Introduction
90. This section identifies the limited system of regulation of parts of the social services workforce and gives our proposals for development of new primary legislation to develop a comprehensive system of workforce regulation. It draws on the results of the consultation paper, which was issued in November 1998, Workforce Regulation and Education.
91. There will be two key functions of the Scottish Social Services Council:
Existing regulation and legislation
92. Currently the qualifications for Chief Social Work Officers and Mental Health Officers (MHOs) are prescribed in statute. This is an example of job reservation whereby only those people having particular qualifications can hold certain jobs.
93. The Secretary of State using powers conferred by sections 3(2) and 94(1) of the Social Work (Scotland) Act 1968 made regulations which prescribe the qualification of Chief Social Work Officers (The Qualification of Chief Social Work Officers (Scotland) Regulations 1996.) These regulations require that any Chief Social Work Officer appointed by a local authority must have a Diploma in Social Work (DipSW) or its equivalent as defined in the statutory instrument.
94. The Mental Health (Scotland) Act 1984 places a duty on local authorities to ensure that MHOs receive appropriate training and have been assessed and are competent. Directions issued by the Secretary of State (now Scottish Ministers) require that persons appointed as MHOs shall hold a DipSW or its equivalent, have completed a minimum of 2 years experience as a social worker and have completed a training programme for MHOs which has been approved by the Central Council for Education and Training in Social Work (CCETSW).
95. CCETSW has been given powers to regulate social work education by Section 10 of the Health and Social Services and Social Security Adjudication Act 1983 (HASSASSA). This legislation covers the UK and it is intended to repeal Section 10 when the forthcoming Care Standards Bill is enacted in the Westminster Parliament. Thus CCETSW will be wound up in March 2001. Its functions, in Scotland, will be undertaken by the Council after April 2001. A description of these functions and the powers that will be given to the Council are given later in this chapter.
Establishment of the Council
96. In order to fulfil these functions, it is proposed to make the Council an independent body in terms of its day-to-day operations but make it accountable to the Scottish Executive and in turn to the Scottish Parliament. The legislation will avoid tight prescription of the Council and will be as enabling and flexible as possible. The Scottish Parliament will have wide powers to make subordinate legislation in relation to the Council. Should the Council not exercise its powers, there will be default powers.
97. The membership of the Council will include a chairperson and between 17 and 21 members who are appointed by Scottish Ministers. The Scottish Executive shall have a duty to consult appropriate persons or bodies before these appointments are made. Appropriate persons or bodies will include people using services, their carers and their representatives; employer representatives in the statutory, voluntary and private sectors; professional bodies; and education and training providers (the stakeholders). Appointments to the Council will be made in accordance with the Commissioner for Public Appointments’ Code of Practice.
98. The Council will comprise of representatives from all stakeholder interests. One-third of the Council members will be drawn from people using services, their carers or their representatives and one-third representatives of the registrants once the register is fully established. The chairperson will be appointed for a term not exceeding 3 years but shall be eligible for appointment for one further term only as chair. Other members shall be appointed for a term not exceeding 3 years and shall be eligible for appointment for one further term as a member. Members having served one or two terms would be eligible to become chair for a maximum of two further terms.
99. In appointing members of the Council, Ministers will take account of the diversity of people using care services in terms of age, gender and ethnicity. There shall be a nominee from the Scottish Commission for the Regulation of Care. Representatives from stakeholders may be officers, elected members or office bearers.
We invite your views about the membership of the Council.
100. The members of the Council will be responsible for ensuring that statutory obligations are met, that the organisation is maintained on a sound financial footing and provides a strategic lead. The Council will be required to submit an annual forward business plan (corporate plan) and report to the Scottish Executive, which will be laid before Parliament. As with the Commission such reports would be widely available in summary form.
101. The Council will have powers to pay fees and allowances to its chairperson and members as Scottish Ministers may determine. It will be able to appoint staff and rent or lease premises and have discretion to carry out its functions directly or to contract out functions to other persons.
