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I am happy to discuss those questions with Dr Gulhane offline. The process, which people have asked us to use to strengthen the powers of the SSSC, is relatively uncontroversial. I am content to discuss any concerns with him between now and stage 3.

I welcome the intention behind Gillian Mackay’s amendments 73 to 80 and 83 to 85, which is to ensure that the new rights to breaks can include the provision of breaks taken together with a cared-for person. Although I consider that the existing provisions do not prevent the carer and the cared-for person from taking short breaks together, I support the amendments to ensure that that is absolutely clear.

I am, however, concerned by one potential consequence of the definition of breaks that is proposed in amendment 85, which is that it could allow local authorities to give effect to the right by providing a carer with breaks that are unrelated to their caring role. I am sure that that was not the intention, so I would like to work with Gillian Mackay ahead of stage 3 to develop a definition that does not risk undermining the right that we are trying to confer.

I am also happy to support amendment 81, which would turn the regulation-making power to make further provisions about breaks into a duty to make regulations. It was always the intention to make regulations, so turning that “may” into a “must” does no harm.

Amendment 82 is intended as a minor drafting amendment to add the word “also” as a consequence of agreement to amendment 81. It is not necessary or helpful as a consequential change and so I do not support it. If Gillian Mackay thinks that it is more than a consequential change, however, I would be happy to discuss with her what she means it to do and how it could be more clearly expressed.

I have a number of concerns about Gillian Mackay’s amendment 131 and Jackie Baillie’s amendment 132, which set rules about how the regulations should define sufficient breaks. In both amendments, there are aspects of the wording that do not work. For example, amendment 131 uses the term “working hours”, which is an employment law concept. That is not how we would draft regulations that are related to unpaid care.

I should also emphasise that I consider a provision that requires recognition of article 24 as drafted raises questions of legislative competence, especially given the reservation of international relations under the Scotland Act 1998.

Amendment 132 talks about a minimum entitlement of a two-week break. It is unclear what is to constitute a break in that context and whether it means two weeks consecutively or cumulatively, and what period it will be for—a month, a year or a lifetime.

Beyond the wording, some of the principles behind the amendments are inconsistent with feedback from carers in our previous consultation. Overwhelmingly, responses favoured personalisation over standardised entitlements. There is also the concern that, by setting rules about what regulations that define sufficient breaks have to say, the amendments would pre-empt the intended consultative process. By imposing rules about what regulations have to say now, we might end up preventing the regulations setting out a definition in the terms that carers, delivery partners and other consultees want to see. Although I cannot support either amendment 131 or 132, I would be happy to discuss what might be possible with Gillian Mackay and Jackie Baillie ahead of stage 3, so that we end up with a definition of “sufficient breaks” in regulations that is workable, that reflects the views that will be expressed through the intended consultative process and which can be adapted in the future, if required.

Amendment 133 is consequential on amendment 131 and, as I do not support amendment 131, I ask members not to support amendment 133.

Finally in this group, I am pleased to support Gillian Mackay’s amendment 88, which would extend the range of information that a short break service statement must contain and so increase transparency around the availability of different types of short break services and what local authorities are doing to meet demand. There are some ambiguities in the drafting of amendment 88, which I would like to resolve at stage 3. I will be pleased to work with Gillian Mackay to do that.

To strike a note of consensus, I agree that the social work profession is vitally important and that the professional leadership that is provided by the office of the chief social worker should be recognised and have an appropriate status. The grade of that individual is not specified in the bill, and, although I agree with the premise of what Sandesh Gulhane has said, I do not think that it is necessary to specify the grade of the chief social worker in the bill.

I think that we are getting into controversial territory here. As the member will understand, ministers do not specify the grades of civil servants in the Government. I am happy to discuss the situation with him between now and stage 3, but I do not think it appropriate to specify the grade in the bill.

Although I welcome Brian Whittle’s focus on delayed discharge, which is a key priority for the Scottish Government, I urge members not to support amendment 145.

