Today it was revealed that only four per cent of whistle-blowing cases in care homes were properly followed up by the regulator. To understand this properly it helps to look at the overall picture.
In 2001 the Regulation of Care (Scotland) Act 2001 was introduced, one of the first acts of the then-new Scottish Parliament. This created a new regulatory framework for the care sector which had two parts.
The first is the Scottish Social Services Council (SSSC). This regulates the workforce. It is meant to have a training and development focus but in practice it’s focus has been on fitness to practice hearings. These are triggered when a complaint is made about someone’s performance.
The second part of the regulatory structure is the Care Inspectorate. This regulates the care providers, whether they are in the public, voluntary or private sector. If a complaint is about poor quality of service provision that complaint should go to the Care Inspectorate.
What happened next is telling. Over the years the number of fitness to practice hearings has increased constantly and substantially. The rise in disciplinary investigations and actions is such that there is now a huge backlog of fitness to practice cases, with some staff having to wait four years for their case to be heard.
But that is not matched by a corresponding increase in inspections or enforcement of providers. In fact here quite the opposite has happened – the trend for inspections and investigations by the Care Inspectorate has continually been in the downward direction.
Covid will of course have played a part in this most recent dip but it does no more than continue a trend which was clear before the pandemic. All complaints against staff are investigated – but only a small proportion of claims made against providers.
What’s going on? Data is not always easy to come by in this field but it is certainly the case that many staff believe that the increase in disciplinary hearings they face is in part due to management bullying. Staff believe that the threat of referral to the SSSC is sometimes used as a tool to gain leverage over them.
There is a recurring pattern in Scottish public life where scrutiny of the powerful decreases while scrutiny of the powerless increases, in each case apparently directly proportionate to their lobbying power
It should also be noted that the SSSC polices the Employee Code of Conduct but not Employer Code of Conduct. It means that if a member of staff is reported they are investigated without proper reference to whether their employer is enabling them to deliver good practice by providing a proper, supportive work environment.
The Care Inspectorate is not working to regulate a workforce which is generally low-paid, under-trained and particularly female in nature. It is instead regulating private sector care homes backed by powerful investment funds, big corporate NGOs and local authorities. All of these bodies have differing forms of political lobbying capacity (Enable uses Charlotte Street Partners) and all are in regular communication with their regulator.
This power imbalance probably goes a long way to explaining the discrepancy in these two contrary trends (if they are to be believed the quality of service just keeps getting better the more the quality of the workforce declines…).
Indeed the trend in Care Inspectorate enforcement up until the pandemic gave the impression of continually-improving quality of care home provision, quite contrary to the impression many families of care home residents have. Then Covid came along and exposed this impression of continual improvement as largely fictional.
What there is no empirical evidence to support at all is that since this new regulatory regime came into force 20 years ago this year there has been an actual, measurable improvement in quality in either the care workforce or the care providers.
There is a recurring pattern in Scottish public life where scrutiny of the powerful decreases while scrutiny of the powerless increases, in each case apparently directly proportionate to their lobbying power and the ease with which they can ‘capture’ regulators.
Care homes are big money, the private ones backed by major investors who know they offer low-effort, reliable returns – the fees are guaranteed and these enable the owner of the care homes to continually ‘flip’ the property, remortgaging properties and releasing the profits (most of the profits in care homes comes from the speculative property value, not the fees paid for delivering care).
They have clout and they use it to suppress scrutiny – but the same is not true for the workforce. In both cases it is the quality of care which suffers.
The establishment of a National Care Service is an opportunity to create a new regulatory system which is properly focussed on improvement and enhancement.