Consultation
Response
Regulation and
Inspection of Social Care (Wales) Bill: Stage 1
April
2015
Introduction
Age Cymru is the leading national charity working to
improve the lives of all older people in Wales. We believe older
people should be able to lead healthy and fulfilled lives, have
adequate income, access to high quality services and the
opportunity to shape their own future. We seek to provide a strong
voice for all older people in Wales and to raise awareness of the
issues of importance to them.
We
are pleased to respond to the consultation on the future of
Regulation and Inspection of Care and Support in Wales.
Headline Issues
With a background of recent
scandals in the provision of health and social care, we believe
that there is a need for a robust regulation and inspection
framework for social care in Wales. It is essential that this is
built around the service user and able to challenge organisational
cultures that are not delivering the desired outcomes for the
individual. Standards relating to quality and dignity should
provide a clear marker of what we expect with regard to the
provision of care to vulnerable older people.
With regard to this Bill, and
its ability to provide this framework, we have particular concerns
about:
·
The failure to
extend registration of social care workforce groups to include
domiciliary care workers and care workers employed in providing
adult residential care. in a recent (February 2015) survey question
by ICM on behalf of Age Cymru, 92% of the 1000 respondents believed
that domiciliary care workers should be registered
·
A potential conflict
of interest in the role and remit of Social Care Wales (SCW)
– protection of the public should be paramount and we have
doubts as to whether SCW can be both a regulator and an
improvement/training agency
·
A lack of clarity in
the terminology used both within this Bill and in terms of
read-across to definitions contained within the Social Services and
Well-being (Wales) Act 2014 (SSWA)
·
A lack of
recognition of carers throughout this Bill, which should recognise
and reflect the position that they are accorded by the
SSWA
1.
Do you think the
Bill as drafted will deliver the stated aims (to secure well-being
for citizens and to improve the quality of care and support in
Wales) and objectives set out in Section 3 (paragraph 3.15) of the
Explanatory Memorandum? Is there a need for legislation to achieve
these aims?
1.1.The protection of vulnerable
older people who are in need of care and support, and their carers
who need support, is vitally important. It therefore follows that
the regulation and inspection system that carries out this role
must be robust and fit for purpose. The Explanatory Memorandum
demonstrates that there are good grounds why the current situation
creates complexity and loopholes that could reasonably be avoided
through the use of legislation, as well as the importance of
ensuring quality services are delivered. It also recognises that
there is a need to learn from serious incidents that have taken
place in both health and social care in recent years. Many of these
cases involved vulnerable older people. It is essential that we, as
a society, provide proper and appropriate protection. On this
basis, we welcome the introduction of the Bill.
1.2.It is not always clear from the
Bill how its objectives will be achieved. In part, this derives
from the situation where regulation and inspection focuses upon the
activities of organisations delivering services whereas the new
ethos of social service delivery, as set out in the SSWA is
person-centred. The Bill needs to ensure that the desired outcomes
of the person in need of care and support and the carer in need of
support are not lost as a result.
1.3.There is an inequity in Human
Rights protection for people who self-fund their care. Currently
all residential care services provided or arranged by local
authorities in Great Britain are covered by the Human Rights Act
(HRA). Previously, a loophole existed which meant that care home
services provided by private and third sector organisations under a
contract to the local authority were not considered to fall within
the scope of the HRA. Following a sustained campaign this loophole
was closed by section 145 of the Health and Social Care Act 2008.
However, care home residents who are eligible for care but who, due
to means testing, have to arrange and pay for their own care
(so-called self-funders) lack the full protection of the Act. We
note the position that amendment of the HRA and its interpretation
lies outside the powers of the National Assembly for Wales but we
remain concerned about levels of human rights protection for people
who self-fund their care services.
1.4.We hear from our local
Age Cymru partners, a frustration at the lack of
supervision of the work carried out by care workers in the
community, and perhaps more importantly, the lack of time care
workers have with each client. We believe that a task-based, rather
than outcomes-based, approach to care plans and commissioning has
resulted in poor practices in some areas of Wales. Many of our
local Age Cymru partners are very concerned about the current
quality of domiciliary care in their area. Increasing numbers of
older people are reporting that their domiciliary care packages are
being cut to 15-20 minute calls.