I am absolutely clear that the current numbers of people being delayed in hospital and the considerable variation in the level of such delays in different parts of Scotland are unacceptable, and I agree that every feasible option that would support a reduction must be considered. However, I do not believe that having a statutory target in the bill would drive such a reduction. We know that shifting the balance of care from hospitals to the community and ensuring the use of best practice in integrated discharge processes will make a difference. That will require careful work across health and social care systems.

The statutory duty to provide social care services sits with local authorities and the challenge in addressing delays is complex. That is why efforts to drive improvement must be rooted in collaborative engagement and support, not in arbitrary targets. Since last July, the Scottish Government has been working collaboratively with the Convention of Scottish Local Authorities and with health and social care partnerships to explore the challenges that local systems face, offer support to those with the highest levels of delays and identify and promote best practice. That work will be supported by the commitments in our latest budget to enhance the hospital at home service, improve frailty pathways and ensure that people get the care that they need, in the right place for them.

Regarding reporting and the requirement suggested in amendment 145 for a parliamentary statement, we already have monthly reporting on delayed discharge by Public Health Scotland and members will be well aware that there are regular exchanges in the Parliament chamber about those figures and the challenges associated with improving flow and integration across health and social care services. It is not clear what more such a requirement would add to accountability, including to the local accountability of local authorities.

On that basis, I cannot support Brian Whittle’s amendment 145 and I urge members not to do so.

Seeing and spending time with loved ones is a fundamental human need, and it is central to the provisions in the bill relating to Anne’s law. I, along with the First Minister, have been profoundly impacted by what relatives and others have told us about their experiences during the pandemic, and we have listened very carefully to those who have campaigned for Anne’s law.

As a result, I have lodged amendment 50, which ensures that people living in adult care homes can always connect with the people who are important to them, both in and out of the home, unless there are exceptional circumstances. Indeed, even where there are exceptional circumstances, the amendment requires some types of visit always to be supported, namely in end-of-life situations and where the suspension of visiting would cause

“serious harm to the resident’s health or wellbeing”

that would outweigh other risks.

Some family and friends are not simply visitors—they are essential care supporters and an integral part of the care team for their loved ones. Amendment 50 gives formal recognition to their role in providing care, support and companionship, as is called for by the care home relatives Scotland group. It provides for at least one person to be identified as an essential care supporter for every care home resident, as well as a legal presumption that suspending visits from that person will always cause serious harm to their loved one’s health and wellbeing.

The approach builds on existing practice, which is reflected in the two current health and social care standards and in guidance. I am deeply grateful to the members of the care home relatives Scotland group and others who have helped us in developing this approach, and I call on all members to support amendment 50.

I will speak to the amendments to amendment 50 in marshalled order. Amendment 50E, from Jackie Baillie, would remove the words “use their best endeavours” in relation to the duty of care homes to identify for every resident at least one individual as an essential care supporter. That would mean that care homes must identify an essential care supporter for all residents, no matter what their circumstances. I cannot support that. In practice, there will be situations in which, sadly, it is not possible to identify someone because the resident has no family or friends, and some residents who do might have a firm preference against designating someone as an essential care supporter for reasons of their own. The purpose of identifying essential care supporters is to give formal recognition to those people who actually perform that role. It is not to be a tick-box exercise in which someone’s name has to be recorded for every resident just to fulfil a legal requirement, nor is it to be an exercise in stripping care home residents of their personal autonomy. If they choose not to have an essential care supporter, that should be their right. For those reasons, I cannot support Jackie Baillie’s amendment 50E.

Amendments 50F and 50G are connected. The overall effect would be to prevent care homes from suspending visits without permission from Public Health Scotland or Scottish ministers or their delegates. I cannot support those amendments because they fundamentally misunderstand the different roles that are played by the different actors. Care providers are ultimately responsible for taking decisions about visiting, but they do not do that in a vacuum. They take advice from others, including health boards and public health teams, as well as other bodies that are concerned with matters besides public health, such as welfare issues.

