Section 8 — Amendment of 1968 Act: assessment of ability to provide care

Community Care and Health (Scotland) Bill: Stage 3 – in the Scottish Parliament at 2:38 pm on 6th February 2002.

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Photo of Murray Tosh Murray Tosh Conservative 2:38 pm, 6th February 2002

The next amendment for debate is amendment 18, in the name of Shona Robison, which is in a group on its own.

Photo of Shona Robison Shona Robison Scottish National Party

Amendment 18 is intended to put the same onus on national health service bodies as on local authorities; first, to identify carers in their area and secondly, to provide information to carers; in particular, information about their right to an assessment of needs.

The Health and Community Care Committee heard many carer organisations outline that the NHS has a long way to go before it supports carers effectively. That is what carers have said. A recent survey of carer organisations across Scotland, which was carried out by Carers Scotland and the Coalition of Carers in Scotland, found that carers regard the NHS as remote, inaccessible and sometimes intimidating. The survey found that the NHS can resist carer involvement, that carer consultation is done badly and that carers feel undervalued. A study of hospital discharge found that 72 per cent of carers had poor experiences of hospital discharge and that only 61 per cent of carers were consulted when hospital discharge of the person being cared for was planned.

Hospital discharge practice is not referred to in legislation, but only in guidance. Quite frankly, that is not sufficient. The strong message coming from carers is that guidance has had its day and that they now want statutory duties to ensure action. The Scottish Executive's carers legislation working group strongly recommended the introduction of such duties.

The evidence shows that unless statutory bodies proactively inform carers of their rights, carers do not take up assessments. One year after the passing of the Carers (Recognition and Services) Act 1995, 82 per cent of carers had not asked for an assessment.

NHS services are integral to providing support to Scotland's 620,000 carers, but so far they have largely failed to do that. The NHS is often the main point of contact for carers. It makes sense to use that point of contact to support and inform carers of their rights. That will happen only if NHS bodies have a duty to do it.

I move amendment 18.

Photo of Mary Scanlon Mary Scanlon Conservative

When I first saw Shona Robison's amendment 18, I was minded not to support it—not because I do not agree with the principles outlined in the amendment, but because I thought that amendment 19, in the name of Janis Hughes, was more comprehensive. However, I have just discovered the minister's amendments to Janis Hughes' amendment—I am sorry if that sounds complicated.

Will the minister clarify whether, under his amendments, consideration will be given to the evidence that Carers Scotland has produced of NHS bodies' overlooking and ignoring carers? Will he assure us that account will be taken of the guidance to the Carers (Recognition and Services) Act 1995, which has yet to be amended?

The carers organisations tell us that far more carers are in contact with the NHS than with social services. It would be tragic if carers working with local authorities were given support, advice and information that other carers did not get. I apologise for speaking about amendments 19 and 19A, but those amendments will influence how we vote on amendment 18. Amendment 19A states that the Scottish Ministers may require any health board to prepare and submit to them a carer information strategy for:

(a) informing carers who appear to the Board to be persons who may have rights under section 12AA of the 1968 Act or section 24 of the 1995 Act that they may have such rights; and

(b) ensuring that information about such rights is available free of charge to carers."

I ask the minister to identify which persons with rights under section 12AA of the 1968 act are to be supported. Are we talking about only a section of people, or are we saying that the carers of all those who leave NHS care will receive the same advice?

Photo of Murray Tosh Murray Tosh Conservative 2:45 pm, 6th February 2002

Does the minister wish to respond now, or does she wish to wait until she sums up the debate on amendment 18? It is not necessary for her to speak more than once, but she can choose to do so.

Photo of Mary Mulligan Mary Mulligan Labour

I will wait until I sum up the debate, Presiding Officer.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I support amendment 18. As Shona Robison said, amendment 18, if agreed to, would place an onus on NHS bodies to provide information to carers about their right to local authority assessments for care services. That is a similar duty to that which is already imposed on local authorities.

NHS services play a crucial role in ensuring that carers get the support that they need, in the right form and at the right time. However, the Health and Community Care Committee heard powerful evidence that the NHS has a poor record of engaging constructively with carers. Having said that, I recognise the many examples of good practice that exist in Scotland, but the NHS has no systematic approach to ensuring that it engages properly and beneficially with carers.

Shona Robison said that strong evidence exists to show that, unless statutory bodies proactively inform carers of their right to secure assessments, carers will not take up that right or obtain assessments. The Executive's argument at stage 2—I dare say that it will be repeated today—is that the matter would be better dealt with in guidance, rather than in primary legislation. That point is superficially attractive.

