As a membership body, our view of an issue is a strategic view, informed by our members.
We find a number of ways to get that view across: responding to consultations and calls for evidence; briefings to MSPs; event reports and publications based on our own work.
INDEPENDENT REVIEW OF MENTAL HEALTH LAW IN SCOTLAND
Submission from Social Work Scotland to John Scott QC
29 May 2020
Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services.
Social Work Scotland appreciated the time taken by the Secretariat for the review to meet with the Social Work Scotland Mental Health group in February 2020, and offers this response to the discussion questions set out in Part B of the consultation paper.
PART B Organisations or individuals who work with the law
The Review would like you to draw on your experience of working with Mental Health law and consider the following questions. You do not need to answer all of the questions, and please feel free to provide as much or as little evidence for your answers as you wish.
Reciprocity and resourcing
Social Work Scotland’s experience is that while the Mental Health (Care and Treatment)(Scotland) Act 2003 is progressive in its approach regarding reciprocity, it is not in any way sufficiently funded for this to be realised in practice. We find that the principle of compulsion remains as the dominant culture, centred on clinical care planning such as medication and nursing care. The wider interests and ambitions of active citizens are largely absent from care plans.
The Review should consider general trends in the use of legislation, particularly measures of last resort. We are concerned about an increase use of emergency and short term detentions.
While short-term detentions are the preferred method of detaining a person in hospital, the increase in their use strongly indicates that the level of support available in the community is not sufficient, and we wonder if partnerships are fully cognisant of their duties with regards to community provision.
Seeing an increased use of legislative measures, we are concerned that austerity is impacting on how the act is used, particularly in relation to thresholds of risk. We are pleased that the Review is incorporating an economic perspective as we believe that this is central to understanding how the current Act is being used and the impact on people subject to legislation. Given our concerns regarding adequacy of resources to meet needs, we hope that the Review can also seek to instigate a review of mental health support services.
There is much in the current Act that is facilitative and reciprocal, e.g. duties under section 25 – 27, but these are rarely central to the provision of support. These duties require local authorities to minimise the effect of mental illness by the provision of community-based support services. The most well used provision in this duty is the provision of advocacy, but the Act allows for a much greater range of provision. However, mounting budget constraints have resulted in only critical services being provided. We also note the limited use of Self-directed Support options for people experiencing mental illness.
We draw the review’s attention to our response to the recent Social Care Inquiry which argues for early supports for people with fragile mental health, including the use of asset-based approaches, such as CPA, and a rethink of the current system of eligibility criteria.
Despite being a duty in the Act, a lack of person-focussed assessment and well executed discharge planning results in people whose mental health has been stabilised being discharged into circumstances unconducive to their continued mental wellbeing, such as poor living conditions where there is no heating and no furniture, and an absence of social supports. Consequently, other legislative duties are not met, for example the involvement of carers in discharge planning under the Carers (Scotland) Act 2016. Whilst we accept that MHOs need to exert challenge, there is too widespread a disregard of section 25 – 27 duties by partnerships and local authorities to argue effectively.
We note that there is improvement in the use and standard of Advanced Statements, but members also find resistance to their use on some areas. Often discharges are made without the MHO being contacted by the hospital. The reality is that there is often poor collaborative partnership working, especially when resources are constrained.
We welcome the Review’s systemic approach. Seventeen years on, the 2003 Act requires to be reviewed against a range of system-wide factors including the extent to which integration of health and social care has fulfilled its intended outcomes. One recent review cites wide-ranging systemic failures resulting in poor outcomes for people.
It is not always clear to which part of the integrated system is delegated the local authority duties under sections 25 – 27 of the Act. We are concerned that integration authorities are not sufficiently sighted on this aspect of the Act, instead focusing largely on the provision of clinical services.
Considerable variation exists across Scotland in how mental health and social care services are delivered to people and their carers. We are interested in understanding the degree to which this variation is warranted by local circumstances and need, and to determine how unacceptable variation can be diminished in a way that respects local democracy.
We greatly welcome the Review’s focus on human rights, and believe that this is the touchstone through which we can determine efficacy of approach.
Pressures on key professional groups
Social Work Scotland published a paper in 2017 on the capacity, challenges, opportunities and achievements of Mental Health Officers. Whilst now three-years old, the experiences and findings of the research remain relevant in 2020.
With cumulative work pressure on MHOs, priority is given to the preparation of Community Treatment Orders, and use of Social Circumstance Reports (section 231) has largely been overlooked.
With people’s needs, other than critical need, being unmet, detention is considered more frequently than it should. As officers of local authorities within partnership arrangements, MHOs are not sufficiently empowered to bring to bear their powers over the provision of assessed need. MHOs need access to community resources and good quality social supports, where people are offered choice and control.
We are concerned about the critical shortage of section 22 medical professionals, knowing that there are fewer medical trainees in the system than are required. We believe that medical decision should be made after face to face assessment of patients, but aware that due to staffing constraints, this is not always the case. We note that the Tayside Independent Review report was explicit in finding that a shortage of Registered Medical Officers impacted detrimentally on the patient’s journey.
Best practice in planning hospital admission fails because there is limited inpatient bed capacity. Threshold for admission is high, with people at crisis before they are admitted.
The practice of ‘boarding out’ results in some people refusing to be admitted voluntarily. Consequently, people may be detained and admitted to hospitals some distance away from their families and communities. When guardianship is pending, compulsion can be used to place the person in a nursing home. In this context we question how supported decision making is being used or how the best interests and human rights of people can be respected.
We are concerned about the use of Emergency Detention Certificates without MHO consents. In general hospitals the Act can be used to stop people absconding, with EDCs made before MHOs are contacted.
We find that inpatient services remain clinical in focus and are not set up to support the whole person. Use of the Care Programme Approach has been pulled back in many areas.
As noted above, partnership focus on inpatient bed pressures results in a lack of attention to early intervention and prevention at a community level.
There is a problem accessing some specialist resources, i.e learning disability in some areas of Scotland. Social Work Scotland members have noted waiting list for detentions in learning disability services, and for people who need specialist learning disability mental health services. Wards and beds are being shut, putting additional pressures on Community Mental Health Teams and MHOs. We have been told that some MHOs have been required to use Adult Support and Protection measures to force decisions about detention.
Tribunals and legal supports
Challenges from MHOs do not always land well with medical colleagues or with tribunal members, and we think this is indicative of a wider issue regarding relative weight of professional knowledge in decision making, with a higher status being afforded to medical views. It is standard practice in tribunals to excuse medical colleagues due to pressure of work in a way that others are not.
We find that tribunals are less likely to take radical decisions that support the spirit of the legislation. Proactively, tribunals could more rigorously examine deficits in the system that might have prevented unwanted outcomes. To this end, the Review might consider allowing tribunals a wider range of interrogative powers.
Tribunals might better take the perspective of the person and their carers from an early stage in proceedings (rather than at the end of the proceeding as is currently the case), and from this standpoint, inquire into all aspects of the treatment and care plans. This would ward against pathologising the person, and marry up better with supported decision making.
We wonder if a representative other than a curator ad litem would be better able to reflect a wider overview of the person’s circumstances and views.
The place of the legal profession is confusing under current arrangements. Where a legal professional is appointed as curator, that professional can also act as the person’s solicitor. This could give rise to conflicts of interest, and we recommend tightening of tribunal authority.
In general, we think that tribunal regulations need to be broadened with respect to compelling professionals and organisations to act in the best interests of the person.
There are several populations whose needs are not well served by the Act as it stands.
These include people who have recurring mental illness and in some instances people with multiple conditions, like learning disability and mental health. Welfare reform has had a notable adverse effect on mental health, with those in poverty experiencing a worsening of their mental health.
Services are not well geared to cope with the needs of people with different ethnic backgrounds, e.g. South Asian, Eastern European. The system lacks cultural awareness, with lack of timely translation of information materials/documents. Frequently, family members are called on to translate at meetings, and may project their own meaning on what is being communicated. Where translation services are commissioned, in some cases, their quality is questionable. We consider there should be a national minimum standard set for such services.
Children and young people are not well served by existing legislation and systems. There is an inconsistency of approach across CAMHS services and legislation is not always used when appropriate despite young people being significantly unwell. There may be an argument that use of legislation does not align with a therapeutic relationship, but legislation could be used more effectively in some cases.
There needs to be a recognition that CAMHS facilities are not sufficient to allow short periods of inpatient treatment that can improve prognosis. There are insufficient beds available for young people, and inpatient provision is not geared to cope with young people with behavioural challenge. There are at times inappropriate placement made of young people in adult wards. A much greater awareness and use of trauma informed approaches is required for all age groups, but especially crucial for children and young people.
Social Work Scotland is involved in the development of the national secure adolescent inpatient service in Ayrshire scheduled to start build in 2021. This resource will support a national network of clinicians providing more streamlined care pathways and management of some CAMHS referrals. However, this development will not address neurodevelopment disorders, learning disability and autism.
The current legislation does not work well for people with fluctuating capacity who fall between the various pieces of legislation. The person may be neglecting themselves, or displaying antisocial community behaviours, and could be using alcohol or substances. Obtaining medical evidence for lack of capacity is a problem if the person has capacity on their ‘good days’. We find that very few guardianship orders are tailored appropriately, tending to a shopping list of actions.
Of the five legal tests, there is no test for significantly impaired decision making (SIDM), which relies on the judgement of the clinician and MHO.
It is hard to argue against necessity when there is no community alternative available due to under-resourcing. This leads to detention that cause significant trauma for the person when a community alternative could ameliorate trauma.
As there are limited drug treatments for people with personality disorder, treatment protocol involves consistent care management plan for all professionals (including A&E) and family, with no deviation (so as to avoid use of manipulation by the person). Such protocols are very staff intensive and require highly effective and timely information sharing, and our experience is that they can break down readily due to lack of resourcing.
Some of regulation around specified persons has not kept pace of rapid expansion of digital platforms and social media. The legislation as it stands does not give the legal protection that should be afforded to restricting access to digital technologies.
The Act requires a local authority to provide services for people with a mental disorder who are not in hospital, which should be designed to minimise the effect of mental disorder on people and enable them to live as full a life as possible (sections 25 and 26 of the Act).
We do not consider that this requirement is met, and would argue for a greater focus on recovery. Medical provision in communities is overstretched and there are not enough students entering medical training.
Appointment scheduling is not supportive of community treatment for those on a CTO who are not taking depo medications. Section 112 (6 hour detention) can be used to support compliance and to assess and treat. We believe that this section is not being used effectively by community consultants. There is a tendency to wait too long, the person then goes into crisis, then a longer period of detention is required. This is not timely and not proportionate.
We hold that legislation should have a greater focus on human rights, linked to the well-intentioned principle of reciprocity. As we noted earlier in our response, it proves difficult if not impossible for frontline staff to exert influence on authorities due to budget constraints and competing demands of stakeholders. We would want to see greater understanding and focus on the well-established social determinants of health model, which takes a public health perspective on inequalities and human needs.
