addressing the challenges that the pandemic has created. Recognising that the pandemic has exacerbated pre-existing structural inequality in society and has had a more adverse impact on the mental health of some groups of the population, the Plan has a particular focus on addressing health inequalities and commits to working with stakeholders to examine the causes of mental health inequality at a structural and individual level. An Equality and Human Rights Forum has been established to provide advice on the implementation and delivery of mental health policy and to ensure equality and human rights are at the heart of our response.
A range of activity has been undertaken to help people deal with the mental health effects of the pandemic and to increase access to support and services. In 2021-2022, £21 million has been invested in a Communities Mental Health and Wellbeing Fund to help adults tackle the impact of social isolation, loneliness and mental health inequalities, particularly for vulnerable and disadvantaged groups. In May 2022, a further £15 million was committed for a second year of the Fund.
The Distress Brief Intervention programme continues to be rolled out across Scotland and has helped over 30,000 people since its inception (see Section 6(K)). Access to Computerised Cognitive Behavioural Therapy has also been significantly increased as part of an expanded Digital Mental Health Programme, increasing self-referral to a range of online treatments. Mental Health Assessment Services for unscheduled mental health presentations were established across health boards during the pandemic to fast-track patients to the appropriate support, and the Scottish Government has worked with local authorities to establish more than 200 new community mental health and wellbeing supports and services for children and young people.
The Scottish Government also remains committed to meet the standard that 90% of patients start treatment within 18 weeks of referral to Child and Adolescent Mental Health Services (“CAMHS”) and Psychological Therapies (“PT”). We have published a National CAMHS Service Specification which sets out the levels of service that children, young people and families can expect from CAMHS across Scotland, and a complementary Neurodevelopmental Specification for Children and Young People.
Looking after the health and wellbeing of new parents is vitally important to breaking the cycle of poor outcomes from early mental health adversity. In 2019, the First Minister announced a programme of investment over 4 years to improve perinatal and infant mental health services across Scotland. Since March 2019, the Scottish Government has invested over £16 million in perinatal and infant mental health, including funding for community specialist mental health services in every health board in Scotland and inpatient services for women and families with the highest level of need.
Since 2018, the Scottish Government has also invested over £4 million in a National Trauma Training Programme. The Programme is underpinned by a rights-based approach, in that anyone affected by adverse childhood experiences and trauma has the right to support for recovery and the right to the highest attainment standards of health and wellbeing.
We’re now in the process of developing a new Mental Health and Wellbeing Strategy to guide the work that we and our partners will do over the coming years to meet the changing mental health need of the population.
I) Mental Health Resourcing
The Scottish Government is committed to improving the mental health and wellbeing of Scotland’s population and to ensuring everyone receives the best possible care and support from our health and care services. Delivering this can only be achieved with the right workforce capacity and capability. Under the Scottish Government, the mental health workforce has expanded significantly and NHS mental health expenditure has increased from £651 million in 2006-2007 to £1.250 billion in 2020-2021 – a rise of 92%.
The Scottish Government are continuing to take steps to grow the mental health workforce:
- action 15 of the Mental Health Strategy 2017-2027 outlines the Scottish Government’s commitment to fund 800 additional mental health workers in key settings, including accident and emergency, GP practices, police station custody suites and prisons – an additional 958.9 whole time equivalent (“WTE”) mental health roles have since been filled, exceeding the original commitment;
- the number of psychology staff has doubled, the number of staff within CAMHS has almost doubled, and NHS Scotland’s mental health nursing, psychology and CAMHS staffing numbers are at a record high;
- we are working to increase the postgraduate student intake for psychology master’s and doctorate programmes by a total of 60 trainees by 2023;
- in 2021-2022, the mental health nursing student intake was at a record level of 740 – the intake target for 2022-2023 is 888 places, a 100% increase on 2016;
- new roles have been created, such as psychology wellbeing practitioners in NHS24 and enhanced psychology practitioners working in primary care, community, early years, and school settings.
To support this work the Scottish Government will publish a Mental Health Workforce Plan in the first half of this Parliament.
J) Suicide Prevention and Self-Harm
In August 2018, the Scottish Government published the Suicide Prevention Action Plan: Every Life Matters. This plan set out ten measures to reduce the rate of suicide in Scotland. To implement the plan, the Scottish Government set up a National Suicide Prevention Leadership Group. Key deliverables to date have included producing workforce learning resources to support suicide prevention, informing local area suicide prevention planning with timely data from Public Health Scotland and Police Scotland, and launching a pilot service to support those bereaved by suicide. Every Life Matters was replaced in September 2022 by a new long-term strategy and an associated action plan with a strong focus on lived experience, produced jointly between the Scottish Government and COSLA.