Public Health Scotland does not provide advice to care homes. That is the responsibility of teams that work for the health boards, which, under the Public Health etc (Scotland) Act 2008, have duties to protect the health of the public in the health board’s area. Amendments 50F and 50G would undermine the proper role of care homes in taking decisions on visiting, taking account of public health and non-public health advice from a range of bodies. I urge Jackie Baillie not to move them.

Amendment 50A, which was lodged by Brian Whittle, is about communication with residents’ essential care supporters when visits are suspended. I thank Brian Whittle for the amendment. Communication is so important. We had already intended to include guidance on communication in the code of practice, but, having reflected on the amendment, we now think that it would be worth going further than amendment 50A, which is only about giving reasons in the context of a general decision to suspend visits. Although I therefore agree with the intention of amendment 50A, I invite Brian Whittle not to move it today and, instead, to work with me to bring forward something more comprehensive at stage 3.

Amendment 50H, from Jackie Baillie, proposes that Scottish ministers should consider

“what steps are necessary to protect care homes from legal action”

in cases in which an essential care supporter has been given access to a care home resident at a time when other visits have been suspended. It is not clear what the amendment intends to achieve. Amendment 50 ensures that, when visiting is to be suspended to prevent a serious risk, the provider must continue to support visits when they believe that the suspension of visits is causing or is likely to cause serious harm to the resident’s health or wellbeing, and that harm outweighs the serious risk that led to the suspension of visits. In considering such risks, care providers should always act on advice from local national health service board health protection teams, which have duties to protect the health of the public in their areas under the Public Health etc (Scotland) Act 2008.

It is unclear why Scottish ministers would want to take steps to protect care providers from legal action if they have failed to follow advice—public health or otherwise—to protect people. Furthermore, it is unclear how ministers would do that in practice or, indeed, what would be required given that the amendment just obliges them to consider what steps are necessary. On that basis, I cannot support Jackie Baillie’s amendment 50H.

Jackie Baillie’s amendment 50I seeks to ensure that any decision that is made to suspend visits must be reviewed every 48 hours and remain in force for no longer than seven days. It would require an expedited appeals process to be put in place for an essential care supporter, which would be considered by the body that granted permission for the suspension of visits. No later than 72 hours after an appeal is made, it must be heard, and a decision must be issued.

Those are all matters that can be dealt with in due course by regulations in the code, and I would rather take the time to discuss them with everybody concerned before committing to an approach that might be unworkable in practice or have serious unintended consequences. Aspects of amendment 50I as drafted could go particularly wrong, not least as it is predicated on amendment 50G being agreed to, which I am against.

However, there might be principles that are set out in amendment 50I that it could be valuable to extract and express in the bill in less problematic terms. Therefore, I ask Jackie Baillie not to move amendment 50I and, ahead of stage 3, I would be very happy to discuss with her what regulation should be in the code and what further bill amendments might be useful in order to reflect such principles.

Jackie Baillie’s amendment 50J would add to the matters that are listed in the code of practice that care home providers must treat as “paramount considerations” when fulfilling the duties that are described in proposed sections 78A(1) and 78B(1). I agree whole-heartedly that the matters identified in amendment 50J are important, but framing them as paramount considerations in relation to both duties is the wrong drafting approach. The point of the current framing is that there are two absolutely crucial paramount considerations, which have overarching effect across the duties to identify essential care supporters and to facilitate visits.

In summary, the absolutely crucial paramount considerations that are relevant to both duties are respecting and promoting residents’ dignity, wellbeing and human rights, and recognising and supporting the vital role that people who are not care home staff, such as close relatives and friends, play in providing regular care. Creating a long shopping list of paramount considerations risks detracting from the two considerations’ paramountcy. If everything is a paramount consideration, nothing is.

The paramount considerations that amendment 50J specifically proposes cannot have overarching effect across the two duties. In relation to the first duty, none of the proposals whatsoever is relevant; in relation to the second duty, they are relevant only in limited circumstances. Amendment 50J would simply put the matters it mentions in the wrong place in the bill.

