Consultation on the Codes of Practice and Fitness to Practise

January 2016

 

If you would like to download this Consultation you can do so here:

www.scottishcare.org/wp-content/uploads/2016/06/Response-to-the-Consultation-on-the-Codes-of-Practice-and-Fitness-to-Practise.pdf

 

The Scottish Social Services Council (SSSC) carried out a consultation on the revised Codes of Practice and the implementation of fitness to practise.

 

The consultation had two parts:

Part A: Revised Codes of Practice for Social Service Workers and Employers

Part B: Implementation of fitness to practice

 

For more information about the consultation, see

http://www.sssc.uk.com/about-the-sssc/multimedia-library/publications/206-consultations/consultations-by-the-sssc/codes-of-practice-and-fitness-to-practise-consultation-november-2015

 

Part A:       Revised Codes of Practice.

We are: a provider and/or an organisation representing providers.

 

Scottish Care is the representative body for independent sector social care services in Scotland. This encompasses private and voluntary sector providers of care home, care at home and housing support services across the country. Scottish Care counts over 400 organisations as members, which totals over 830 individual services. Scottish Care is committed to supporting a quality orientated, independent sector that offers real choice and value for money. Our aim is to create an environment in which care providers can continue to deliver and develop the high quality care that communities require and deserve.

In relation to older people’s care, this sector provides 88% of the care home places in Scotland and up to 55% of home care hours. There are more older people in care homes any night of the week than in hospitals – as at 31st March 2015 there were 892 care homes for older people providing 38,164 beds to 32,771 residents any night of the year, with 89% of these residents located within the independent sector.

We are responding to this consultation on behalf of the Scottish Care membership.

Members have also been encouraged to submit their own responses to the consultation.

 

Changes to the Employers Code: Code 1:

Scottish Care is committed to ensuring that those recruited to work in social care services both have appropriate values and attitudes and can develop skills and knowledge to work most effectively in supporting others. We agree with the change from assuming those entering the professions already have these attitudes and skills towards a position of recognising in the individual being recruited the capacity and the potential of gaining such knowledge and skills.

 

In recruitment practice we recognise the critical importance of ensuring that those recruited meet safe recruitment best practice. However, many providers struggle with balancing this commitment with being able to access appropriate information on applicants in a context where many have no prior employment, where the use of references has changed considerably over the years, and where previous employers are taciturn at best and unwilling at worst to provide references. Whilst accepting this code we would encourage all stakeholders to work together to ensure that the principles of safer recruitment are achievable in practice.

 

The new Code 1.6 requires of the employer a duty to report any impairment of fitness to practise of staff. As will be made clear below in our Part B response we have considerable concerns about what this in practice will mean for providers, their ability to meet this duty and whether there has been provided to date sufficient clarity for providers to enable them to recognise that they are indeed fulfilling this duty. We have particular concerns over the subjective interpretation of the phrase ‘any issue about workers whose fitness to practise is or may be impaired.’

As will be stated more fully below we have equal concerns that this new duty may place at a disadvantage employees and registrants of social service organisations in comparison to others working within other sectors.

Therefore in response to this addition Scottish Care at this present time is unsure about this new Code without the provision of further clarity and guidance.

 

Code 2:

 

We welcome new code 2.3 though regret that the language used is so dated. Given the importance of future proofing these Codes we believe strongly that the continued use of terminology such as ‘service users’ to be outdated, for some offensive and non-descriptive of the supported person-provider organisation- worker relationship dynamic. The importance of actively engaging with those who are supported and use services is self- evident and we would hope such engagement is recognised by those who commission provider organisations by the means of an appropriate resource allocation which recognises the centrality of such engagement.

Scottish Care also welcomes strongly the establishment in all employer organisations of systems which will allow staff to whistle blow when they feel working practises are for any reason unsafe or inappropriate.

As we move towards more integrated service delivery and supports we welcome the addition of Code 2.7 and the importance of employers ensuring staff employed by them are able to meet their own professional codes. However in our own consultation with members there was a concern expressed about a perceived lack of clarity on the inter-relationship between different codes and we would hope the Guidance which will accompany the Codes

 

 

will practically assist employers in contexts where staff are working under multiple professional codes.

Therefore whilst welcoming the new additions we are concerned about the mechanisms by which they will be achieved.

Code 3:

 

Scottish Care believes that the role of continuous learning and development for employees within the sector is absolutely critical and our members are equally committed to ensuring that this is achieved. However we must state at this point that the ability of employers to meet this Code (and indeed all the Codes) is increasingly challenged by the failure of commissioning bodies to prioritise the learning and development of staff who work directly with the supported individuals on whose behalf they commission services. We believe that some means requires to be found, either through duties or scrutiny, upon authorities who commission services to do so at rates which enable the employer to meet his or her duties under the Codes.

