Seòmar agus comataidhean

As I said in the debate on the previous group, I continue to think that there would be value in having the bill make provision about independent information, advice and advocacy. My amendment 15 will therefore move section 13 into part 3 of the bill.

The amendments in group 2 are about the substance of section 13, and I ask the committee to support amendments 41 and 69 and not to support amendments 91, 70, 92, 93, 94 and 95. In some areas, however, I would like to work with members to look at revising those amendments ahead of stage 3.

On amendments 91, 92 and 95, which deal with a right to independent advocacy, I am committed to enhancing independent advocacy services as a mechanism for empowering people to have their voices heard and to participate fully in decisions about their care. However, members will be aware that such a right would require a significant expansion of capacity for providers of advocacy support to ensure that they could respond. That would take time to work through and would see a significant cost to the public purse, which must be considered carefully.

Members are also aware of my commitment to listening to the voice of people with lived and living experience, through co-design. Recent analysis of co-design work on independent advocacy has highlighted various issues, and my officials will bring me options as to how we can address those. Some of those solutions may require legislative change, using the regulation-making powers that the Government has introduced in the bill; others may not. Until I have decided which options to take forward, I will look to maintain the provisions as they are, and I therefore ask members not to support amendments 91, 92 and 95.

I offer my support for amendment 69 as part of my commitment to enhancing independent advocacy services. A regulation-making power will allow us to implement the results from co-design and engagement with stakeholders. In that way, we can use the insights that are gathered through co-design and engagement with stakeholders to ensure that the legislation supports improvements to the provision of independent advocacy in Scotland.

Amendment 41 seeks to add to the existing drafting to ensure that, as well as the possibility of independent advocacy connected to public social care services being provided for in secondary legislation in the future, independent advice and independent information can be provided for in that way. At stage 1, stakeholders asked us to make that change, and I am happy to do so. It will mean that we can gain from the insights of professional stakeholders and those with lived and living experience of accessing social care support services, and it will allow us to keep broader options open in the future.

Amendment 41 also updates the reference in section 13 to services that the national care service provides by replacing it with a reference to “public social care services”, which are defined by reference to the enactments that are listed in the schedule to the Public Bodies (Joint Working) (Scotland) Act 2014. I trust that members will be pleased with my response to a request that was made at stage 1 and I will support amendment 41.

If amendment 41 is agreed to, it will pre-empt amendment 70, and I believe that it will achieve what Gillian Mackay was intending with amendment 70—in other words, to clarify the scope of the provision in the light of the structure of the national care service. If that is not the case, I would be happy to work with Gillian Mackay.

On amendment 93, I am sympathetic to what Brian Whittle is trying to achieve in relation to advocacy service standards. I also note that amendments 92 and 95 contain similar provisions. We are all committed to ensuring the delivery of high-quality independent advocacy. However, I have some concerns about the impact that amendments 93, 92 and 95 could have on independent advocacy providers. In particular, amendment 93 appears to apply to all advocacy services, not just those that relate to social care services, and I am not sure that that is Mr Whittle’s intention. Therefore, I ask him not to move amendment 93. Instead, I would welcome the opportunity to work with the members who raised the issue to further consider advocacy service standards ahead of stage 3.

On amendment 94, I appreciate what Gillian Mackay is trying to achieve. Aspects of amendment 94 are also present in amendment 95. The importance of a clear definition of independent advocacy has come through very strongly in our co-design work and our engagement with stakeholders, but we have also heard that definitions of independent advocacy can be inconsistent and that that can limit awareness and understanding of independent advocacy services, thereby making it harder for people to access them. Therefore, I ask Gillian Mackay and Paul Sweeney not to move amendments 94 and 95 but, instead, to work with me on a stage 3 amendment to provide a definition of independent advocacy, once we have had more time to fully consider our options.

I cannot support Jackie Baillie’s amendment 115, but I would be happy to work with her on alternative wording to consider at stage 3. I agree that it would be helpful for us to have a strategic plan for health and social care services. However, the problem with amendment 115 is that it could lead to a situation in which ministers had to take on responsibility for delivering social care services if all other routes failed. That would go against the agreement that local government should retain statutory responsibility for the delivery of social work and social care services, the employment of staff and the ownership of the assets. I do not think that changing that would be the intention of amendment 115.

I would be more than happy to work with the committee on alternative wording for a requirement for a national strategy for health and social care if members want that in the bill, although I stress that we do not now need legislation to have such a strategy. In doing such work, I would want to make sure that we strengthened and built on the integration of health and social care.

