NINE TESTS OF THE AUTHENTICITY OF HOLYROOD’S COMMITMENT TO HUMAN RIGHTS

Joint authors:  Colin Slasberg and Peter Beresford

We have previously set out why we believe the Feeley review of Adult Social Care in Scotland has the potential to be truly ground breaking. Its first and primary recommendation is that social care should be established on a human rights basis. Whilst it also makes recommendations about structural change, the report recognises that structural change without cultural change is no change at all.

While the rhetoric of human rights has littered social care policy for at least two decades, Feeley is not the first to recognise it simply hasn’t happened. Whilst there are examples of excellence, they are not the norm. However, what makes the Feeley report different is that it goes further. It pinpoints the practical changes required. These focus on the process of assessment, support planning and resource allocation. Three recommendations are of particular importance;

  1. ‘People should understand better what their rights are to social care and support and “duty bearers”, primarily social workers, should be focused on realising those rights rather than being hampered in the first instance by considerations of eligibility and cost.
  2. A co-production and supportive process involving good conversations with people needing support should replace assessment processes that make decisions over people’s heads….that does not start from the basis of available funding. Giving people as much choice and control over their support and care is critical
  3. Where not all needs can be met that have been identified as part of a co-production process of developing a support plan, these must be recorded as unmet needs and fed into the strategic commissioning process’

Delivery of these three recommendations alone would have far reaching consequences. They would amount to the abolition of eligibility criteria to identify ‘need’ and control spending. This would lead to the re-purposing of the entire system from its current protection of public resources to one that serves to promote the human rights of older and disabled people, whatever level of funding the democratic system happens to make available to it.

The early responses

The Feeley report was warmly welcomed by all parties in a debate in Holyrood on February 16. The Scottish Government committed to working toward a way forward ahead of the May elections.

However, there remains deep scepticism amongst activists and academics. For some it is born of many years of national and local government talking the talk of rights whilst walking a very different walk. For others there is disappointment Feeley did not demand funding to meet all need as the precondition of a system based on human rights, or to the structural changes they favour, or to renationalisation of social care as the solution its ills.

The following sets out nine key tests by which to judge the authenticity of the Government’s intentions in how they respond to Feeley. They set out the practical steps required if Scotland is to deliver the Feeley recommendations.

Nine key tests

  1. Government will establish the principle that in social care, as in the NHS, need will precede resources. A founding principle of the NHS was that clinicians must be free to identify clinical need and the resource consequences must follow. People generally trust that NHS clinicians will indeed identify to the best of their knowledge what modern medicine can do to give them the best possible health. This is not the case in social care where decisions about ‘eligibility’ are made ‘above people’s heads’. If Government declares that social care will join health care in putting need before resource, social workers will be free in line with their professional ethic to identify what will give people the best quality of life their circumstances allow. This, in itself, is arguably the single most transformative change that will deliver for social care the ‘1948 moment’ Nicola Sturgeon says she is seeking. The following eight all rise from and are a consequence of this one change.
  1. Government will declare the end of the eligibility system. The eligibility system, whereby ‘need’ is defined against so-called ‘national’ criteria, ostensibly exists to deliver equity. The scale of the inequity in levels of provision between councils identified by the Feeley report is testament to its failure. What ‘critical and substantial’ means varies from council to council according to their resources. The durability of the eligibility system is owed therefore, not to the pursuit of equity, but to control of spending. Success in controlling spending in this way comes at the expense of the resource-led and controlling practices the Feeley report so roundly condemns.
  2. Government will declare a commitment to fund all needs for people to have a dignified quality of life to the best of its ability. The Feeley report does not recommend Government commits to funding all needs. No public service is guaranteed the funds to meet all its responsibilities, not even the NHS. However, the necessary process of prioritisation should not and need not lead to loss of vision and moral purpose. Government should lead the way in ensuring the needs of older and disabled people compete on a level playing field with all other public services, currently denied by the eligibility system.
  3. Government will require systems are established that aggregate and report unmet need. Unmet need is the inevitable consequence of adopting the principle of need preceding resources. The NHS equivalent is waiting times. At the operational level waiting times provide the safety valve when need exceeds resources. At the strategic level, they tell political leaders the level of funding they need to make available. In social care the eligibility system denies them such information. Unmet need must be seen as the social care equivalent of waiting times in the NHS. Information about unmet need must be in the public domain, easily accessible and able to hold political leaders to account.

