Response to Consultations

The impact of the COVID-19 pandemic on equalities and human rights

JOINT SUBMISSION FROM SOCIAL WORK SCOTLAND AND SCOTTISH ASSOCIATION OF SOCIAL WORK TO THE SCOTTISH PARLIAMENT’S EQUALITIES AND HUMAN RIGHTS COMMITTEE INQUIRY

13^th January 2021  

Social Work Scotland is the professional body for social work leaders in Scotland. The Scottish Association of Social Work (SASW) is part of the British Association of Social Workers, an independent membership body for social workers across the UK.  Both organisations work closely with partners to shape policy and practice and improve the quality and experience of social services.  We are responding to this inquiry together, bringing together the views of frontline social workers and managers who are employed in the public, private and voluntary sectors, as well as those operating as independent practitioners. Our joint membership is diverse, and being located across all parts of Scotland, experiences throughout the pandemic have been highly variable, in line with the differences decisions and approaches taken by local areas. We profile in this submission here the common themes to emerge from their feedback over the past ten months.

KEY POINTS

1. While acknowledging that COVID-19 has manifested some new equality and human rights issues, overwhelmingly its impact has been to exacerbate existing inequalities and lay bare the fragility of the systems (services, people) who protect and give meaning to human rights. This is particularly the case for those individuals whose rights were more vulnerable prior to the pandemic, due to age, disability, gender, sexuality, socio-economic status, race and ethnicity, housing security, mental health, etc. Well-resourced public services (such as social work and social care) as well as an active civic society (including charities, voluntary organisations, etc) are essential to the realisation of Scotland’s vision of a rights-based, equal society. Instead, the funding of the social care system has fallen in real terms over the decade of austerity – in the opposite direction to increasing need due to demographic and other changes.
2. The many different dimensions of social inequalities create overlapping layers of disadvantage, which are multiple for many people; these have been tracked by the disproportionate impacts of the pandemic. In managing our ongoing response to COVID-19, and in our “rebuilding better” after, careful attention must be paid to the views and needs of these specific groups, ensuring plans take account of their vulnerability to the virus itself and/or its wider socio-economic and mental health effects, and deal with root causes.
3. Social work is a critical component in many public service systems. In children, adult and justice services, social workers mediate access to a wide range of support (e.g., child and adult social care), deliver specific interventions and protect the interests of those unable to do so independently. COVID-19 has restricted social work’s ability to perform these functions, due to staff absence, work-from-home restrictions, limited PPE (in the early stages of the pandemic) and prioritisation of other urgent issues. As a result of social work being less present and accessible, the rights of some individuals will have been affected. Social workers, with colleagues across social services, have worked tirelessly to minimise this impact, but there are limits to what can be achieved through remote working or with depleted teams. Vaccination holds out the promise of a return to face-to-face interaction and relational work on a much wider scale than is currently possible. However, the impact of COVID-19 on the profession, and the organisations which employ them, is likely to stretch over a number of years. Any plan to re-address the inequities and rights impact of the pandemic must have within it a commitment to address issues impeding the delivery of effective social work practice.
4. The pandemic has revealed the limitations of a ‘rights bearer’ and ‘duty holder’ framing of human rights. Corporate bodies, such as local authorities, may hold duties to uphold rights, but those corporate bodies are in reality just organised groups of people, all with their own needs, vulnerabilities and rights. The response to COVID-19 has, universally, forced employers to consider the welfare of their staff, and the urgency and risk of the work they are involved in. Within the NHS, that has led to the cancellation of operations and delayed treatment for thousands of people. For social work and social care, it has meant, in some cases, reductions in the level of support which can be made available. A realistic appraisal of the impact of the pandemic on rights and equality should highlight the responsibilities of employers to keep their people safe, and the enormous challenges they faced in the early stages, seeking to securing solutions which would enable professionals and others (such as social workers, social care staff and carers) to resume their work.
5. Just as people rely on other people to give meaning to their human rights, the rights of different individuals can sometimes be in tension, or even conflict, with each other. In some cases, an individual’s exercise of their right to put themselves and/or others into potential harm. It is the unique role of social work to assess an individual’s needs, understand their wishes, and to promote their interests and wellbeing within the framework of their human rights and the current service / resource context. Sometimes this involves taking decisions in an individual’s interests which are at odds with their (or a family or friend’s) wishes. Such situations demand a high degree of sensitivity and skill to manage, and are, by their nature, often contentious and emotive. We make this point to underline the importance of taking a broad and nuanced perspective in any evaluation of how human rights have been impacted in the pandemic. Every individual’s story is complex and multifaceted, and understanding comes from a breadth of perspectives.
6. The virus, its impact on people’s health, and the impact of the measures we have taken to contain its spread, have most affected least advantaged in our society (on all dimensions: income and wealth, housing, digital, social, etc). 2020 and 2021 will have served to exacerbate our existing inequalities. Our hope is that, in having these inequalities more clearly surfaced, and a wider proportion of the population made aware, through their own experiences, of the challenges brought about by low incomes, isolation and family stress bring, the public’s appetite for addressing the underlying structural factors will be strengthened.

QUESTION 1: HOW HAVE GROUPS OF PEOPLE BEEN AFFECTED BY THE VIRUS?

In assessing COVID-19’s impact on equalities and human rights it is helpful to distinguish between the effects related to (a) the virus and disease itself[1], and (b) the actions taken by public authorities to contain the spread of the virus and protect vulnerable groups, access to emergency services, etc. Social workers have been involved throughout the pandemic in mitigating the impacts seen in both domains (albeit the majority of our activity has focused on the issues created by state efforts to contain the virus, which have affected every member of society in some way).

(A) Impact of the disease

As has now been well documented, the disease COVID-19 does discriminate. It has, to date at least, disproportionately affected older people, those with underlying health conditions, members of our Black, Asian, and other Minority Ethnic communities, and people with low incomes or precarious employment (e.g., zero-hour contracts). The reasons for this prejudice are various, including, in these groups, higher than average numbers of people living together under the same roof (be it a care home or family home), exposure to the virus through public facing roles (e.g., public transport workers, nurses and healthcare assistants, etc.) and above average rates of pre-existing co-morbidities (e.g., diabetes, obesity, hypertension). These factors coalesce together into an increased risk of catching the virus, and then an increased risk of the virus manifesting a serious or fatal response.

The impact of these increased risks has manifested in many ways, with individuals and families affected by some or all of the following:

Stress and anxiety

• Worry for self and family, about illness and/or social and financial impacts
• Worry about transmission of the virus to loved ones, known contacts, professionals and carers, colleagues, other residents in home or accommodation, unknown members of the public, etc.
• Worry about putting pressure on the health service, reducing its capacity for others.

Loss of income

• Actual reductions in income because not able to work

Loneliness (reduced human contact and self-isolation)

• Reduced in person contact with family, carers and professionals.

Recovered but with “long covid”

• Development of chronic health conditions, impacting on long-term ability to work, participate in education, society, etc.

Time in hospital

• Range of experiences including near-death and trauma, as well as the joy of survival
• Consumption of scare resources including deferment of services required by people with other medical conditions leading to ‘survivor guilt’.

Decline in mental health

• Various psychological impacts, exacerbating existing conditions and provoking new ones.

Death

• Loss of future lives
• Bereavements and long-term loss to loved ones, families, friends
• Financial loss to families and wider society (multipliers, taxation, etc)
• Loss of contributions to society, and local communities

This is not an exhaustive list, but it illustrates that, for those who have caught the virus the potential impact on their human rights cannot be more serious, with loss of mental and physical health, work, and even life. And with the knowledge that the COVID-19 virus does not affect all groups in society equally, but that all groups are interconnected, it is understandable that governments around the world have taken such drastic all-of-society action in their efforts to contain it.

(B) Efforts to contain the virus

The public health measures introduced to slow the spread of the virus only have historical comparators in wartime. Every aspect of life and every individual, family and community has been affected. The scale and severity of restrictions (on the economy, social contact, movement, etc.) has meant that the virus, directly or indirectly, has impacted the rights and wellbeing or every person in the UK. But as with the discriminate impact of the virus, affecting some groups more than others, the impact of efforts to contain it have not fallen evenly on society. As social work practitioners and managers we have had a front-line perspective on this throughout the pandemic; particularly in respect to people who are vulnerable or need additional support, for whom we provide or coordinate services. This includes children, families, parents, carers, adults with disabilities, older people and people involved in the criminal justice system.

Among the many impacts of restrictions over the past year, of particularly note in respect of this inquiry are:

Increased levels of poverty

• Poverty, much of which existed prior to the pandemic, is a key underlying factor for the escalation of crisis in many households[2].
• Financial pressures resulting from insecure or total loss of employment and/or insufficient government support (for example where individuals must self-isolate) has contributed significantly to financial insecurity. The Government’s commitment to free school meals and increased levels of financial support have ameliorated this to some extent, but the medium to long-term impact of increased anxiety within families (and to individuals within those families) may be serious.
• Increase in food poverty (with its concomitant impact on education, health, etc.).[3]
• Increases in applications for welfare and crisis support[4]. Accordingly, social work has faced increased demand for practical support around income maximisation and housing.

Digital poverty / inequality

• Some individuals / families have been able to continue to participate effectively in school, healthcare, routine assessment, etc. thanks to digital connectivity. Indeed for some people the move of many services online has been beneficial, removing the need and cost of travel, etc., and changing the terms of their interaction with professionals. However, for others the move online has meant marginalisation, and the loss of support / a service. The pre-existing ‘digital divide’ – reflecting inequality of access to knowledge, hardware, software, data and support – has been exaggerated, with those most likely to lose out being those already most disadvantaged. Digital connectivity is no longer a “nice to have” when essential services move online.
• The move online has also encouraged new types of financial fraud, increased exposure to on-line sexual grooming and the potential for other forms of exploitation of vulnerable people[5].

Disruption to referral routes for social work and social care

• Because engagement with schools, GPs, hospitals, etc. has significantly reduced, along with home visits by nurses, voluntary organisations, etc., referrals to social work or police for vulnerable children and adults have been disrupted, leading to delays in issues being identified. Early notification of concern is critical to prevent situations deteriorating further, leading to more serious problems.

Disruption to social work, social care and community services

• Social work and social care services entered the pandemic with insufficient capacity to meet demand related to population aging, widening inequalities and growing social care needs[6]. As the pandemic took hold, sickness, self-isolation and re-deployment reduced capacity further. Limitations on PPE, national guidance on home visiting and other factors also impacted on social work’s ability to reach people vulnerable or in need.
• Voluntary sector and community organisations / services forced to close (e.g. day services, etc.), restricting the opportunities available to certain groups, such as those with disabilities, to leave their homes, maintain relationships, etc.
• Public sector and independent (voluntary or private sector) providers of care and support forced to reduce the care packages they can service.

Increased isolation and loneliness, impacting on mental health and wellbeing

• Isolation and loneliness have increased across all sections of the population, with significant impact on mental wellbeing and mental health. However, for individuals and families who were already isolated (as too many older people, adults with disabilities and parents were) the closing of services and reduction of interaction / visits from family, carers, support workers, etc. has exaggerated this further.

Increased pressure within families

• Poverty (be it financial, food, digital, housing) creates stress within families. The government’s efforts to contain the COVID-19 pandemic have increased those pressures within many families.
• Further pressure has been built through individuals spending extended periods of time exclusively together at home, the demands of home schooling, disruption to exams, young people’s lack of access to friends, the general social anxiety about the future, etc.

As with the impacts of the virus itself, this list is far from exhaustive. What we have tried to illustrate is that the restrictions imposed have surfaced the significant inequalities which existed in society before the pandemic. And, moreover, that the fulfilment of people’s human rights relies on a broad base of civic and public services being accessible. This is particularly true for people and families with fewer socio-economic advantages. Remove the scaffolding from around individuals and communities, and the structure is less resilient to major external and internal stresses.

QUESTION 2: WHICH GROUPS HAVE BEEN DISPROPORTIONATELY AFFECTED BY THE VIRUS AND THE RESPONSE TO IT?

• Children and Families:

Children, as a cohort, have been particularly affected because of the disruption to education (from early learning and childcare through all stages of school) and the dramatic reduction in opportunities for play, peer and extended family interaction, creativity, learning, travel, etc. These opportunities, complementing formal learning, shape the adults we become. The absence of school and other child/youth activities has also significantly reduced the chance to identify issues early and offer help. That is particularly problematic for young people’s mental and physical health. The long-term legacy of these COVID-19 months is yet to be seen, but it is children and young people whose lives will be most shaped by it. The world of employment will be changed (possibly with fewer of the sort of jobs young people begin with), and public debt built up to underwrite the government’s response will shape public and political debate for decades to come. At an individual level, disruption to schooling and issues with mental health may determine many future choices.

Within the cohort of ‘all children’, specific groups have been affected more than others. For example, those affected by domestic abuse. Levels of domestic abuse in Scotland have been a persistent concern for social work, charities and policy makers for many years, but on the basis of calls to third sector helplines, the pandemic has led to increased prevalence. This is consistent with what we know about domestic abuse, and its relationship to wider stressors within the family. With services reduced or closed, and people encouraged to isolate as much as possible, we have reduced our collective ability to spot and respond to cases at the early stages. This has limited our capacity to protect the rights of children (and others impacted by abuse within the household). Our experience suggests that much greater support is needed for non-abusing parents and children, and that we must engage much more effectively and assiduously with perpetrators. Many local authorities and organisations were building these strengths-based approach (such as the internationally recognised Safe and Together™^[7]) at the start of the pandemic, but unfortunately work in some areas has had to be delayed to accommodate other priorities.

