Purpose

This position statement outlines the importance of fit-for-purpose ethical commissioning principles and procedures to deliver systemic change for the independent care sector and ensure the long-term efficacy of the National Care Service (NCS).

Background

Within The Independent Review of Adult Social Care (the Feeley Report), Derek Feeley outlined ‘ethical commissioning’:

“An end to this emphasis on price and competition and to see the establishment of a more collaborative, participative and ethical commissioning framework for adult social care services and supports, squarely focused on achieving better outcomes for people using these services and improving the experience of the staff delivering them”.

It is approaching three years since the Feeley Report identified the pressing need for this wholesale revision, but as the NCS Bill progresses laboriously through the Scottish Parliament and the co-design process continues, key details on such change to commissioning procedures remain thin on the ground. All the while critical policy problems persist for the independent sector, which Scottish Care has identified under the following themes:

• • • Rights

The commissioning of care services must be underpinned by a commitment to uphold the human rights of service users, supported by the delivery of person led care and the inclusion of those with lived experience in decision making. The current absence of a shared human rights framework within social care commissioning procedures has contributed to an inconsistency in standards of rights-based care across services (both public and independent) and localities. This is compounded by the varied representation of lived experience within commissioning decision-making across Scottish localities. Lived experience representation acts as a critical insight to the efficacy of services in upholding human rights.

This situation burdens individual services to implement their own frameworks and/or analyse potential rights breaches on case-to-case basis, with varying degrees of success. A fragmented system in this regard creates a postcode lottery, where one’s ability to receive rights-based care, and lead its trajectory through a person-led approach, is impeded by their locality. This is a particular risk for minority groups.

• • • Respect

Fragmentation of the social care industry in Scotland across sectors and localities impedes the delivery of high-quality care. NCS plans to move local authority staff into care boards and retain a commissioner/commissioned relationship with other providers suggests a continuation of an adversarial way of working, without real appreciation of equality across all social care partners and health services. Without departing from this system of fragmented legislation, information sharing and regulation across single projects and/or localities, services are unable to engage in the shared work, founded on mutual respect and understanding, that is central to high quality care.

Not only is the co-production of quality services impeded by the lack of transparency between services, but also a lack of parity. The independent social care sector is competing with public care services and health services over a small pool of labour, with social care suffering significant workforce losses due to a lack of comparative working conditions. A deteriorating workforce leads to a deteriorating ability to deliver quality care, whilst a ‘brain drain’ weakens the foundations required for systemic change: experienced stakeholders to inform co-design processes.

• • • Redistribution

The systemic inequity brought about by current monopsonic commissioning arrangements requires a redistribution of responsibilities and associated funding. Money that is put into a Health and Social Care Partnership (HSCP) (see Public Bodies (Joint Working) (Scotland) Act 2014) for the purpose of tendering services should, in theory, become anonymised. However, in-house integration authorities are more likely to receive funding to deliver services owing to their proximity to HSCP stakeholders within their Integration Joint Boards. The imbalance of power for independent providers within this competitive commissioning model leads to a ‘race to the bottom’. Service delivery is based on short-term cost implications rather than a long-term approach where commissioning services is based on demand arising from the express desire of service users and their intended care outcomes.

Further prevalent is the symbiotic relationship between commissioning and procurement, where commissioning decisions are affected by procurement practice. The subsequent systemic undervaluation of social care and chronic underinvestment is at stark contrast to care’s foundational importance to Scotland’s economy. Public value is instead measured through arbitrary (often health system-oriented) measures such as relieving pressure on hospitals, delayed discharge rates, and quantifiable ‘packages’. This situation has been aggravated by a spiralling cost of living, pushing providers to edge of financial viability and driving the short-term approach of allocating a ‘time and task’ as a way of managing people and services, as opposed to a person led approach.

Ethical Commissioning Principles

Considering this context, Scottish Care’s ‘Ethical Commissioning and Procurement Project’ aims to support the implementation of much needed reform to commissioning within the NCS, on behalf the independent sector. Informed by the work to-date of the Scottish Government, and the above policy problems, Scottish Care presents the following draft ethical commissioning principles:

• • • Person-led care first

Control of over one’s care must rest with the individual. To achieve this, a new commissioning model is required that assigns services in keeping with the wishes of the autonomous services user, empowered to make an informed choice on their own wellbeing. For vulnerable groups, such empowerment is critical. Scottish Care stresses the importance of including ‘person-led care’ (rather than person centred) within later editions of the NCS Bill to underline the importance of this approach to commissioning procedures. Moreover, the development of culturally appropriate resources for service users must be supported through concrete provisions in the NCS Bill, rather than placing the onus on service providers.