We agree that the law could and should support the rights and dignity of people with mental health needs. There has been a lack of progress in implementing short term fixes to Adults With Incapacity legislation, which we find disrespect of people’s rights.
Social Work Scotland supports the use of a short-term placement order, allowing the person to be removed to a place of safety until an urgent guardianship application could be progressed.
Lack of progress has led to unnecessary deprivation of liberty and unnecessary use of mental health legislation as only viable solution to what is a social issue. For example, a person with dementia may leave their home unaware of their safety, leaving their front door open. Adults With Incapacity legislation has no emergency provision for intervention in this case. Adult Support and Protection legislation may apply, but measures may not be appropriate, leaving the only available solution to have the person detained/admitted to hospital.
The three pieces of current legislation stand alone, lack effective overlap and do not align. It is not uncommon for people subject to mental health legislation also to be subject to adults with incapacity and adult support and protection legislation. We recommend that the Review considers streamlining and consolidating legislation.
Whilst we look with interest to the implementation of the Northern Irish approach to fused legislation, Social Work Scotland would support the development of pieces of discrete but well-aligned legislation.
The Adult Support and Protection (Scotland) Act (ASPA) is the safety net between adults with incapacity and mental health legislation but it does not give local authorities the power to protect particularly vulnerable people from the actions of others, for example when the person lives alone and is preyed upon by others.
ASPA does not interface effectively with other legislation. It is much wider in its scope that the MHA, and can be used as a triage mechanism for mental health legislation. We believe that if ASPA were better resourced, there would be a reduced requirement for Adults with Incapacity legislation and mental health legislation. ASPA provides the basis for effective risk management and a route to collective decision making. ASP inspections were largely positive in terms of informal partnership working.
AWI timescales currently allow for extensive periods of delay for private applicants to get powers in place, with no limit to how long private solicitors take. Legal Aid is an added issue. Although it is an entitlement, it can impact on the priority given by private solicitors.
There requires to be robust quality assurance in place for private guardianships. We see poor quality guardianships, consisting of copy and paste paragraphs, which are not personalised. Consideration could be given as to how support other agencies (third sector) to facilitate process.
Whilst we agree that powers for life should not be adopted for people whose condition is likely to change, but believe that courts could make indefinite orders in some case where the person is in later life with a lifelong condition.
In many instances, the problem is not in the fundamental legislation, but the way it is currently being used.
Social Work Scotland welcomes the move by the Scottish Government to make Powers of Attorney more straightforward.
The existing MHO contingent across Scotland is very committed and well-trained. However, as noted earlier in this response, the current funded complement of MHOs is not sufficient to work proactively in the mental health system. Scottish Government is currently providing funding to train up more MHOs where the shortages are most acute across Scotland, and we await progress with this initiative. There should be consideration of the model of MHO delivery across Scotland to ensure that MHOs are used to their best ability in statutory work, and there is a linked requirement to improve the availability of community resources to ensure that people do not reach crisis unnecessarily.
We have noted the shortage of trained medical professionals, but we also note that there are challenges in the demands on carers and on advocacy services. We consider that the lack of suitably trained professionals across the whole system is likely to impact on the success of more progressive mental health legislation, as will the lack of community resources. We feel strongly that the Review should look to implementation science to determine what it would take to deliver systemic progressive mental health policy across Scotland.
Social Work Scotland welcomes the human rights-based approach to the Review, but consideration must be given as to how this can be implemented in practice within a resource framework. Considerations should include: a strengthened duty on professionals to adhere to codes of practice for tribunals; consideration of means by which consistency of good practice can be met by solicitors acting in private applications for guardianships; consideration of a more defined test for incapacity; consideration to widening the professional groups who can attest to capacity to include psychologists, MHOs and social workers.
Social Work Scotland’s response to the learning disability and autism review supports the view that learning disability and mental health legislation should diverge. Consistency of approach is needed if the Review is considering merging legislation.
We suggest that consideration could be given to a singularlised suite of human-rights-based legislation in linked subsections, dealt with by one legal entity, incorporating the wider duties in relation to social support. The benefits of this approach would need to be measured against the disruption of extensive legislation change and consideration of its practical implementation and application.
Response to the Scottish Sentencing Council consultation on sentencing young people
Submission from Social Work Scotland to the Scottish Sentencing Council consultation on sentencing young people
Social Work Scotland is the professional body for social work leaders and managers, working closely with partners in all sectors to shape policy and practice, with a view to continuously improving the quality and experience of social services in Scotland. We welcome this opportunity to comment on the proposed sentencing guidelines for young people.
Q1. Do you agree or disagree that a principle-based approach to the guideline is the right approach?
Agree. For the reasons set out in the consultation paper. The value of a sentencing guideline for young people is the opportunity it presents to emphasise the relevant developmental and contextual factors which should be taken into account when sentences are considered. Those developmental and contextual factors apply in all circumstances, regardless of the type of offence, so it makes sense to utilise a principle-based approach.
Q2. Do you agree or disagree that the guideline should apply to people under the age of 25?
Agree. If there was an option, our response would be ‘strongly agree’. The consultation paper summarises well the breadth and weight of evidence in support of an expansive definition of ‘young person’, including all those under the age of 25. Scotland’s criminal justice system must reflect the best available evidence about why people commit offences, and what measures are effective in deterring such behaviour in the future. If our central objective remains securing justice for victims through appropriate sentencing, we are failing victims, the individuals involved in offending and society at large, if we demand ineffective measures of punishment (which for most children and young people includes incarceration).
The age of 25 is also consistent with Scottish law for children in care, which recognises the evolving capacity of young people, and their continued need for assistance and supportive relationships well into adulthood.
Indeed we hope that future guidelines will make clear that for everyone, capacity is an evolving, unfixed thing, determined by a range of factors. Although we can accept that an age bracket be applied in this instance, our hope is that this ‘threshold’ will not actually mean much, as in all instances courts will give detailed and careful consideration to an individual’s capacity, regardless of their age. Specific guidelines for young people are welcome in that they will cement such considerations into practice for cases involving under 25 year olds, but such practice should be standard in all cases.
We can also accept the restriction of the guidelines to those individuals who are young at the time of sentencing, for the reasons given in the consultation paper. However, this detail underlines the importance – albeit outwith the Scottish Sentencing Council’s purview – of ensuring the process from charge to trial is swift and efficient. It would be palpably unfair (and potential open to appeal) for an individual to potentially receive, for the same offence, materially different kinds of sentence at two different points in time, determined purely on the basis of whether the individual is considered a ‘young person’ or ‘adult’ at the time of sentencing.
Q3. If you disagree that the guideline should apply to people under the age of 25, at what age should the guideline cease to apply?
Q4. Do you agree or disagree that the relationship between this guideline and the ‘Principles and purposes of sentencing’ guideline is set out clearly?
Agree. The proposal to make direct links between the two documents, allowing this guideline to be kept brief, seems sensible.
Q5. Do you agree or disagree that paragraph 7 of the guideline gives enough information about the factors that should be taken into account when sentencing a young person?
Disagree. While we welcome the Sentencing Council’s efforts to keep the guidelines brief and concise, we feel an opportunity may be missed (perhaps in the form of an annex or appendix) to set out, in more detail, the types of factors which should be taken into account. For example, the guideline could highlight the higher incidence of mental health issues among young people involved in offending, or the impact of abuse, neglect and loss. There is no explicit mention of the relevance of care experience, and perhaps more importantly, how this should be considered.
Ideally the proposed level of information in the guideline would be sufficient, prompting further inquiry and investigation into the evidence underpinning it. However, remaining aware of the pressures judges are under, a guideline which itself provides a clear introduction to these factors may be necessary.
For comparison, the ‘Welfare’ section of the Sentencing Council’s Sentencing Children and Young People Guideline provides significantly more detail on the factors which the court should consider when determining a sentence.
Q6. If you do not agree that paragraph 7 of the guideline gives enough information about the factors that should be taken into account when sentencing a young person, what additional information should it provide?
Provided answer in response to question 5.
Q7. Do you agree or disagree that rehabilitation should be given greater emphasis than other purposes of sentencing in this guideline?
Agree. Rehabilitation is rightly described as the primary consideration, and we welcome the fact that the guideline clearly frames the purpose of sentencing as the identification of a disposal most likely to reduce the risk of reoffending. As the evidence summarised in the consultation paper suggests, this should encourage decisions which seek to address the young person’s needs, rather than punish their actions.
Q8. Do you agree or disagree that rehabilitation should be a primary consideration when sentencing a young person?
Agree. Reasons given in response to question 7.
Q9. Which, if any, other purposes of sentencing should be emphasised in this guideline?
In light of the fact that 50% of respondents thought that protecting the public was the most important purpose of sentencing in general, it may be worthwhile to include a paragraph in the guideline explaining how a focus on effective rehabilitation of young people contributes to public safety, through reductions in recidivism, reduced inequality, etc.
Q10. Is the section on the assessment of seriousness helpful?
Disagree. A section on assessing seriousness is necessary and has the potential to be very helpful in securing the objectives of this guideline, however the current two paragraphs provide little information on why a young person’s maturity will be generally lower than that of an older person. This being a guideline covering individuals widely considered ‘adults’ by society, it is important that relevant opportunities are taken (in the guideline) to explain about an individual’s ‘evolving capacity’, and the now scientifically evidenced distinctions between young adult’s neurobiology and that of older adults.
Although it is acknowledged that readers are encouraged to read the guideline ‘The Sentencing Process’ (para 11), the ‘assessment of seriousness’ section’s utility may be improved by providing a few additional paragraphs on the factors which should be considered when assessing culpability, as well as providing some indication of how maturity should be determined by the court. In respect of the latter process, in our opinion this would be difficult through a court process alone, and will likely depend on external, expert assessments, provided to the judge via reports, etc.
Q11. Do you agree or disagree that paragraph 13 of the guideline identifies the information which is of most relevance to sentencing a young person?
Disagree. As the guideline itself says, the four bullet points of paragraph 13 are provided ‘for example’, and should not be considered the totality of relevant information. Each young person is unique, and the guideline should stress that a judge should seek to secure whatever contextual and background information they require in order to identify an appropriate sentence (the primary purpose of which is rehabilitation).
With the existing bullet points, we would also recommend some re-working. Our suggestions below:
Q12. Do you agree or disagree with paragraph 14 of the guideline stating that cases should be referred to a children’s hearing for advice where it is competent to do so?
Q13. Do you agree or disagree with the proposed features of an appropriate sentence for a young person set out at paragraph 15 of the guideline?
Agree. However, would recommend some re-ordering and re-wording, to help achieve the guidelines objectives. The ordering and wording of lists such as this play a significant part in ‘framing’ people and issues in reader’s minds, and so it is important careful attention is given to the impression such a list gives.