The true extent of child sexual abuse and child criminal exploitation through the pandemic has been hard to gauge[8], but we expect it to have increased. Third sector colleagues and the police draw attention to the significance of interaction between technology-assisted and direct contact abuse, and with the move of children’s lives online, the increased risks. The pandemic has underlined the need for a closer examination of the context of abuse outside the family, and a consideration of how to intervene in both physical locations and online platforms (a theme explored in a recent Social Work Scotland hosted seminar[9]). More generally, ensuring child protection during COVID-19 has been challenging, with the everyday monitoring provided by schools and other universal services reduced or removed. Social work professionals themselves have been restricted in their ability to interact with families, with reductions in home visits, supervised contact, etc. Colleagues report concerns about patterns of Forced Marriage, Female Genital Mutilation and Honour Based Abuse.

There has also been a disproportionate impact for children involved in the Children’s Hearings System and courts. Permanence decisions have been delayed, existing Orders have been rolled forward without expiry date (meaning that families risk being subject to state intervention longer than necessary), and only priority case have been heard by Children’s Hearing panels, potentially limiting access to services from social work and others. Figures provided to the Scottish Government (as part the monitoring of COVID-19’s impact) indicate that since March 2020 there has been a significant reduction in the number of children becoming looked after away from home.[10] At this stage there is not enough data and intelligence to confirm whether this is as a result of system changes or limited access to resources and not necessarily because of reduced need or better practice. This needs to be explored to ensure that children’s rights are not at risk from inaction.

The challenge of promoting the relationships and wellbeing of children looked after away from home has been accentuated by COVID-19. Social Work Scotland has been central to the development of a framework for decision making about contact[11], assisting practitioners make extremely difficult decisions.  For example, there have been significant challenges around contact, for example between children and birth parents, balancing the benefits with risks, such as spreading the virus to foster or kinship carers (often an older population) or between different parts of the country (which may have different rates of infection and restrictions in place). The limited number of safe physical environments for indoor contact has further restricted options.

Social workers have consistently reported how stretched and affected many kinship and foster carers, and the children in their care, have been, with individuals feeling isolated and disconnected from their normal networks (formal and informal) of support. Local areas have done creative work using virtual support and new models of practical, material help, but for many of these families it has remained a very difficult year. We take heart from the adaptation and resilience the families have shown, and the positive stories emerging of, for instance, effective family group decision making taking place which have kept children out of the care system.[12]

Families with children who have complex physical or learning needs have been particularly impacted by the closure of educational settings, having to assume 24 hour responsibility for care and education. There are specific risks for these families in terms of isolation and burn out without frequent opportunities for support and respite. And for those at or near school leaving age, the crucial transition planning for people with additional support needs (enabling them to make successful moves into further and higher education, or employment) has been disrupted, opportunities restricted.

(B) Adults

Adults living in care homes, whether older people or adults with complex needs, have been disproportionately affected by the virus and the response. In the first phase on the pandemic, there were high levels of excess deaths (compared to the weekly 5-year averages for 2015-19, not all of which were recognised on death certificates as COVID-19 related during the period before testing became more widely available[13].

Some social care workers in residential homes, and also in the community, have also died as a result of contracting COVID-19 through their work, as sadly has been the case for other groups of essential workers.

From a social work perspective, it became increasingly important to ensure that people’s human rights and mental health were being considered alongside (rather than secondary to) clinical excellence and infection control. Issues as varied as discharges from hospitals to care homes, restrictions on visits, limited interaction within homes, mass testing, use of Do Not Attempt Cardiopulmonary Resuscitation forms[14], have all presented complex and nuanced decision making. And they have proved highly problematic for many care homes, especially those supporting people with cognitive needs. The enhanced oversight of care homes duty, placed on Chief Social Work Officers and other professional leaders, was an attempt to ensure a balanced assessment of risks, rights and needs in shaping local strategies. As we write, the vaccination programme is being rolled out through care homes, and we hope this will enable residents to access their rights to see family and friends, and to ensure they get the full range of services and supports they need.

At the core of the social work role is public protection; assessing risks and benefits in an ecological model, with the aim of securing the best outcomes for an individual, with their needs and wishes met and interests protected. In some instances, social workers are empowered to take actions to protect the interests of an individual, possibly bringing them into conflict with the individual or their carer / family, who wish to take a different course of action. This is a difficult but essential role in a society where not all individuals, whether due to incapacity or circumstances, are in a position to determine their best interests alone. And while families have a undisputed right to inform and lead decision-making in such instances, it is the case that they do not always have access to all the information, or necessarily have the rights, needs and interests of the individual as their primary concern. Over the course of the pandemic, with the social work profession’s ability to perform this role has been restricted, leading to concerns about the welfare of such as for adults with incapacity. Due in reduced reporting channels (fewer agencies and primary care contact with people and families at risk of crisis) and restrictions on movement and interaction, it has been difficult in some cases to ensure the rights and welfare of some individuals’ are being maintained.

Early intervention and community supports are critical to maintaining good mental wellbeing and mental health. Where these are not available, we can expect to see more people reaching mental health crises. This is likely to be compounded where the economic situation is worsened. With people’s mental health needs going unmet, detention – a deprivation of an individual’s liberty – is being considered more frequently than we, as a professional group involved in such decisions, would like to see it. As officers of local authorities within partnership arrangements, Mental Health Officers (specialist social workers with additional qualifications in mental health) are not sufficiently empowered to ensure provision meets assessed need. To ensure the rights of individuals with mental health issues are upheld, MHOs (and other relevant professionals) need access to specialist and community resources, over which people are offered choice and control. We believe that decisions regarding detention should be made after face-to-face assessment of patients, but we are aware that due to staffing constraints, this is not always the case.  Whilst the number[15] of people being detained due to their mental health has risen during the pandemic, this is in line with year on year rises. There is evidence, however, from the Mental Welfare Commission that some of the safeguards around detention have been used less frequently than previously. We are concerned about the critical shortage of both MHOs and “Section 22” medical professionals.  We note that the Tayside Independent Review report “Trust and Respect” was explicit in finding that a shortage of Registered Medical Officers impacted detrimentally on the patient’s journey.

People who are homeless initially benefitted from the programme to ensure that everyone was off the streets, and the route map for “Everyone Home”[16] has been developed to make asking about homelessness an expectation across public services.  However, in order for this success to stand beyond the pandemic, public services must continue to be resourced appropriately to attend to the multiple underlying structural causes of homelessness (including additions, mental health, debt, etc.). Otherwise, we risk returning to pre-pandemic levels of homelessness (or higher, considering the precarious financial situation many people face), with the additional challenge of a diminished voluntary sector, its finances limited after a year of reduced income.

(C) Adults involved in the justice system

Justice Social Work delivers reports to Scottish Courts, provides or commissions community-based programmes as an alternative to prison, and is responsible for a range of expert risk assessment support to the police, prison service and Parole Board.  Requirements for physical distancing, and the universal impact on staffing through sickness, isolation and redeployment, have reduced the ability of justice social workers to deliver group programmes and coordinate unpaid work activity. This has a very significant impact, in terms of rights and equalities, on the individuals subject to relevant courts orders, effectively extending sentences and prolonging involvement with the justice system.

Both Social Work Scotland and SASW[17] have articulated concerns to the Scottish Government around the backlog of community order ‘unpaid work’ hours[18].  We believe that without a systematic reduction in the number of outstanding unpaid work hours (through revocation or variation of orders) there is a major risk that Justice Social Work (JSW) will be overwhelmed, with serious consequences for the wider justice system and the rights of both social work professionals and individuals and families, and victims. Whilst some funding has been made available to buy in support from the Third Sector, this will not release the number of hours necessary to meet the backlog in demand.

Before the Coronavirus pandemic there was an increasing focus on expanding early intervention measures such as Diversion from Prosecution and Structured Deferred Sentences which help individuals to avoid unnecessary contact with the criminal justice system and deliver swift interventions which can interrupt a cycle of offending. Many of the strategies now in place to deal with the backlog within the justice system require heavy input from CJSW, but simultaneously the capacity of CJSW has reduced[19].

People in prison have experienced significant additional curtailments to their rights as visits, time out of cell, meaningful daily activity and access to fresh air have all been reduced.  Numbers of people on remand have increased as has the length of time people are remanded impacting on people’s lives, housing, work finances and relationships. Children who have a parent or sibling in prison will experience the removal of the person from their lives in a more extreme way than even prior to the pandemic.

QUESTION 3: HAVE THERE BEEN SPECIFIC EQUALITY OR HUMAN RIGHTS IMPACTS ON GROUPS OF PEOPLE AS A RESPONSE TO THE VIRUS?

The Scottish Human Rights Commission (SHRC) recently published a report into changes to social care provision during COVID-19 and its impact on human rights[20].  It details the experiences of individuals receiving health and social care support, with a focus on the rights of persons with disabilities, older people, carers and children. The testimony of many of those who participated in the research is distressing, highlighting the serious consequences for individuals when support cannot be accessed.

The context around these experiences were the efforts of NHS, local authorities and independent care providers (working together as Health and Social Care Partnerships) to ensure support was available to meet all assessed (and anticipated) need, within safe staffing levels. Plans took into account high rates of staff absence, due to sickness and isolation. The restrictions, and necessary steps to protect staff, meant that many social workers and social care staff would be limited in their ability to work. The focus was on protecting critical services for those most in need. However, the timeframe for how long this would be needed was not clear at the outset, and the working assumption was that measures to reduce care packages for some (to ensure some access for all) would be required for weeks, not months. It is clear now that the impact of these measures varied across Scotland, reflecting different levels and types of pre-pandemic service provision and workforce demographics. But in all areas of Scotland those requiring social care support, and those caring for them, have been disproportionately affected by the pandemic because of the limits the reductions of support place on an individual’s independence (beyond the national restrictions everyone has had to adapt to).

Because many face-to-face support services such as day centres and support groups had their operations significantly reduced as a result of public health requirements, the pressure of continually caring for people during the crisis will also have had an effect on the wellbeing of carers. Carers who support their family members or friends to live independently have experienced isolation and reduced support, with many increasing their caring hours to protect the supported person from additional footfall into their homes and related risks of exposure to the virus.

The SHRC report calls for the social care system to be reimagined as a dynamic interplay within a social infrastructure which supports citizens’ human rights as individuals within families and communities. SASW and Social Work Scotland agree strongly with this vision, but take this opportunity to emphasise that it is only possible when the system is populated by sufficient numbers of skilled people, committed and enabled to deliver the best outcomes for individuals. Such a system, requiring a significantly larger ‘workforce’, is not possible within current funding levels. A return to pre-COVID-19 structures and mechanisms of support, even if funding were increased, would not address the issues flagged by the SHRC report.

It is likely that one of the effects of the pandemic will be to increase the number of people needing health and social work and social care support as a result of:

• The immediate impact of illness, loss and grief and trauma
• The economic impact which may mean more individuals and families experience derivation and poverty which is a key factor in bringing people to social services
• The longer-term impact of long-covid, the reduction in planned health treatment and the need for physical distancing reducing opportunities for preventative and early intervention means that more people will have higher levels of chronic physical, mental health and social needs.

We take heart from examples highlighted in the Care Inspectorate’s report, ‘Delivering care at home and housing support services during the COVID-19 pandemic’[21], where local partnerships successfully adapted and flexed their support to meet people’s needs during the pandemic. Teams in local government and the voluntary and private sectors have innovated and adjusted, put people’s needs before contractual hours. The capacity for change and positive reform is in place, and we look forward to the upcoming discussions about how to realise that, in response to the Independent Review of Adult Social Care.

Question 4: What do the Scottish Government and public authorities (e.g. local authorities, health boards etc.) need to change or improve: as a matter of urgency & in the medium to long term?

This question frames a critical debate in an unhelpful way. Locating responsibility for change and improvement solely with Scottish Government and public authorities not only presumes that they have the capacity / resources to effect changes, it encourages us all to see the problem as ‘theirs’ to resolve. The issues we have profiled in this response, such as poverty, structural inequalities and the public-civic infrastructure which give effect to people’s human rights, can only be addressed through both political and societal action. As with climate change, or changes to consumption that limit our impact on biodiversity, public authorities of all kinds are key players. But in democracies like Scotland, they move and act within a space we, the public, give them. Calling for public authorities to effect changes that will require significantly more resources, without our clearly accepting the need to provide those resources (through taxes, government borrowing or reallocation of existing spend), will simply perpetuate the public policy debates we have had for the past ten to fifteen years.

The funding of social care

Social Work Scotland and SASW are particularly concerned about the impacts of the deepening financial crisis in social care, which we have highlighted recently in our respective submissions to the Independent Review of Adult Social Care (IRASC).  The crisis also exists in children and families social work services, and criminal justice social work, which are not within the scope of the Independent Review of Adult Social Care.

Adult social care spending per head in Scotland has fallen dramatically for Scotland’s older people, less so in England but more than it has in Wales (see graph in download here).

Spending per head on adults aged 18-64 – mainly people with learning disabilities or physical disabilities, or in need of mental health support — has fared better, but in Scotland is back to the 2010-11 levels whilst the numbers of people living with disabilities, or with mental health problems, have both increased in Scotland, as in the rest of the UK. (The figures in the graph come from the Treasury’s Public Expenditure Statistical Analyses 2020).

Social Work Scotland’s submission to IRASC on Demographic Change and Adult Social Care Expenditure in Scotland ^[22]is mostly concerned with the Scottish Government’s own H&SC Medium Term Financial Framework (2018), which estimated the increased demands at 3.5% for adult social care as a whole, and 1% for the NHS.