The new Code 3.5 on the importance of good and regular supervision is to be applauded but again we must at this point highlight that within increasingly tight operational environments the ability of provider organisations to not only meet this new duty but to do so in a manner which builds the capacity of the employee is challenged at best if not increasingly impossible to achieve. Reflective practice and the capacity to supervise and learn through such supervision both necessitate the dedication of time and resource which few providers are able to give or afford.

So in Code 3 whilst in principle we warmly welcome the additions we are unsure about whether they are practicably achievable.

Code 4:

 

Whilst in broad terms we approve of the updating of 4.2 we are concerned at the lack of clarity in relation to the term ‘fitness to practise’. There are clear legal duties which already exist and which are placed on any employee in terms of the Equality Act 2010 in relation to behaviour which is bullying, discriminatory, intimidatory or exploitative. We are clear that such duties of reporting and whistleblowing, the duty of care to colleagues and to those who use services and supports, should be rigorously embedded in employment practice and enforced b organisational culture and systems. We are equally clear that employers and employees have duties in relation to adult safeguarding in relation to harm which may be caused by deliberate, accidental, neglectful practices in care and support. Indeed the description in the Codes currently, we would contend, does not go far enough in recognising the impact of negative psychological and emotional behaviours. We are clear that the duty of candour enhances and underpins much of the previous legislation.

 

 

What we are unclear about is what in addition to already legally required employee behaviour ‘fitness to practise’ adds.

We continue to agree with 4.4 but would like to see Guidance which would include an understanding that ‘trauma’ might not only be dramatic or unexpected incidents but would encompass the continuous emotional impact of grief and loss upon employees.

We agree with 4.5 about the importance of policies respecting ‘wellbeing, equality and diversity’ of workers and indeed would have liked to have seen this enhanced with the addition of a specific duty to help to foster the human rights of employees, and those who use supports and services in line with the forthcoming new National Care Standards.

Again we have concerns with the breadth of the phrase ‘fitness to practise’ in 4.6 and believe the lack of clear examples here is unhelpful.

 

 

Changes to the Code for Social Service Workers:

 

 

As has been stated before in previous responses Scottish Care has and does warmly welcome the review of the Codes and in particular recognises that the existence of a Code for workers assists in giving dedicated individuals a sense of professional identity and status which is important both for the individual and for the sector as whole. We profoundly believe that the right Codes assist and foster public confidence in the work of those offering social care and support.

Code 1

 

The personalising of the statements within the Codes by the insertion of the first person is warmly welcomed as too is the positive emphasis on taking action to ensure respect for other cultures and diversity. We also welcome the importance of working alongside those who receive supports and altering practice where appropriate in response to feedback.

We would like to have seen the insertion of human rights in 1.5

 

Again throughout the Codes we believe serious attention needs to be given to the terminology of ‘service users’.

Code 2:

 

Welcome. No comments.

 

 

Code 3:

 

Code 3.1 rightly encourages the promotion of independence but it should also be recognised that individual choice has primacy over a desire for independence, so we would insert, ‘where desired’ to ensure personal autonomy.

Code 3.2 is to be applauded because it clearly describes for the worker circumstances where they have to act without the use of ‘fitness to practise’ as a term – we would have valued such clarity in the Employers Code rather than the nebulous use of ‘fitness to practise’ and its open-ended nature of requirement. Unfortunately the term appears in 3.5 without description and we are again concerned that most workers will not be clear what in addition to that descried at 3.2 is meant by the phrase and thus they may unwillingly fall foul of the Code.

The duty to co-operate with investigations and hearings we would agree is an appropriate addition.

Code 4:

 

Welcome additions. No comment other than welcoming an emphasis on positive risk enablement and personal choice, control and autonomy.

Code 5:

 

Welcome additions and no comment.

 

Code 6:

 

Again we have concerns over 6.3. The placing upon a worker of a duty to report ‘personal difficulties’ beyond the legal requirements which already exist strikes many as unfairly disadvantaging a social care worker compared to other employees. Further it is not clear at all what may constitute a ‘personal difficulty’, who the arbiter of such difficulties might be and what action an individual worker or employer needs to take when they are unclear about the subjectivity of such ‘difficulties’.

It is wholly acceptable that there should be a duty to inform SSSC about behaviours or conduct which have been a clear breach of the Codes but we are deeply concerned about the subjectivity of phrases such as ‘personal difficulties. We believe this duty places unwanted and unnecessary additional pressure upon a worker and may have a wholly negative impact on recruitment and retention in a sector which doesn’t need any additional challenge.

Equally we are deeply concerned about the requirement to report to the SSSC information relating to health. Given the reforms within the Equality Act 2010 in relation to health and

 

 

disability within employment and recruitment practice we are unclear as to the what may constitute an appropriate health declaration, who assesses this and what the consequences might result both for an employer and employee were such assessment to later be determined as erroneous.