In the Programme for Government 2021-2022, the Scottish Government committed to doubling annual spending for suicide prevention to £2.8 million by the end of the current parliamentary term. Additional investment through our Mental Health Recovery and Renewal Fund is also enhancing support for local suicide prevention activity, and suicide prevention is one of the key areas of focus for our Communities Mental Health and Wellbeing Fund. The latest annual suicide statistics for Scotland show a 3% fall in suicides between 2019 and 2020.
The Scottish Government is taking decisive action to improve our responses to people who self-harm. Over the coming year we will be working with people with lived experience of self-harm and those who support them to inform our first dedicated self-harm strategy and action plan, which will be separate from, but linked to, the new long-term suicide prevention strategy. We are also investing £1.5 million in new services to support people who self-harm, and will use the learning from these services to inform the development of the self-harm strategy and action plan.
K) Responding to People in Emotional Distress
Distress Brief Intervention (“DBI”) is a ground-breaking programme which provides a fast, personalised, and compassionate response to people in emotional distress who don’t need a clinical intervention. Since its launch in 2017, the DBI programme has provided support to over 30,000 people, including over 10,000 via the NHS24 pathway launched in 2020, and we are committed to ensuring that it will be available in all parts of Scotland by 2024. While DBI is available as standard to people 16 years and over, we are running a limited test of change to examine how it can support children aged 14 and 15. The DBI has two levels:
- Level 1 is provided by trained front-line staff (Police Scotland, Scottish Ambulance Service, Accident and Emergency, Primary Care and NHS24) and involves a compassionate response and, where appropriate, an offer of referral;
- Level 2 is provided by trained third sector staff who contact the person within 24 hours of referral and provide compassionate community-based problem-solving support, wellness and distress management planning, supported connections and signposting for a period of up to around 14 days – connecting people to the supports that help them over time.
An independent evaluation report on the initial pilot element of the DBI programme was published in May 2022 and an independent evaluation report on the NHS24 extension pathway was published in September 2022.
L) Supporting People Who Have Experienced Rape, Sexual Assault, or Child Sexual Abuse
The Scottish Government recognises that people who have experienced rape, sexual assault or child sexual abuse have suffered a grave violation of their human rights.
In 2017, HMICS made 10 recommendations to improve Forensic Medical Examination (“FME”) services for victims of sexual crime. A Chief Medical Officer for Scotland Taskforce was established to provide leadership for the delivery of the nine recommendations under the remit of the Scottish Government. The Taskforce has delivered the vast majority of the work set out in its five year plan from 2017-2022.
The Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021 commenced in April 2022. It provides a statutory basis for health boards to provide forensic medical services for people who have experienced rape or sexual assault as well as consistent access to self-referral. Self-referral enables a person aged 16 and over to access healthcare and request a FME without first having to make a report to the police, subject to professional judgement.
Self-referral is made through a dedicated national telephony service run by NHS 24 which is available 24/7, 365 days a year. A national awareness-raising campaign was launched in April 2022 to signpost people to NHS Inform, which provides information about how to self-refer. A refresh of the campaign on social media is planned for autumn 2022.
The Scottish Government invested £14.6 million over five years, from 2018-2019 to 2022-2023, to embed national Health Improvement Scotland (“HIS”) standards and to support implementation of the Act. This included funding for all 14 territorial health boards to enhance existing, or to create new, dedicated healthcare facilities for examinations known as Sexual Assault Response Coordination Services (“SARCS”).
A National Strategic Network is being established to provide leadership for SARCS within the NHS and to support consistency in the quality of care provided. A Scottish Government-led SARCS Programme Board will monitor implementation of the Act and the steps taken by the Network to support the continuous improvement of these services.
M) National Care Service
Social care is essential to realising human rights. In September 2020, the Scottish Government committed to the establishment of a National Care Service (“NCS”) by the end of the current parliamentary term, and in June 2022 published the National Care Service (Scotland) Bill to enable its creation. The NCS will be the most ambitious reform of public services since the creation of the NHS, with social care being provided on a universal basis. The NCS will oversee the delivery of care, improve standards, ensure the ethical commissioning of care, enhanced pay and conditions for workers, and better support for unpaid carers, including a universal right to breaks from caring.
The Scottish Budget 2022-2023 confirmed more than £1.6 billion for social care and integration to lay the groundwork for the NCS. The budget also ensured we do not need to wait for the NCS to come into being to continue to drive up standards and quality, by increasing public investment in social care by 25% over the term of this Parliament, delivering over £800 million of increased support for social care.