We found that the estimated additional spend on 3.5% per year for adult social care is well supported by research in England by the London School of Economics using sophisticated modelling from survey data not available in Scotland.  That also shows that the additional demand for services for younger adults with a learning or physical disability, due largely to improved longevity, is at similar annual percentage increases as demand from older people.

However, our analysis does not support the lower increases for the NHS in the H&SC Medium Term Financial Framework – these are 1% per year for demography, compared to estimates by the Institute for Fiscal Studies of 2.2% per year for England and the UK as a whole (in their major study Securing the future published earlier in 2018).

Our analysis also does not support the annual workforce increases set out in the Scottish Government’s Integrated Health and Social Care Workforce Plan for Scotland published in December 2010, which stated that:

The Scottish Government’s Medium Term Financial Framework (MTFF) estimates that to address the effects of demand, we will require 1.3% per annum more NHS employees and 1.7% per annum more social care employees in the period to 2023/24”.

Those figures cannot be found in the MTFF and, we believe, are incorrect. In any event, Scottish Government funding to councils for adult social care has not been increased to the level required to meet demography, yet alone address the unmet need that has accumulated for survivors of the decade of austerity. Increased funding for social care needs to fully recognise the impacts of demographic change, in line with the Scottish Government’s own medium-term planning, and on a corrected basis for the NHS in Scotland.

The role and status of social work

Social work is one of the few ‘key worker’ professions which is, when able to operate as conceived, proactive and person-led. It exists (and in legislation is empowered) to take action in defence or support of people made vulnerable by their circumstances. Those we work with may be less likely to be heard, and may struggle to stay afloat when the scaffolding of support is stripped away (as it has been during COVID-19). Social work sees people in their own individual context, recognising that an individual’s relationships, strengths, interests, etc. constitute the person, and that to give meaning to their human rights is to reinforce and promote those assets. But we must also balance individual rights with those of others, and consider the risks of certain actions to the individual themselves, their families and wider society. Our role must be to enable those people to have a voice, and to provide protective support or intervention where that becomes necessary.

As illustrated above, before COVID-19 social work (and the wider social care system it underpins) was already facing significant financial constraint; demand and aspiration not matched by available budgets. The 2019/20 COSLA report Investing in Essential Services, highlighted the challenges local authorities face to meet the outcomes and targets identified in the national performance framework within existing resources, referencing specifically child poverty and vulnerable adults[23]. The strain that the social care system is under, and the conditions in which care professionals must practice, has been well documented in a range of reports from academics and institutions. The latest such report from the University of the West of Scotland (UWS) (Decent work in Scotland’s Care Homes) highlights a sector facing ‘systemic issues, a lack of respect and in need of cultural change’[24].

Within the current landscape, social work professionals – trained to respect and uphold human rights and work alongside individuals and communities (balancing and holding needs, risks and interests) – find themselves working in systems which can force them to be ‘assessors’ of risk and gatekeepers to over-rationedrvices.[25]  This not only means we fail to realise the human rights and outcomes potential of social work, but we slowly erode the enthusiasm and commitment of the professionals themselves.

While there has been positive innovation, acceleration of developments and much useful learning from the past year, the pandemic has made it harder to work alongside people and families at the challenging points and transitions in their lives. This has posed a unique challenge to social work, which is support based within and upon relationships. Feedback from our members has highlighted a number of further issues for the profession, limiting our ability to provide support and services and significantly affecting the working conditions and wellbeing of social workers. We would welcome any opportunity to discuss this further with the Committee.

Social Work Scotland’s Chief Social Work Officer (CSWO) committee has reported that the pandemic’s impact on the social work profession has been to compound pre-existing issues. These include dealing with real term reductions in budgets (which in turn increases workload on individuals), difficulties in recruitment, lacking visibility and authority in key decision-making forums, the disparity in social work and social care’s pay and conditions between health and social care partnerships. The split professional leadership across adults, justice and children and families is also seen, by some, to weaken oversight and coordination.

In July 2020 the Social Workers’ Union[26] reported that one third of social workers are considering leaving the profession as a direct result of the pandemic. The union released an action plan calling for increased mental health support, a social work recruitment drive and a pledge not to re-introduce austerity measures post-pandemic.

As we move through and, hopefully, out of the pandemic, we would like to see and contribute to a re-imagining of the role and functions of public services. People are not simply ‘rights holders’ and professionals (such as social workers) are not simply ‘duty bearers’; we are all people, facing the challenges presented by the context, trying to deliver the optimum outcomes for individual and society, while having to balance competing interests, rights, demands and priorities. Similarly, public services must embrace greater creativity in how they support people to give meaning to their human rights and find genuine wellbeing. That will require a workforce who feel equipped and empowered to do what they were trained to do. The Human Rights Taskforce due to report in March 2021 will, no doubt, be considering a range of ways that public services and others can achieve this, and the Independent Review of Adult Social Care and The Promise are re-imagining support services for key groups.

For further information, please do not hesitate to contact:

Flora Aldridge

Social Work Scotland

Flora.aldridge@socialworkscotland.org

Emily Galloway

SASW

Emily.galloway@basw.co.uk

[1] See World Health Organisation website: https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it

[2] https://www.basw.co.uk/media/news/2020/oct/port-storm-poverty-aware-social-work-pandemic

[3] https://www.trusselltrust.org/2020/09/14/new-report-reveals-how-coronavirus-has-affected-food-bank-use/

[4]https://scotland.shelter.org.uk/__data/assets/pdf_file/0008/1934099/Shelter_Scotland_briefing_LGCC_Homelessness_and_Covid_140820.pdf/_nocache

[5] IBID page 91

[6] See Social Work Scotland supplementary submissions to the Independent Review of Adult Social Care: https://socialworkscotland.org/wp-content/uploads/2020/11/SWS-Supp-Sub-1-DEMOGRAPHIC-CHANGE-AND-ADULT-SOCIAL-CARE-EXPENDITURE-IN-SCOTLAND.pdf; and https://socialworkscotland.org/wp-content/uploads/2020/11/SWS-Supp-Sub-2-ASC-EXPENDITURE-IN-THE-DECADE-OF-AUSTERITY.pdf.

[7] ABOUT THE MODEL – Safe & Together Institute (safeandtogetherinstitute.com)

[8] https://www.scra.gov.uk/2020/10/sexual-exploitation-of-children-new-research-report/

[9] https://socialworkscotland.org/contextual-safeguarding-event-2020/

[10] Coronavirus (COVID-19): children, young people and families – evidence and intelligence reports (various)

[11] https://socialworkscotland.org/publication/connections-for-wellbeing/

[12] The IRISS summary of a University of Edinburgh/City of Edinburgh Knowledge exchange project illustrates the value of this rights based approach in the most urgent of circumstances https://www.iriss.org.uk/sites/default/files/2020-06/recognition_matters_briefing_june_2020.pdf

[13] National Records of Scotland: https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics-by-theme/vital-events/general-publications/weekly-and-monthly-data-on-births-and-deaths/deaths-involving-coronavirus-covid-19-in-scotland (Week 53)

[14] OLDER PEOPLE BEING PRESSURISED INTO SIGNING DO NOT ATTEMPT CPR FORMS – JOINT STATEMENT FROM AGE SECTOR ORGANISATIONS | Media | Age UK

[15] Detentions for mental health care during the pandemic – new report | Mental Welfare Commission for Scotland (mwcscot.org.uk)

[16] route-map-4.pdf (everyonehome.scot)

[17] Letter for Humza Yousaf, MSP, Cabinet Secretary for Justice from SASW | www.basw.co.uk

[18] https://socialworkscotland.org/briefings/reducing-the-backlog-of-unpaid-work-hours-coronavirus-scotland-act-2020/

[19] https://socialworkscotland.org/consultation/pre-budget-scrutiny-2021-22-justice-committee-call-for-views/

[20] https://www.scottishhumanrights.com/media/2102/covid-19-social-care-monitoring-report-vfinal.pdf, Chapter 3, page 15

[21] https://hub.careinspectorate.com/media/4171/delivering-cah-and-hss-during-the-covid-19-pandemic.pdf

[22] https://socialworkscotland.org/wp-content/uploads/2020/11/SWS-Supp-Sub-1-DEMOGRAPHIC-CHANGE-AND-ADULT-SOCIAL-CARE-EXPENDITURE-IN-SCOTLAND.pdf

[23] https://www.cosla.gov.uk/__data/assets/pdf_file/0021/14808/cosla-investinessentialservices.pdf

[24] https://dwsc-research.org/wp-content/uploads/2020/12/Decent-Work-in-Scottish-Care-Homes-Report-Final.pdf

[25] https://www.sehd.scot.nhs.uk/publications/DC20011129CCD8single.pdf

[26] SWU: Social Work’s Six-Point Urgent Action Plan | www.basw.co.uk

Domestic Abuse (Protection)(Scotland) Bill SWS response

Domestic Abuse (Protection)(Scotland) Bill SWS response

4 December 2020

Email contact: James Cox, Children and Families Lead, Social Work Scotland and Lorrette Nicol, Social Work Team Manager for the JII Project, Social Work Scotland

The Committee welcomes your views on any issue relating to the Bill. This could include views on any of the following areas or questions:

Support for the Bill in general and the main provisions

1. Do you agree that a senior police officer should be able to impose a short-term Domestic Abuse Protection Notice (DAPN), without first seeking court approval, as proposed in sections 4-7 of the Bill? If so, what advantages would a DAPN have over the existing police and court powers?

Yes. Use of the Domestic Abuse Protection Notice would allow for significant protective measures to be put in place until it would be possible to apply for these via the Courts. The step might be taken by the police as urgently as necessary – for example at night.

2. Do you agree that the civil courts should be given powers to make a Domestic Abuse Protection Order (DAPO), as proposed in section 8-16 of the Bill? If so, what advantages would a DAPO have over the existing police and court powers?

Yes, Social Work Scotland agree with such powers, which would allow the Court to tailor the DAPO to the specific requirements of the case under consideration.

• It is likely to be protective of a woman who is at heightened risk of punitive action by the abuser if she takes the initiative, in that that an DAPO  would not be sought by the woman but by those taking on responsibility to protect her.
• The use of an DAPO could give some much needed space in which a woman could be supported in consideration of safety and options for herself and her child(ren).
• Social Work Scotland recognise that domestic abuse is the major cause of known women’s homelessness in Scotland. There are likely to be many instances of homelessness caused by domestic abuse that are not recorded as such. It is contrary to the rights, safety and wellbeing of women and children to be be pressured to leaving their home and move to refuges or temporary homeless accommodation for lack of alternative options. We therefore believe this step to be a practical support for one dimension of Scotland’s Homelessness action plan, Ending Homelessness Together.
• Lack of recourse to Legal Aid would not prevent a woman being protected by such an order.
• DAPOs would be congruent with Scotland’s Equally Safe strategy
• DAPOs would  be compliant with the European Convention on Human Rights (“ECHR”) Articles 2, 3.
• DAPOs would be in line with expectations within the Council of Europe Convention on Combating Violence Against Women and Domestic Violence (the Istanbul Convention), for example within  Article 52, which recommends that parties to the Convention have provisions for DAPOs.

Extension of the provisions to other types of family relationship or circumstance

3. Section 1 of the Bill requires the two people covered by the DAPN or DAPO to be spouses, civil partners or in an ‘intimate personal relationship’ with each other. In addition, the suspected perpetrator must be aged 18 or over and the person at risk must be 16 or over. Do you agree with this overall approach or do you wish to suggest any changes? In the Domestic Abuse Bill, that is currently making its way through the UK Parliament, a broader approach is proposed for England and Wales, extending to other family relationships and people sharing a house in other circumstances.

Social Work Scotland agree with this approach.

Other protective action may be supported by other legislation such Children’s Hearings (Scotland) Act 2011 for children and the Adult Support and Protection Act (2007) for vulnerable adults.

The Domestic Abuse (Scotland) Act 2018 does also provide for protection of children living in the house.

Processes to be used for imposing a notice or granting of an order, timescales and the role of the police

4. Under section 8 of the Bill only police officers would be able to apply to the court for a DAPO. Do you agree with this approach or do you think the power to apply should be extended to other individuals or organisations? If the latter, who would you wish to include?

Social Work Scotland agree with this approach.

5. Do you agree with the tests (set out in section 4 and section 8 of the Bill) which must be satisfied for the making of a DAPN and a DAPO respectively?

Social Work Scotland agree with these tests.

6. Do you support the definition of ‘abusive behaviour’ (in sections 2 and 3) which is a key component of those tests?

Yes. This definition is helpful in that it recognises the complexity of domestic abuse.

7. Under the Bill, a DAPN lasts until a DAPO (or interim DAPO) is made. A DAPO can last for a maximum of three months. Do you agree with the proposed maximum periods the DAPN and DAPO can last for?

Consultation within Social Work Scotland has not led to categorical views on the appropriate maximum length of a DAPO, which is affected by variables such as the length of time it may take for other remedies to be considered, applied for and heard; the need to avoid potential gaps in protective provision if they are needed; while at the same time protecting rights of the barred person and ensuring fair process for all.

8. Do you agree that breach of a DAPN and breach of a DAPO should be a criminal offence, as proposed in sections 7 and 12 of the Bill? Do you support the penalties proposed for breach of a DAPN and breach of a DAPO?

Social Work Scotland agree that a breach should be a criminal offence. Views have not been expressed on the proposed penalties.