We welcome 6.8 and 6.9 though again highlight the importance of those who commission adequately resourcing a worker’s ability to learn and develop knowledge and skills.

General comment:

 

In general terms we believe the Codes where they have been altered have positively reflected the values and attitudes necessary within the social care workforce. If used well they offer the potential in giving both employers and workers a sense of professional identity and confidence.

Our specific and very real concerns relate to the concept of ‘fitness to practise’ which in its current articulated form in the Codes is nebulous, subjective and unhelpful. A professional Code should offer supportive clarity to employers and workers and where there is a lack of clarity that negatively impacts upon conduct and behaviour and risks the very confidence which such Codes seek to engender in both professionals and the wider public.

We believe that serious further work needs to be undertaken to ensure that there is much sharper clarity in relation to the mutual responsibilities of worker and employers in relation to fitness to practise and the inter-relationship between these Codes and other employment legislative requirements.

In their current format we have very real concerns that employers may in upholding action under ‘fitness to practise’ may find themselves in breach of other employment legislation. In current form we are not convinced that elements of the new Codes, specifically ‘fitness to practise’ duties, do not contravene the Equality Act and put those who may be defined under that Act as ‘disabled’ at a discriminatory disadvantage and result in their less favourable treatment. Equally we can foresee circumstances where on the grounds of age an individual may under the Codes be deemed as having ‘difficulties’ in their support and care but which would if exercised upon be a breach of the Age Regulations of the Equality Act which commenced in 2011 and which would certainly not foster equal opportunities in the workplace.

Part B.

 

Introductory comments:

 

We have already cited above not insignificant concerns re Fitness to Practise as they have been alluded to and incorporated into the Codes.

 

 

As an organisation Scottish Care has already articulated (in the 2013 consultation process for instance) its own positive response to a move from the current ‘conduct’ process towards what to date has been described as a ‘fitness to practise’ process. One of the reasons we welcomed such a move was that it would assist by adding clarity for workers and employers alike on what behaviours or conduct would be a clear breach of acceptable practise. We still accept the value of such a move.

However, what has become clear under the current Review process, is that there are very real dangers with this change unless there is a sharper clarity given to what is meant by and how ‘fitness to practise’ is defined both in practical terms for workers and employers and in legal terms especially in relation to existing employment law and best practice.

In terms of the reasons given for the change, therefore, our most heightened concerns relate to the consideration of health when it impacts on an individual’s ability to work with others and to do so safety. Equally we are concerned about how ‘competence’ is defined in relation to employment practice.

We recognise the desire to make a change is rooted in the reality that not all cases coming before the SSSC are purely about an individual’s conduct but relate to health and competence which may negatively impact upon the safety of those being cared for or supported. We further recognise that this move is occurring within a wide range of professional bodies.

The Consultation details its belief that the action is not in breach of current equality legislation in that no rule will be set in place which will directly or indirectly discriminate on the grounds of treating an individual less favourably. Indeed together with SSSC, Scottish Care values the diversity of our workforce and wants to ensure that all, regardless of disability, are able to achieve to their full potential within the social care workforce. We are content that the SSSC does not ‘set a list of health issues that will always mean fitness to practise is impaired’. However we are concerned , for instance and perhaps especially in relation to mental health issues, that many workers may believe that periods of mental un- wellness may make them unable to remain as a registrant or may prevent them from entering employment. We are concerned that many staff in highly vulnerable periods of their personal lives will have the added burden placed upon them of determining whether they are ‘fit to practise’ when there is no evidence they pose a risk to those they care for and support. The Consultation argues that it ‘will not treat all people who are ill or have a certain type of illness or disability in a different way from everyone else. We would argue that this cannot be the case by dint of the fact that we are, through the Codes, expecting individuals who for instance live with mental health issues (and are not ill), as different from others and thus potentially in a discriminatory manner as defined by the Equality Act. We are also not convinced that the enactment of the current proposals assist the SSSC in

 

 

meeting its Public Sector Equality Specific duties under the Equality Act. How does the proposed action assist in ‘advancing equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;’? The Duties also place a requirement on positively contributing to the creation of a more equal society through advancing equality in all their policies. We believe the proposals risk that duty.

The Consultation narrative notes that responses will vary from case to case and it is this very subjectivity in determining the extent to which a disability or illness or health condition impacts on ability to meet the Codes which places employers in a challenging situation and places the worker in a potentially discriminatory stance. At best we request much greater clarity especially in relation to assisting a worker to determine for themselves whether or not they are required to inform their employer and/or SSSC.

Specific responses:

 

Q1:

 

It is clear what applicants must declare but we are concerned that being dismissed on the grounds of health by one employer may not be grounds for being unable to work in social care. We believe that this requirement risks current equality and employment legislation and would require clearer evidence that this is not the case.