For example, starting with ‘Increase the likelihood of aiding the reintegration of the young person into society’ suggests to the reader that the individual concerned is not integrated into society, and is therefore somehow ‘apart from it’. This is not a helpful framing to place around young people who offend, many of whom may be firmly part of their society /community. A judges’ consideration of what is an appropriate sentence may differ for someone they feel is part of society, and for someone who sits ‘outside’ of society.
Similarly, the last bullet point, ‘Assist in developing or maintaining positive connections between the young person and society’, again implies that the young person is somehow separate to the society of which they are part. Some careful rewording could convey the message without inadvertently suggesting things about the young person / young people. We would recommend placing ‘Address the underlying causes of offending behaviour’ as the first bullet point, as from the perspective of rehabilitation being the primary purpose of sentencing, this feature seems of primary importance.
In respect of paragraph 16, the guideline states that the judge should clearly explain the sentence of the young person, to increase the likelihood of the sentence being effective. However, the clarity of the explanation is not, in itself, what is going to make a difference. Rather it is the quality of the young person’s understanding. Therefore we would recommend amending this paragraph so that it encourages judges to make sure the young person has clearly understood the reasons for, and the aims of, of the sentence. Depending on the individual’s maturity and communication needs, that may require external (to the judge / court) support.
Q14. Do you agree or disagree that the approach set out in paragraphs 17 and 18 of the guideline is appropriate?
Q15. Do you agree or disagree that judges should consider remitting each case to a children’s hearing for disposal, where it is competent to do so?
Agree. Judges should give this option consideration, where it is competent to do so, helping to ensure that young people’s actions and needs are considered through a welfare lens, with suitably tailored responses / interventions.
Q16. Do you think the guideline will influence sentencing practice in Scotland?
We welcome the introduction of the guideline (and accompanying guidelines), representing as it does, in our view, an important component in the broad effort to ensure the best available evidence and knowledge underpins our justice system. Although we appreciate the document is only a guideline, it provides those operating within and alongside the justice system with clarity about how (and on what basis) the system should operate. Not only should it encourage deeper engagement with the evidence about young people’s offending and rehabilitation, it should also, helpfully, provide for greater consistency and a constructive framing around judges’ decision making.
In assessing whether the guideline has influenced sentencing practice, we encourage the Sentencing Council to consider a formal evaluation, perhaps combining data already collected by the Scottish Courts and Tribunal Service (on disposals, etc.) with some qualitative element capturing the experiences of young people involved in sentencing.
Q17. Do you agree or disagree that the guideline will increase public understanding of how sentencing decisions in respect of young people are made?
Agree that the guideline has the potential to increase public understanding. In itself the guideline does not provide much information to the casual reader, but with some modifications (such as those recommended in our previous answers) and clear links through to the underlying evidence base, it could make a really valuable contribution.
Considering the public’s interest in offending by children and young people, the guideline is certainly likely to illicit some attention and public debate. We hope that such an opportunity to improve public understanding is not missed.
Q18. Do you agree or disagree that the guideline will increase public confidence in the sentencing of young people?
Do not know. We suspect that in some parts of society the guideline is likely to diminish public confidence in sentencing of young people; particularly with the definition of young people extending to 25 years old. In the view of some in the public, crime should be met by punishment, and a focus on rehabilitation is to pander to offenders and disregard victims.
Often this narrative extends to children and young people, about whom it is argued that, if they are hold enough to commit certain crimes, they are old enough to take responsibility for them (by which they mean adult, custodial sentences). However, while public confidence in the justice system (and sentencing as a key part of that) is absolutely critical, the role of the Scottish Sentencing Council is to support judges to make the best decisions with a view to securing justice. That involves marshalling evidence which shows that ‘punishment’ (often crudely associated with custodial sentences) is often ineffective in changing behaviour, reducing public risk, etc. Other parts of the public, focused on a securing a justice system which reduces crime and increases public safety, will welcome an evidence
Q19. Do you agree or disagree with the assessment of the specific, identified impacts
Disagree. The impact assessment, understandably, focuses on the impacts within the justice system. There are mentions of the impact on social work, but the conclusion is always that these will be minimal. We have welcomed engagement by the Scottish Sentencing Council to date, seeking to understand the likely impact on social work, but do not feel this has gone far enough to properly articulate the issues local authorities and others may face. For example, in respect to paragraph 50 of the assessment, it states that:
However, local authority resourcing of social work is not as simple as this implies. Justice Social Work funding is, to a significant degree, provided by Scottish Government and ring-fenced for specific purposes. While some local authorities do augment this allocation, not all do. And ring-fenced funding cannot simply moved around between departments.
Similarly, while we agree that a relatively small percentage increase in compulsory supervision orders is unlikely to provoke any long-term structural issues (as noted in paragraph 51 of the impact assessment), the fact of short term resource impact should not be summarily skipped over. Children and families social work, like all social work, is under significant resource pressures, with services being reduced and capacity constrained. At the same time, expectations (particularly through recent legislative measures) are increasing the demand on social work team s in general, and on social workers’ time specifically.
These issues apply equally to paragraph 58 of the impact statement, where it notes that “social work departments may incur additional costs over the short term if the information requested by courts is expanded to include an assessment of maturity”. Our hope and expectation is that, in implementing this guideline, courts will have to request more input from social work. This would be welcome, in the interests of providing the judge with a broad assessment of maturity and therefore culpability. But there will still be an impact, and while after a few years the system will have realigned itself in order to accommodate the demand, over those initial years there will be work in addition to (rather than instead of) current activity. Individuals and teams will either have to absorb this, or other activity will have to be reduced. In planning for the introduction of the guideline, stakeholders should try to better identify the likely impact, and put in place measures to facilitate the transition over the next few years.
But perhaps most significantly, and missing entirely in the impact assessment, is consideration of the additional costs to the system of managing non-custodial disposals for young people with very serious care needs. Such disposals will, in the majority of cases, be the more effective option (in terms of securing rehabilitation), but only if the wider system has the capacity / resources to meet those needs. The care and risk management of young people who may have caused serious harm, but who are simultaneously at risk of harm to themselves and from others, requires teams of highly skilled professionals, working in integrated teams. As the principles underpinning such an approach are better aligned to the available evidence, and the outcomes from it (in respect of recidivism, etc.) superior to
We appreciate these issues are not in the purview of the Sentencing Council directly, but the impact statement should still attempt to quantify or illustrate the expected impact on key related services like social work. That work will help facilitate discussions among relevant other parties, such as Scottish Government and local authorities.
Q20. What benefits do you think will come from the introduction of this guideline, if any?
Primarily, the broadening out and cementing of current judicial best practice, with full and proper consideration given to the young person’s background, context, characteristics and needs when determining sentences. This is likely to require the increased involvement of a range of professionals in the work of the court, providing assessments and expertise.
Q21. What costs (financial or otherwise) do you think will come from the introduction of this guideline, if any?
As noted in our answer to question 19, we believe the impact assessment has underestimated the costs involved. In too many instances, in the absence of hard data, the likely financial and human impact is marginalised as ‘short-term’. This should be readdressed, with a deeper examination of impact undertaken.
However, we reassert our opinion that the additional costs so far identified are welcome, in so much as they represent a move in our justice system towards a more evidence-based, welfare-orientated model.
Q22. Would you like to make any other comments about any matter arising from this consultation?
Feedback from Social Work Scotland members noted:
For further information, please do not hesitate to contact:
Covid-19 Workforce Plan Discussion Paper
COVID-19 WORKFORCE PLANNING FOR THE HEALTH AND SOCIAL CARE WORKFORCE IN SCOTLAND – MAY 2020
SUBMISSION FROM SOCIAL WORK SCOTLAND TO SCOTTISH GOVERNMENT
26 May 2020
We agree that workforce planning in the light of Covid19 must separately consider the immediate, medium term, and long term contexts and objectives. (para 7i). In Annex A, these are described as Respond, Recover, Renew.
Scotland and the rest of the UK is not yet at the end of the Respond period. While there is evidence that social distancing and lockdown has reduced the virus transmission rate, there are still new cases and fatalities especially in care homes and the community. A cautious and phased approach to lockdown remains essential but, despite improvements, this will be hampered by the insufficient supply of PPE for all who need it, by the current limitations on the volume of “test-trace-isolate” initiatives in the health and social care sectors.
Providing adequate support to NHS, care homes, home care, mental health, domestic abuse, financial support, food banks, volunteer coordination, and other essential services must remain the top priority of the Government, the public sector, and society.
It is not obvious how changing the Workforce Plan at national level can assist that work at local level. Rather we all need to learn from what has been done well and what hasn’t in the response so far to the virus.
Apart from the shortage of PPE and testing, lessons need to be learnt from discharging untested patients from hospital to care homes because they were considered “medically fit for discharge”, and its contribution to the high rate of death from Covid-19 in care homes. Lessons also need to be learnt from the failure of the NHS to meet normal demand while freeing bed capacity for Covid-19. Some of the excess mortality in this period will be due to cancelled diagnosis and treatment for people with cancer, heart disease or other life-threatening conditions. In both these cases, the lesson is that too narrow an understanding of “Protect the NHS” costs lives as well as saving others.
Health and social care integration requires both parts to be considered equally. While the current Integrated Health and Social Care Work Plan is a significant step forward, it is noteworthy that there are far fewer specific commitments relating to social care than health, despite the fact that their workforces are of broadly similar size.
We consider that additional resource is most likely to be required across mental health services for all ages, and across social care. The independent sector will require to adjust to the impact of Covid-19, and this will impact on capacity at local level and the support required from councils and partnerships.
We think it is too early to make significant changes to the Workforce Plan for the longer term, as the “Renew” landscape will be not yet clear. There is growing support in Scotland for a fundamental review of social care, including funding and care models, and that is something Social Work Scotland welcomes and will support.
There are some critical key questions whose answer will form the main parameters of the next phase:
The current Workforce Plan commitments were based on meeting identified needs, which have not gone away. The question now is whether there are more important Covid19-related priorities for the resources allocated to these commitments; if so, then the commitments should be deferred. We are sure that all stakeholders, especially Integration Authorities, Councils, and the NHS will already be acting pragmatically. Covid-related priorities must include restoring essential health and social care services for people on waiting lists whose diagnostic tests, assessments, treatments or support have been deferred, and for people who have not been referred not come forward because of current Covid19 priorities.
See the points made about information under questions (4) and (6).
Urgent consideration needs to be given to increasing the flexibility of the workforce to operate across health and social care sectors, and public and independent sectors, understanding that this will require regard to terms and conditions, training and professional registration.
The voice of people who use services should underpin assumptions about workforce demand across the system. The usual pattern of care delivery has been temporarily altered to a significant extent, as some partnerships have sought to reduce their volume of service delivery, some have restricted flexibility and some have increased personalisation. Some people have opted of their own accord to temporarily reduce their reliance on directly funded social care, due to risk of contracting Covid-19, others have been approached by partnerships requesting to reduce their POC, others have changed their Self-directed Support option in order to find the model of support that best suits them at this time. Preferences In short, their experiences are significantly different to what they were prior to the pandemic.