The content of the notice and order – including how the Bill impacts children

9. Sections 5 and 9 of the Bill says which obligations a DAPN and a DAPO can include. As well as obligations relating to the person at risk’s home and contact with the person at risk, both a DAPN and a DAPO can impose obligations relating to a child usually living with a person at risk. Do you agree with the approach of the Bill under sections 5 and 9 or do you wish to suggest any changes?

Social Work Scotland agree with the approach of the Bill.

10. Do you think the Bill is clear about what should happen when the terms of a notice or order conflicts with an order relating to children imposed under family law?

This could be made explicit. The need to take in to consideration the welfare of any child whose interests are affected is made clear

Removal of a domestic abuse perpetrator’s interest in a Scottish secure tenancy

11. Do you agree with the approach in section 18 of the Bill, introducing an additional ground to end a social housing tenant’s interest in a tenancy? If so, what benefits does this power have over and above existing statutory powers?

Yes. We consider it probable that, as intended, this will reduce the risk of a person at risk having to make themselves homeless in order to escape abuse from someone living with them and to give them interim protection so that they have time to seek longer term remedies if needed.  We recognise that this will work by giving social landlords new powers to apply to the court to end the tenancy interests of the perpetrator if the perpetrator is a sole tenant, a joint tenant with the victim, or a joint tenant with the victim and others. Survivors of abuse should therefore be able to continue to live in the family home.

Additional issues not covered by the above

Your response does not need to cover all of these areas and you can focus on those that are relevant to you or your organisation. Also, you are welcome to cover other areas in your submission that you think are relevant to the Committee’s consideration of the Bill.

12. If you are responding on behalf of an organisation, what impact (if any) would the Bill have on your organisation? Is there any issue associated with the Bill you wish to comment on, not already covered by questions 1-9?

There is likely to be an added flow of direct family social work follow up contact which could be triggered and immediate assessment or support needs which were not previously obvious. This would be positive as it brings those needs to the fore, but there could be associated resource implications.

Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill: Letter from Social Work Scotland

HEALTH AND SPORT COMMITTEE

FORENSIC MEDICAL SERVICES (VICTIMS OF SEXUAL OFFENCES) (SCOTLAND) BILL: LETTER FROM SOCIAL WORK SCOTLAND

05 June 2020

RE: Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

Dear Convener,

Thank you for your letter of 21 May, inviting Social Work Scotland’s response to Committee members’ questions arising from evidence provided by Children 1st. The evidence provided by Children 1st raised a number of important issues, and we take this opportunity to make explicit our broad support with much of what was said by Chloe Riddell. Fragmentation of children’s experience across multiple policy domains makes it harder to provide the joined-up, multi-agency response (underpinned by shared values and principles) which children need, and which Getting it right for every child seeks to deliver.

We have attempted to answer the Committee’s questions fully below but please request clarification or further information where necessary.

Q1. What are your views on the general principles of the Bill in relation to children and young people?

In our letter to the Committee of 26 February 2020 we welcomed the Bill’s provision for 16 & 17 year olds to self-refer for a forensic medical from a Health Board, on the basis that it represented an improvement on current arrangements. More generally, we support the Scottish Government’s objective of ensuing children have access to the healthcare and holistic support necessary for recovery, irrespective of when child sexual abuse is disclosed (e.g. through the development of the Clinical Pathway for Children and Young People).

However, although we strongly support the principles of the Bill in respect of adult victims, and of the Bill’s provision for self-referral for individuals over the age of 16 (ensuring they can access a forensic medical examination, treatment and support without delay), our primary consideration remains children’s welfare and wellbeing.
In this respect, the interface of this Bill’s provisions with child protection processes is of particular importance. In our view the professional responsibilities (including those of all health clinicians) to safeguard the wellbeing of children cannot be overemphasised. Anything which risks undermining or confusing those responsibilities should be reassessed. The Bill itself, as currently drafted, does not
itself undermine those responsibilities. But as noted in February, we are concerned that in implementation (the translation of this Bill from its intentions to reality) it may unintentionally do so.

Scotland is progressing reform of its children’s policy framework across multiple fronts simultaneously, but not always in coordination with each other. Taking each item on its own Social Work Scotland is often broadly in agreement with the objective. But the failure to properly consider the interdependencies between some agendas, particularly in respect of how they will impact on systems, practice and professionals on the ground, does cause us significant concern. Moreover, not all agendas are equal in their structural significance, and in our view a number of developments cannot properly proceed before others are concluded. We have in mind specifically the renewal of the national child protection guidance, the principles and processes of which must underpin other relevant systems. Ideally, work on
updating the national child protection guidance would be brought to a conclusion before other policies are progressed.

We recommend that it is explicit, either in the Bill or accompanying documentation, that in provision of forensic medicals to 16 & 17 year olds child protection remains a paramount consideration, and in the exercise of professional judgment about whether significant harm has been experienced (or is at risk of being experienced) communication with social work and police will likely be necessary. The benefit of
such a discussion would be to situate the information about the young person’s experience in context, enabling a better understanding and assessment of risk and need.

Finally, while we understand that the focus of this Bill is tightly defined to sexual abuse, other forms of abuse (such as physical abuse and neglect) also involve for medical examinations / investigation, and the need for effective coordination is essential. Other medical examinations are currently provided for through the National Health Service (Scotland) Act 1978 and a Memorandum of Understanding between
Health Boards and Police Scotland. This Bill does not preclude child centred coordination between agencies concerned with the safety and wellbeing of the child or young person, but accompanying documentation could be strengthened to emphasise its importance. Those who conduct joint paediatric and forensic examinations following alleged sexual abuse may also find evidence of neglect and
physical abuse and other urgent health needs; that holistic assessment must be available to all children, including those who are 16 & 17 and self-refer under these Bill’s provisions.

Q2. Would you would like to see any additional provisions in the Bill and if so what they should cover?

As stated above, our main commentary on the Bill relates to need for professional judgement to be exercised with a clear consideration of the need to share information with partners (e.g. local authority and the police) in order to determine whether the individual’s experience is indicative of significant harm, or the risk of significant harm. From there, appropriate steps can be taken, if necessary, to
support and protect the individual.

Q3. Do you consider that the provisions in the Bill support the Barnahus approach? Is the Bill Barnahus ready?

Barnahus is recognised as an internationally leading approach to responding to child victims and witnesses of abuse. Among the core components of the approach are:

• Ensuring that the best interests of the child informs practice and decisions;
• That the right of the child to be heard is fulfilled without repeating interviews;
• That the child is interviewed and supported by specialised and competent professionals, in such a way that it does not re-traumatise them and which provides best evidence obtainable at the time;
• That interviews and examinations are carried out in a multidisciplinary environment in one child-friendly premise, offering support to the child and caregivers without undue delay and in which they can begin the process of sharing experiences safely;
• That the child is not obliged to appear in court, avoiding the need for traumatic cross examination.
• Working within a co-ordinated plan that provides such therapy and support as may be needed

The Bill does not prevent these aims from being realised, but similarly it does not obviously facilitate them either. In respect to interviews and examinations being carried out in a multidisciplinary environment, within one child-friendly premises, it could be argued that the Bill, by encouraging greater investment and specialisation within certain NHS locations, makes that aspiration more difficult.
However, it is acknowledged that Barnahus’ development is still at an early stage in Scotland. The first detailed indication of how a Barnahus might operate in Scotland will be provided by the pilot taking place in North Strathclyde, bringing together a partnership of police, health, social work, family support, courts and many others.

The House will have facilities to record evidence and provide children with access to support to recover, as well as to participate in protection and safety planning. The plans include development of facilities for forensic examination of all forms of abuse, including forensic medicals, meaning the children referred would not need to go to hospital (unless it was a particularly complicated or urgent case where a hospital
setting was required).

While the Bill’s establishment of a statutory duty on Health Boards to provide forensic medicals is compatible with Barnahus, it does not address fundamental issues around the coordination of services necessary to deliver a holistic assessment. For this Bill to be facilitative of the Barnhaus approach, we would suggest that it needs to attend to how Health Boards contribute to multi-agency, team-around-the-child processes.

Q4. What changes could be made to ensure that there aren’t any unintended consequences in relation to the development of a Barnahus approach?

Delivery of an effective Barnahus approach will depend on prompt and careful collaborative discussion between many organisations / agencies, so that all the component parts of examination, interviewing and care are co-ordinated and delivered promptly and properly. The way this will work for a 16 or 17 year old selfreferring for a forensic medical requires careful consideration. An unintended consequence we want to avoid is 16 and 17 year olds who may face significant ongoing risk not having the same opportunity for protective investigation, action and support as other children (including, in time, accesses to a Barnahus).

Q5. Would you prefer children to be included in this Bill or addressed in separate legislation?

Children are considered in this Bill in relation to the need for forensic medical examinations under the Age of Criminal Responsibility (Scotland) Act, and in relation to self-referral for young people over the age of 16. We think it is important these sections remains. However, it may be appropriate within this Bill to recognise the necessity for appropriate co-ordination of services in relation to the investigation of
abuse, and the necessary steps to protect the safety and wellbeing of children affected.

Q6. Do you consider that the provisions in the Bill to restrict self-referral of forensic medical examinations to young people over the age of 16 are appropriate?

We recognise the difficulties that many children and young people have in coming forward to share their experience. We must do everything possible to ensure a careful, co-ordinated and trauma informed response when a child does signal for help. This signalling may occur gradually or suddenly (often in the midst of crisis). What does or does not emerge is often determined by the sensitivity of the listener
and the degree of emotional and physical safety experienced by the child. The pace, place and skill with which our response is conducted are critical for protection and recovery.

In our view, where there are concerns that a child (including 16 and 17 year olds) may have been subject to sexual abuse, inter-agency sharing of information within child protection processes should apply. In order to consider the best possible conduct of investigation, action and support, information must be shared early. We support the Bill’s option of self-referral to age 16 in the hope that this will widen the
bridge to access to services for some who would not otherwise have come forward. But our primary interest here is in how we respond and protect any child who has been subject to abuse, regardless of their age.

Q7. Should the age at which self-referral services are available be lowered or raised and why?

We have been generally supportive of the Bill’s provision for self-referral at age 16, on the basis that other legal structures (including the age of consent) use this age. But while we do not believe chronological age is an accurate reflection of a child’s capacity and maturity, we would not support lowering the age of self-referral further. This is because we would not want to give a false impression to children under the age of 16 that their self-referral would be kept confidential in any circumstance. The
requirement of forensic medical for an under 16 would necessarily require the initiation of child protection processes, and any move which made that unclear to children or professionals should be avoided.

Sexual abuse and the associated abuse of power is so often enabled by secrecy. Secrecy is sustained by fear. Some children and young people seeking help do not want police involved because of threats from perpetrators; threats of violence or other serious consequences to themselves, or those they care for. However, a child’s fear of involving the police or social work is not a reason to deflect from a careful, thorough inter-agency response, which places children’s interests and views at its core. Our collective focus must be on ensuring children of any age feel confident to disclose to someone they trust, and that our response is joined-up and supportive, redressing (rather than exacerbating) their trauma. Our system must also be equipped to spot the signs of significant harm, and take appropriate action as
early as possible.

Q8. Is there a possibility that the promotion of self-referral for those aged over 16 may unintentionally act as a barrier to younger victims?

We do not believe the promotion of self-referral will act as a barrier, so long as the routes of referral / raising concern are clear and effective for younger victims. The barriers to younger victims are more likely to relate to the failure of individuals in positions of trust and responsibility to listen and attend to the signals and signs of distress (or beginnings of an account given to whomever is trusted enough to listen).

Q9. Would there be any situations when self-referral for people under the age of 16 would be appropriate?

Please see our response to question 7.

Q10. Are the provisions in the Bill, or should they be, in line with child protection guidance?

National child protection guidance is currently being updated. Our answers to questions above, relating to the sharing of information among professionals, highlight where we think the Bill (or perhaps more pertinently the Bill’s accompanying documentation) could be improved.

Q11. If the expectation is that a self-referral by a 16 or 17-year-old may initiate child protection processes, why should the self-referral provision not extend to people under 16 years old?

Please see our response to question 7.

Q12. Are there specific issues that relate to looked after children, over the age of 16, in accessing self-referral services?

The legal status of the child should not affect their access to any medical services, forensic or otherwise. All children may feel isolated or locked in to the secrecy of their experience if they are afraid, or do not realise that what is happening is abuse, or if they are being abused by people who hold positions of trust and responsibility in relation to them. What is particularly important in respect to looked after children, as well as many other groups of young people, is to ensure that they are made aware of the services available to them. Special attention should be made to ensuring carers, social workers, health practitioners, advocates, colleges, teachers and pastoral staff have an understanding of these changes.

Q13. Are there specific issues that relate to children with children and young people with disabilities or additional needs that should be considered as part of the Bill?

Careful inter-agency planning of services is needed for any child who may have been abused, but its necessity is particularly evidence for those who require support for communication and physical access. These realities underline the need for detailed planning in the implementation of the Bill.

Q14. Do you consider that the provisions in the Bill should be extended to cover alleged child perpetrators of sexual assault and rape?

Children who are involved in harmful behaviours towards others may themselves be victims of neglect and abuse including sexual abuse and when a forensic medical examination is ordered then this process and all other investigative processes should be conducted with consideration of the safety and wellbeing needs of that child. The Age of Criminal Responsibility (Scotland) Act 2019 provides for this.
These processes should be co-ordinated between agencies but this Bill may not need to cover matters that are covered in the Age of Criminal Responsibility (Scotland) Act 2019, and will be covered by forthcoming guidance on that act.

Q15. Are there specific data protection issues that need to be addressed in relation to children and young people?