1.5.For example Age Cymru Swansea Bay report that clients are
making choices between going to the toilet and getting something to
eat, particularly as at least 5 minutes of the call time is taken
by completing admin and call monitoring. Another example was an
older person having to have cold baths as there is not enough time
to wait for the boiler to heat the water in a 20 minute call. This
is clearly unacceptable and it is crucial that urgent improvements
are made to the quality of care to maintain dignity. We would like
to see outcomes-based commissioning across Wales and an end to 15
minute care visits as standard practice. Consideration should be given to
including the type and cost of social care being commissioned in
the local market stability reports, or the local authority annual
report, as the commissioning process undoubtedly impacts upon the
level and quality of care that is able to be delivered.
1.6.We are concerned that there is a
lack of recognition of carers in the Bill as it currently stands.
The SSWA is clear on the need to provide support to carers,
effectively acknowledging the vital role that they play in
providing care to their loved ones. It is therefore essential that
this Bill reflects the significance attached to carers in that Act.
As the submission by the Wales Carers Alliance demonstrates, this
could often be done through quite small amendments on the face of
the Bill. Carers should be included, for example, through their
involvement in the inspection of service providers.
1.7.With regard to regulation of the
workforce, we are concerned that there is a lack of clarity in some
Parts of the Bill as to the way in which its provisions relate to
different groups of the workforce, some of whom are registered with
the regulator, some of whom are regulated with other regulators and
some of whom are not registered individually. We would welcome
clarity to enable easy identification of which provisions relate to
which workforce groups. Whilst in places this is provided by the
Welsh Government statement of policy intent previously submitted to
the Committee, it is not always reflected on the face of the Bill.
It is essential that it should be clear throughout when the remit
of the Bill relates to all social care workers and when it relates
only to those regulated by SCW.
2.
What are the
potential barriers to implementing the provisions of the Bill (if
any) and does the Bill adequately take account of
them?
2.1.A significant barrier to the
effective operation of this scheme in practice would be the
continued lack of funding within the social care sector as a whole.
Whilst we recognise that efforts have been made to protect social
services’ budgets in Wales, further investment is needed if
we are to provide quality person-centred care to the most
vulnerable in our society.
2.2.A qualified, well-supported
social care workforce is also essential in delivering such care.
Currently, social care workers are often not regarded highly
despite the vital nature of the work that they do. We welcome moves
to provide support through the training-related role of SCW.
However, it is not clear that it will benefit those key staff, such
as domiciliary care workers, who provide what is often intimate
personal care to vulnerable people in their own homes.
2.3.There is a lack of clarity
relating to the reach and remit of SCW as it would be constituted
in this Bill. In part this relates to its joint role as both the
regulator and the improvement agency for the workforce. There is a
potential for a conflict of interest to emerge here and it is
essential that protection of the public through the workforce role
is paramount. There is also a lack of clarity in some sections
where its remit appears to cover the whole social care workforce,
even though some of these are covered by other regulatory bodies
such as the Health and Care Professions Council (HCPC). In order
for the framework to operate effectively whilst avoiding
fragmentation and duplication, it needs to be absolutely clear at
every point where its remit covers the whole social care workforce
and where it covers only those who are registered with it in its
role as regulator.
2.4.As the Explanatory Memorandum
rightly recognises, there is a clear need to ensure that there is
consistency and accuracy in the reports produced by inspectors and
regulatory staff. Whilst subjective impressions are inevitable,
there is also a need for objective criteria to ensure reports are
consistent and build public confidence in the system. The reports
also need to be written in a way that is both accessible and
meaningful to the public. However, establishing objective criteria
that can be applied to a person-centred social services ethos which
should encourage growing variation and flexibility in terms of the
services being delivered may prove to be a challenge.
3.
Do you think
there are any issues relating to equality in protection for
different groups of service users with the current provisions in
the Bill?
3.1.We are concerned by the
intention of the Bill to see compulsory registration for social
care staff working in residential homes for children and young
people, but not for social care staff working in residential homes
for adults, many of whom will be older people. The inference is
that different levels of protection are being provided to
vulnerable groups as a consequence of these different expectations
with regard to registration. However, the recent scandals
referenced as a learning point for this Bill revolved around the
provision of adult social care, most often care for older people.
This suggests that this vulnerable group is in need of equal levels
of protection which the Bill as it stands would not
provide.
3.2.As noted above, the primary
function of Social Care Wales should be the protection of service
users.
3.3.Age Cymru also believes that the
Bill should require social care services to include in their annual
report how they are meeting their requirements under the Equality
Act.
4.
Do you think
there are any major omissions from the Bill or are there any
elements you believe should be strengthened?