Councils have sometimes in the past experimented with boxes on assessment forms for social workers to record unmet need. The information languishes in filing systems, goes nowhere and quickly falls into disuse. Government must avoid repeating such a mistake.

  1. Government must acknowledge that regional equity depends on the level of resources available to local authorities and is a national responsibility. Whatever else a National Care Service may comprise, national government must accept responsibility both to ensure that resource levels minimise unmet need, and are fairly allocated regionally.
  2. Government must require councils to establish systems that control spending without compromising assessments. No matter how large or small the gap between needs and resources, it is a fact of life than spending will have to be contained within budgets. Case by case decisions to determine eligibility as the means to do so must be replaced with case by case decisions that determine This will require a complete re-engineering of the decision making infrastructure, including financial and IT supports. Whilst equitable allocation of resources at individual budget holder level will continue to be important, it will be joined by value for money as no less important a challenge. A budget holder’s task will be to achieve the greatest quality of life for the greatest number of people within their budgets. This will require significant re-skilling of budget holders
  3. Government must require councils to democratise their assessment process. Assessing for eligibility spawns a bureaucratic, obscure and professional-centric process. Such processes must be swept away. New processes will be required that are accessible to all service users to support them to think through and declare their own assessment of their needs and support requirements. The council only has to be concerned that such self-assessments make the best use of resources so the person can have the best quality of life their circumstances allows. The social work role will be to support people to achieve such a self-assessment, working to whatever depth is required. An open, democratised assessment process is key realising the Feeley recommendation that assessments must be ‘co-produced’ and for people to have authentic choice and control over their support.
  4. With the system fundamentally re-purposed, Government will need to ensure there is a workforce development strategy. The social work role will be transformed from the current ‘piggy in the middle’ role to being able to work in authentic partnership with service users. It should come naturally to those whose value base is person-centred and also to social workers who are professionally qualified.

Re-skilling will also be needed at the most senior levels too. Directors of Social Work will no longer have the task of managing a system that makes ‘need’ fit within whatever resource their political masters give them. Their task will be firstly to get the best from the given resource, and then to inform their political leaders of the shortfall. Their relationships will change. They can truly become the champions of the community.

  1. A transition strategy for existing service users. Resource-led assessments for ‘eligibility’ and person centred assessments are as chalk and cheese. Whilst the former is a negative exchange to see how bad life can be, the latter is a positive one to see how good life can be. However, there will be overlap. Some needs previously deemed ‘eligible’ will continue to be needs within a human rights based approach. There is a clear moral argument that existing service users should not be penalised by the change. All needs previously considered ‘eligible’ that also meet needs within the reformed system should be subject to a guarantee of being met as long as the need remains.

Conclusions

For the above reasons, Feeley puts Scotland on the brink of becoming a world leading country in the delivery of social care. It would be one built upon the lived experience of each and every older and disabled person in need of state support. However, in the absence of pressure on Government to deliver the radicalism of the above agenda, the greater fear is that it won’t happen. Feeley’s plea for a system driven by human rights runs the real risk of being reduced to a pre-amble to the Government’s response that will amount to yet another reiteration of warm words and good intentions.

Implications for England

Whether or not Scotland does move forward, the lessons England could pick up are clear. England, whilst using different words, operates the same eligibility system as Scotland. England, too, has regional inequity of enormous proportions. Most service user groups will recognise the Feeley report’s description of the assessment and support planning process. It is bureaucratic, damaging and alienating.

Debates in England are dominated by the funding issue. That takes the form either of focusing on the balance of public and private funding, sources of taxation or funding levels. There is, however, little debate about the vision for social care. Isolated Members of Parliament sometime raise the issue of a vision for social care, but those debates are not entering the mainstream. Yet without vision, how can the service know it is getting the best it can from the resources it has? And without vision, how can the public know what they are being asked to support, and how can political leaders know what they are being asked to fund?

The issues Feeley is inviting Scotland to grapple with are issues England should grapple with too.

 

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