We understand that the retention service under the Bill has been developed with consideration of an individual’s need for private and family life, specifically in relation to self-referral, allowing victims time to consider whether to make a report to the police, balanced against other interests, including the protection of health or the protection of the rights of others. All children and young people provided with
forensic medical services need help to understand what information could be shared and how, and for what purposes, with and without permissions.

Q16. Should information from forensic medical examinations be linked/ be part of an individual’s healthcare record?

Our understanding is that sexual health records are retained separately from other health records, and cannot be shared without patient permission. They are therefore not shared with the GP (without the patient’s consent) and so do not automatically form part of the individual’s healthcare record.
A summary of findings shared with a GP would assist in developing a holistic understanding of a person’s physical and mental health care needs. However, the retention and sharing of medical information is not an area of specialist expertise for Social Work Scotland. We assume that information governance issues including questions of storage and retention of digital images will form part of the continuing work of the CMO Taskforce in the period leading up to publication of the Clinical Pathways Guidance for both Adults and for Children and Young People, later in 2020.

If a summary of findings does become part of an individual’s healthcare record, then the data protection issues in relation to access to records for a child under 16 would involve current criteria. Young people with capacity would have the legal right to access their own health records and could allow or prevent access by others, including their parents. They should not be given access to information in their health
records that would cause them serious harm or any information about another person without the other person’s consent. Parents would be allowed to access their child’s medical records if the child or young person consents, or lacks capacity, and it does not go against the child’s best interests. If the records contain information given by the child or young person in confidence the information should not normally be disclosed without their consent. Divorce or separation does not affect parental responsibility and a person with parental responsibilities would presumably be allowed reasonable access to a child’s health records. Access to health records for a young person or an adult who was subject to such an investigation as a young child would require careful handling and support, as with access to other records that include information about abuse.

Yours sincerely,

Alison Gordon, Chief Social Work Officer for North Lanarkshire, Co-Chair Social Work Scotland Children and Families Standing Committee, and Social Work Scotland representative on the National Child Protection Leadership Group

Jacquie Pepper, Chief Social Work Officer for Perth and Kinross, Co-Chair Social Work Scotland Children and Families Standing Committee and Social Work Scotland representative on the Child Protection Guidance Revision National Steering Group

CPC Consultation: National Guidance for Undertaking Learning Reviews

CPC CONSULTATION (Scotland): National Guidance for Undertaking Learning Reviews

Email contact: James Cox, Children and Families Lead, Social Work Scotland, on behalf of Children and Families Standing Committee Chairs, Jacquie Pepper and Alison Gordon

SECTION 1 – INTRODUCTION

Question 1(a)

Do you think that the introduction within the proposed new Learning Review Guidance makes it clear what the guidance is about?

Yes

Please explain your answer.

  Question 1(b)

Do you think that the removal of the terms “initial” and “significant” case reviews will streamline current variations of the review processes across Scotland?

Yes, it is much clearer in relation to reviewing child protection situations that meet the criteria.

Please explain your answer.

SECTION 2 – KEY FEATURES OF LEARNING REVIEWS

Question 2(a)

Do you think that this section clarifies the purpose of Learning Review and is the paragraph on creating preconditions for learning helpful? Please provide your comments here:

Question 2(b)

Do you think the revised criteria for undertaking a Learning Review is appropriate and clear for Child Protection Committees?

Yes

Please explain your answer.

 Question 2(c)

Does the guidance reflect the learning culture we are trying to achieve in Scotland?

Yes

Please explain your answer.

 Question 2(d)

Should any other information be added in relation to parallel processes in this section (p7)?

Yes, it needs to consider other processes noted in the comments box below.

Please explain your answer.

SECTION 3 – INITIATION OF A LEARNING REVIEW?

Question 3(a)

 After consideration of the gathered data the guidance states a nominated person or sub-group will then make a recommendation to the CPC as to whether or not to proceed with a Learning Review (p10). Is the information provided in Template (Annex1.3) for that purpose enough?

Yes

Please explain your answer.

Question 3(b)

With reference to the paragraph on media interest (p11) do you have any examples of situations that are not covered within this section? Please provide your comments here:

Question 3(c)

Is the information provided in the guidance clear when a situation does not meet the criteria for a Learning Review? (p12)

No

Please explain your answer.

SECTION 4 – UNDERTAKING THE LEARNING REVIEW

 Question 4(a)

Whilst not prescriptive to acknowledge local variations;

• Are you satisfied with clarity of the expectations as described for CPC’s when setting up a Review Team to conduct a Learning review using a systemic approach (p14) and;
• Are your satisfied the roles of the Chair and the Review Team are clear (p15)?

Please provide any comments on this section you may have here:

Question 4(b)

The skills, attributes, experience, and knowledge associated with the various roles within a Review Team are outlined in Annex 4 (p44) of the guidance. Do you think this supports the local process of appointing the identified people to undertake these roles?

Yes

Please explain your answer.

Question 4(c)

A Learning Review is a collective endeavour to bring together agencies, individuals, and families to learn from what has happened in order to better protect children and young people in the future. Is the information provided around family liaison (p18) helpful?

Yes, it outlines the expectations when setting out to conduct a review

Please explain your answer.

Question 4(d)

The purpose of a Learning Review report is to identify key learning points and how and why that learning has emerged throughout the review process. Reports should be clear, succinct, and as anonymous as possible. Is the information provided in this section of guidance (p21) clear on both the purpose of the report and its publication? Please provide any comments here:

SECTION 5 – DISSEMINATIONG AND IMPLEMENTING LEARNING

Question 5(a)

Does the information provided in relation to the dissemination and implementation of learning from a Learning Review at national and local level meet your requirements? Please provide and comments here:

OTHER CONSIDERATIONS

 This section offers those reading the draft guidance an opportunity to make comment on the following areas;

• Process Map (page 24)

Please add your comments here:

• Annex 1 – Templates (pages 27 – 40)

Please add your comments here:

• Do you have any other comments about the draft guidance?

Raising the age of referral to the Principal Reporter

SUBMISSION FROM SOCIAL WORK SCOTLAND, TO SCOTTISH GOVERNMENT CONSULTATION

07.10.2020

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 proposals to raise the age of referral to the Principal Reporter, and make clear our strong support for this development.

1. Do you agree that the maximum age of referral to the Reporter should be increased to 18?

Yes. We agree that, with some important caveats, the maximum age of referral should be increased to 18, for all grounds.

The proposal presents some clear benefits, including.

• Alignment of key child welfare and wellbeing systems and processes with the UN Convention on the Rights of the Child (UNCRC), extending protection and support to all children and young people under the age of 18.
• Attuned decision making for 16 and 17 year olds in need of compulsory supervision, care and protection, taking account of the evolving maturity of each young person in the context of their relationships and circumstances.
• Progress realisation of the Getting it right for every child practice model, clarifying the national framework for inter-agency assessment and planning for children and young people, which in turn will facilitate greater consistency of practice locally.
• Encourage the development or adoption of approaches to supporting the needs of children and young people, in contrast to criminal justice processes which often engender feelings of isolation, alienation and stigma.
• Congruence with legislation already in force in Scotland, which define a person to be a child up to the age of 18. However, there will remain a need for wider legal review, addressing the body of relevant law which describes adults as individuals over the age of 16. Of particular relevance for social work is the overlap with Adult Support and Protection legislation.
• Greater flexibility in the review of plans, support and progress in respect of 16 and 17 year olds subject to Compulsory Supervision Orders (CSO).
• Help improve transitions from children to adult services, clarifying and reinforcing the responsibilities of public agencies towards 16 and 17 year olds, as well as further eroding the idea that 16 or 17 is a suitable age at which children become ‘adults’ and ‘independent’.
• Accord with the intentions in the Promise, helping to ensure that Scotland does more to avoid the criminalisation of children, and deals with them in a way that is responsive, age-appropriate, need (not behaviour) orientated, proportionate and trauma sensitive. Moreover, the extension of the right of referral increases the chance that 16-17 year olds will have their ‘cases’ dealt with in an environment that upholds their rights and allows them to effectively participate in proceedings.

However, the proposed change will not, in itself, improve children and young people’s experiences, or contribute to improved outcomes. Change will come through implementation, and that must be assiduously planned, effectively led, properly resourced (both in terms of the implementation process itself and the changing profile of demand on services) and underpinned by an infrastructure of facilitative administration (data, evaluation, learning, business management support, etc.) A proposal such as this is only as good as its implementation, and Social Work Scotland is of the strong view that much more attention needs to be paid to implementation in general, and to the implementation plan for this change specifically.

Moreover, in considering this specific proposal, implementation will need to take account of:

• The profound and ongoing impact of Covid-19 on the system’s potential to deliver the increased capacity raising the age of referral is likely to entail. From a pre-Covid capacity of 700+ Hearings a week, the system is now seeking deliver approximately 200 a week, by means of a blended model that balances the health, wellbeing and rights of all involved. With an increase in poverty and family stress likely over the coming year, social work activity (already at above trend levels) may lead to increases in care and protection referrals to the Reporter. The system will respond with determination, attempting to absorb and adapt as much as it can. But ultimately more demand must be met by greater investment and expansion of capacity. ‘Raising the age of referral’ could end up being a lowering of the standard of service, if it becomes a doorway through to services which under-resourced and over-stretched before covid-19. That would potentially increase risk, diminish trust in the system, and unsettle victims.
• The net increase in referrals to the Principal Reporter is likely to be swelled further by revisions to Sentencing Guidelines in relation to young people and young adults. The guidelines, when implemented, will affect the numbers of social work assessments which need to be undertaken, and plans to be implemented. These developments have a system-wide impact. The recent consultation on those guidelines acknowledged that a realignment of resource from adult criminal justice and youth justice services (where they exist) towards children and families services would be needed, but there has not, as yet, been any effort to quantify that, or to work out how the process of realignment would be managed. Furthermore, there will be a net combination impact in terms of referral and demand from (a) commencement of the Age of Criminal Responsibility (Scotland) Act 2019; (b) revision of the National Guidance for Child Protection; (c) commencement of the Equal Protection from Assault (Scotland) Act 2019; (e) national roll out of the Scottish Child Interview Model (joint investigative interviewing of children and young people); (f) developments prompted by the expert report on harmful sexual behaviour by children and young people; (g) the Standards and Pathway for Secure Care; (h) revised national guidance for Care and Risk Management; (i) and new Clinical Pathways Guidelines in relation to children and young people who may have experienced sexual abuse.
• Different legal
• The messages from the Promise challenge us to re-think our entire approach to responding to needs of children and young people, including Children’s Hearings. This proposal is about extending part of our current system to incorporate 16 and 17 year olds. From the perspective of those overseeing reform of Scotland’s care system, that may not be the step (with all the associated costs) which they recommend.
• Implementation will need to plan for the diversity and range of needs that may need to be met, ensuring that opportunities for necessary skills development are in place for professionals and volunteers involved (teaching, coaching, observation, feedback). There may also be increases in demand for residential and fostering placements, which will need to be factored into a plan and properly resourced.
• The implications of shifting patterns of concern that are likely to emerge; for example, a rise in digitally enabled abuse and criminal exploitation, including organised child sexual exploitation; sexual abuse more generally; increases in hate crime; or, impact of teenage neglect
• The fact that some individuals do benefit from involvement in the adult criminal justice system, with its different legal thresholds and accountability / monitoring processes.
• Baseline and ongoing data capture will be essential to understand what works; in particular the outcomes from interventions within a supervision order. As consistently highlighted by Audit Scotland, without the relevant performance information we are unable to clearly identify what we need to target, or how to target effectively.

Finally, a number of Social Work Scotland members noted that the proposed reform should not be seen as means by which to extend the availability of, or access to, ‘services’. The extension of referral criteria to 16 and 17 olds should be done because it is the right thing to do from a rights and evidence perspective. If the objective (whether explicit or implicit) is to increase the scope of responsibility placed on local authorities (in particular social work) and other partners, it will have to be met through a combination of this change and sustained investment. One without the other will not deliver change. In the past compulsory orders have, our members suggest, been used to ensure services are allocated, rather than because compulsion was strictly necessary. Such action is understandable, when all involved wish to see the right support provided to an individual. But the identification of an implementation authority does not, in itself, stimulate an increase in available resources needed to address the individual’s needs. And in delivering on the Promise we know that we need a range of services that provide responsive, persistent / ‘sticky’, and relationship based practices for a range of needs, a points on a continuum from early help (before challenges become problems) through to structured, programmatic responses to harmful behaviour. The economic and financial context for local partnerships, and especially for social work, is a source of deep concern. A substantial increase in demand for services against a backdrop of acute and chronic budgetary pressure would be to introduce a systemic risk, potentially undermining the system as whole.

2. If the age of referral is increased to 18, are the existing grounds of referral to a Children’s Hearing sufficient?

Probably not. Although compulsory supervision may not always be necessary or effective, there are growing concerns across the UK about child criminal exploitation, where an individual or group takes advantage of an imbalance of power to coerce, control, manipulate or deceive a child or young person into criminal behaviour. A young person may have been criminally exploited even if the activity appears consensual. It may be helpful, and would be congruent with the UNCRC, to provide flexibility to refer in relation to these sort of concerns.

3. What are your views on the potential implications, including resource, of increasing the age of referral to the Reporter for local authorities, Police and other service providers/organisations?

We have addressed this point in response to question 1, but to reiterate, we do expect there to be considerable resource implications for local authority social work, with increased demand for assessment, planning and action. With the increased recognition of the impact of harmful behaviour towards and by young people, those assessing needs and circumstances will likely take into account a network of relationships, within and beyond their family; that will require time and having people with the right skills. Unfortunately youth justice social work services have been particularly hard pressed by budget cuts, with some now absorbed into teams with wider remits (and therefore wider calls on their resource); close attention to the skills needed, and then investment in the development of those, will be necessary.