The experience and needs of the Personal Assistant workforce should be drawn out, as they are a small but crucial sector in the delivery of personalised social care.
Local governance arrangements require to be strengthened and closely aligned with national workforce priorities. The statutory role of social work needs to be accommodated in national and local workforce planning.
Lessons learned from the pandemic about effective use of flexible working, home and remote working, and the use of digital meeting platforms should be incorporated.
The role of the Scottish Government here is to support, with information, guidance, and resources, the relevant public bodies at local level. Many aspects of the current Workforce Plan will remain: we need to continue all the actions that ensure we have a well-trained, educated, and supported workforce at sufficient volumes to provide the services society requires.
We envisage the need for short-, medium-, and longer-term plans based on current knowledge and insight. As new service models emerge, based on changed requirements, and ideally evidence of “what works”, then the Plan can change accordingly. The possibility of further lockdown needs to be incorporated into planning assumptions.
New models of community supports need to be sustained to ameliorate the requirement for directly provided care, for example renewed consideration could be given to a Buurtzorg model of community support, and from the early adoption of Community-led Hubs (Health Improvement Scotland).~
One specific commitment needs some attention in any event. The first bullet in para 5 of the Discussion Document states you will “As a baseline, look again at the modelling and financial assumptions set out in the integrated workforce plan published at the end of 2019”.
This is welcome as there is some lack of clarity in the statistical information underpinning the current Integrated Workforce Plan:
Underpinning question 2. Is our concern that the staffing growth implied by the Scottish Government’s 2018 Medium Term Financial Framework has not been correctly stated in the 2019 Health and Social Care Workforce Plan, perhaps due to a statistical calculation error. For example, taking the Workforce Plan to the next stage would mean discussion of what kinds of health and social care staff are needed in the future, but if the national financial parameters are wrong, then that will impact negatively on that work.
The Integrated Workforce Plan would benefit from a dedicated page on the Scottish Government website. This should include key documents, any toolkits, useful contacts, links to other sites, etc. It should also include and Excel Workbook holding the relevant staffing statistical time series starting with the Plan baseline dates, by type of staff and setting, and updated regularly by NES and SSC, with a summary page for Scotland, and in time separate pages for each Partnership area. That would provide transparency about the actual direction of travel and enable more rapid monitoring of the Plan delivery.
Ideally, members of networks and stakeholder groups would be able to sign up on the website for email alerts to updates. Meanwhile communications can continue via email.
Housing to 2040
Housing to 2040: Consultation on Policy Options
SUBMISSION FROM SOCIAL WORK SCOTLAND, TO THE SCOTTISH GOVERNMENT CONSULTATION
27 February 2020
Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services. We welcome this opportunity to comment on the draft housing vision for 2040 and the underpinning principles for future housing policy.
Q1. Earlier this year we published our draft vision and principles. Do you have any comments on the draft vision and principles? Please be specific and identify what you would change and why
Social Work Scotland agrees that a whole systems approach to housing is crucial, focused on ensuring holistic, rights-based support is available for individuals, children and families when they need it. Only in this way will Scotland enable people to live healthy, secure and productive lives, characterised by good relationships and sense of purpose.
We also strongly support the assertion that good housing has a substantial role to play in meeting the Scottish Government’s National Outcomes, including child poverty and homelessness. Indeed we believe good housing also supports priorities specified in the Adult Social Care Reform programme, specifically ‘places of care’ being encouraged as independent living in community settings.
We agree with the reflections made by Professor Clapham of the University of Glasgow, in his assessment of the principles as being vague and open to interpretation. In order to strengthen a whole systems approach to housing, we believe it is critical to give greater emphasis to the care and support priorities (tending towards prevention) rather than health (tending towards late stage interventions). Research into housing has long argued for ‘a social work approach to housing’, in recognition of the fundamental role that housing has on individual and community wellbeing. This was highlighted recently by the Independent Care Review, which had:
[…] ‘consistently heard that financial and housing support were some of the greatest concerns from children and families… when the economy hurts children and adults, and housing and social security systems fail to provide the protection from harm needed to compensate, increased pressures on family life can increase the odds of interacting with the care system.’
In addition to ‘rural proofing’ the vision and principles of Housing to 2040, we suggest that the care and support needs of ageing rural communities, isolated individuals and families (particularly in the Highlands and Islands) are considered in more detail. Social work and care will be central to supporting people to stay independent and well in suitable housing, so regardless of the built environment, infrastructure to offer social care services and support to individuals and families may be limited, or provided in alternative ways. Solutions which work in more urban areas or communities may not be appropriate in other areas, and the vision and principle (while striving for equality for individuals) should not dampen innovation and local adaptation (indeed it should encourage it)
Alongside ‘health’ we would like to see sustainable care and support identified as a specific driver for Housing to 2040. Social Work Scotland has been working with partners and the Scottish Government to look at key resourcing challenges facing social work and social care, and which are affecting both practice and future recruitment across the workforce. Our collective capacity to address poverty and child protection concerns (for which housing is also a key factor) was also raised in the Independent Care Review. Alongside the drivers identified for population and health, it is clear Scotland will continue to face rising demand for professional, skilled care and support, and without the sustainability of this provision, the success of this vision and its principles are unlikely to be met.
The principles 5, 13 & 14 have clear overlaps with the aims set out in the Scottish Government’s Adult Social Care reform programme. That programme states that [social care support] “is about supporting people to live independently, be active citizens, participate and contribute to our society, and maintain their dignity and human rights. Housing which meets the needs of our ageing population by location and accessibility, and which acknowledges the increase in single person households, is absolutely central to this. However, we feel that Housing to 2040 could be both more explicit and nuanced about the centrality of adequate housing in meeting the care needs (maybe even human rights) of people with dementia, complex physical disabilities, flexible care and support needs, and intergenerational families. Crucially, the ‘places of care’ identified in the Adult Social Care Reform programme should not necessarily be envisaged as care homes. Housing to 2040 is the place in which Scotland should articulate how it will enable people to stay in their own homes and communities for as long as it is in their best interests to do so, maintaining their relationships and identity, enhancing their wellbeing.
For reference, Architecture and Design Scotland have conducted extensive work on age friendly places and on redesigning town centres to provide opportunities for more intergenerational and inclusive living. Developing closer links between housing provision and social care, as identified in 1.5, may support this, and the vision overall should focus on building sustainable communities through an integrated, Whole System approach.
Finally, we would like to see the complexity of these issues better acknowledged in the constraints and principle section. Taking a Whole Systems approach is the right thing to do, but to be successful Housing to 2040 must surface and address the complexity head on, attending to the many interconnected and interdependent systems – health and social care (and within that, social work) being just one. Presenting the context as simpler than it really is will only increase the risk of failure.
Q2. Do you have any comments on the scenarios and resilience of the route map or constraints? These are set out in sections 3 and 4 of Annex C.
We note the financial constraints section of Annex C, and believe that it illustrates an inherent tension between the vision and reality. We would like to see more robust and data driven assessment to support some of the market-shaping principles particularly.
Under Constraints 4.3, we suggest that, rather than separating out ‘accessible and age appropriate’ homes, this specification be included into all future housing requirements, to reduce or remove the ‘bottleneck’ in access to appropriate housing, experienced by many people, and which has profound impacts on other parts of the system – health, education, social work and social care, criminal justice. Given the population projections for Scotland, housing accessibility will become a pressing concern before 2040.
A 2018 study undertaken by the Equality and Human Rights Commission found that ‘The need for accessible housing will increase as the population continues to age. In Scotland, the number of people aged 75 and over is projected to increase by 23 per cent between 2010 and 2020, and by 82 per cent between 2010 and 2035 (Scottish Government, 2011). The demand for wheelchair-accessible housing is expected to increase significantly: a projected 80 per cent increased in the population of wheelchair users by 2024, with an increase in unmet needs from 17,226 to 31,007 households (Horizon Housing, 2018).’ 
As colleagues from Inclusion Scotland often note, with increases in life expectancy and demographic trends, nearly everyone will be a disabled person for part of their life. To accommodate that future population, a focus on intergenerational and lifetime homes that are adaptable, flexible, inclusive and affordable must not just be part of the vision of Housing to 2040. It must be at its centre. Evidence from the University of Stirling’s 2018 Housing and Ageing report supports this approach and outlines some of the challenges in creating stronger links between health and social care and housing to support people more holistically.
Q3. Do you have any proposals that would increase the affordability of housing in the future?
Q4. Do you have any proposals that would increase the accessibility and/or functionality of existing and new housing (for example, for older and disabled people)?
Q5. Do you have any proposals that would help us respond to the global climate emergency by increasing the energy efficiency and warmth and lowering the carbon emissions of existing and new housing?
Q6. Do you have any proposals that would improve the quality, standards and state of repair of existing and new housing?
Q7. Do you have any proposals that would improve the space around our homes and promote connected places and vibrant communities?
We support the further development and incorporation of learning from Age Friendly Places, as published by Architecture and Design Scotland, and, as stated above, believe that a more holistic approach to community, incorporating accessibility and flexibility more unilaterally into the built and planned environment, will provide Scotland with a more equitable housing system in future.
Q8. Any other comments?
For further information, please do not hesitate to contact:
 STEWART, G., & STEWART, J. (1992). Social Work with Homeless Families. The British Journal of Social Work, 22(3), 271-289. Retrieved February 20, 2020, from www.jstor.org/stable/23709313
Consultation response: Youth Justice standards
Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services.
We welcome the opportunity to comment on the Youth Justice Standards. Within the membership of Social Work Scotland there will have been a range of local responses. The views below do not capture the insights and expertise of all of them. Suggestions below focus on views about general emphasis, and specific strengths and concerns about content, meaning and impact.
Yes, ( broadly and allowing for caveats and considerations below, some of which are fundamental)
If the issues above are transparently captured in the way that services are self- evaluated and inspected then it will be possible to answer this question positively.
See references and points made above in relation to relevance of extracts below
Disabled Children and Young People(Transitions)(Scotland)Bill
Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services. We welcome this opportunity to comment on the draft Bill, which is intended to improve the outcomes for children and young people with a disability in the transition to adulthood.
Social Work Scotland also welcomes the attention brought to the experience of many young people with disabilities and their families in transitions, including the phase approaching and following school leaving age.
Transitions in this context are a process, rather than an event that is sealed by a professional plan. The chemistry and degree of challenge depends on the nature of the disability/disabilities; the interaction of factors in the young person’s home or transitional environment; and the strengths and concerns in their wider world, including relationships and interaction with services.
The success of interactions with services depends not only on the knowledge, skills and values of relevant professionals, but also upon local structures and resource availability.