I turn to Jackie Baillie’s amendment 126. The Scottish Government is committed to improving the financial transparency of integration authority spending, including on social care. The powers to specify financial reporting by integration joint boards already exist under the Public Bodies (Joint Working) (Scotland) Act 2014 and are sufficient for that purpose. The total funding that is available for social care in a financial year is subject to changes within each year, so an accurate report of the available amounts cannot be made until after the end of each financial year, for the same reason that accurate long-term forecasts are not possible. Any published information of the nature that the amendment requires would therefore be subject to frequent revision, which would place a considerable burden on the reporting bodies and erode public confidence in the information. I therefore cannot support amendment 126, and I invite members not to support it, if it is moved.

I welcome the intention of Jackie Baillie’s amendment 127. Having the ability to understand and cost current and future need for social care is valuable for informing policy development, strategic planning, monitoring and evaluation, but there are significant limitations with the existing data that would make reporting against it meaningless. In addition, the reporting requirement in amendment 127 would create duplication, as the integration authorities are required by legislation to produce a local needs assessment.

Being cognisant of the complexities and challenges with data availability, the Scottish Government is already progressing work to better understand social care needs, based on existing data, with the aim of informing future approaches to data collection and reporting. However, I am open to working with Jackie Baillie at stage 3 to consider how we could address the data gaps, and I invite her not to move amendment 127. If the amendment is moved, I ask the committee not to support it.

Brian Whittle’s amendments seek to remove sections 36 to 48 of the bill. They would, in effect, remove the bill’s remaining sections, following my amendments to remove part 1, so I ask committee members not to support them.

Agreement to amendments 123 and 125, which relate to sections 36 and 37, would result in barriers to effective sharing of information and consistent use of information standards across health and social care. That would negatively impact on our ability to improve delivery of high-quality health and care services for individuals.

Amendments 134 and 135 propose the removal of the introduction of the right to breaks for unpaid carers. Establishment of that right has received an overwhelmingly positive response. It is clear that there is support for delivering it, as it will help to ensure that unpaid carers can have a life alongside their caring role, and it is likely to reduce other costs arising from unplanned hospital admissions, failed hospital discharge and additional residential care when caring relationships break down. I remain committed to delivering the crucial right to breaks in order to uphold the health and wellbeing of unpaid carers and to publicly recognise the immense value of the support that they provide.

Amendment 138 would remove provisions related to Anne’s law, which we are absolutely committed to delivering, and for which there is strong cross-party support.

Our amendment 50 includes provision for enabling care home residents to identify an essential care supporter, as has been called for by Care Home Relatives Scotland. I am grateful to that group and others for working with us on that amendment.

Brian Whittle’s amendment 139 would remove section 41, which will extend the reserved contracting process to third sector organisations in health and social care. That process will help those organisations to compete with larger for-profit ones. It will support a flexible mixed-market model for delivering social care, with decisions being made locally based on local needs. Independent and third sector organisations, both for-profit and not-for-profit ones, are and will continue to be important partners in delivering social care for Scotland.

Agreement to Brian Whittle’s amendments would halt reforms in a range of really important areas, which I believe largely command cross-party support. I cannot believe that the member would want us to halt Anne’s law and the right to breaks for carers. I therefore ask the committee not to support any of the amendments in the group.

As was set out in my statement to Parliament on 23 January, we remain committed to delivering our Scottish national care service. However, I have concluded that we must achieve that without legislating for structural reform at this time, but must instead pursue a different means of delivering on our goals. The result of that decision is that part 1 of the bill, as introduced, requires to be removed. That would be done by amendments 1 to 39, which are in my name.

The removal of part 1 has the most significant impact on the establishment of care boards and the transfer of responsibility for community health, social work and social care services to the Scottish ministers. However, strengthening national oversight and support for the system remains a priority.

We are working to establish for the services an advisory board that will be informed by lived experience. We still intend to pursue several areas of local reform through means other than primary legislation.

We will continue to give further consideration to the national care service principles. In addition, we will proceed with publishing a co-designed charter of rights and responsibilities, independent of the bill.

A revised programme to improve complaint services will also be developed and delivered. Independent information, advice and advocacy is an area in which provision in the bill would still be helpful. Amendment 15 would therefore move section 13 to part 3 of the bill, and we will discuss amendments to it in a later group—I should say that we will discuss those amendments if Brian Whittle’s amendment 96 is not agreed to, because it would remove section 13 from the bill entirely. I urge members not to support it.