There may also be an increased demand on foster care and residential resources as a result of this change. And while at a macro level this policy development may precipitate, over time, a re-distribution of social work resource across sectors (from justice to children), such shifts should be neither assumed nor considered sufficient.

In moving this policy proposal to the next stage, it is essential that Scottish Government undertakes or commissions a detailed analysis of the resource requirements which will be necessary to facilitate implementation. The current method of estimating local authority costs (through consultations such as this, and information gathering through COSLA) is not adequate. Estimates of costs do not need to be perfect, but they do need to be good enough; and the only reliable judges of that will be the service managers and practitioners involved in designing and delivering services. Social Work Scotland strongly supports the extension of the right of referral to the Reporter, for all the reasons detailed above, but we are likely to oppose further development of these plans if we do not see a genuine effort at trying to understand, and then meet, the resource needs of each part of the system.

4. What are your views on the potential implications, including resource, of increasing the age of referral to the Reporter for SCRA (the public body which operates the Reporter service)?

Again, we have addressed this in our early answers. Reporters and Panel members are likely to require additional joint training in relation to the interlocking legislation which may be applicable in this age range. Including, importantly, adult support and protection. There will be additional challenges – and therefore skills and resources needed – involved in delivering virtual, blended and direct hearings with an increasing number of 16-17 year olds and their families. Time will need to be spent understanding approaches to assessment and intervention within this upper age group, and to some specific considerations (e.g. children with complex disabilities in transitional stages) which may affect decision making.

The change will also alter the interface between the Children’s Hearings and adult justice systems. Some young people will experience both systems. There will be a need for clear and accessible guidance, not only for SCRA and CHS, but relevant practitioners. Information for young people will need to be made available too.

Social Work Scotland members with experience in justice social work have also drawn attention to a feature of the Hearings system’s current flexibility that might be revealed as a flaw, under the pressure of referrals for 16-17 year olds. Neither the Children’s Reporter nor the chair of the Children’s Hearing panel are required to be legally qualified. This contrasts with Mental Health Tribunals, Justice of the Peace Courts (where the clerk is legally qualified) and Parole Board hearings. The only lawyer in the room is likely to be the family or young person’s representatives.

5. What are your views on the potential implications, including resource, of increasing the age of referral to the Reporter for Children’s Hearings Scotland

There would be a need for additional training and skills development among panel members and staff, for example in terms of the prevalent forms of abuse among this cohort, the nature of exploitation of 16-17 year olds, and harmful behaviour. There is a need for understanding of intersecting and complicating factors (such as drug and alcohol use), and for a trauma informed, age appropriate approach to the preparation of and conduct of hearings. The underlying impact of medical, nutritional, emotional, educational and supervisory neglect in teenage years must also be understood when panel members come to decision making.

Local authorities, SCRA and CHS can all expect an increased need for advocacy services under s122 of the 2011 Act following this reform.

6. If the age of referral to the Reporter was increased, are amendments required to ensure sufficient access to information and support for victims harmed by children?

Although there may not be a need for new systems, experience of preparing for implementation of the Age of Criminal Responsibility (Scotland) Act 2019 suggests that this is an area of great sensitivity, requiring very careful preparation and transparent explanation. Otherwise, beyond potential distress to victims, there will be loss of trust in the ability of the system to be robust, fair, purposeful and effective.

Beyond ‘sufficient information’ there may be scope for integration of restorative work within compulsory measures. The Hearings system cannot provide a punitive response, but such restorative work may bridge the gap between the explicitly welfare orientated measures of the Hearing and the needs of victims.

7. Any other comments

Members of Social Work Scotland’s Adult Support and Protection Network have noted that ta case study included in the consultation is inaccurate. They felt this highlights the lack of understanding in relation to ASP legislation and its application. The case study states “She could be made subject to an Adult Support and Protection investigation however that would depend on her capacity and whether she meets the statutory tests.”  However, adults can be supported under the ASP Act regardless of their capacity or non-capacity.

Sources used in the development of this response

• Arnot J, Mackie P (2019) Violence Prevention Framework Scottish Public Health Network
• CYCJ (2019) Preventing Offending : Improving our approach to workforce development
• Child Safeguarding Practice Review Panel (2020) Safeguarding Children at risk from Criminal Exploitation
• Couper S, Mackie P (2016) Polishing the diamonds: Addressing adverse childhood experiences in Scotland
• Raws P ( 2016) Understanding Teenage Neglect . Children’s Society
• Scottish Government, (2015).Preventing offending: Getting it right for children and young people
• Scottish Government (2019) Criminal Justice Social Work Statistics: 2017-18
• Scottish Government (2020) Harmful Sexual Behaviour. Expert Group Report.
• SCRA ( 2020) Scottish Children’s Reporter Administration Statistical Analyses
• Scottish Government (2019) Scottish Justice: additional analyses
• Scottish Prison Service (2020) SPS Annual Population statistics
• United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”) Adopted by General Assembly resolution 40/33 of 29 November 1985
• RCPCH (2014) Child Protection Evidence Systematic review on Teenage Neglect
• Social Work Scotland ( 21/8/20) Sentencing Young People. Submission to Scottish Sentencing Council
• Viljoen J et al (2016) Start V-Knowledge Guide

For further information, please do not hesitate to contact:

James Cox

Children and Families Lead, Social Work Scotland

james.cox@socialworkscotland.org

Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill

Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill

SUBMISSION FROM SOCIAL WORK SCOTLAND, TO EDUCATION AND SKILLS COMMITTEE CALL FOR VIEWS

02.10.2020

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 have engaged closely with Scottish Government and local government partners in the development of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill, setting out our position on key matters in response to the pre-legislative consultation (November 2019).[1]

Our response to the Committee’s call for views has been developed by Social Work Scotland’s national Historical Abuse Practice Network (which supports professionals involved in supporting survivors’ applications for records and redress) and Social Work Scotland’s Children and Families Standing Committee (senior managers in social work services). In response to the Education and Skills Committee’s questions:

1. The people who are eligible to apply to the scheme.

We agree with the proposed criteria for those eligible to apply, but note that Scottish Ministers will have the power by way of regulations (subject to the Scottish Parliament’s approval by affirmative procedure) to adjust the definition of “relevant care setting”. This would be by adding to or varying the descriptions of types of residential institution listed in section 18(3), or by modifying the detailed descriptions of each type of residential institution provided for in section 19.

The power to modify the definition of “relevant care setting” is said to be based on experience gained through the advance redress payment scheme, which has shown that additional types of care setting may come to light once the scheme is operational (paragraph 85 of the Policy Memorandum). On this basis the power seems pragmatic, providing potential flexibility in the scheme as we progress through installation and implementation. However, in view of the complexity of the care system and individual’s experiences, it is reasonable to assume that cases will present challenges to the current definition, and pressure for revisions. While we do not necessarily oppose future adjustment, the consequences for both the management and costs of the scheme may be considerable, and any such step must be fully consulted on (with all organisations and people affected) and properly scrutinised by Parliament. Indeed it may be desirable now, at this early stage of the Bill, for Scottish Government to provide some examples of the possible additional types of care setting which they predict may emerge, to ensure a full and detailed debate over how they should be treated.

2. The Bill’s definition of abuse

We agree with the Scottish Government’s intent to base the definition of “abuse” on that as set out in the Limitation (Childhood Abuse) (Scotland) Act 2017 (“the 2017 Act”). The broad definition provides a flexible and a proportionate approach, focussing on the experience of the survivor, rather than making a judgement that any form of abuse is, in and of itself, more severe than another. Recognition that abuse takes a variety of forms, and that all have damaging, long-term impacts must be respected. Each case must be evaluated independently, against the agreed assessment criteria.

3. The dates used in the Bill to define ‘historical abuse’

The dates used to define historical abuse, as that which took place before 1 December 2004, is appropriate. In opening up the scheme to those where the abuse took place before 26 September 1964, it will be demonstrably more inclusive than existing remedies.

4. The Bill’s definition of ‘in care’ and the places in which that care took place. 

There is no definition of “in care” within bill.  Therefore, it is understood that this question relates to the definition of “relevant care setting” as defined in sections 18 to 20. We have no specific issues with the two categories of care setting described; firstly, a residential institution in which the day to day care of children was provided by or on behalf of a person other than a parent or guardian of the child, and secondly, a place, other than a residential institution, in which a child resided while being boarded-out or fostered. We are also content with the definition of “residential institution” to mean a children’s home, a penal institution, a residential care facility, school-related accommodation, and secure accommodation.

However, in our response to the pre-legislative consultation we expressed unease about the exclusion of children who were in the care of medical professionals but for whom parents retained long-term responsibility for them. We noted that this “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. […] 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.” We have engaged with Scottish Government on this point, and appreciate the complexity, and potential financial challenge, of including such situations in the statutory scheme. But we take this opportunity again here to stress that, as with some individuals who were placed in boarding schools for reasons other than simply parental choice, the Redress Scheme is likely to seem unfair. Moreover, as currently constructed the Redress Scheme situates the failures and responsibilities of the state with local authorities; as independent inquiries into historical abuse have consistently found, formal ‘in care’ settings are only part of the picture.

5. The process of applying for redress and what advice and support applicants might need, particularly in relation to the waiver scheme.

The process of applying for redress, and the advice and support provided to applicants, must be considered beyond the relationship with the Financial Redress Team alone. The scheme’s intention is to give survivors more, not less, choice as to how to pursue financial reparation. Accessible, independent legal advice is critical, as the introduction of the redress scheme does not, in itself, replace existing avenues of financial reparation. Civil litigation will remain an option, and in some cases may lead to higher settlements and a more definitive sense of closure / redress. However, survivors must be supported to understand these options fully, including the likely legal fees levied on a successful civil claim, and the nature of what is an explicitly litigious process. In our view, it is a considerable unknown around the Bill whether there will be a substantial increase in legal fees once the scheme is live.

For the waiver to operate effectively, it must clearly and specifically outline the period, people and organisations, and instances of abuse for which the survivor is accepting the redress payment. It is crucial that survivors have independent legal advice at this stage in order to make a fully informed decision.

Subject Access Requests will be critical to the process; in many cases provision of information to the redress scheme can only be met by invoking this right. Significant resource will be required by public authorities to fulfil their obligations to the statutory requests for personal information which the redress scheme will provoke. Comprehensive consideration must be given to how organisations covered by Subject Access Request duty are supported to undertake the work. Local Authorities increasingly experience demand outweighing resource. We strongly urge the Scottish Government, in the interests of applicants to the scheme, to fully fund public authorities in the delivery of this function. A constructive conversation has begun with Scottish Government on this matter, and we hope over the course of scrutiny of the Bill that our members can be reassured that demand created by the Act will be met by appropriate investment.

Inclusive to the process of applying, at point of entry to the scheme survivors must be offered counselling and support services. The impact of the redress process including accessing records, living through the redress process itself and re-living abusive experiences cannot be understated. A significant risk to survivors is being re-traumatised through this journey. Counsellors, social workers and support workers will be critical to supporting individuals through this process safely. Further detail on this critical provision, including how it will be resourced, would be welcome in the Bill’s accompanying documents.

6. The level of payments offered to survivors.

 We are broadly content with the levels of payments offered to survivors. Arguments may be made for higher or lower levels of payment, but we are satisfied that the Scottish Government has balanced the various factors in its calculation.

7. What you believe to be a ‘fair and meaningful’ contribution to the scheme from organisations responsible for abuse

 The details of this contribution, including the amount, structure, and timeframe, are not specified in the Bill or its accompanying documents. A key area of concern is the unknown quantum of the contribution. While it is assumed to be a significant proportion of the costs of redress payments as set out in the Financial Memorandum (£350m), there are various unknowns which will determine the total payments which will be made and, in turn, the extent of the financial contribution from organisations responsible for abuse.

We are aware conversations between Scottish Government and COSLA are ongoing, and a collective response from local government will emerge. The priority for Social Work Scotland is on the operation of the scheme itself, the support available to applicants, and the impact on social work departments. But from discussions among our members, a preferred approach to securing a “fair and meaningful contribution” was for SG to fund the entirety of the scheme in the first instance, with individual local authority contributions assessed on the profile of claim’s and liabilities of the former regional councils. Where areas have higher numbers of successful claims, clarity on equal or variance of contribution would need to be confirmed. Other members pointed to models such as the CNORIS (NHS) scheme, whereby costs are apportioned according to the losses by region. There is an annual actuarial review to assess the contributions made by each NHS board. However, we do recognise that such approaches would create a level of uncertainty for each local authority, which may not viable in terms of budgetary planning.

Indeed, bearing in mind the financial position that COVID has left authorities, we do think it is important that, whatever mechanism is agreed, phased payment of contributions will be necessary, to avoid a negative impact on services available to the public.

The civil litigation risks also cannot be understated or excluded from consideration. Whilst the redress scheme may award up to £80,000, there may be cases where the survivor has been advised by an independent legal advisor that their claim may result in a higher settlement through civil action. There may be a substantial increase in civil claims, with the associated increase in legal fees and compensation awards. All such cases would fall outwith the Redress scheme’s scope, and the calculation of ‘fair and meaningful’ contributions.

8. The process for dealing with applications to the scheme from people who have serious convictions.

 We agree with the process proposed for dealing with applications to the scheme from people who have serious convictions, on the basis that a public interest / human rights-based approach will be adopted.

9. The process for family members to make an application on behalf of a survivor who has since died.

We agree with the process for family members to make application to the scheme, as a ‘next of kin’ payment.