Q2.

 

Again asking an individual whether they have a condition that impact on their ability to provide safe and effective care is potentially discriminatory and subjective. Who is to determine whether some conditions affect and some do not? Before I commence a career in care how would I know what ‘safe and effective care’ is and how would I be able to adequately determine whether any health condition negatively affects that? Although there will not be a ‘list’ we fear that over time such a ‘list’ will develop in practice.

Q3.

 

It is clear.

 

Q4.

 

Again whilst this is clear what are the boundaries of such alerting? If one is experiencing depression for instance after a bereavement is that something requiring an alert? If one breaks a leg in an incident, does that require an alert? Who determines whether or not a condition is being ‘managed’? and by whom? So therefore we are not clear about this requirement.

 

 

Q5/6.

 

We have especial concerns at the level of expectations being placed on employers.

 

At recruitment the employer is reliant upon an applicant fully disclosing a health condition and having knowledge of the extent to which it may impact on their ability to undertake a role. This places additional onus and pressure upon an employer and we are not clear what the consequences may be for the employer if a registrant fails to disclose all health issues. Equally we are not clear how requesting such information relates to the prohibitions on health related questions in the Equality Act and associated employment best practice.

What are the thresholds for medical capability for doing the job? An employer has responsibility for making reasonable adjustments to ensure somebody who may have additional workplace needs can enter and stay in an organisation. How does this relate to the proposed approach?

Competence: Q.7.

The process for telling SSSC about conduct issues is clear and unchanged and we welcome this. We are concerned that the Consultation has not fully described how conduct will relate in the future to fitness to practise especially as there is a stress on moving away from conduct approaches.

There is a reasonable clarity on the grounds where competence must be referred but employers would require reassurance that they are not exposing themselves to legal action by referring an individual to SSSC where an investigation has not commenced and where they (the employer) have not concluded any investigation and arrived at a decision re competence.

Q8/9.

 

Our members are extremely concerned at the level of scrutiny and requirements placed upon them as employers to make decisions about medical and health competency and at what points they are required to refer. We do not believe the follow chart and associated statements give sufficient guidance or details how approaches relate to current employment practice.

Q 10

 

This is clear.

 

 

Q11.

 

See above comments.

 

Q12.

 

We have considerable concerns over acting on the health of current employees as has been articulated above. Unfair dismissal on the grounds of medical capability could be catastrophic to an organisation both in terms of reputation and resource. This would automatically apply if a tribunal felt that procedural fairness was not followed or was compromised. Our members are very concerned that the vague, subjective nature of ‘fitness to practise’ compromises procedural fairness.

General comments

 

There are additional observations we would make:

 

Scottish Care represents many hundreds of providers many of whom are small and medium care enterprises who do not have in-house human resource staff or organisations. We are concerned that the changes towards a fitness to practise model will add a considerable amount of additional work and responsibility upon these already stretched organisations.

We are aware that were these new procedures to be introduced there would at the outset be a considerable amount of change to recruitment and management practices.

We would be like to know if there will be any assistance, e.g., by means of a helpline for employers or indeed workers struggling with fitness to practise issues. Some support mechanism would greatly assist both employers and workers especially in the early implementation of any changes.

 

Employers are very well aware of the time consuming nature of employment processes and of the imperative of timely action and intervention, (e.g. legal response following a disciplinary procedure) which are tight and must be adhered to (otherwise the process could be deemed procedurally unfair).  When you consider that dismissing on the grounds of medical capability is one of the most complex, lengthy and difficult of all HR activities, will ‘fitness to practise’ compromise a safe and fair decision being made?

 

We are very concerned about how current employment practice and legal requirements will relate to the fitness to practise model, especially in relation to employment law procedural fairness requirements. An employer is clearly and unequivocally responsible for employees and has to make decisions and are legally responsible for them.  Where does liability sit, with SSSC or with the employer in a ‘fitness to practise’ challenge? Our members are extremely uneasy about situations where their actions, whilst in accordance with Fitness to Practise procedures would be deemed to have acted against procedural fairness in employment terms. We need clarity on this as a matter of urgency.

 

 

In conclusion therefore, Scottish Care warmly welcomes the changes made to the vast majority of the Codes of Practice. We do, however, wish to convey our very real concerns about elements of the move to a ‘fitness to practise’ approach. These concerns have been detailed throughout the document. Moving forward we will be happy to work with colleagues to ensure the requirements of the Regulator are addressed in a manner which meets the concerns of employers and workers alike. The key consideration is to have in place Codes of Conduct that are fit for purpose, add protection to those who use services and can be readily understood and applied by those who have to use them.

 

 

January 2016.

Last Updated on 23rd January 2016 by Scottish Care