4.1.The Bill could reasonably be
strengthened in ways that both acknowledge and encourage more
integrated working. There are issues around cooperation between
regulators which would benefit from further clarification, but also
useful scope for encouraging integration with regard to conducting
inspections and workforce development that is being under-exploited
at the moment. This would allow further strengthening of the
system, as well as possible opportunities for streamlining, that
would help to prevent fragmentation and duplication.
5.
Do you think that
any unintended consequences will arise from the
Bill?
5.1.There are concerns around the
definition of care as it is currently laid out in the Bill,
especially when it is read across with definitions provided in the
SSWA. It is our belief that the definition laid out in the Bill
does not take sufficient account of the importance of relationships
and the need for quality interaction. Relationships between social
care workers and those in need of care and support will inevitably
shape the views of the latter in terms of whether they consider
their desired outcomes are being met by the service provided. A
focus on physical tasks detracts from this important
element.
5.2.There is a question mark over
whether definitions in this Bill that differ from those used in the
SSWA may create different legal expectations, and thereby cause
confusion among service providers about the expectations they have
to meet.
5.3.A number of the service
providers who will have to produce an annual return will be small
organisations, often operating in the third sector. Where possible,
the annual return of third sector organisations should align with
reporting responsibilities that already exist through their status
of charities.
6.
What are your
views on the provisions in Part 1 of the Bill for the regulation of
social care services? For example, moving to a service based model
of regulation, engaging with the public, and powers to introduce
inspection quality ratings and to charge fees.
6.1.The SSWA intends to introduce
person-centred care which may result in a more varied and flexible
landscape of service provision than currently exists. It may be
challenging to capture this.
6.2.We welcome the commitment to
engaging with the public. We would like to see greater clarity in
terms of the channels to be used for engagement, and the extent of
the engagement to be undertaken. This is one of those points at
which it would be useful to reference carers to ensure their
involvement in the regulation and inspection processes.
It
is important to involve service users and their families in the
design of the process; ask what matters most to them and what they
want to see included in the range of reports that will flow from
this framework.
6.3.We would like to see greater inclusion of lay inspectors
(with experience of using services) as part of the inspection team,
with a role in unannounced inspections and an equal voice in
decision-making. Inspection teams must also include professionals
with an understanding or experience of the care and/or support
service being provided.
6.4.We welcome the introduction of an inspection quality
ratings system, which should allow the public to compare the
quality and safety of services. The current lack of differentiation
makes it very difficult for people using services to effectively
compare and judge quality of services. We have heard from people in
Wales that choosing a care home can be a difficult process and that
CSSIW reports are not very helpful in the process and also vary
hugely in the quality of reporting and content. A ratings system would also help to foster a
culture in which service providers are encouraged to aim higher
rather than simply comply with requirements. Properly done, this system has
the potential to allow those in need of care and support, and their
loved ones, to make better informed choices about
services.
6.5.In some areas, inspection
quality ratings may also serve to highlight limited choice or
availability, especially where the available services are receiving
less good ratings. It would be useful to see this element
considered under either the market oversight provision or the
population needs assessment of the SSWA. It is essential that any
such information is presented in ways that are easily accessible to
all. In view of the types of decision that may be influenced by
such ratings, it is essential that information covers issues such
as service capability to accommodate sensory loss, cognitive
impairment and other issues which may affect the decision made by
an older person and their loved ones regarding choice of service
provision.
7.
What are your
views on the provisions in Part 1 of the Bill for the regulation of
local authority social services? For example, the consideration of
outcomes for service users in reviews of social services
performance, increased public involvement, and a new duty to report
on local markets for social care services
7.1. We
strongly support the requirement for local authorities to undertake
a risk assessment about continuity of service to help to prevent
provider failure. We have been calling for stronger regulations to
ensure that inspected care homes can prove that they are
financially viable and reduce consequent threats to the safety and
wellbeing of residents.
7.2.As highlighted above, if
services become more flexible and varied in response to the shift
towards person-centred care, this may be difficult to capture.
Nevertheless, it is entirely appropriate that the ability of
services to help achieve the desired outcomes of the individual be
taken into account as part of reviewing performance.
7.3.Again, there could be mention in
here of the need to involve carers as (well as) service
users.
8.
What are your
views on the provisions in Part 1 of the Bill for the development
of market oversight of the social care sector? For example,
assessment of the financial and corporate sustainability of service
providers and provision of a national market stability
report.
8.1.We welcome the intention of
these provisions. It is clear from the current situation that
insufficient thought has been given to addressing levels of demand
that are likely to arise in coming years, especially with regard to
the need for services to cope with a growing number of older people
with complex conditions. Market oversight should be used to provide
an evidence base to make the argument for investment to address
these challenges.