There are some common themes in the nature of challenges. For example:
Attention to strategic improvement in this area is welcome. However, the recent unsuccessful attempt to establish a single, statutory Children’s Plans (through the Children and Young People (Scotland) Act 2014) suggests to us that caution should be taken about a statutory transitions plan.
Moreover, we would be concerned about a uniform layering of legislation for a group that seems both variously defined and specific within the terms of the Bill, which blankets a range of existing requirements (summarised at the end of this submission), and which leaves out others with comparable needs (but no recognised disability or chronic condition).
We also have a concern that such a blanket entitlement might be inflexibly and superficially applied as part of procedure, rather than, as a plan should be, part of a continuous, evolving process involving all relevant people and organisations.
Indeed the current range of legislation and planning obligations that applies can already be confusing. Enhancing practitioner understanding and service delivery on existing obligations could be more productive than splinting in new requirements. A flexible approach supported by national guidance, clarifying and connecting existing legislative requirements would seem a helpful option in the first instance. This could be supplemented by clear indicators and examples of effective practice during key transitional phases (not only before/during/after leaving secondary school). Guidance on Children’s Services Plans (Scottish Government 2020, para 174) emphasises the need for service and strategic plans for transitions.
Transitional support should be proportionate to need. Needs unfold from an interaction of circumstances which may or may not include disability. The statutory guidance to the Education (Additional Support for Learning) (Scotland) Act 2004 as amended provides for a range of expectations in relation to content, co-ordination and timing of transitions planning – and not only around school leaving age; and not only around disability.
Transitions to adult life and services are multi-dimensional and go beyond endings and bridging to adult services. For some there may be significant relationship loss alongside new opportunities with their own challenges. Deep, long term emotional challenges may not easily be captured or moulded in to a transitions plan. The toughest personal and inter-personal transitions may begin long after service/professional/resource related transitional tasks are completed.
Transitions plans, when needed, should help clarify (with a young person and those most significant to them) purpose, steps, responsibilities and timescales for action and review. We support the use of a rights based, holistic developmental/ecological approach to such planning, including the using the GIRFEC Wellbeing Indicators in transitional planning processes across services.
We recommend the use of the ARC Scotland / Scottish Government Principles of Good Transitions, about which further implementation guidance is under development (‘Principles in to Practice’/ARC Scotland 2020). This resource has been developed in collaboration between families, practitioners and managers across sectors, with Scottish Government support. It could provide a standard point of reference transitions across all statutory and voluntary sector transitions services.
We think proportionate, co-ordinated and collaborative transitions planning is helpful when it is connected to sufficient continuity of support and sufficiency of resource – not only in relation to further education and employment opportunity. It could be confusing, bureaucratic and unhelpful if this forms one of multiple strands of parallel planning processes with overlapping intent. It could also cause frustration and loss of confidence if it plans raise expectations that cannot be matched by resources.
Independent living may not be a priority objective for all; or realistic for some with profound and complex needs. The general objectives in relation to wellbeing and achievement of potential could be assisted, if such a strategy were to:
Families have been sequentially consulted about experiences of transitions. It would seem helpful to capitalise on what is known.
The way that this area of concern cuts across portfolios indicates the need for a ministerial solution to ensure co-ordinated accountability. However, there may be different ways of achieving co-ordinated purpose without creating a new ministerial portfolio, which would necessarily overlap with many others. Consideration of the options goes beyond the scope of this consultation. For the present it is not automatically obvious that a new Minister is the most efficient solution. Indeed there is a risk of creating another silo of activity rather than building shared understanding about how most of the intransigent challenges across portfolios relate to transitional phases in the lives of individuals and families that require a collaborative approach across sectors in culture, systems and practice.
There are other forms of transition which present great social and policy challenges for Scotland at present. A ministerial responsibility that looked at the common threads in effective transitions (for all people, regardless of needs, age or circumstances) would be creative, and could have significant impact across a range of concerns shared by separate portfolios. Strategic roles in local partnerships concerned with transitions – would increase the chance of the political initiative taking root through mirrored co-ordination of transitions strategy locally.
EXAMPLES OF CURRENT APPLICABLE LEGISLATION
Part 3 of the Children and Young People (Scotland) Act 2014 requires local authorities and health boards to prepare a children’s services plan, which outlines their plans for the provision of all children’s services over a 3 year period. The aim of children’s service plans is to ensure that services best safeguard, support and promote the wellbeing of children. Further, the Act requires that action to meet needs should be taken at the earliest appropriate time and that action should be taken to prevent needs from arising, where appropriate.
The Education (Additional Support for Learning) (Scotland) Act 2004 defines the responsibilities of education authorities to assess the needs of and provide support for, pupils with additional support needs. This includes duties of education authorities specific to post-school transition planning. This includes requesting information on service provision from appropriate agencies which are likely to be involved with the young person upon leaving school. The education authority should request information from appropriate agencies no later than 12 months before the young person is expected to leave school. The education authority is also required to pass on information to appropriate agencies, about the expected leaving date and any other information related to provisions that the authority thinks will help the appropriate agencies to support the young person. This should take place no later than 6 months before the young person is expected to leave school.
Examples of appropriate agencies in this context are health services, colleges, universities, social work services, voluntary agencies, Skills Development Scotland and training providers. No information should be passed on to other agencies without the consent of the young person or their parent.
As stated in the Supporting Children’s Learning: Statutory Guidance on the Education (Additional Support for Learning) Scotland Act 2004 Code of Practice, education authorities are not required to provide post-school transition support for all leavers with additional support needs. The duties are specific to pupils who:
The Act defines a young person as a person who (a) is aged 16 years or over, (b) is a pupil at a school, and (3) has, since attaining the age of 16 years or over, remained a pupil at that or another school.
The Act defines a child in line with the Education (Scotland) Act 1980, where a child means a person who is not over school age. A person is of school age if he/she has attained the age of five years and has not attained the age of 16 years
Part 2 of the Children (Scotland) Act 1995 sets out the duties of local authorities to safeguard and promote the welfare of children in need in their area. Children are defined as in need of care if they are unlikely to achieve or maintain, or have the opportunity of achieving or maintaining, a reasonable standard of health and development unless the local authority provides a service for them. This may be due to their own health conditions or disabilities, or because they are adversely affected by the disability of their family members.
The Children (Scotland) Act 1995 Regulations and Guidance states that when local authorities receive referrals, they should assess the nature of a child’s needs and decide what services, if any, should be provided in order to promote or safeguard the child’s welfare.
Part 2 places duties on local authorities to prepare young people for leaving care or ceasing to be looked after. This includes providing advice and assistance to young people who have ceased to be looked after on or after their 16th birthday, providing aftercare support until the young people turn 19, and to assess their needs for aftercare support until they turn 26 (or beyond in some cases). Part 2 also provides for continuing care, allowing young people looked after in foster, kinship or residential care to remain in their current care placement until the age of 21, as inserted by the Children and Young People (Scotland) Act 2014.
The Social Work (Scotland) Act 1968 makes provisions for promoting social welfare in Scotland. Section 12A of the Act lays out the duties of local authorities to assess the community care needs of adults, defined as those who are not under the age of 18 years, and to decide whether they are eligible for any services. How services should be provided is laid out in the Social Care (Self-Directed Support) (Scotland) Act 2013.
The Social Care (Self-Directed Support) (Scotland) Act 2013 places a duty on local authorities to offer people who are eligible for social care a range of choices on how they receive their support. It allows children, young people and adults, their carers and families to take greater control over the support provided to them. The statutory guidance for the 2013 Act offers specific information relating to children and families. Paragraph 7.12 states that the social care assessment and support planning process should feed into a single plan for the involved child, in line with the GIRFEC approach and the child’s plan. The guidance states that the authority should seek to ensure that the assessment process is fully co-ordinated between adult and children’s services, including any other relevant departments, such as education
The Public Bodies (Joint Working) (Scotland) Act 2014 sets out the legislative framework for integrating health and social care. It requires integration of the governance, planning and resourcing of adult social care services, adult primary care and community health services and some hospital services. Integration of children’s services is not required, but integration authorities may choose to do this.
Section 4 of the Act states that the main purpose of integrated services is to improve the wellbeing of service users. Services should be integrated from the point of view of service users and take account of their needs, rights, dignity and participation in the community. Services should be planned and led locally in a way which engages service users, their carers and all others those involved in the provision of health or social care.
The Equality Act 2010 provides a framework to protect the rights of individuals across nine protected characteristics: age, religion and belief, race, disability, gender, sexual orientation, gender reassignment, marriage and civil partnership, and pregnancy and maternity. The Act provides protection for people with protected characteristics across employment, education, and in the provision of goods, services and public functions against direct and indirect discrimination, harassment, and victimisation. Specifically in relation to disability, the Act provides protection against discrimination arising from disability and lays out duties on organisations to make reasonable adjustments.
The Adults with Incapacity (Scotland) Act 2000 lays out arrangements that can be put in place to safeguard the welfare and manage the finances of an adult who is incapable of acting, making decisions, communicating decisions, understanding decisions or retaining memory of decisions, by reason of mental disorder or of inability to communicate because of physical disability. A person does not fall within this definition if their communication deficiency can be made good by human or mechanical aid.
Arrangements include applying for guardianship in order to manage the adult’s property and financial matters or personal welfare, including health.
The Act defines an adult as a person who has attained the age of 16 years
The Carers (Scotland) Act 2016 makes provision about carers, including the identification of carers’ needs for support through adult carer support plans and young carer statements. It makes provision for support to carers, the enabling of carer involvement in certain services, the preparation of local carer strategies and the establishment of information and advice services for carers.
Section 30 of the Act states that local authorities must take account of the views of the carer when assessing the needs of a cared for person, in so far as it is reasonable and practicable to do so
Health and Social Care Standards describe both the outcomes and the standard of care a person can expect. Health and Social Care Standards in their draft form (18) have a focus on transition as a move between services (Revised draft Health and Social Care Standards, Scottish Government, November 2016 s2.9) “If I need or want to move on and start using another service, I will be fully involved in this decision and helped to find a suitable alternative. If I am moving from a service for children to one for adults, I am helped with this transition.” The Standards have been prepared to support delivery of a range of legislation and Scottish Government policy that relates to health and social care, such as: • Scotland Performs: National Performance Framework • Getting it Right for Every Child and the wellbeing indicators • The Public Bodies (Joint Working) (Scotland) Act 2014 and the National Health and Wellbeing Outcomes • The Social Care (Self-directed Support) Act 2013 • The Carers (Scotland) Act 2016 • Social Services in Scotland: a shared vision and strategy 2015-2020 • A National Clinical Strategy for Scotland
National Health and Wellbeing Outcomes and clear read across to Principles of Good Transitions 3: There are also opportunities for scrutiny bodies such as the HealthCare Improvement Scotland and Care Inspectorate to evaluate the extent to which integration principles are locally evident in transition policy, process and practice The Doran Review underlined the role of inspection agencies in supporting continuous improvement in this direction.