When the committee considered the bill at stage 1, I was struck by the evidence of carers organisations of their past experience of guidance issued under similar legislation. In their widespread experience, local authorities and health service bodies—which are addressed in amendment 18—do not uniformly follow such guidance. The carers organisations referred specifically to the Carers (Recognition and Services) Act 1995, under which guidance was issued. However, their evidence was that NHS bodies have not followed or implemented that guidance and that therefore carers are not benefiting from the provisions of the 1995 act.

I appeal to the Executive not to repeat the mistakes of the past. The bill, which is a good piece of legislation, gives us an opportunity to put NHS bodies under the same obligation as that of local authorities. In so doing, we will ensure that carers will be able to gain access to the services that they need. The evidence heard by the committee suggested that the best way in which to achieve that aim would be to incorporate that obligation in the bill, rather than to put it in guidance. I urge the Executive to support amendment 18.

Photo of Dennis Canavan Dennis Canavan Independent

I also express my support for amendment 18, which seems to be a reasonable amendment. Earlier today, together with other MSPs, I held discussions with carers. The people whom we met are on the front line, caring for others, including relatives. From my discussions with them, I believe that they would like to support an amendment to the bill along the lines of amendment 18, which would place a statutory duty on the national health service to inform the carer about his or her rights.

Sometimes, the health service, rather than local authority social work services, is the first to come into contact with a carer and the cared-for person. In such circumstances, it would be reasonable for the NHS body—I presume that it would be either the local health board or the NHS trust—to take the necessary steps to ensure that the carer is aware of his or her rights. For example, a general practitioner or community health visitor may visit the home.

At present there seems to be a lack of co-ordination, because some people—including GPs and community health visitors—might feel that it is not their job to inform carers of their rights, but that of social work services or whoever. To clear up any such confusion, it would be better to include in the bill a statutory responsibility for the national health service body to be proactive in that respect.

When the minister sums up, she might want to refer to amendment 19, which Janis Hughes lodged. The Executive seeks to amend—indeed, to dilute—amendment 19. I hope that Mary Mulligan will explain to us in detail how the Executive intends to deal with the problem in a way that will ensure that community health visitors, general practitioners and other health service personnel who visit people in their homes, and are perhaps aware of their needs initially, inform the carers of their rights.

Photo of John McAllion John McAllion Labour

I would be grateful if, when she sums up, the minister would explain a few points to the Parliament. First, amendment 18 suggests that the NHS would have a duty to provide information to the carer. If that duty applies to local authorities, will the minister explain why the same duty could not apply to the NHS? There must be reason for that and I would like to hear what it is.

Secondly, if the Executive's objection to amendment 18 is that it imposes a duty on the NHS to provide information to carers, will the minister explain why the Executive objects to the imposition of such a duty on the NHS, when it does not object to the imposition of such a duty on the local authorities?

Finally, if the Executive recommends amendment 19 as an alternative to amendment 18, will the minister explain briefly the difference between the amended version of amendment 19 that has been lodged by the Executive—amendments 19A to 19G—and amendment 19? Is the difference that if amendment 19A is agreed to the "carer identification strategy" mentioned in amendment 19 will disappear? Will the minister comment on that?

Photo of Mary Mulligan Mary Mulligan Labour

I recognise why Shona Robison lodged amendment 18; I am sure that all members recognise that. We all share her view that the NHS has a vital role to play in identifying and supporting Scotland's carers. I think that we would also all agree that although the NHS is addressing the carers agenda, its performance on that is not as consistently good as we would like it to be.

NHS staff in many different settings—in GP practices, in the community or in a hospital—are uniquely placed to identify that someone is acting as a carer for another person. It will often become clear when treating a cared-for person that they depend on a carer for support. On other occasions, a carer will be the patient.

It is clear that the NHS is already moving to improve its response to carers through a wide range of initiatives. The initiatives include the involvement of GP practices in programmes to identify carers and to offer information to them; the development of professional quality standards for GPs; the overarching development of clinical standards, which affect every aspect of care for patients; and the development of single shared assessment processes.

However, the Executive recognises that there is a strong view in the Parliament that a statutory obligation on the NHS would reinforce current good practice. In the face of that widespread view, we are ready to help to make that happen in a sensible and meaningful way. We recognise and endorse the objectives that underlie amendment 18 and the spirit of what it seeks to achieve. Carers who come into contact with the NHS will not always be the same carers that a local authority knows about. It is important that staff in the NHS make the most of their contact with cared-for people and their carers to help as many carers as possible to get support.

Photo of Mary Scanlon Mary Scanlon Conservative

Amendment 18 would provide the NHS body with a duty to provide information to the carer. Amendment 19—which I originally supported—would require a health board to

"provide a copy of its carer identification strategy to any person who requests it."