9.
What are your
views on the provisions in Part 3 of the Bill to rename and
reconstitute the Care Council for Wales as Social Care Wales and
extend its remit?
9.1.As highlighted above, we feel
that the Bill currently lacks clarity on when references being made
to social care workers relate only to those registered with SCW and
when provisions relate to the entire workforce.
9.2.We are concerned that there is
the potential for a conflict of interest between the role of Social
Care Wales as a workforce regulator and its role as an improvement
and training agency. Protecting the public is of vital importance
and should be clearly separated from any other roles under its
remit.
10.What are your views on the
provisions in Parts 4-8 of the Bill for workforce regulation? For
example, the proposals not to extend registration to new categories
of staff, the removal of voluntary registration, and the
introduction of prohibition orders.
10.1.
We are deeply
concerned by the decision taken not to extend the registration of
workforce groups to include domiciliary care staff. It is currently
the case that domiciliary care workers are significantly less
regulated than other groups of professionals, such as security
workers and gas fitters and in a recent survey question by ICM on
behalf of Age Cymru, 92% of the 1000 respondents believed that
domiciliary care workers should be registered. Extending
registration to this group would provide better protection on safeguarding grounds by
preventing people deemed unsuitable by one care provider being able
to get a job at another provider.
10.2.
We believe that full
registration is needed in order to provide a strong level of
protection for vulnerable older people. We note that the Bill
contains provisions for the introduction of a ‘negative
register’ (via the use of prohibition orders’) at a
future point in time for those categories of social care workers
not directly registered with Social Care Wales (or presumably any
other regulator). However, we are not convinced that this offers a
sufficiently strong level of protection to the most vulnerable
people in our society.
10.3.
Whilst it is true
that we have not seen a scandal in the domiciliary care sector on
the scale of those that have been uncovered in both residential
care and healthcare settings in recent years, the risk exists as a
consequence of the fact there is inevitably less opportunity to
provide supervision and oversight to a care worker operating alone
in the privacy of someone’s own home. The lack of oversight,
when coupled with a high turnover within the work force, is viewed
as a significant factor exacerbating threats to the human rights of
older people.
We believe that there is a strong case for the registration of
social care workers providing personal care in the homes of
vulnerable, and often frail, older people.
10.4.
Registering
individual staff members who provide domiciliary care can also be
used to enhance the status of their profession as well as ensuring
that there is adequate protection for people receiving those
services. In line with the comments made in our response to
Question 3, we also believe that social care workers employed
within adult residential care should also be registered,
otherwise current legislative provisions appear to provide
different levels of protection for groups of vulnerable
people.
10.5.
As the Explanatory
Memorandum demonstrates, uptake of the voluntary registration
scheme had been very limited. It is therefore reasonable to remove
it as it was not serving to enhance public confidence in the
system.
11.What are your views on the
provisions in Part 9 of the Bill for cooperation and joint working
by regulatory bodies?
11.1.
We would like to see
this part of the Bill used to encourage and promote greater
cooperation between SCW and other regulatory bodies such as the
HCPC.
11.2.
We also believe
there is room for improving service delivery and minimising
duplication by encouraging cooperation to establish mutual
recognition of equivalent (or even superior) qualifications to
ensure that highly competent and qualified staff do not have to
re-take qualifications (sometimes at a lower level than those they
hold) before being able to take up a post in social care. This
makes no sense from the point of view of workforce development, or
in terms of improving integration and joint working between related
sectors.
12.In your view does the Bill
contain a reasonable balance between what is included on the face
of the Bill and what is left to subordinate legislation and
guidance?
12.1.
In as far as we are
able to distinguish, the balance would appear to be reasonable but
it is difficult to comment more fully at this stage.
13.What are your views on the
financial implications of the Bill as set out in parts 6 and 7 of
the Explanatory Memorandum?
13.1.
With regard to the
financial implications of the Bill, we do not believe that we are
in a position to make informed comment. We note, however, that a
number of the projections are based upon assumptions concerning the
size of the workforce that could be open to challenge. We also note
that it is often anticipated in the Explanatory Memorandum that no
costs will accrue from the changes made other than transition costs
and are concerned that this may be an overly optimistic underlying
assumption.
14.Are there any other comments you
wish to make about specific sections of the Bill?
14.1.
We are concerned in
the lack of consistency in definitions and terminology, both within
the Bill itself and also between this Bill and the Social Services
and Well-being (Wales) Act 2014. In order for the Bill to be able
to achieve its objectives, we need to achieve clarity in the use of
language and definitions.