10. How to ensure that non-financial redress (e.g. an apology) meets the needs of survivors.

It is noted that the bill says very little about apology. Apology is referred to once in section 91, regarding reporting requirements. Public apology is without doubt a key aspect of non – financial redress and Scottish Ministers should continue to publicly acknowledge survivors’ experiences. Survivors should be consulted on how non-financial redress should look and feel for them, and further detail should be provided by Scottish Government on how priorities will be met. Social Work Scotland looks forward to working with Scottish Government and other partners on these aspects.

For further information, please do not hesitate to contact:

Ben Farrugia

Director, Social Work Scotland

ben.farrugia@socialworkscotland.org

[1] https://socialworkscotland.org/consultation/financial-redress-for-historical-child-abuse-in-care-pre-legislative-consultation/

Proposal for Changes to the National Transfer Scheme (NTS) for Unaccompanied Asylum-Seeking Children (UASC)

SUBMISSION FROM SOCIAL WORK SCOTLAND, TO UK HOME OFFICE CONSULTATION

29.09.2020

Social Work Scotland is the professional body for social work leaders in Scotland, working closely with our partners across the UK to shape policy and practice, and improve the quality and experience of social services. We welcome this opportunity to comment on proposed development of the National Transfer Scheme for unaccompanied asylum-seeking children.

Key points from our response which we wish to emphasise:

• We recognise the need to anticipate the impact of conflict and political instability across the world, which continue to displace vulnerable people within and across borders. Although no one country can resolve this global issue, each country must establish durable, effective mechanisms to support children separated from families. In the UK context, all nations of the UK must cooperate to make that system work.
• The UK Government should work with Scottish Government, other devolved administrations and local government to ensure the rights and wellbeing of unaccompanied children are protected at all times, both through the process of placement (as facilitated by the NTS) and when in placement. Scotland is moving steadily towards incorporation of the United Nations Convention on the Rights of the Child (UNCRC) in its domestic law, following important developments by colleagues in Wales to give the convention real weight. Changes to the NTS must be developed in reference to this context, providing for children’s rights to be given full meaning and effect.
• The provision of care for children in Scotland is currently being shaped by the Promise (Independent Care Review, 2020); this will need to be considered in how the NTS will work across the four nations of the UK.
• The Covid-19 pandemic has had profound implications for unaccompanied children. Education has been disrupted, relationships broken, support curtailed. Those in the UK may have avoided the acuity of impact seen elsewhere, but it is still the case that every aspect of their care has been affected. Responding to the pandemic in Scotland[1] has out of necessity driven concerns about unaccompanied children further in to the margins of consideration. And in Scotland, those areas that have been worst hit by Covid-19 (in a numerical sense) have also been in those areas which are the main recipients of unaccompanied children. The pandemic will likely leave a legacy limiting those authorities’ capacity.
• Climate change is likely to influence the scale and pattern of migration in future years, increasing the number of unaccompanied asylum seeking children.[2] In reforming the NTS, we must take this opportunity to ‘future-proof’ it to expected international developments.
• To a greater extent than in the rest of the UK, material poverty (while not the single cause) is associated with children becoming involved in child protection and alternative care.[3] This creates additional demands on local authorities in Scotland, which in turn impacts on their ability to provide support to non-resident children. These national differences within the UK (reflecting too the different legal frameworks underpinning care systems) must be taken into account within the NTS.
• It is, as yet, unclear how the UK’s departure from the European Union will impact on the numbers of children legally reunited with their families in the UK. If this is restricted, the volume of children who may be smuggled towards the UK and emerge as ‘spontaneous arrivals’ may increase. Agreements between countries of transit and destination are a relevant influence on flow of demand for placements of unaccompanied minors.
• The children placed through the NTS have, in many instances, experienced discrimination, racism, material hardship, opportunist exploitation, neglect and abuse. In the context of Covid-19, such adverse experiences have been exacerbated. But at the same time we have seen the extraordinary courage, talent, achievement, resilience and contribution of this group of children, and the willingness of communities, carers, social workers and schools to support them. Never have so many children needed physical and emotional ‘shelter’ and protection of their rights. We share the Scottish Government’s positive approach to refugees, and seek to see it reflected in the design and delivery of the NTS.

1. What is your feedback on the proposal outlined at Annex A?
2. a) We acknowledge the need to devise a robust UK scheme that will increase the speed and certainty of transfers, ensuring that children are secured and cared for in a sustainable placement as quickly as possible. Central to the scheme must be children rights (as articulated in the UNCRC) and informed assessment of what would best meet the individual child’s needs in the immediate, short and longer term. The provision of supportive, meaningful relationships is key, and will provide for better outcomes, security and safety for children.
3. b) We agree that the model needs to be flexible so that input values can be amended on the basis of closely monitored figures.
4. c) We recognise that a more equitable distribution of UASC throughout the UK is necessary because of the disproportionate pressure on some local authorities. However, in determining the capacity of authorities a range of metrics should be used, including the number of children supported who are of uncertain immigration status.
5. d) We agree that it would be inequitable and unsustainable if a voluntary scheme had participation from some but not all local authorities, and if those authorities who committed to the scheme bore the burden exclusively.
6. e) If the child’s rights and best interests are paramount, some local authority areas are less likely to be able to provide secure, sustainable placements; because of, for example, rural and island isolation; differentials in the looked after population and poverty pressure; dislocation of unaccompanied children from potential cultural connections. Bearing this mind we support the adoption of a non-mandated UK approach, in which the four nations of the UK are represented as such within the organisation and co-ordination of a UK wide scheme. Scotland as a whole (and as one region within the proposal) has very limited specialist service provision for UASC, and what it does have is largely centralised in a few local authority areas (including specialist medical care, translation services, refugee/UASC support services, transport links and/infrastructure to support claims to remain in the UK, etc. There are areas of the country which do not host diverse faiths or communities, both of which may be critical to promote a child’s development and the stability of the placement.
7. f) We acknowledge that current responsibility for undertaking age assessments lies where the age of a child is disputed; and that current UASC should be accepted as being under 18 years of age or treated as being under 18 years of age until further assessment of their age has been completed. We agree that, in general, the receiving local authority should normally conduct the age assessment. However, there may be cases where it is appropriate for the entry local authority to conduct the case law compliant age assessment before transfer has been agreed. We therefore recommend that the criteria for pursuing age assessment in the arrival local authority should be agreed and defined.
8. g) To note. We are aware that currently age assessments are being completed in Liverpool for children subsequently transferred to Glasgow. Scotland has reviewed age assessment good practice and published guidance (Scottish Government 2018: https://www.gov.scot/publications/age-assessment-practice-guidance-scotland-good-practice-guidance-support-social/)
9. h) We agree with the proposed change so that the entry authority enables the transfer journey. In many instances their staff will have some relationship with the child. We suggest that this section is amended to state that transport costs and arrangements should be the responsibility of the entry authority; within the parameters of the NTS, the UK Government should look at how entry authorities are supported with such costs.
10. i) We agree that planning and communication between arrival and receiving local authorities will be vital and that this will need to take place in a timely fashion to avoid delays. Therefore, a detailed protocol for co-ordination of these processes, including description of roles and responsibilities of staff, should be set out to ensure common understanding of collaborative arrangements.
11. j) Such protocols should integrate consideration of child and adult protection processes where a child is considered at ongoing risk of significant harm.

2a. It remains our clear preference that participation in the NTS is on a voluntary basis. How likely is it that your local authority would participate in a rota based NTS as outlined at Annex A?

To note: Social Work Scotland does not represent a region or a local authority and does not take operational decisions. Social Work Scotland provides a voice for the those in leadership roles in social work in Scotland, including Chief Social Work Officers, Heads of Service and service leads or managers. Our answer is given in that context, on the basis of input from our members.

Social Work Scotland supports the introduction of a non-mandatory scheme. Our members have expressed a willingness to participate, albeit in a scheme which is child-centred, flexible and conscious of local conditions. Not all local authorities are the same.

For a voluntary-based NTS scheme to work in Scotland (although this would apply to a regulation / mandated scheme too) it will require a partnership between Scottish Government and Scottish local authorities, working together through a Scottish co-ordinator who liaises with the national organisation. This would require a degree of commitment to collaboration from local partnerships in Scotland that has not so far been possible or expected. This appears to be an opportunity to seek the development of a Scottish framework to support NTS implementation in Scotland, which lays out what funding and support is available and what additional investment in the support infrastructure nationally will be – e.g. translation services; Home Office locations; specialist trauma support services, etc. Whilst immigration and asylum are reserved matters, the delivery of services to meet the needs of children is devolved. The construction, management and resourcing of the NTS must reflect that.

2b. If unlikely, please explain why not and what barriers to participation remain.

1. a) The current UK Government financial support for unaccompanied children does not cover costs associated with looking after children in Scotland, at any age or stage, or in any form of placement. It is inadequate. Costs are especially high for residential units and these provide the majority of UASC placements, in the absence of sufficient numbers of appropriate foster placements.
2. b) One part of the funding stress relates to the reduction of funding to £240 per week from aged 18, regardless of asylum status (which is still usually unresolved by this time). Local authorities in Scotland continue to accommodate these young people, in line with Scottish statutory obligations in relation to continuing and after care support. These young people are not eligible for benefits. All support costs therefore fall on the local authority.
3. c) There is already a substantial challenge in sustaining a sufficient body of high-quality care services for Scottish children (an issue reflected in all nations of the UK). This issue is often felt acutely in cities; local authority areas which accept the most unaccompanied children.
4. d) Currently UASC usually have to travel to Glasgow to take forward asylum claims. This is stressful and disruptive, undermining placements and limiting the scope of viable local authorities which can provide support. We urge the Home Office to review this process, and provide more flexible, child-centred options.
5. e) National support for the recruitment of appropriate foster families, and the development of appropriate supported accommodation, is needed. This is not on a great scale given current estimates, but must be built, alongside the other features of legal, educational, health and cultural support that are required.
6. f) Unaccompanied children supported by the Independent Child Trafficking Guardian Scheme in Scotland have offered comments in the last few days to inform our response, providing insight into their perspectives and experiances. These are some extracted quotes:

“Oban is quite a small, it was fine for a small town, but I wanted to learn

English and there was no college. It was not easy to make friends because of the language barrier. They helped me as much as they could and I went to school 2 or 3 days a week.”

“My social worker and my guardian helped me to move. It took me about 2 or 3 months. Being in Glasgow was totally different, it was so busy. I could go to school every day, I had more friends. I came to the group at Guardianship every two weeks and I met lots of other people and made friends.”

“Before I moved to Glasgow, I also moved to D (small town ) for 7 months. I was volunteering and I lived with a lady. She helped me to find volunteering in a charity shop. I had a good experience, it was good for me. I was also volunteering in a nursing home – it is good for young people to do things like this. For me, I had problems before I came here. I had bad experiences and couldn’t trust people. I feel more caring and more love for life now, I feel more positive. I feel good about myself and the other things in my life. I feel like I built more trust in people after the bad experiences back home.”

“A lot of people helped me in (large town in the north east of Scotland) and in  (other small town in the north east) and Glasgow. A social worker and (independent Guardian). I spent 5 months in an Academy. I was the only refugee there – everyone else was Scottish. I was the only person learning English there.”

“I had everything I needed, clothes and a house, and I went to school.

But it was difficult because no one was really like me. I made some friends but it was difficult because I couldn’t speak English.”

“I couldn’t understand people. But there are people like me in Glasgow.

Refugees from all different countries. I could go to college. This is why I moved to Glasgow. I moved into student accommodation straight away and started college.”

“It took about 5 months – to meet different people.”

“It’s difficult to talk to people, to make friends who are Scottish. In Glasgow I have been a part of the Befriending at Guardianship. This really helped with my English”

3. Should efforts to increase participation on a voluntary basis fail, it may be necessary to exercise the provisions of the Immigration Act 2016 to mandate transfers under the NTS. This could operate either as a permanent replacement to the voluntary NTS as the primary mechanism for transfers or deployed only when required by exceptional circumstances. While a mandatory scheme is not our preference, we would be grateful for your views on a potential mandatory approach to transfers if participation in the voluntary scheme does not achieve a more equal distribution of UASC?

We are concerned that a mandatory scheme could lead to rigid expectations and the forcing of placements on areas that are not appropriate at a certain time, or sustainable in a child’s interests because of the degree of separation from other individuals or from cultural connections.

We believe in the advantages of a collaborative UK system with regional and national co-ordinators, allowing for the possibility that a nation/region run at a deficit or surplus relative to a commitment over each quarter, but that there would be an expectation that this would be redressed with financial sanctions.

In Scotland, some areas have little or no history of taking UASC, and no strategic plan to develop any capacity. These areas have been focused on meeting the demand for foster placements and supported accommodation among UK-born children. Whilst there is no doubt a potential and willingness to develop capacity for UASC, this is likely to occur step by step and at a varying pace, reflective of local conditions and pressures. Currently Glasgow has been the hub of provision and expertise, supported significantly by Edinburgh, Dundee and some other authorities in the central belt. Some smaller local authorities, such as Perth and Kinross, have shown successful initiatives in accommodating small groups of unaccompanied children.

4. The threshold at which a Local Authority can make referrals to the NTS is currently reached when it is supporting UASC at, or above, 0.07% of their general child population. This threshold is also used to determine the rate for additional Home Office funding to Local Authorities for UASC in their care.

What are your views on the current threshold?  For example, should the 0.07% also include the number of former UASC care leavers within a local authority or be adjusted in some other way?