Committees
102. The Council will have powers to establish committees and sub-committees to assist it in the performance of its functions, and the power to make rules regarding the membership and proceedings of these committees. The Council will appoint members of committees as it thinks fit, but chairs of committees will be required to be members of the Council.
Staffing
103. The Council will be given the power to appoint a Chief Executive and staff and in addition will be able to co-opt or second specialists to deal with particular aspects which may not justify full-time appointments.
104. It is expected that current staff from CCETSW will transfer to the Council. Any transfer of staff will follow the principles contained in the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 1981 (as amended) which seek to ensure continuity of employment terms and conditions for employees required to transfer employment. Existing staff will be given first opportunity to apply for jobs in the Council. Only after this will jobs be advertised externally.
Resources
105. The Scottish Executive will provide initial funds to establish the Council, which will include the administrative funds currently paid to CCETSW for its work in Scotland. The Council will have powers to receive funds. The Council will be required to keep proper accounts and records, prepare an annual statement of accounts and submit them to the Scottish Executive. The Council will determine registration fees and the period of payment. These will be approved by Scottish Ministers.
Other functions of the Council
106. In addition to the main functions listed above there will be an additional function. As indicated in the White Paper Aiming for Excellence the Council will, from its establishment, undertake in Scotland the functions of the Training Organisation for Personal Social Services (TOPSS). TOPSS — a UK wide body — was established under a Department for Education and Employment initiative as the National Training Organisation (NTO) for the social services workforce. NTOs require to be employment-led and are normally run by boards representing employers, employees, and training interests. It is anticipated that this requirement will be met through the sub-committee structure of the Council. They have responsibility for workforce and training issues, including the assessment of the training provision in their sector, and represent the training needs of the sector to government.
Regulation of social services staff
107. The staff to be regulated are to be referred to as social services staff. This will include staff in statutory, voluntary and private employment. Any definition of such staff will need to allow for developments in the nature of the work and its workforce. It is therefore desirable that there should be provision for amending the definition of staff liable to be regulated. Scottish Ministers will have power by regulation to amend the specific categories listed below and add other categories of staff employed in social services.
108. The definition should include:
Other regulated staff
109. There are significant numbers of staff in the social services workforce who are currently regulated by other professional regulatory bodies, notably nurses and occupational therapists. Different approaches may be possible to resolve boundary issues:
We invite your views about the approach which should be adopted with staff currently registered by existing regulatory bodies.
Codes of conduct and practice and enforcement
110. The first means by which legislation is intended to regulate social services staff is through adherence to codes of conduct and practice. The Council will prepare, publish and keep under review codes of conduct and codes of practice. The codes will be:
111. It is for the Council to determine the content of the codes. It is envisaged that the code of conduct will include such matters as:
112. The codes will be a code of practice for employers covering the recruitment of staff. This will include the responsibility of employers for taking up references, checking work histories and considering police checks; education and development policies; complaints; disciplinary mechanisms and arrangements to protect whistle-blowers. Compliance with the codes for both the workforce and employers will be monitored by the Commission, as part of regulation of care services.
Registration of staff
113. The second means by which legislation is intended to regulate social services staff is by means of registration. The purpose of registration is:
114. The Aiming for Excellence White Paper identified the following groups of staff who would be required to register in the first wave following the creation of the Council:
Scottish Ministers will have powers to make regulations to introduce the registration of other groups.
115. The Council will have powers to make rules on the criteria for admission to the register and on the criteria for refusing admission to the register. Admission to the register will require:
116. For staff currently in post without designated qualifications there will be a timetable established to allow the achievement of required qualifications. Once this transitional period has been fulfilled it will be a criminal offence to employ unregistered staff. In addition students admitted on a professional social work course will be recorded as student registrants. Newly qualified social workers will be recorded as probationary registrants and will not be confirmed on the register until they have successfully completed the probationary period.
