Scotland

The 2019 Act will replace the 2011 Regulations that are currently in force.

Under the 2011 Regulations, providers are under a duty to ensure that ‘at all times suitably qualified and competent persons are working in the care service’. ‘Competent’ is not defined, but clearly extends to the concept of individuals being sufficiently ‘fit and proper’ to undertake the work.

Breach of this regulation is not an offence and is therefore enforced through the inspection regime.

Under Regulation 9, careworkers must not employ any person in the provision of care unless that person is ‘fit to be so employed’. ‘Unfit’ persons include people with certain criminal convictions, people who do not have the necessary qualifications, skills and experience necessary for their work, those who are not of ‘integrity and good character’ and those who are required to be registered with a professional body and are not.

Integrity and ‘good character’ are not defined in either the Regulations or guidance.

Breach of Regulation 9(1) (the requirement to employ fit persons) is a criminal offence.

Regulation 13(2) further stipulates that a person must not provide, manage or be employed in a care service for adults if they are listed in the adults’ list of the Protection of Vulnerable Groups (Scotland) Act 2007.

Under this Act, it is an offence for an individual to undertake work from which they are barred, or for an organisation to offer such work to a barred individual.

Guidance – in the form of Standards – created by the Scottish Government under section 50 of the Public Services Reform (Scotland) Act 2010 hold significant implications for whether careworkers are considered suitable persons for their roles. The Standards are underpinned by five principles: dignity and respect, compassion, being included, responsive care, and support and wellbeing; and are collected under five statements which set out the standard of care an individual can expect. These include:

·      I experience high quality care and support that is right for me;

·      I have confidence in the people who support and care for me.

Statements in the Standards include references to dignity, privacy, discretion, and respect, all of which have particular implications for care worker conduct and personal suitability.

These Standards are taken into account by the Care Inspectorate when undertaking inspections and registration.

No requirements on recruitment are set out in the Regulations, but good practice guidance sets out detailed expectations for ‘robust’ recruitment processes which include the collection of certain information on applicants.

This guidance places a strong emphasis on safety and also refers to compassion and the human rights of those using care services. Among other things, it notes that it is ‘good practice to involve people who use services and/or their relatives in recruitment’ in a meaningful and appropriate way.

The fitness of workers is also governed by the requirement for careworkers at all levels to register with the Scottish Social Services Council (SSSC). In Scotland, careworkers may only work in a care service once they are registered.

Registration is being phased in for different roles, but workers coming into new roles must register within six months

of their employment starting. Once compulsory registration is in place, service providers may not employ non-registered workers.

Breach of Regulation 3(2) is an offence.

Once registered, social care workers are required to attain certain standards of conduct, skill and training, set out by SSSC. If their ‘fitness to practise’ is or may be impaired, they may be referred (or may refer themselves) to the SSSC, which may investigate.

If a breach is found, SSSC has the power to impose various sanctions, up to and including removing a person from the register.

The policy note on the Scottish regulations about worker registration state that registration of care workers as ‘social service workers’ in Scotland is a condition of employment. Registration requires careworkers to follow the SSSC Code of Practice for Social Service Workers (‘the Code’).  The Code sets out a series of standards that social care workers are expected to meet. The onus is on social care workers themselves to meet these standards. The Code states: “It is your responsibility to meet these standards and you should use the Code to reflect on your practice and identity how you can continually improve”. It also contains a focus on self-improvement and reflexivity, stating: “you should use the Code to reflect on your practice and identity how you can continually improve.”

Scottish Social Services Council, ‘Code of Practice for Social Service Workers’ (2016).

In accordance with the Code, care workers must:

1.     protect and promote the rights and interests of people who use services and carers;

2.     create and maintain the trust and confidence of people who use services and carers;

3.     promote the independence of people who use services while protecting them, as far as possible, from danger and harm

4.     respect the rights of people who use services while striving to make sure that their behaviour does not harm themselves or other people;

5.     uphold public trust and confidence in social services; and

6.     be accountable for the quality of [their] work and take responsibility for maintaining and developing [their] knowledge and skills.

Each of these six requirements is underpinned by a series of detailed expectations about the professional skills and conduct of care workers.

The Code requires care workers to uphold a set of professional values. These relate particularly to outcomes for individuals to whom care and support is provided. For example, careworkers are required to:

·      ‘recognise that people who use services have the right to take risks and support them to work positively with potential and actual risks to themselves or others’ (4.1)

·      ‘promote the independence of people who use services and empower them to understand and exercise their rights’ (3.1);

·      ‘Respect and, where appropriate, promote the views and wishes of people who use services and carers’ (1.2);

·      Respect and maintain the dignity and privacy of people who use services’ (1.4);

In addition, careworkers are expected to work in a way that promotes diversity and respects different cultures and values.