For further information, please do not hesitate to contact:
Children and Families Lead, Social Work Scotland
Financial redress for historical child abuse in care – pre-legislative consultation
PURPOSE AND PRINCIPLES OF THE REDRESS SCHEME
Yes, in general terms we agree with the proposed purpose of financial redress. However, in the drafting of the legislation we would encourage greater alignment with the wording used in the Limitation (Childhood Abuse) (Scotland) Act 2017, to ensure it is clear that the scheme applies only to individuals who sustained harm, rather than any child who was placed in a particular setting. Furthermore, the term ‘long term’ should be removed; ideas of what constitutes ‘long-term’ are contested (one month, one year?) and no clear definition exists or is likely to be agreed. The only relevant factors are that a child was placed in a setting by a public body (i.e. the state) and in that setting they suffered abuse. The length of time the child was in care should be immaterial.
If some version of the phrase “responsibility for the care of the child in place of the parent” is maintained in the description, it would be prudent to consider how the Redress Scheme will treat cases where institutions and bodies facilitated private arrangements within families, supporting relatives or family friends to provide care for the child in place of the parent. In these cases the state may never have assumed formal responsibilities for a child, but could still have had a significant role in determining with whom the child was placed; who may subsequently have subjected the child to abuse, or sent the child to a setting where they were subjected to abuse. While likely to affect only a few individuals, an equitable and effective Redress Scheme must be clear on how to treat these and other marginal cases.
2. Do you agree with these guiding principles?
Yes, we agree with the guiding principles proposed. But we feel that the list of principles should be extended further. Firstly, to include an explicit principle that individuals applying to the scheme are provided with specialised support from the start, designed to minimise the potential for future harm through the process (building on Principle 5), and also to ensure as strong an application as possible. This is to ensure equity of access to the Scheme, as some eligible individuals may have more experience, confidence, skills or support that others.
Secondly, while we agree the primary focus of the principles should be on the experience of the persons applying, we believe it would be helpful to have additional principles related to how public bodies and other organisations / institutions will be treated. For example, there could be a principle that the Redress Scheme will not put at risk services currently available to nurture and protect children looked after by Scottish local authorities. A clearer statement of how affected organisations can expect to be treated will not only help manage their engagement, it should improve transparency around a critical dimension of the Scheme for individual’s applying.
3. Do you agree with the proposed approach in relation to institutions and bodies having long term responsibility for the child in place of the parent?
No. As noted previously, the notion of what constitutes ‘long-term’ is subjective and contentious, and the phrase should be removed, in favour of simply “responsibility in place of the parent”. The factors which need to be established are whether institutions and bodies had responsibility for the child (in place of the parent) at the time abuse took place.
Similarly, we would recommend removing the term “morally responsible”. We assume this has been included to highlight that the state (through its institutions and bodies) had ethical and moral responsibilities towards the children in its care. However, in this context it appears both anachronistic and, possibly, trivialising of the extent of responsibility. We would favour instead “…and were legally responsible for their physical, social and emotional needs in place of parents” or “…and were practicably responsible for their physical, social and emotional needs in place of parents”.
4. Subject to the institution or body having long term responsibility for the child, do you agree that the list of residential settings should be the same as used in the Scottish Child Abuse Inquiry’s Terms of Reference?
Broadly, yes. The list of residential settings should be the same as used in the Scottish Child Abuse Inquiry’s Terms of Reference.
5. Where parents chose to send children to a fee paying boarding school for the primary purpose of education, the institution did not have long-term responsibility in place of the parent. Given the purpose of this redress scheme, applicants who were abused in such circumstances would not be eligible to apply to this scheme. Do you agree?
No. While we understand and broadly agree with the rationale for excluding from the scheme children who were placed in fee paying boarding schools by parents who were free to choose, the current wording does not take into account the complexity of the UK’s history or individual family situations. As a result, individuals may be unfairly denied access to the Redress Scheme.
For example, how should the scheme treat children who were sent to fee paying boarding schools because of the parent’s employment abroad for the state, such as in the military, as colonial officers, or on diplomatic missions? In some cases the state itself will have paid the fees for these boarding schools, either directly or through supplements to parents. In these circumstances, did the parent’s ‘choose’ to send their children to boarding schools? Furthermore, in such circumstances it may be argued that sending children to such schools was for not primarily for the purposes of education, but also of care.
Related to points already made, there may also be situations were institutions and bodies (of the state) facilitated the placement of children in fee paying boarding schools, securing the financial support of relatives to keep the child out of formal state care. The Redress Scheme does need boundaries, but it must also be flexible enough to take account of the immense variety and complexity of individual circumstances. That will require skilled professionals, supporting individuals with their applications from the very start. And where people / groups are excluded from the Redress Scheme, we should be confident that those individuals have recourse to redress through other means. (Even then, we are concerned about the potential disparity which may emerge between two school peers, both victims of abuse, but one able to access a supportive, person-focused Redress Scheme, the other only with access to the courts.)
Finally, if a version of this exclusion is adopted, it will be important to communicate that it does not apply to people who were directly placed in boarding schools by institutions and bodies who had parental responsibilities towards them.
6. Where children spent time in hospital primarily for the purpose of medical or surgical treatment, parents retained the long-term responsibility for them. Given the purpose of this redress scheme, applicants who were abused in such circumstances would not be eligible to apply to this scheme. Do you agree?
No. We are very uneasy about the exclusion of children who were abused while in hospital for the purpose of medical or surgical treatment, where parents retained ‘long-term’ responsibility for them. As with boarding schools, the lack of nuance here risks denying many individuals the right to redress for abuse suffered while in the care and protection of the NHS. It also insulates the NHS from appropriate accountability around how it fulfilled its responsibilities to the children in its care. We fully accept that local authorities had responsibilities towards children who were then victims of abuse, but that is equally true of hospitals and NHS Boards.
The primary consideration in determining eligibility should be whether the state had a significant role or power in determining the placement of the child, and when the child was in that placement, had responsibilities for their care and protection. A parent whose child requires medical treatment does not ‘choose’ to leave them in hospital; they follow the recommendations (and often decisions) or doctors. Nor does the parent remain totally responsible for the care and protection of the child over that period; the hospital (and NHS more generally) assumes responsibilities too. These dynamics are true today, but were perhaps even more of a feature in the past, where deferential attitudes towards medical professionals would have meant less challenge of their decisions, and where hospitals were less welcoming of parents and families (with strict visiting times, etc.). By any common sense account, children in hospital for medical or surgical treatment were (and are) in the care of the hospital and its staff. That should be reflected in the eligibility to the scheme.
By our understanding of this proposed eligibility criteria, if a group of children had suffered systematic abuse in a Scottish hospital (such as Jimmy Saville perpetrated in an English context) only those who had been formally ‘looked after’ by a local authority would be eligible to apply to the Redress Scheme. This does not seem fair on the victims (who may legitimately feel the hospital had responsibilities to keep the safe) nor on the local authorities and other organisations who will participate in the Redress Scheme.
7. We intend to use the same definition of abuse as the Limitation (Childhood Abuse) (Scotland) Act 2017 for the purpose of the financial redress scheme. This includes sexual abuse, physical abuse, emotional abuse and abuse that takes the form of neglect. Do you agree?
Yes. The same definition of abuse as the Limitation (Childhood Abuse) (Scotland) Act 2017 should be used for the purpose of the Redress Scheme. We also support the link to the Child Protection guidance.
In determining how specific applications to the Redress Scheme are handled, we believe the interpretation of this definition should be expansive, taking into account certain actions which do not correspond obviously to sexual, physical or emotional abuse. For example, in situations where there is inappropriate administration of drugs, whether as means of control or as part a fabricated induced illness.
8. In our view 1 December 2004 represents an appropriate date to define ‘historical’ abuse for this financial redress scheme. Do you agree?
Not sure. Any date is going to exclude people, however, in the interests of making the Redress Scheme as inclusive (and final) as possible, should we not set a date somewhere closer to the present? Particularly as the scheme is not expected to be in operation until 2021. Moreover, the rationale given for the December 2004 date feels weak; we are concerned that victims / survivors of abuse may not feel the date of a public apology is a sufficient milestone. Perhaps a more suitable alternative would be the start of the public inquiry, in 2015.
If the 2004 date is chosen, clear guidance on alternative routes to redress must be made available to those who suffered abused at a later date.
9. Do you have any comments you would like to make in relation to child migrants who also meet the eligibility requirements of this redress scheme?
We are supportive of the proposals around child migrants. It is both logical and fair that these individuals are considered eligible to the Redress Scheme, if they suffered abuse within Scotland while in the care of the state. This should apply even if they have also received or applied to the UK child migrant scheme.
10. Do you have any comments about the eligibility of those with a criminal conviction?
Criminal convictions should be no barrier to accessing the Redress Scheme. Eligibility should be determined by the circumstances of an individual’s childhood, not what the individual did or went on to do. We understand that for some it will be unpalatable to award financial payments to individuals convicted of offences (particularly sexual offences against children), but ultimately that is a political, presentational problem. The scheme can only live up to the principles on which is supposed to be based if it is open to all, irrespective of the actions of individual applicants. Moreover, if any restrictions were to be introduced, they are likely to be challengeable under the Human Rights Act 1998.
11. Do you have any other comments on eligibility for the financial redress scheme?
It may help if the eligibility criteria were clear on characteristics like citizenship. Our assumption is that the Scheme would be open to anyone who suffered abuse in Scotland while in the care of public bodies, regardless of their citizenship at the time or now.
We also recommend that powers be taken by Scottish Ministers to review and adjust eligibility criteria, and for these to be formally reviewed after the first couple of years of the scheme’s operation.
12. What options might be available for someone who has been unable to obtain a supporting document which shows they spent time in care in Scotland?
Those who are unable to produce documentary evidence of being “in care” are ineligible for an Advanced Payment; it makes sense that the full Redress Scheme mirror this. However, individuals applying to the full scheme should have the option to give evidence on oath, submitting an affidavit for determination.
Assuming that individuals will receive support with applications from the start, it may also be possible to triangulate from other documentary evidence, including individual’s personal records, to a high degree of certainty that an individual was at a particular place when abuse took place. This could be validated by a version of the ‘in care confirmation letter’ developed for the Advanced Payment scheme.
13. Do you think the redress scheme should have the power, subject to certain criteria, to require that bodies or organisations holding documentation which would support an application are required to make that available?
Yes. To deliver the Scheme efficiently and effectively relevant bodies and organisations should be required to provide information which would support an application. This power would replicate that of the Scottish Child Abuse Inquiry. It would also help ensure all relevant parties share the load of facilitating the work of the Scheme.
