Plans for a new law integrating health and social care in Scotland are unnecessary. Relevant legislation already exists and has not been shown to be deficient in any way
The Scottish Government’s Programme for 2012/13 sets out a raft of bills for the forthcoming Parliamentary year. New laws are the traditional route for our national politicians to outline their planned changes. Their underlying expectation is that change can be achieved through legislation. But what if the new legislation isn’t needed? In fact, what if the evidence indicates that a case for legislation hasn’t been made?
This is what CIPFA found when preparing its most recent policy submission to the Scottish Government in response to one of the proposed new bills on integrating adult health and social care.
This is one of the flagship policies and is intended to introduce new primary legislation as a force to encourage better and integrated working between local government and health bodies. Integration is not in itself new. There is existing primary legislation that is only ten years old. So by introducing new legislation this must mean that politicians have identified weaknesses or deficiencies in the 2002 legislation.
There are at least four tests that should be applied before any new legislation is brought forward. Firstly, we should be clear about the impact of the existing legislation (if there is any) and that it has been fully tested. Secondly, the case for legislation must be clearly made. Thirdly, the cost and the consequences of the new legislation should be transparent and finally, there should be a clear timescale for post-legislative scrutiny.
If politicians, say typically a Parliamentary committee, had used these tests we would expect to find a firm evidence base not only for the need for the new legislation but also identifying where the existing legislation was deficient. If we briefly apply these tests, the outcome tells us something different.
Firstly, there has been no formal scrutiny of existing legislation. Not only that, the available evidence claims that the benefits of integration can be realised in Scotland using the flexibilities already permitted by the existing legislation. So; first test failed.
The Government sets out quite clearly that the intention is to achieve better outcomes through integrated working. Again, turning to the evidence, the consequences of joint working are not evident while most of the research focuses upon the process itself rather than on the outcomes for individuals.
Not only that, but further available evidence, all of it in the public domain, tells us that better outcomes are unlikely to be achieved through integrated working or indeed through financial integration. Conclusion? Second test also failed.
Where there will be clarity surely is on the cost of (and consequences for) the services being reformed. Surprisingly, the consultation paper does not set out the estimated full costs of integrated health and social care. Curiously, it lists only current local government expenditure, with no estimate of health board spending. With less than full transparency (at least at this stage) we can only conclude that the third test has also been failed.
With no timescale (or any expectation) for post-legislative scrutiny, passing the fourth test doesn’t even stand a chance.
What this means is that, without any objective assessment, politicians are being asked to use Parliamentary time to pass further legislation when the existing legislation has not been proven to be deficient in any way. Will further legislation prove any more effective?
So if these test had been applied would the Scottish government be bringing forward new legislation? Unlikely, instead what we would be investigating is why that primary legislation has been a blunt instrument to date.
CIPFA has understandably reached the conclusion that the case for new legislation has not been made. The challenge will now be for the advocates of the legislation to come forward with a strong evidence base to underpin their proposals. One of the many difficulties, however, is that the origin of much the existing and available evidence is the Scottish Government itself.
Don Peebles is policy and technical manager at CIPFA in Scotland