• • • A human-rights approach

Just as social care services must be underpinned by a human rights approach, so too must the process of commissioning them. A shared framework for commissioning agencies is required to promote the individual rights of services users through jointly determined outcomes when making commissioning decisions. With a comprehensive model of rights-based care being a pre-requisite to enter into a formal commissioning agreement, formal accountability is shared between the commissioning organisation and the service provider, with shared interest in maintaining the agreement.

• • • Full involvement of people with lived experience

Scottish Care advocates for lived experience representatives (both those delivering and/or receiving care) to play a central role in commissioning decisions through a mandated presence on care boards. Efforts should also be made to support the contributions of these representatives, though measures such as training, financial support, and modifying the schema for decision making to place greater value on the personal testimony that those with lived experience of care provide.

• • • Fair working practices

There is no ethical commissioning without ethical working practices for those delivering care. Both the Feeley Report and Stage One of the NCS Bill emphasise fair work and training opportunities to strengthen services being commissioned under the NCS. This sustainability is vital to avoiding any implementation gap. As an immediate priority and prior to the introduction of the NCS, Scottish Care calls for improved terms and conditions for independent care staff through a dynamic and transparent system that caters to everchanging local demand for a care workforce. To ensure the longevity of such progress, there must be a statutory obligation for care boards (and other decision-making bodies) to include workforce representation.

• • • High quality care

An integrated landscape that includes independent sector providers is central to high quality care. Through a partnership approach, service design must prioritise relational working where hierarchies are removed, and focus is placed on identifying and providing the most appropriate (asset based) support together. To achieve this shared decision making, a culture of openness, innovation and shared responsibility is required, ‘letting go’ of traditional ideas of roles, control, and power, and moving beyond notions of trust towards mutual respect. Throughout the project, Scottish Care will be examining a variety of measures to achieve this shift, including but not limited to the use of technology, information sharing schemes, shared assessment frameworks, and shared learning opportunities.

• • • Climate and circular economy considerations

If the NCS intends to be a system for the future it needs to consider climate change. As the Scottish Government pledges to be a net-zero nation by 2045, the efforts of the independent social care sector to support sustainability efforts must be balanced with the risk of further burdening the sector. This balance can be supported by ethical commissioning procedures. Scottish Care calls for a range of measures to incorporate this net zero vision and other sustainable policy actions, whilst upholding the independent sector’s ability to deliver quality, person led care in a changing climate.

• • • Financial transparency, sustainable pricing and commercial viability

New ethical commissioning procedures present an opportunity to cement permanent reform that supports the sector’s sustainability and commercial viability. Scottish Care proposes the development of new measures to determine the progress of commissioned services, basing funding on robust and cross cutting indicators centred around early interventions that prevent or delay the development of care needs and reduce pre-existing care needs. Such measures provide a more equal footing in the market for independent service providers to bid for commissioned services and to maintain the sustainable pricing of these services. Scottish Care however notes that the implementation of such significant reform is impeded by the present financial position of the sector. Urgent short-term investment to required ameliorate funding shortfalls and ensure sustainability as reform progresses.

• • • Shared accountability

To avoid piecemeal implementation of ethical commissioning procedures and to maintain a clear sense of the reform’s purpose, responsibility over the performance of commissioned services must be clearly articulated. Scottish Care will be investigating the potential role of key agencies within the commissioning process, including the proposed NCS care boards, the pre-existing Integration Joint Boards, and the Care Inspectorate. Involved parties must be accountable to a shared national framework with a hallmark of non-negotiable conditions, whilst maintaining the flexibility to provide local solutions to the unique demands for care across Scotland.

Next Steps

Scottish Care notes the scale of work that the independent sector has done to-date to improve service delivery, in keeping with the principles raised above.

As part of our ‘Ethical Commissioning and Procurement Project’, we are committed to widespread consultation with our members to gather insights on these efforts, identifying effective models for commissioning services that can be scaled-up towards a national framework that truly supports the independent sector.

To get involved in this project, or for further information, please contact Fraser Smith, Policy Lead (Ethical Commissioning), [email protected].