However, many people may be unaware that such a strategy exists. They may be too traumatised or too emotional to ask for it. Perhaps only the most assertive and best informed will get the information that they need while others may be left out. Is not the minister concerned about that?

Photo of Mary Mulligan Mary Mulligan Labour

I will deal with the points that Mary Scanlon made in her earlier contribution, but I want first to concentrate on amendment 18. Let me say why we cannot support amendment 18; later, I will deal with how the various Executive amendments to amendment 19 will address the very points that Mary Scanlon has made. If Mary Scanlon bears with me, I shall come to those points.

Amendment 18 has serious legal flaws. For that reason, I urge members not to agree to it. If amendment 18 was agreed to, it would introduce a function for health bodies into the middle of section 12 of the Social Work (Scotland) Act 1968, which concerns social work services. The result would be muddle, which would be confusing for users and might create legal anomalies.

Amendment 18 does not give the context in which health bodies would perform their duty to inform carers of their right to an assessment. Section 8(2) of the bill places a similar duty on local authorities, which is directly linked to the local authorities' duty to provide community care services for the cared-for person. In amendment 18, neither the cared-for person nor the carer has any link with the NHS body and its existing functions. Although the amendment's intentions are clear, it would not produce a legally meaningful result.

Amendment 18 also overlaps significantly with the duties that section 8(2) would place on local authorities. That would create a situation in which both a local authority and an NHS body would be obliged to inform the same carer of his or her rights. Amendment 18 provides no scope to avoid or ameliorate such duplication. Duplicating such functions and responsibilities is at odds with our joint-working agenda and is more likely to lead to confusion and wasted resources than to improved support and information for carers.

Photo of Mary Scanlon Mary Scanlon Conservative

I thank the minister for giving way. Carers Scotland has advised that far more carers are in contact with the NHS than with social services. Quite often, carers do not get in touch with social services until things have reached a fairly desperate stage. Does the minister accept that?

Photo of Mary Mulligan Mary Mulligan Labour

I accept that there are carers who are not involved with social work services. That is why we seek to amend amendment 19, so as to ensure that we place a statutory duty on health boards to recognise that fact.

None of what I have said means that a statutory duty of the kind that amendment 18 seeks could not be placed on the NHS. However, such a duty would need to be introduced in a way that made legal sense. We believe that amendment 19—as amended by Executive amendments 19A to 19G—is better placed to achieve the ends that we all seek. An amended amendment 19 would place a duty on the NHS that would be in the correct legislative context of the NHS's relationship with patients and carers.

Photo of Dennis Canavan Dennis Canavan Independent

Amendment 19 states:

"The Scottish Ministers may require any Health Board to prepare and submit to them a strategy"

It does not state that ministers must require health boards to prepare and submit strategies.

In addition, Janis Hughes's amendment 19 lists the things that the strategy must contain, including information for carers about their rights. The Executive's amendments to amendment 19 would blow a hole right through it, making it almost worthless.

Photo of Mary Mulligan Mary Mulligan Labour 3:00 pm, 6th February 2002

I am still sure that amendment 19 will provide the solution that we all seek. It will provide support for carers, who have previously been known only to the NHS but will now be made known to the local authorities for the purposes of support and assessment.

Amendment 19, subject to the Executive's amendments to it, places a duty on the NHS in the correct legislative context of the NHS's relationship with patients and the people who care for them. It also offers a wider and more flexible approach to achieving the objective of amendment 18.

For the reasons that I have set out, and in order to make law that is logical, meaningful and clear in purpose, I urge the Parliament to reject amendment 18.

Photo of Shona Robison Shona Robison Scottish National Party

Some pertinent points have been made. The minister will have to go some way towards reassuring members that the Executive's amendments to Janis Hughes's amendment 19 are not a watering down of that amendment to make it meaningless.

I feel that the identification of carers is a critical element of the process and that a situation in which carers have to request information is less than satisfactory, so I will press amendment 18.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 18 be agreed to. Are we agreed?

Members:

No.

Division number 1

For: Adam, Brian, Aitken, Bill, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Fergus, Fabiani, Linda, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Hyslop, Fiona, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McLeod, Fiona, Morgan, Alasdair, Mundell, David, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Reid, Mr George, Robison, Shona, Scanlon, Mary, Scott, John, Sheridan, Tommy, Sturgeon, Nicola, Swinney, Mr John, Wallace, Ben, Welsh, Mr Andrew, White, Ms Sandra, Young, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Deacon, Susan, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Thomson, Elaine, Watson, Mike, Whitefield, Karen, Wilson, Allan

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 39, Against 64, Abstentions 0.

Amendment 18 disagreed to.