However, the provision of information is not a cost free exercise. In fact it can be a highly onerous one, and detailed consideration will need to be given to how organisations covered by this power are supported to undertake the work requested. Resourcing (human and financial) and imagination will be necessary. It could be worthwhile, for example, to establish within the Scheme’s statutory body a team of sufficient size that they can directly assist data / evidence providers (who otherwise may need to recruit and train additional staff). In all instances, adequate, realistic timescales must be given for compliance.
The key consideration for the design and management of the Redress Scheme must be that attention and resources are not diverted (more than is absolutely necessary) away from the current provision of services, and the support of children and adults (some whom may also be applicants). The redress scheme will be unsuccessful and self-defeating if it saps the strength of today’s public services, through the reallocation of money, or people’s time and energy. The operation of the Redress Scheme must be fully funded, including the cost requirements of local authorities and others, whose staff will be central to making the Scheme work.
14. For Stage One, what evidence do you think should be required about the abuse suffered?
For the Stage One payment, the evidential test should be the same as currently in place for the Advance Payment scheme. We should be confident that abuse did take place at an institution while the individual was placed there, but not need to have proof of the specific instances of the individual’s abuse. Individuals should be able to submit what information they see as relevant to assist their application, including a written statement, but it should not be required. Similarly, a short written description of the abuse and its impact should not be required; the Stage One scheme, as proposed, would not be about assessing the extent of impact, so this would not be relevant. The act of describing the abuse may also, in itself, be re-traumatising. It should be choice whether they wish to disclose this, as part of a Stage 2 application.
15. Do you have any additional comments on evidence requirements for a Stage One payment?
16. For Stage Two, what additional evidence of the abuse, and of its impact, should be required for the individual assessment?
17. Do you have any comments on evidence requirements for a Stage Two payment?
While the evidential test for a Stage Two payment should be appropriately more demanding than Stage One, the process for assessing claims must remain victim centred, flexible and focused on enabling and empowering an individual to secure redress (rather than meeting requirements or thresholds). This is likely to mean a process heavily dependent on skilled professionals and volunteers, including social workers, councillors, therapists, archivists, etc. That must be taken into account in the design of the scheme, and the structure and costs of the structure / organisation delivering it (e.g. a new public body).
18. Do you think applicants should be able to give oral evidence to support their application?
Yes. They should be able, but not required, to give oral testimony. They should have this option even if there is sufficient documentary evidence for their claim. This option should also be utilised where it is difficult to assess a case on the basis of available information.
19. Do you have any views on whether the length of time in care should be factored into the Stage Two assessment?
Length of time in care should be a consideration, but not a determinant or indicator of any impact. Being in care for two years and suffering abuse three times is not necessarily less significant than being in care for fifteen years and suffering abuse three times. Length of time in care should be something the professionals undertaking the assessment take into consideration, drawing on evidence about how individuals deal with trauma in different contexts, with different support structures, etc.
20. Do you have any views on the balance the assessment should give to different types of abuse (physical, emotional, sexual, neglect)?
Each case must be considered independently, and the focus must be on assessing the impact abuse had, whatever its form, on the individual. Establishing a hierarchy of abuse, as this question suggests, risks marginalising some victims’ experiences.
The process of assessment must be rigorous and forensic, but also sensitive and person-centred. It will not work if it becomes either a tick-box exercise or an opaque, subjective judgement. Maintaining the central, delicate balance will require very skilled professionals, using tools and their judgement, backed up by case notes and managers, and case discussions within small teams (to ensure individual assessors’ prejudices and assumptions are being challenged). Critically, individuals should have the right to appeal assessments.
21. What are your views on which factors in relation to the abuse and its impact might lead to higher levels of payment?
This should mirror the approach currently taken by civil courts.
22. Do you think (a) the redress payment is primarily for the abuse suffered; (b) the redress payment is primarily for the impact the abuse has had; (c) both the abuse suffered and the impact it has had should be treated equally.
It is unclear whether this question relates to Stage 1 payment, Stage 2 payment, or both. Assuming it refers to the Stage 2 payment, then its primary purpose is for the impact the abuse has had. The Stage 1 payment should be about acknowledging the abuse, and the second payment about its impact.
23. How do you think the scheme should ensure all parties are treated fairly and that the assessment and award process is sufficiently robust?
Again, the question is unclear about whether it applies all or part of the Scheme. Assuming that it refers to the Phase 2 payment, ensuring parties are treated fairly and the process is robust will depend on (a) the skills of the professionals undertaking the assessment, (b) transparency of the criteria being considered, (c) opportunities for review and appeal of assessment decisions, (d) strong structures of supervision for those undertaking assessments, (e) close work as a team to ensure consistency, and (f) constructive internal challenge.
Fairness is not something which can be baked into a system, or achieved through process or criteria. It is something experienced by individuals, and it will be determined in the relational space which the scheme’s employees offer. If individuals feel listened to and treated with respect, and that assessors took everything possible into account when making their judgement, and that decision makers give clear reasons for their judgement, applicants are more likely to feel the Scheme was fair, and accept decisions.
24. Do you agree that anyone who has received a payment from another source for the abuse they suffered in care in Scotland should still be eligible to apply to the redress scheme?
Broadly, yes, we agree that individuals who have received a payment for another source should still be eligible to apply to the Redress Scheme. However, the amount received should be deducted from any future redress payment. And where a court has made a determination about a previous claim, the Redress Scheme must handle applications very carefully, to ensure that an award does not contradict the court’s decision.
Our rationale for supporting this eligibility to the scheme is one of equity and fairness. We considered an example where two individuals experienced similar abuse, in the same institution, at a similar time. One of the individuals has successfully secured redress through the courts or another scheme, while the other chose not to. The latter individual now makes a claim through the Redress Scheme, and is provided with a more substantial award than that offered to the first individual. While we expect variance even between two very similar cases (due to variable impact of abuse), it does not seem fair that one is entitled to make the claim and the other excluded.
25. Do you agree that any previous payments received by an applicant should be taken into account in assessing the amount of the redress payment from this scheme?
26. Do you agree applicants should choose between accepting a redress payment or pursuing a civil court action?
Yes. We agree that applicants should choose between the two routes to redress. However, we do have some concern about the availability of quality legal advice to people having to make this decision, and the potential for individual’s to be exploited. There is already anecdotal evidence of some legal firms encouraging individuals to make civil claims (sometimes on a no win, no fee basis).
MAKING AN APPLICATION
27. We are proposing that the redress scheme will be open for applications for a period of five years. Do you agree this is a reasonable timescale?
Yes. However, it would be advantageous if the legislation permitted an extension of the scheme, with the approval of relevant stakeholders, if demand, logistics, etc. justified it. Furthermore, if there is to be a deadline for applications (e.g. five years after the scheme opens) it will be necessary to build in some form of public information campaign to ensure eligible people know and understand the deadlines.
It is also important that we distinguish the timeframe within which applications can be submitted, and the timeframe of the scheme and associated public body. Processing applications may take some time (well beyond the closing date of applications) and, moreover, it would be a lost opportunity if the public body did not complete some research and publications before it was wrapped up. Further communications around the Scheme should make clear that the public body may be in operation for longer than the Scheme itself.
28. Should provision be made by the redress scheme administrators to assist survivors obtain documentary records required for the application process?
Yes. However, in part this should be achieved by properly assessing and resourcing the archivist and data retrieval functions of data holders (such as local authorities). Ensuring that these organisations have the capacity needed to meet demand would achieve the same result, but also have many more attendant benefits (freeing up front line social workers, for example). Locally embedded capacity could also work in local projects around record retention and access more generally, and would hold out the potential for skills to be developed locally, rather than in a public body which will eventually be dissolved.
Should a national database be developed with admission and boarding-out-register data (as is currently being considered) there is an opportunity for the Scheme to access the data directly and where the person is discovered this will negate the need for further documentary evidence.
This will not fully negate the need for survivors to be assisted to access records though, and whether the necessary support is provided by the Scheme or other organisations, it should be a priority in both the legislation and implementation. And the support for survivors will need to go beyond practical documentary evidence gathering, extending to emotional and legal guidance too. The complexity – and cost – of providing such support should not be underestimated.
29. In your view, which parts of the redress process might require independent legal advice? Please tick all that apply.
30. How do you think the costs of independent legal advice could best be managed?
If it was possible, perhaps a measure of legal advice for free (provided by legal professionals employed or contracted by the statutory body). Then if an application is taken forward, this should be supported through legal aid (if the individual is eligible), with a cap on the maximum amount charged.
NEXT OF KIN
31. What are your views on our proposed approach to allow surviving spouses and children to apply for a next-of-kin payment?
Some provision for close, immediate family seems appropriate as a recognition on the impact the abuse may have had on the family. If the individual has died, the payment may also act as posthumous recognition of that individual’s experience.
It may the case that multiple family members may apply separately, but in our view only one payment should be available per survivor who has died. The Scheme will need to determine how a payment is then subsequently sub-divided between next-of-kin applicants.
We are supportive of the proposal to limit the next-of-kin definition to surviving spouses and children, as long as ‘surviving spouses’ includes civil partnerships and those who in long term relationships. Cases may become further complicated where ex-‘spouses’ feel justified to a claim on the basis that relationships with the abuse victim broke down in part because of the abuse the deceased individual had experienced. And there may also be difficulties with assessing the validity of children who were estranged (questions about whether the victim / survivor would have wanted them to receive funds), as well as those individuals who were not biologically or legally a victim / survivor’s children, but who were treated as such (e.g. children who grew up in informal kinship arrangements, with uncles, aunts, grandparents, etc.).
32. We are considering three options for the cut-off date for next-of-kin applications (meaning that a survivor would have had to have died after that date in order for a next-of-kin application to be made). Our proposal is to use 17 November 2016.
We do not have a firm opinion on this, but suggest that a single date be agreed to mark the various thresholds and cut-offs relevant to the Scheme. Previously we had suggested 17 December 2014, the announcement of the Scottish Child Abuse Inquiry.
33. We propose that to apply for a next-of-kin payment, surviving spouses or children would have to provide supporting documentation to show that their family member met all the eligibility criteria. What forms of evidence of abuse should next-of-kin be able to submit to support their application?
Next of kin applicants should have to provide the same proof as required by living applicants, as well as proof of their relationship. That should include any existing written documentary evidence of the abuse, and here necessary, written or oral testimony in support of their application.
34. What are your views on the proportion of the next-of-kin payment in relation to the level at which the redress Stage One payment will be set in due course?
35. We think those bearing responsibility for the abuse should be expected to provide financial contributions to the costs of redress. Do you agree?
Yes. Attributing responsibility for abuse will, in many instances, be complex and contentious. But, if we work from a position that certain parties had a responsibility to keep children safe and protected from abuse, we can build a framework within which relevant parties (i.e. those who should make a financial contribution) can be identified. This would include the government (now Scottish Government), local authorities and institutions.