The challenges of the COVID-19 pandemic demonstrated the need for a truly person-centred approach to social care. Social connections and meaningful activity are rooted in human rights and are important for wellbeing and quality of life, with family and friends playing an essential role in the health and wellbeing of people who live in care homes. The NCS will go further, fundamentally reshaping social care in Scotland through embedding a human rights-based approach. Respondents to the 2021 NCS consultation demonstrated overwhelming enthusiasm for a human rights-based approach to the design and delivery of the NCS, echoing the findings of the Independent Review of Adult Social Care published in February 2021.
Our human rights-based approach will apply the “PANEL” principles – participation, accountability, non-discrimination and equality, empowerment and legality – to the design and development of the NCS. The Scottish Government will therefore co-design the parts of the NCS that will operate at national level with people who access and deliver social care support. This participatory approach will support the realisation of rights enshrined in international law, including the freedom of persons with disabilities to make choices about their care, as well as their full participation in NCS services, including in service design. We recognise the importance of inclusive communication and independent advocacy in enabling people to participate fully in decisions on their care. As such, we will develop a coherent, consolidated and consistent approach to independent advocacy services across the range of NCS services.
We will develop a NCS Charter of Rights that will set out people’s rights and responsibilities when accessing care to provide a clear, accessible pathway to empower people to claim their care-specific rights. We will also work to develop a complaints service that improves accountability and accessibility within the NCS through reforms to the complaints and redress processes.
As the NCS develops we will work to build a system that moves from one that supports people to survive, to one that empowers them to thrive, with human rights at the heart of it.
N) Anne’s Law
COVID-19 led to prolonged periods where people living in adult care home and some other residential settings were unable to receive visitors during lockdowns and local outbreaks. This caused lasting anguish for many residents, families and friends, and was seen as being at odds with existing rights.
The proposal for “Anne's Law” followed a November 2020 petition lodged by Care Home Relatives Scotland to the Scottish Parliament. Based on the experience of relatives, the petition called on the Scottish Parliament to urge the Scottish Government to allow a designated visitor into care homes to support loved ones.
In September 2021, Ministers stated their intention to deliver Anne’s Law through a commitment made in the Programme for Government 2021-2022. Two public consultations were then launched in September 2021 to seek views on the Scottish Government’s proposals for delivering Anne’s Law in primary legislation and on updating the Health and Social Care Standards that relate to the inspection and regulation of care homes in Scotland to further support the aims of Anne’s Law.
Thereafter began a three-stage approach to implementing “Anne’s Law” in Scotland. The aim is to enable those living in care homes to remain connected with their loved ones, even during an outbreak situation such as COVID-19.
First, in September 2021 the Scottish Government updated its guidance to introduce the practice of a “named visitor”, whereby any resident can nominate a person to visit once a day, even during an outbreak situation, except in truly exceptional circumstances. The guidance has been developed over time to, for example, allow a resident to nominate multiple persons, with each person supported to visit once per day and to allow for maximum flexibility in changing the nominated persons.
Second, in March 2022 the Scottish Government updated the Health and Social Care Standards. The Health and Social Care Standards set out what people should expect when experiencing health, social care or social work services in Scotland and form the basis of the Care Inspectorate’s regulation and inspection of care homes. The two new standards have a strong emphasis on helping residents and their families stay connected, and aim to enable relatives to support the resident in the provision of their care if the resident wants this.
Third, in June 2022, Anne’s Law provisions were included within the National Care Service (Scotland) Bill which is currently being scrutinised by the Scottish Parliament. The Bill will enable Scottish Ministers to issue Directions to care homes that will require them to support the named visitor policy enabling, for example, a flexible means of responding to COVID-19 and any future pandemics.
The Scottish Government will also review any recommendations that emerge from Scotland’s COVID-19 public inquiry as well as any wider engagement with stakeholders that leads to recommendations for care homes being made. The impact of vaccination and other measures will continue to be taken into account.
O) Independent Living and Self-Directed Support
The Scottish Government, COSLA, the NHS, and the Disabled People‘s Independent Living Movement agree that independent living means people of all ages having the same freedom, choice, dignity, and control, and having rights to practical assistance and support to participate in society and live a full life.
In 2015, at the request of DPOs, the Scottish Government created a new public body called ILF Scotland to maintain access to direct payments for over 3,000 disabled adults in Scotland when the corresponding UK scheme closed. In December 2017, the Transition Fund was launched to provide single year grants to eligible disabled people aged 16-25. To date this has supported almost 5,000 disabled young people to achieve their bespoke independent living outcomes.