Amendments 60 to 68 are technical amendments to the remaining parts of the bill to reflect the removal of part 1. There are competing amendments for changing the bill’s short title to reflect the removal of part 1. It will come as no surprise to members that I invite them to support amendment 67 over amendment 40 from Alex Cole-Hamilton and amendment 158 from Brian Whittle.

Brian Whittle’s proposed short title of “Social Care and Support” would not be an accurate description of the bill, because it refers only to social care, whereas part 2 of the bill is also about healthcare. Alex Cole-Hamilton’s proposal for “Care and Carers” is not technically inaccurate, but it places the emphasis on carers, which, although it is an important element of the bill, is not the only important element. I have therefore proposed “Care Reform” on the basis that it is a broader description.

I move amendment 1.

I am glad to hear that Jackie Baillie’s—and, I presume, other Labour Party members’—support for the proposed legislation extends to voting for it and against wrecking amendments.

I do not agree with Sandesh Gulhane’s narrative on those points. The reason for putting Anne’s law in the bill is that human rights are absolutely embedded in the bill and it is an appropriate place to put Anne’s law, which is also about embedding human rights in our social care system.

The introduction of Anne’s law has proved to be difficult because of the need to strike a balance with the European convention on human rights. I do not agree that it could have been done three and a half years ago. Across the rest of the UK and Ireland, nobody has yet legislated for something similar. We are leading the way on the issue, and I look forward to gaining the support of committee members to ensure that Anne’s law passes, through the bill.

Those views have been expressed directly to me, too, and I have said to the individuals that I share their disappointment in the lack of progress. For each bill, there are reasons why there has been a delay. For the National Care Service (Scotland) Bill, I think that we will get back on track reasonably soon. I have said that I will update Parliament in the new year on how we will make progress. That is a pause at stage 2. I recognise that it is a pause on a bill that has taken a very long time to come to fruit, but I am confident that we will make progress.

As for the human rights bill, I was involved when we incorporated the United Nations Convention on the Rights of the Child into Scots law. That proved very challenging, as you know. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was caught up in contest and controversy after it was passed because it touched on issues that may be devolved or reserved. It is very challenging to incorporate human rights law because of the devolved nature of our legislature.

As I understand it, progress on the human rights bill has been paused because there is a new Government in the United Kingdom. There is potentially a chance to work on a UK-wide basis on incorporation of some treaties, which would clearly be far preferable to doing that on our own in Scotland. We would not run into the devolved and reserved challenges, and we would make progress across the UK. It is worth taking time on that and spending the time to work with our UK counterparts.

On the LDAN bill, the challenge involves two main areas where there is not consensus. One is the scope of the bill—who is in and who is out. There is no agreement on that, and further work needs to be done to get it right. There is also the issue of how we build in accountability.

I understand that people feel as if they are being let down on all fronts, but we have made significant progress with each piece of legislation, and I am confident that we will continue to make progress. There is broad parliamentary consensus for much of the LDAN bill’s ambition. Between ourselves as parliamentarians, with our commitment to that work, and stakeholders, we can keep its profile high. I am confident that we will legislate in the future and that the legislation will have a simpler and more straightforward passage through Parliament because we will have taken the time to get it right before introducing it.

I think that you started by saying that you cannot make a difference to the things that you do not measure, and then I think that you quoted from the dynamic support register statistics, which were published today. Those statistics show some of the progress that we have made in collecting data on this particular challenge. The data collection that is associated with the dynamic support register has given us a better understanding of who is where in the system and better visibility at the local level. Much of this is a local responsibility, because the statutory responsibility for social care still lies with local authorities. We can tussle all day about whether that is where it should lie, but that is where it lies. The dynamic support register provides visibility in the local system on where people are.

What we see in the latest publication of statistics this morning is, probably not unsurprisingly, an increase in the number of people who are on the local dynamic support register. There were 195 people in hospital and, as you said, 85 of those cases were classified as a delayed discharge. What is particularly vexing is the number of people who have very long stays in hospital. Seventy-two of those people have a length of stay of more than six years. As I said, better visibility means that local systems have better oversight of these cases and are more able to take responsibility and to take steps to sort the problem.

It is not a straightforward problem to fix, as we have seen over a number of years. We have invested extra money. On the back of “Coming Home: A Report on Out-of Area Placements and Delayed Discharge for People with Learning Disabilities and Complex Needs”, we put in £20 million into local systems. We have created the dynamic support register and a practitioner support network. We are looking to create a family support network. We have taken a number of steps as a national Government to try to effect change in the area.