Beyond that, I do not think that the mentioned matters’ specifics are quite right. The first would make a paramount consideration of the presumption that suspending essential care supporter visits would cause serious harm. However, amendment 50 makes that a legal presumption, so it will be the law that care home providers have to apply it. It makes no sense that they must “have regard to” a presumption that they are legally required to follow.

The second proposed further paramount consideration is a requirement for staff and essential care supporters

“to work together as equals to agree how visits should be facilitated”.

I am unclear what that would mean in practice and I am quite troubled by there being no reference to involving the resident.

The last proposed further paramount consideration is

“the need for consistency of risk management processes for both staff and visitors.”

Obviously, staff are not the same as visitors. Risk management processes for staff will flow from their obligations as regulated professionals and their employment contracts. If the suggestion is that staff are not to be made subject to any risk management processes that visitors cannot be subjected to, that would cause serious problems.

Amendment 50 already covers most of the ground that amendment 50J would deal with. Again, I am very happy to speak to Jackie Baillie ahead of stage 3 about how we could make explicit the matters that the code must address. However, the way that amendment 50J is constructed—both in terms of where it would insert the extra paragraphs and in what they say—is a problem, and I urge Jackie Baillie not to move it.

I turn to Brian Whittle’s amendment 50B with good news for him: I support it. It would require the code of practice to be published in

“a manner that is accessible to the public, and includes a version in an easy read format”.

The Government intends to do just that, so I am happy to support an amendment saying so. However, we might have to revisit the use of the phrase “easy read” at stage 3, as it does not have a concrete legal meaning—naturally, we will want to ensure that there is certainty about what the duty requires.

In less good news for Brian Whittle, I do not support his amendment 50C, which would require ministers to review the code of practice if a “significant number of complaints” were received about it. That would judicialise a political matter in a way that is good for neither law nor politics. Amendment 50 already provides for the periodic review of the code. If any Government were to hear significant discontent about the code’s terms, it would use its powers to review it and change it if necessary, but involving courts in the matter and asking them to adjudicate on whether a number of complaints received—the amendment does not say by whom—is a significant number is not necessary or a good idea.

I am afraid to say that I also cannot support Brian Whittle’s amendment 50D. It would require ministers to report every year, forever, on the implementation of sections 78A to 78C in every local authority area. That would be a significant drain on public resources, and I am not sure what the benefit of a routine reporting cycle like that would be. I hope that Brian Whittle will be reassured to know that the Care Inspectorate will assess care providers’ compliance with the regulations and that the Government already has plans to ensure learning and improvement through a national oversight group for Anne’s law.

I move amendment 50.

No.

Amendment 58 agreed to.

Procurement can and should be the enabler of the much-needed improvements to social care. The light-touch regime provides flexible rules on procuring social care services that are over a certain value. There is currently no way for us to change the value at which the rules apply, and amendment 55 will give us that power.

As I said, we rely on a wide range of service providers to meet the needs of the people of Scotland. I appreciate all the work that they have done and continue to do to deliver those vital services to people.

The reserved contracting process is one of many approaches that can be taken when procuring. The decision on whether to use that process will be made at the local level. The ethical commissioning and procurement principles will be at the centre of all decision making, including decisions on which procurement approach to use.

My amendments 51 to 54 will update the defining criteria of the reserved contracting process and will remove the limitations on contract durations through that process. People in the sector have told us how they would define the third sector, and we have listened to them. My amendments reflect that work.

On that basis, I urge the committee to support amendments 51 to 55 in my name, and not to support Brian Whittle’s amendment 53A.

Amendment 56 will give the Scottish Social Services Council a power to compel written information from various sources, such as employers, witnesses and other public bodies, when that is pertinent to the exercise of its functions, including fitness-to-practise investigations. That will mean that it will no longer need to make an application to the court under section 1(1) of the Administration of Justice (Scotland) Act 1972 and chapter 3, part 1, of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 for such information when it is not provided voluntarily, thereby reducing the time that is taken for an investigation and the costs involved.

I move amendment 56.

There is no need to wind up.