National eligibility criteria for social care were agreed by the Scottish Government and COSLA in 2009. They are used by councils to determine whether a person assessed as needing social care requires a service to be put in place in order to meet those needs. As part of the development of the NCS, the Scottish Government have committed to overhauling the current mechanism of eligibility criteria and establishing a strengthened focus on prevention and early intervention.
Self-directed support is founded upon the human rights-based values and principles of dignity, empowerment, and collaboration, and stipulates that a human rights-based approach needs to be at the forefront of support planning for social care provision and the resulting support. In April 2014, the Scottish Government enacted the Social Care (Self-directed Support) Act 2013, introducing an approach which gives adults, children and carers who require social care support choice and control over how their support is delivered to meet their personal outcomes. This ensures individuals are empowered to be equal partners in their care and support decisions and to participate in social and economic life.
In 2021 the Self-Directed Support: Framework of Standards was published to ensure consistency of outcomes and approaches in self-directed support practice across Scotland. It aims to build up a framework of good practice in assessments for support, support planning, and in the provision of care and support resources. In March 2022, additional guidance was produced to aid implementation during the pandemic, and an update to the statutory guidance is planned for later in 2022.
P) Out-of-Area Placements
The Scottish Government is committed to implementing the key recommendations set out in the Coming Home Implementation Report, which are essential to achieving our aim to significantly reduce delayed discharge and inappropriate out-of-area placements for adults with learning disabilities and complex care needs by March 2024.
The implementation of the key actions set out in the report is underway. The Scottish Government is developing a Dynamic Support Register to improve monitoring of those at risk of hospital admission or inappropriate placements. The Scottish Government is also establishing a new support panel to provide national oversight of the register and a peer support network to share best practice.
£20 million of additional funding under the Scottish Government’s Community Living Change Fund was allocated to Integration Authorities across Scotland specifically to aid in discharging those that have endured long stays in a hospital setting, and designing community-based solutions that negate or limit future hospital use and out-of-area placements will be core to delivering this.
Q) Adults with Incapacity
The Adults with Incapacity (Scotland) Act 2000 contains provisions covering the personal welfare and financial affairs of adults who lack capacity to make some or all decisions on their own behalf, and provides safeguards including setting out the roles and functions of the relevant statutory bodies.
Following the Scottish Law Commission’s 2014 review of the Act’s compliance with Article 5 of the ECHR, specifically in relation to deprivation of liberty in hospital and care home settings, the Scottish Government consulted on the Commission’s recommendations in 2015 and published an analysis of the responses in 2016. In 2018, further public consultation on reform of the Act took place, and the results were discussed by stakeholder working groups.
In March 2019, following the Independent Review of Learning Disability and Autism in the Mental Health Act, it was announced that there would be a Review of Mental Health and Incapacity Legislation in Scotland, and ongoing adults with incapacity reform work was paused pending its outcome. The remit of the Review, chaired by Lord Scott, was to ensure that future reforms focus on enabling and empowering people with mental illness and those who lack capacity, respecting and protecting human rights and responsibilities, assisting recovery, and supporting family and other relationships. The final report was published in September 2022. The Scottish Government is now taking time to consider the recommendations and will publish its full response in due course.
R) Do Not Attempt Cardiopulmonary Resuscitation Policy
Scotland has consistent national Do Not Attempt Cardiopulmonary Resuscitation (“DNACPR”) guidance policy which is based on the principles set out in the Human Rights Act 1998, the Adults with Incapacity (Scotland) Act 2000, and the CRPD, and has not changed during the pandemic.
The guidance makes it very clear that a stable long-term physical need, learning disabilities or autism should never be the sole reason for considering whether a person would benefit from Cardiopulmonary Resuscitation (“CPR”). Our Ethical Advice and Support Framework emphasises this point and makes clear that health conditions or disabilities that are unrelated to a person’s chance of benefiting from treatment must not be a part of clinicians’ decision making regarding accessing treatment.
We expect healthcare professionals to discuss treatment options openly and honestly with patients, and where appropriate, their families and/or representatives to help ensure that they get the care that is right for them given their specific medical circumstances. CPR will not always be an effective or viable treatment option for everyone, and where clinicians determine that this is the case, conversations should always be handled with the utmost compassion, care and sensitivity.
However, if a clinician feels that a patient would not benefit from CPR as a result of their clinical circumstances, then ultimately, like all other treatments, it should not be offered as a treatment option, and this should be documented in their medical records. If this is the case, then other treatments can still be provided, and no doctor would refuse a person's wish for CPR to be administered if there is a fair chance that it will be successful. When a disagreement occurs, individuals can always request a second medical opinion.