I cannot remember exactly what you said about your opinion on what is happening with the national care service. I am absolutely committed to delivering fundamental change in social care. The status quo is not acceptable and we need to make progress. There is a lot of consensus around what needs to happen in social care, including within the National Care Service (Scotland) Bill. There is generally consensus on the commissioning and procurement of complex care.

I am keen to put on the record why we think that such legislation is needed. It has already been mentioned that even though a number of powerful strategies, ambitions, policy and legislation are in place, we are still slow in making progress in this area. The provision of statutory underpinning for some of the work that we have done is one reason to consider legislation.

Another point to understand is that we are sure that some outcomes are particularly poor for people with learning disabilities and neurodivergent people. There are some really significant differences between that population and the general population. On family, for example, only 5 per cent of people with learning disabilities live with a partner, compared with 56 per cent of the rest of the population. Between 40 and 60 per cent of parents with a learning disability will have their children removed from their care as a result of their being assessed as unable to provide adequate care.

The same population is overrepresented in the justice sphere. About 39 per cent of prisoners have a learning disability or difficulty. It is likely that people with fetal alcohol spectrum disorder are very overrepresented in the justice system. They are 19 times more likely to be imprisoned than people without FASD. There are significantly higher rates of experience of gender-based violence in that population.

People with learning disabilities and neurodivergent people really struggle to fulfil their educational potential, and when it comes to employment, there are significant differences between that population and the general population. For example, around 4.8 per cent of people with learning disabilities are in employment. That rises to about 29 per cent for autistic people but, for the general population, the figure is significantly higher—it is 82 per cent—and more than 50 per cent of members of the general disabled population are employed.

Those are really different outcomes, which all point to the fact that this particular population is really struggling to have its human rights recognised and upheld in every situation, which is why it is so important that we make progress. It is also why legislation is needed, because we really are struggling to effect change without it.

We have spoken a fair bit about data. We have covered annual health checks and, as I said, I am determined to make progress on that. On education, we are currently exploring options to strengthen the existing professional learning opportunities for education staff on additional support for learning. We have also committed to undertaking an analysis of the learning hours that are attributed to additional support for learning content in IT programmes across Scotland.

We have touched on employment a little. In the short term, the Scottish Government will, by the end of this year, respond substantively to the Economy and Fair Work Committee’s inquiry report into the disability employment gap. We will also continue to implement the fair work action plan and the no one left behind approach.

We talked about the work on gender-based violence. There is a commitment to deliver the gender-based violence and learning disabilities steering group action plan. Actions in the plan include improving access to justice and support services for women and girls with learning disabilities. That mirrors the outcomes that were agreed by the steering group.

Jacqueline Campbell spoke about the work that we are doing with parents with learning disabilities, particularly with People First, on ways to support them. That is about early intervention to prevent that particularly tragic unfolding situation in which 40 to 60 per cents of parents with a learning disability are having their children removed. Work is on-going on transitions.

On diagnosis and support, I am asked regularly in Parliament about the access to diagnosis and ND assessments for children and adults. There is a rise in the number of people seeking those diagnoses, which is partly related to the decrease in stigma. In some areas it is a 1,500 per cent rise, which has proved very difficult for local areas to accommodate. We are working with local health boards to put in place access to ND assessments. Those assessments should not be the be-all and end-all. Using the getting it right for every child approach, children in the education system should have their needs met and their rights upheld whether or not they have a diagnosis. However, access to a diagnosis is important. It is not unnecessary, and we are trying to speed up and improve that on the ground.

Work is on-going on mental health law. We recognise the challenge around how learning disabilities and autism in particular are caught up in mental health law and in the definition of “mental disorder”, and we hear that concern. The committee will have heard about that in some of the evidence that it has received. We are very cautious about making changes in case there are unintended consequences, but we are doing a piece of work to see whether there is a better way to approach the issue. A number of recommendations have been made to update mental health law, and while we look at that piece of work, we will certainly consider whether the definition of “mental disorder” is right. Therefore, there is a suite of work.

As I said, at the meetings with the three panels next week, we will get into the detail of that and talk about what work we want to see happening and when we think that it might be possible to feel the tangible difference and the impact of the voice of lived experience on the progress on that work. Therefore, pretty soon, we should be able to speak to the community and come to an agreement on what we expect to see going forward as well as the legislation, which will progress at a slightly slower pace.