Determining liability with regard to local government is likely to be very complicated, and we urge Scottish Government to work closely with COSLA and others to identify and properly stress-test different contribution models, before any legislation is introduced into Parliament. A suitable model can then be agreed in advance, supported by the relevant parties.
36. Please tell us about how you think contributions by those responsible should work. Should those responsible make?
No answer to this question.
37. Are there any barriers to providing contributions, and if so, how might these be overcome?
No answer to this question.
38. Should the impact of making financial contributions on current services be taken into account and if so how?
Yes. It is critical that the Redress Scheme does not impact detrimentally on current services. That most obviously includes those services available to today’s children and families, but also extends to the adult services (disability, drugs and alcohol, social care) which many victims / survivors will rely. If the Scheme was found to be negatively impacting on current services (for instance through reducing available funding), public support for the Scheme would likely wane, and it would potentially create risk within families.
In respect of how the impact on current services is monitored, individual organisations will have mechanisms for this, but there is also potentially a role for Audit Scotland and OSCR, keeping under review the financial statements of the organisations involved to ensure that changes in the availability of funding for certain services are flagged, and the reasons behind them interrogated.
39. What other impacts might there be and how could those be addressed?
Harder to identify than financial impact on current services, but possibly no less important, are the risks of vicarious trauma and burn out among the professionals supporting applications. We already have examples, driven by the demands of the Historical Abuse Inquiry and Advance Payment scheme, of resources having to be diverted, teams stretched, and individuals requiring time-off (due to over-work or discomfort with the material). Many people assume that identifying and processing records (i.e. for a Subject Access Request) is a purely administrative and bureaucratic exercise, but in reality it is one which exposes individual workers to stories of abuse and neglect. That exposure has an impact, and with the expected increase in requests for documentation which will follow the opening of the Redress Scheme, it will need to be properly taken into account.
40. How should circumstances where a responsible organisation no longer exists in the form it did at the time of the abuse, or where an organisation has no assets, be treated?
No answer to this question.
41. What is a fair and meaningful financial contribution from those bearing responsibility for the abuse?
No answer to this question.
42. What would be the most effective way of encouraging those responsible to make fair and meaningful contributions to the scheme?
No answer to this question.
43. Should there be consequences for those responsible who do not make a fair and meaningful financial contribution?
No answer to this question.
CONTRIBUTIONS TO WIDER REPARATIONS
44. In addition to their financial contributions to the redress scheme, what other contributions should those responsible for abuse make to wider reparations?
For the redress scheme to be more than just an acknowledgment of abuse, and for us to take this opportunity to address the harm done by the abuse and subsequent response (or lack thereof), it is critical that financial redress is just part of wider package of support.
In our opinion there should not be a distinction between the redress scheme and wider reparations. The Redress Scheme should cover all aspects, with financial awards representing one component. The financial contributions from relevant organisations and bodies would therefore be for the entire Scheme.
Within the package of wider reparations should fall the support provided (either directly by the Scheme or by relevant bodies and organisations) to applicants, such as help finding documentation, psychological support, etc.
DECISION MAKING PANEL FOR REDRESS
45. Do you agree that the decision making panel should consist of three members?
It is unclear again if the question is referring to a decision making panel for Phase 1, Phase 2 or both. If for Phase 1, then a three person panel seems excessive. An individual, suitably supervised and peer reviewed, should be sufficient. This would be in line with the current Advance Payment scheme. If the question relates to Phase 2 or both, we agree that the panel may consist of only three members. This is a fairly standard size for tribunals, and seems proportionate.
However, we think it should be clear that this panel will not be working alone, and that they will need to be supported by a range of professionals (employed directly or indirectly by the public body) whose purpose it is to support individuals with applications, assess the seriousness of impact (and validity of experiences, in some cases), etc. These professionals will play a key role in ensuring the information submitted to the Panel is as complete as possible, but they should also have role helping the Panel come to decisions (where necessary).
All processes, discussions and decisions of the Panel and supporting professionals should be recorded, transparent, accessible and challengeable.
46. Do you agree that the key skills and knowledge for panel members should be an understanding of human rights, legal knowledge, and knowledge of complex trauma and its impact? Are there other specific professional backgrounds or skills you feel are essential for the decision making panel?
Yes, agree with the proposed knowledge and skills. No, there are no other skills or professional backgrounds which need to be represented in decision making panel. But as noted in our answer to Q.45, the panel – and individual applicants – should be supported by other professionals, who can be called on to help plug gaps in knowledge and expertise. The skills necessary for this scheme to work well should not – and cannot – be contained within a small, three person panel.
47. We propose that a Survivor Panel be established to advise and inform the redress scheme governance and administration, ensuring survivor experience of the application process is considered as part of a culture of continuous improvement. Do you agree? How do you think survivors should be recruited and selected for this panel?
Yes. This would represent an important aspect of governance and continuous improvement, including rapid responses to challenges as they emerge. Survivor experience should also be reflected in the schemes overall governance (i.e. the Board).
Selection should be on the basis of open invitation and competition (on transparent criteria). Organisations should be encouraged to support members to apply. Representation should be broad enough to ensure all perspectives are being heard.
48. Do you agree that the financial redress scheme administration should be located in a new public body?
Not sure. The consultation document presents this as the only option, but for such an important decision it would be helpful if other options available were presented and evaluated (i.e. costs, benefits, risks, issues, etc.). For example, Social Work Scotland members have queried why the Redress Scheme cannot be located within the Scottish Courts and Tribunals Service, on the basis that it already has relevant expertise, and has judicial oversight and appeals processes built in. Others also raised concern that a new public body would not be seen as sufficiently independent of Scottish Government or local authorities, on whose resources the public body is likely to rely.
49. Do you have any views as to where the public body should be located and what it should be called? What factors should be taken into account when deciding where the public body should be?
We do not have views on what a new public body should be called, and the right choice of location(s) will be significantly determined by the public bodies’ functions. For example, if the public body is going to provide a structure for the provision of support services for victims, the body should perhaps have multiple locations across Scotland. Its headquarters could be in a significant town, easily accessible by public transport. Access for survivors and participating institutions, bodies and professionals should be the primary consideration.
50. How can survivors be involved in the recruitment process for these posts? How should survivors be selected to take part in this process?
Through the recruitment process there should be scope for survivors to interview and be part of the assessment process for panel members. Their feedback would provide an additional perspective which will ensure the people on the panel have good interpersonal skills, are empathic and personable. It may also help to run a national campaign inviting survivors to apply to be panel advisors.
There are strong parallels here with recruitment of panel members and senior staff at Children’s Hearings Scotland. Engagement and learning from CHS’ experience would be advantageous.
51. What are your views on bringing together the administration of other elements of a reparation package such as support and acknowledgement with financial redress? What would be the advantages? Would there be any disadvantages, and if so, how might these be addressed?
While we acknowledge the advantages of bringing together the administration of the wider reparation package (in respect of improved coordination, governance, efficiency, joint-working, single-point-of-entry, etc.), we have concerns about breaking the link for people with established local support services. As a result of the centralisation of support ‘under one roof ‘, funding for local services may be put at risk. These are services which have established relationships within local areas and with local areas, and which, if properly resourced and supported, may outlive the public body running the Redress Scheme.
Furthermore, many aspects of supporting individuals and facilitating applications are currently provided by local authority social work. The relationships local professionals have developed will be difficult to replicate quickly in a national body. Ultimately, individuals live in local communities, and will benefit from being linked into a web of support which is itself local and accessible.
For these reasons, while we do see the advantages of bringing administration together, the case for doing so must be very convincingly made, its potential benefits clearly outweighing its risks of disrupting the existing mix of local and national provision.
52. Do you agree that it would be beneficial if the administration of these elements were located in the same physical building? What would be the advantages? Would there be any disadvantages, and if so, how might these be addressed?
No answer to this question.
53. Should wider reparation be available to everyone who meets the eligibility criteria for the financial redress scheme?
Broadly, yes. Access to the wider reparations should be on the basis that the individual experienced abuse while in the care of the state, between certain specified dates. However, we would favour a more nuanced approach to determining access to support than the criteria set for eligibility to financial redress.
Support should begin from initial inquiry, and be available (if desired) in the preparing of applications for financial redress. By virtue of this though, it would not be possible to determine whether someone is eligible for wider reparations on the basis of whether they are eligible for financial redress, as this may not have been decided yet. It may be the case that an individual applications for financial redress is turned down, but that they receive a measure of support through the process, and access to other services.
54. Should there be priority access to wider reparation for certain groups, for example elderly and ill?
Yes. A form of triage and prioritisation will be important, to ensure those in most need, and those with life limiting conditions are responded to early. Each person applying for wider reparations should have their needs and context assessed appropriately.
55. If a person is eligible for redress, should they have the same or comparable access to other elements of reparation whether they live in Scotland or elsewhere?
Yes. However, the services should be made available in Scotland, and people’s actual access to it will be determined by their proximity to relevant offers (groups, etc.) or access to appropriate technology.
It would not be feasible to extend all aspects of the wider reparations to people living in other countries. They should equal right to access, but not have services taken to them.
ACKNOWLEDGEMENT AND APOLOGY
56. To allow us more flexibility in considering how acknowledgment is delivered in the future, we intend to include provision in the redress legislation to repeal the sections of the Victims and Witnesses (Scotland) Act 2014 which established the National Confidential Forum. Do you have any views on this?
In our view the powers should be taken. The decision whether to use them should be considered further, but it is important that Scottish Government and its stakeholders have the ability to make changes in the future, if so decided.
57. Do you have any views on how acknowledgment should be provided in the future?
58. Do you think a personal apology should be given alongside a redress payment? If so, who should give the apology?
No answer to this question.
59. Do you think there is a need for a dedicated support service for in care survivors once the financial redress scheme is in place?
Yes. There is a need for a dedicated support service with a single point of entry and access to multi-agency services. Care experienced people who are no longer receiving services, and who are or wish to access their records, are a high-risk group who must be considered within the scope of these services. Moreover, for some survivors they will already have a key person who is offering support, and any development of dedicated service will need to take account of and incorporate these existing relationships.
We think it is odd that these questions of support have been located outwith the sections of the consultation concerned with wider reparations. In our view it is a mistake to separate these things out. The provision of high-quality, person-centered support (including but not limited to assistance in making applications for financial redress) represents reparation. Making amends for failures in the past by ensuring that today eligible individuals have access to all the support they need. Indeed, the Redress Scheme should be constructed with a view to the Self-Directed Support (Scotland) Act 2013, providing people with control over how they wish to direct and receive support. (In contrast to a national public body commissioning services which victims / survivors then have to ‘fit’ into.)
60. Do you have any initial views on how support for in care survivors might be delivered in Scotland, alongside a redress scheme?
Please see answers to earlier questions.
For further information, please do not hesitate to contact:
Director, Social Work Scotland
Consultation Response: Public Health Scotland
Consultation response: Age of Criminal Responsibility (Scotland) Act
Consultation response: Social Security Disability Assistance