We note that the primary weighting factor is the region’s child population set against the national average. Regions with greater child populations will be asked to place a greater number of UASC and that a secondary factor is an inverse weighting of supported asylum population. Regions with larger proportions of asylum seekers supported under s95 and s4 of the Immigration Act 1999 will be asked to place fewer UASC. We feel this method is unsatisfactory, and we very much welcome the statement that this calculation would be kept under review.

It has been acknowledged within the consultation/proposal that no modelling can provide complete certainty to the flow of UASC placements via the NTS.  The report states that previously placements available through the NTS have been prioritised for children arriving from overseas under both Section 67 of the Immigration Act (Dubs Amendment) and what was the Vulnerable Children’s Resettlement Scheme. Future need for placements from children from overseas would be fed into the National Rota alongside those arriving spontaneously, and therefore there is a significant degree of uncertainty in committing to an NTS rota scheme

We note and agree that the Scheme should allow for the possibility that weighting at ‘regional’ level could take in to account other factors such as Looked After Children numbers and other local factors. Having a ‘greater child population’ also intersects in some areas with having a greater incidence of child poverty. Potential local capacity will be relative to interactive population stresses including health, housing, employment and access to public transport and services.

We also recommend that at country level the implication of legal variations should be taken in to account – for example the cost differentials relating to the  implications of Section 67 of The Children and Young People (Scotland) Act 2014, which inserted a new section 26A into the Children (Scotland) Act. From April 2015, a young person born after 1 April 1999 who is looked after in foster, kinship or residential care is eligible to remain in their current care placement until they turn 21. This is called Continuing Care. If the placement cannot be maintained, or if it is in the young person’s best interests to start an alternative placement, a welfare assessment must be provided showing why staying in their current placement would significantly adversely affect their wellbeing. Any eligible young person ceasing to be looked after on or after they turn 16 can request Continuing Care. A young person receiving Continuing Care will no longer be defined as ‘looked after’ but will continue to receive the same support. When Continuing Care ends the young person is then eligible for Aftercare support until they turn 26.

In Scotland, although Glasgow are at and beyond their capacity to take UASC and have been creative in developing and sharing their experience more widely, the probability is that Scotland will continue to look to Glasgow disproportionately for resource and social work insight. Some UASC gravitate there after placement in other authorities because of contacts and cultural/ religious opportunities to connect. Part of the solution to more equitable distribution of opportunities for provision of a home base lies in the strategic effort put in to making local solutions safe, secure, welcoming and connected to sources of support and cultural identity. We acknowledge this is significantly a local responsibility but national collaboration is necessary.

Predictive analysis of distinct types of need with the UASC population is also necessary. There is a need for a Scotland wide strategy and framework to support the development of the necessary infrastructure to enable NTS implementation – based on a needs analysis and mapping of infrastructure. We need to have a clear rationale for the development of services and sourcing of placements looking at  the risks and advantages of a national; regional or LA level approach to acceptance and meeting the needs of UASC.

5. Who do you think is best placed to run a voluntary rota based NTS? The Home Office (as now) or someone else? Please give details.

We agree that there needs to be central governance of the National Transfer Scheme and acknowledge that is currently led by the Department for Education and the Home Office and includes local government representation. Scotland, Wales and Northern Ireland should be represented as countries and not as ‘regions’, in order for the distinctive legal, political, economic and social contexts to be accurately represented and understood in all monitoring, planning and review of arrangements.

Separately, but feeding in to NTS Scheme from Scotland, Scottish negotiations, information and advice should be gathered, analysed and taken in to account from Scottish Government, the Convention of Scottish Local Authorities (COSLA) and Society of Local Authority Chief Executives (SOLACE) and stakeholders such as children’s rights organisations/ Children and Young Persons Commissioner; the Independent Child Trafficking Guardians Scheme; and independent legal perspectives such as that of Just Right Scotland; and with UASC themselves.

Social Work Scotland recognises that although some local areas may feel a long way from the issues relating to the needs of UASC arriving in the south-east of England, no country, region, city, or island can be insular in relation to these children’s rights and best interests. There is a collective responsibility, and realising this responsibility will require collective representation and leadership. Within Scotland there may be options for creative collaboration between local areas, pooling resources and learning. That collaboration will be best served by a voluntary scheme, with people ‘buying in’, rather than being forced to the table. The UK government, in partnership with the devolved governments, will need to support effective collaboration through additional investment, data and monitoring, etc.

6. Do you have any other suggestions on how the NTS could be improved?

We note plans for evolution of the current Cases of Concern protocol, which is currently intended primarily to address concerns that arise prior to transfer. The consultation report acknowledges that there may be cases where a transfer has taken place and concerns arise that: a) The information provided by the entry authority was incorrect and that this would have affected the basis for the transfer – e.g. that they had family members living in the entry authority; or b) The safety and welfare of the child has been seriously affected and that this is attributable to the decision to transfer, including concerns regarding their physical or mental health.

The report speaks of a mechanism to review and potentially reverse the transfer. If this is developed, the welfare and best interests of each child should be the paramount consideration. Therefore, a protocol is needed to ensure that this is a co-ordinated and child centred process and not simply a rebound mechanism.  Holistic, multi-agency assessment and protective care planning for the child would be necessary to ensure that a child does not fall between fractured systems, held in a series of temporary placements, with no consistency of understanding and advocacy prior to the location of a settled solution.

For further information, please do not hesitate to contact:

James Cox

Children and Families Lead, Social Work Scotland

james.cox@socialworkscotland.org

[1] https://www.gov.scot/publications/coronavirus-covid-19-daily-data-for-scotland/

[2] International Organisation for Migration, 2020

[3] Bywaters/Nuffield, 2017

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.

• The Mental Health (Care and Treatment) (Scotland) Act 2003 (“the Act”) came into force in 2005 – how well does it work at the moment? In answering this it would be helpful to us if you could consider the following:
• how well the Act helps people to get the right care, treatment and support
• how well the Act protects people’s human rights (Please see the start of the paper for the human rights we think are most relevant here)
• how well the Act maximises a person’s ability to make their own decisions and give effect to them
• how things have changed since the Act came into force in 2005
• Are there certain things that hinder the Act from working effectively? What would improve things?

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[1].

We draw the review’s attention to our response to the recent Social Care Inquiry[2] 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.

Integration context

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[3] 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[4] 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[5] was explicit in finding that a shortage of Registered Medical Officers impacted detrimentally on the patient’s journey.

Inpatient resources

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.

Specialist resources

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.

• Are there groups of people whose particular needs are not well served by the current legislation? What would improve things?

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.

• The Act has a set of legal tests to justify making someone subject to compulsion. Would you suggest any changes to these? In answering this, you may wish to think about how practical the tests are to apply and how fair they are to different groups, including people with different diagnoses.

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).

• Do you think this requirement is currently met? Does more need to be done to help people recover from mental disorder? You may wish to provide an example or examples.

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.

• Does the law need to have more of a focus on promoting people’s social, economic and cultural rights, such as rights relating to housing, education, work and standards of living and health? If so, how?

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.

• Do you think the law could do more to raise awareness of and encourage respect for the rights and dignity of people with mental health needs? The Review is also looking at the way people with a mental disorder are affected by the Adults with Incapacity (Scotland) Act 2003, and the Adult Support and Protection (Scotland) Act 2007.

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.

• Based on your experience, are there any difficulties with the way the 3 pieces of legislation work separately or the way they work together? What improvements might be made to overcome those difficulties?

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[6] 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.

• Is there anything else you wish to tell the Review? Please fill in the box below with your contribution. There is no restriction to the length of your statement. You may submit additional pages by post or use the text box below, or submit written submissions by email.

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[7] 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[8] 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.

[1] https://www.audit-scotland.gov.uk/report/self-directed-support-2017-progress-report

[2] https://socialworkscotland.org/consultation/social-care-inquiry/

[3] https://independentinquiry.org/wp-content/uploads/2020/02/Final-Report-of-the-Independent-Inquiry-into-Mental-Health-Services-in-Tayside.pdf

[4] https://socialworkscotland.org/wp-content/uploads/2018/05/TheMentalHealthOfficer_capacitychallengesopportunitiesandachievements.pdf

[5]  https://independentinquiry.org/wp-content/uploads/2020/02/Final-Report-of-the-Independent-Inquiry-into-Mental-Health-Services-in-Tayside.pdf

[6] https://www.careinspectorate.com/images/documents/4453/Review%20of%20adult%20support%20and%20protection%20report%20(April%202018).pdf

[7] https://www.celcis.org/knowledge-bank/search-bank/active-implementation-hub/

[8] https://socialworkscotland.org/consultation/independent-review-of-learning-disability-and-autism-in-the-mental-health-act/

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

21.08.2020

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?

N/A

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:
The physical and mental health of the young person, including addictions,
disabilities, etc.

• Accommodation issues
• Childhood background, including care history (if the young person is or was ‘looked after’), prior professional involvement with the family, etc.
• Whether any proposed sentence is likely to be effectively implemented, and what
  steps can be taken to increase the likelihood of effective implementation.

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?

Agree.

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?

Agree.

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
based guideline, and will likely have increased confidence in the sentencing of young people.

Q19. Do you agree or disagree with the assessment of the specific, identified impacts
the guideline is expected to have?

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:

It should be noted that this may require a movement of resources from criminal justice social work departments to children and families’ social work departments. We anticipate this impact will be spread across local authorities and will not be a significant impact compared to the absolute number of cases dealt with by social work departments.

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
custodial sentences, such teams are better value for money than prisons. But it does not simply equate that the capacity is sitting ready to accommodate the potential increase in work. The Scottish court system should seek confidence that the wider public sector, responsible for implementing its disposals, is equipped to do so. (For further information in this area we recommend discussions the University of Strathclyde’s Centre for Youth and Criminal Justice, and with the Kibble team managing the Interventions for Vulnerable Youth (IVY) project.)

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:

• In view of the guideline’s explicit recognition of UNCRC, recommend renaming the document ‘Sentencing Children and Young People’. The title and text of the document should reflect the fact that, under the UNCRC, persons are considered children up to age of 18.
• No mention in the guideline of the role or input of parents or carers. Seemed an omission, particularly in relation to those aged 17 – 18.
• No mention of cultural considerations, which should form part of background assessments.
• Recommend explicit references to gender, and how that is taken into account in respect to sentencing.
• Greater emphasis on disability, within the context of assessment of needs, and approaches to rehabilitation.

For further information, please do not hesitate to contact:

Ben Farrugia
Director, Social Work Scotland

ben.farrugia@socialworkscotland.org

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

• Do you agree with how we propose to develop new assumptions and the evidence base? Do you have any alternative or additional suggestions that we should consider?

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.

• What should we do about our existing Integrated Workforce Plan and workforce commitments?

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:

1. Does exposure to the virus create immunity, and if so, for how long?

2. Will an effective vaccine to Covid19 be found soon, and be produced at scale and reasonable cost to governments, so that it can be used world-wide?

3. Will the virus mutate, either to a new equally virulent form, or, like the common cold, to a much less harmful form?

4. Can PPE be produced, purchased and distributed in larger volumes to meet all needs for protection?

5. Can the testing for live virus be massively increased, with associated contact tracing, so that people infected can be isolated, and transmission stopped? Health and Care staff, and the people using their services need such testing frequently. The contract tracing human resources needed are significant and in need of planning.

6. Can the random sampling for live virus, which has only recently started in England (in a joint project between ONS and Oxford University), be increased to show the variation around the average prevalence (currently 1 in 400) between different areas of the UK, and urban versus rural areas, in order to provide the firmer epidemiology necessary for current and future planning?

7. Can this random testing be combined with antibody testing to provide evidence of re-infection rates and possible “herd immunity”, also needed to provide the firmer epidemiology necessary for planning renewal?

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.

• How do we best manage workforce planning as a whole-system endeavour, across the integrated health and social care landscape?

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.

• What kind of workforce plan do you think will be required to cope with rapidly changing circumstances throughout the pandemic and after?

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).~

• Are there any assumptions you would add?

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:

1. The numbers of combined health and social care are given on page 8 of the Plan as “over 368,000 headcount” and “291,000 Whole Time Equivalent”. These are said to be the most up to date available data, but no weblinks are given. The “as at” dates are not given for these baseline staffing numbers; the counts are not given separately for NHS and Social Care, as they need to be; and it is not clear whether  any categories of NHS or social care staff been excluded from any of these counts (eg staff at the State Hospital).

2. Page 8 of the Plan states that “The Scottish Government’s Medium Term Financial Framework (MTFF) estimates that to address the effects of demand, we will require 1.3% per annum more NHS employees and 1.7% per annum more social care employees in the period to 2023/24”. We could not find that information in the Health and Social Care MTFF published in October 2018,  which refers to annual growth rates of 3.5% in demand for health services and 4% for social care (H&SC MTFF pages 10 and 11). However, these are the total expenditure growth rates required to 2023/4, and include pay and price rises and other non-demographic factors.  If we strip those out using the data in Figure 8 of the H&SC MTFF, then the average annual growth required in activity year on year becomes 2.9% for social care and 2.4% for health.  That is still a lot higher than the 1.7% and 1.3% figures. Could we please be provided with a table showing how these staffing increases in the Workforce Plan relate to the H&SC MTFF financial projections?

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.

3. Page 9 of the Plan includes a chart showing how “assumed demand” will increase total WTE staffing from the baseline of 291,287 WTE, to 310,758 WTE by 2023-24, before “mitigations” bring this down to 301,808. No figures are given for the elements of increased demand, or for the individual mitigations, which also should be separated between NHS and Social Care – otherwise there is no clarity.

• How would you prefer to be updated on progress with this 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.