The ‘criminalization’ clause that was exposed has been heavily criticized as the Scottish Government seeks to pursue proposals for a proposed National Treatment Service.
Concerns have been raised that the National Nursing Services (Scotland) Bill provides that the minister could through regulation provide a scheme that allows care records to be shared so that services can be provided “efficiently and effectively” on behalf of nursing services and the National Health Service. .
And it stated that the regulation could create “sanctions (civil or criminal) for those who do not comply” with information sharing requirements.
It also sets out a plan to make provisions regarding the handling of complaints, including any remedies that will be made available.
And once again it says that the ministers can provide civil or criminal sanctions for those who do not comply.
This has been described by respected think tank Common Weal, with an interest in supporting treatment design, as a “nightmare” plan for thousands of care workers.
Nick Kempe, former Head of Services for Parents and Adults in Glasgow and chair of the Public Welfare Reform Group, said: “This has allowed the Scottish Government to criminalize employment where they fail to share information in certain aspects. It has had quite an impact great implications and great concern. It’s like a brave new world.
“Potentially, you will be criminalized working in a nursing home and not providing board of health information about what happens to people.”
People working in health and care are registered and covered by professional codes of practice. If they violate that code – and it generally includes requirements for confidentiality but also clauses about when to share or report a matter of concern – they can face professional disciplinary action, including having their registration deregistered.
“Therefore, there are already sanctions for people who fail to share information that is really needed,” said Kempe.
“Usually if you fail to do something that is required as part of your job, it is the responsibility of the employer to address the problem that caused this. Someone may fail to perform their function due to lack of training, because they are overworked, because they do not have the necessary tools for the job, for example TI Replacing this approach with sanctions, whether civil or criminal, is exceptional and no consultation with the workforce that may be affected before this clause was drafted.”
Amanda Burgauer, head of Common Welfare added: “To put that much power in the hands of ministers is shocking. How ministers can decide on criminalization.
Nicola Sturgeon said in September 2021, that the National Care Service plan would be “one of the greatest achievements of this Parliament — and, like the National Health Service after the Second World War, it would be a fitting legacy of the trauma of Covid”.
As of 25 June, there have been a total of 17,695 deaths in Scotland where Covid was mentioned on death certificates – with 13 registered in the last week. About a third are estimated to occur in nursing homes.
The Scottish government initially said the new service could cost up to £500 million, but Scottish Parliament researchers estimate that the total bill over five years could be between £664 million and £1.3 billion.
Under the changes, adult social care – and potentially other areas including drug and alcohol services and children’s services – will be taken out of the hands of local authorities and given to newly created regional care boards which will ultimately answer to ministers.
Under the law, ministers will also be able to transfer health and care services from the NHS and health board to the new National Care Service and care board, which will be responsible for delivering care locally.
Staff currently working for the NHS will continue to be employed by the NHS, but may be required to provide services that are the responsibility of the National Care Service.
But the National Nursing Services (Scotland) bill has been criticized for a lack of detail and in March the bill was suspended until June 28.
The first vote on the bill was postponed until after Holyrood’s summer recess.
Local authorities and trade unions were among those voicing concern.
So far the bill is in the ‘first stage’ of parliamentary scrutiny, whereby a Scottish Government committee gathers views on the law before presenting it to the MSP for debate.
Another dilemma outlined by Common Weal in information sharing compliance is the problem that IT systems in different parts of the care system do not communicate with each other.
Primary care professionals working on the frontlines of health and care in Scotland raised their concerns with ministers four years ago about the effectiveness of data sharing between different parts of the NHS and public care providers.
Representatives from professional medical bodies including general practitioners, dentists, ophthalmologists and pharmacists have raised a range of ICT issues including “clunky IT systems that don’t talk to each other”.
Mr Kempe added: “Apart from failing to consult anyone, what the Scottish Government failed to ask is why the information was not being shared at this time. Their response appears to be that they believe many people working in health and social care are rotten apples who deserve sanctioned.
“The reality is that the main reason information is not shared is probably the fact that many computer systems do not communicate with each other, including within the NHS which is the sole responsibility of the Scottish Government at present.
“Another reason is lack of time and difficulty figuring out who the information needs to be shared with. A consequence of all the different IT systems is that information is stored in lots of different places.”
The bill, however, does not spell out what sanctions will be imposed in case of criminal or civil action and Common Weal says involving police in workplace matters raises “another set of problems”.
A spokesperson for the Scottish Government said: “We are committed to a National Care Service ensuring consistent, high-quality social care support and community health care that meets the needs of people across the country. Over the summer we continue to organize co-design events to reach more people from across Scotland and keep them at the heart of the biggest public sector reforms since the formation of the NHS.
The spokesperson said there would be further consultations and impact assessments before arrangements for data sharing arrangements were introduced.
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