S) Augmentative and Alternative Communication
Since March 2018, NHS Boards in Scotland have had a legislative duty to provide or secure communication equipment and support in using that equipment, often referred to as Augmentative and Alternative Communication (“AAC”). This duty applies to children and adults from all care groups who have lost their voice or have difficulty speaking. The duty is exercisable by Health Boards and the State Hospitals Board for Scotland, and is delivered in the main through speech and language therapists. There is no comparable law anywhere else in the UK.
To support the delivery of this legislation, in May 2018 the Scottish Government published Guidance on the Provision of Communication Equipment and Support in Using that Equipment, and in August 2018 a National Augmentative and Alternative Communication Core Pathway was published setting out what users can expect from their Augmentative and Alternative Communication journey. In February 2020, the Provision of Communication Equipment and Support Progress Report was published, setting out the activities, actions, and progress of the Scottish Government, health boards who hold the duty, and wider stakeholders in supporting the legislation.
We will continue to work with partners to support the ongoing delivery of the duty and to improve AAC provision where needed.
T) Gender Identity Services
In December 2021, the Scottish Government published the NHS Gender Identity Services: Strategic Action Framework 2022-2024. Actions set out in the framework include:
- improving waiting times and supporting new multidisciplinary models of care;
- supporting people who are waiting to access services;
- developing national standards for services and improving data collection.
A National Gender Identity Healthcare Reference Group was established in early 2022 to oversee implementation of the Framework’s actions. The Group includes people who have used gender identity healthcare as well as clinicians, academics, NHS Boards and LGBTI organisations.
U) Virtual Health Appointments
In April 2018, Scotland's first Digital Health and Care Strategy recognised that the health and wellbeing of the people of Scotland can, and should, be enhanced and transformed through the use of digital technology. In October 2021, the refreshed Digital Health and Care Strategy set out how we will work together to improve the care and wellbeing of people in Scotland by making best use of digital technologies in the design and delivery of services, in a way, place and time that works best for them.
An individual’s ability to access services in a way that is comfortable and secure for them is key in fulfilling their right to the highest possible standard of physical and mental health. For those unable to receive a regular face-to-face consultation, video consultation allows clinicians to engage with people in their home surroundings. We encourage a hybrid approach of face-to-face, telephone and video appointments, allowing for choice depending on what is suitable for the person and their individual circumstances. We also recognise the importance of ensuring that staff have the correct skills and training to deliver a high quality of care in this context.
In 2016, Scotland began using the video consultation system called Near Me as part of the wider national Technology Enabled Care programme, which aimed to drive the widespread adoption of technology to help plan and improve health and care services and outcomes for citizens. While the Report of the Evaluation of the Attend Anywhere / Near Me Video Consulting Service in Scotland 2019-20 identified some challenges in using Near Me, staff and patients also described various advantages of the service. Near Me has seen a significant increase in usage, and will continue to be a core component in delivering modern health and care services going forward.
Separately, vCreate technology has supported patients who are in hospital to keep in touch with their families via video messaging. The Remote Health Pathways programme will build on the existing managed SMS text service that allows patients to register their blood pressure from home, while InHealthCare offers an extensive library of pre-developed services for a variety of health conditions including COVID-19 to support people at home when they are not sick enough to be in a hospital setting.
The Connecting Scotland programme has enabled the rollout of digital devices and upskilling of vulnerable people including care leavers and school aged children, as well as the upskilling of both staff and residents in care homes. The Digital Care Home programme was available to all care homes in Scotland, including those for children, and has provided over 75% of homes in Scotland with devices, reaching over 90% of Scotland’s care home residents, as well as connectivity and skills training.
V) NHS Inform
NHS Inform provides people living in Scotland with accurate and relevant information to help them make informed decisions about their own health, or the health of the people they care for. In 2017, Scotland's Service Directory (“SSD”), a national directory of local health and care services, was developed to be hosted on NHS inform. SSD provides the service details, addresses, and opening times of locations of care such as GP practices, hospitals, accident and emergency, pharmacies, sexual health clinics, and minor injury units.
The information provided within SSD is particularly helpful for groups of people who are known to experience some of the worst health inequalities. For example, the pharmacy section on SSD includes information the services provided in each pharmacy across Scotland, such as free and emergency contraception, needle exchange, Nicotine Replacement Therapy, supervised methadone supply, and access to the palliative care network.
Groups are in place to support the individual experiences of different protected characteristic groups, and NHS 24 has promoted NHS Inform to the groups of people across Scotland who might be more likely to experience health inequalities for reasons aligned to their protected characteristics. NHS 24 has also worked with Young Scot to promote NHS Inform to young people and has worked with Macmillan to engage with people affected by cancer.
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