The Code imposes strong requirements on care workers to take responsibility for gaps in their skills or limitations in their ability and states that care workers must:

·      ‘honour work commitments, agreements and arrangements and, when it is not possible to do so, explain why to people who use services, carers and [their] employer’ (2.5);

·      inform their employer or the appropriate authority about any personal difficulties that might affect their ability to do their job competently and safely, and tell the SSSC about anything that might affect their fitness to practise (6.3);

·      seek assistance from their employer or the appropriate authority if they do not feel able or adequately prepared to carry out any aspect of their work or are not sure about how to proceed in a work matter (6.4).

The Code also requires care workers to report to their employers or other authorities inadequate working practices and inappropriate behaviour by colleagues. It states, for example, that careworkers must:

·      “report allegations of harm and challenge and report exploitation and any dangerous, abusive or discriminatory behaviour or practice” (3.2);

·      support individuals and carers to express concerns or make complaints (3.9);

·      tell their employer or the appropriate authority about resource or operational difficulties that may impact on the delivery of care (3.4);

·      tell their employer or an appropriate authority if a colleague’s fitness to practise may be impaired (3.5);

·      be open and honest with their employer, people who use services and carers if care has (or may have) caused physical, emotional, financial or material harm or loss (3.6).

The Code implies a level of collegiality among careworkers, requiring them to:

·      work openly and co-operatively with colleagues and treating them with respect (6.5)

·      contribute to the learning and development of colleagues (6.9).

The SSSC has also produced a Code of Practice for Employers of Social Service Workers (‘the Employer Code’), which complements and is published together with the Code of Practice for Social Service Workers.

The Employer Code states that ‘all employers … must make a commitment to work in line with the Codes of Practice’.

The Employer Code is set out in five sections, and there are clear implications for establishing the suitability of persons as care workers in requirements that employers:

·      Make sure people are suitable to be social service workers and that they understand their roles and responsibilities (section 1);

·      Have the culture and systems in place to support workers to meet their Code of Practice (section 2) and cooperate with SSSC proceedings (section 5).

The Employer Code expects employers to follow good practice in recruitment. It is emphatic that employers must:

·      Use thorough recruitment processes to make sure that only suitable people with appropriate attitudes and values, and the potential to gain the necessary knowledge and skills, enter the workforce (1.1, emphasis added);

·      Check criminal records and registers and follow relevant guidance when assessing whether a person is capable of carrying out the duties of the job they have been selected for, before a person is appointed (1.2).

·      Ask for and provide accurate and appropriate references to share information relating to a person’s suitability to work in social services (1.3).

The meaning of the term ‘appropriate attitudes and values’ is open for interpretation by employers, specifically the person undertaking recruitment processes, who is likely to be a service manager. Fitness is therefore largely dependent on the ability and desire of managers to adhere to particular values.  An offer of employment is therefore contingent on managers’ discretion with regard to the personal attributes they consider are appropriate for a person seeking work in a care setting.

The Employer Code contains many requirements that relate to the suitability of care workers for their roles. In particular, it requires employers to:

·      Make it clear that bullying, harassment or any form of discrimination is not acceptable and take action to deal with such behaviour (4.1);

·      Have procedures for workers to report exploitative, dangerous, discriminatory, or abusive behaviour and practice, when a colleague’s fitness to practise may be impaired and where care has caused, or  may have caused, physical, emotional, financial or material harm, and deal promptly, effectively and openly with such reports (4.2 and 4.3);

·      Make it clear to workers, people who use services and carers that violence, threats or abuse are not acceptable and have clear policies and procedures for reducing the risk of violence and managing violent incidents (4.4).

It should be noted that all of these points could also apply to the protection of staff from such behaviours by individuals using the service.

The Code of Practice for Employers requires employers to inform care workers about the Codes of Practice, and support them to meet the standards in their own Code.

Employers are required to report workers whose fitness to practise may be impaired (taking account of the Code in making this decision), cooperate with SSSC investigations, including through the provision of information and attending hearings, and enable workers to do the same.

The SSSC states that a care worker’s fitness to practise can be affected by misconduct, ‘deficient professional practice’,  health conditions, decisions about them by another regulatory body and a criminal conviction. If a care worker’s fitness to practise is called into question, the SSSC investigates and may refer the case to a Fitness to Practise Panel. If the Panel finds that the worker’s fitness to practise is impaired, they may impose one or more sanctions, including warnings, conditions on and / or suspension of registration, or removal from the register.