117. Refusal to register, or exclusion of, a person who has been registered will be by reason of the person’s:
118. The procedure to be adopted for dealing with any allegations about the conduct of a registered person shall be determined by regulation. If allegations are established after due process, the Council will have powers to impose the following sanctions:
119. Where the Council refuses registration or removes people from the register it will have a duty to notify the statutory Index of unsuitable adults and the regulatory Councils in England, Wales and Northern Ireland. There will be an appeals system for people who are removed from the register.
Periodic re-registration
120. In order to ensure continuous competence the Council shall be under a duty to determine arrangements for the periodic re-registration of registrants. These arrangements will be subject to the approval of Scottish Ministers. Periodic re-registration will be linked to continuing professional development.
Job reservation
121. It is proposed that there should be powers of job reservation. This currently applies to Mental Health Officers and Chief Social Work Officers. There is a strong case for powers of job reservation to be extended to other groups such as those working in complex child care cases. Ministers will have powers to determine the scope and pace of further job reservation.
Protection of title
122. Previous consultation indicated support for introducing protection of title for a range of different categories of staff as a means of ensuring public confidence and extending public protection against bogus operators and those excluded from the register. The legislation will have powers to enable protection of title to be determined where it is concluded that this will be a useful safeguard.
Regulation of professional social work education
123. The functions of CCETSW are determined by the HASSASSA Act. This Act gives CCETSW the responsibility for promoting, developing and regulating education and training and awarding qualifications in social work.
124. These functions will be transferred to the Council. As laid out in the HASSASSA Act they are (references are to subsections of Section 10 of this Act):
125. Any rights, powers, duties or liabilities of CCETSW in respect of these functions in Scotland will pass to the Council. The Council will have power to continue to do or delegate responsibility for anything which is being done by CCETSW in Scotland at the date of its wind-up. These powers could include, for example, approval of a training course, award of the DipSW to a student in the middle of a course or the payment of a student grant.
126. The functions of TOPSS including workforce planning, matching of qualifications to posts and development of National Occupational Standards will also transfer to the Council. The Council will have the power to continue to do anything which is being undertaken by TOPSS in Scotland at the date of transfer.
Links with equivalent bodies in England, Wales and Northern Ireland
127. The Care Standards Bill, which will create a General Social Care Council in England and a Care Council for Wales, will have a requirement that these bodies consult over certain matters with each other, the Council and the equivalent body in Northern Ireland. The proposed legislation for Scotland will place a reciprocal duty on the Council.
Links with Scottish Commission for the Regulation of Care
128. There will be a duty in the legislation for the Council to co-operate with the Scottish Commission for the Regulation of Care. It is vital that the Council and the Commission work together to maximise use of resources and eliminate any possible duplication of effort. Arrangements will be put in place to ensure that forward planning and progress against plans is regularly monitored.
129. The Council will have a duty to share information with the Commission and the statutory Index of suitable adults, particularly in relation to information about whether behaviour or practice of providers or individuals which might be considered of detriment to the public interest. This might lead to an entry on the Index or disciplinary action by the Council.
Transitional arrangements
130. Following the introduction into the Scottish Parliament of the legislation to establish the Council, a shadow body will be set up to begin the implementation of the Council. At this point the shadow Council will be able to rent or lease premises, recruit and employ staff, enter into contracts, incur necessary expenditure, and plan for the full operation of the Council.
131. The Care Standards Bill in England will create a temporary residuary body to deal with the final winding-up of CCETSW’s business after April 2001.
The development of social work education
132. Responses to the Consultation Paper on Workforce Regulation and Education indicated a high level of consensus that professional social work education should be enhanced in length and status, to achieve a greater depth and breadth of professional education. There are issues of resources and organisation that need to be resolved but which are not subject to the forthcoming legislation. A further paper on social work education will be issued in 2000 proposing how this will develop in the future to meet the expectations of Aiming for Excellence. Although the future shape of social work education may be different from the current DipSW, this qualification and its equivalent will be recognised by the Council as an entry to the register for professional social workers. In the future the successful completion of an approved educational course, including a period of practice learning, will be a required criterion for admission to the register. The reform of social work education will inform the benchmarking activity led by the Quality Assurance Agency.