Legislation Committee No.5

To date, only the development of Health Social Care & Wellbeing Strategies has been the subject of a joint statutory requirement for the NHS and its Local Authority partners.  ABM’s recent experience with regard to single plans for Children and Young People, as well as the Carers’ Strategies that are in place in the 3 main localities - Bridgend, Neath Port Talbot and Swansea - would appear to indicate that legislation is not a requirement to make partnerships effective as effective joint carers’ partnership arrangements, joint planning around current requirements (eg NSFs for children and adults services etc) as well as current joint carer’s strategies are in place in each locality.

However, it is acknowledged that legislation may provide the impetus and support required to ensure that local partnership working with respect to carers receives the investment in human and financial resources that will be needed to transform services and make continual and sustained progress, particularly in the challenging financial circumstances in which the public services will be operating.  

To date the legal obligation to support unpaid carers has been the sole responsibility of Local Authorities.  The proposed measure should create a framework and accountability process that will promote greater joint working and consistent commitment from the NHS and other partners and the means through which partners can be held to account locally and by Ministers.  

ABM agrees that each regional area needs to have a strategy or strategies for carers but considers that the lead needs to remain with Local Authorities, albeit within a clear, agreed accountability framework within which to operate with partners.  This framework therefore needs to be supported by an appropriate duty of co-operation between all partners involved (eg through an enhanced version of locality compacts between Local Authorities, the NHS, Third Sector and other partners as is currently being developed within the ABM area) and following clear national direction from Welsh Assembly Government on all aspects of governance i.e. accountability, liability and risk, and how progress will be measured.

2. Are the sections of the proposed Measure appropriate in terms of reforming legislation relating to the provision of information and advice to carers? If not, how does the proposed Measure need to change?

The proposed measure appears to meet its stated objectives appropriately, identifying the need for authorities to set out how they will work together to provide appropriate information and advice.  

It is important that the issue information and advice provision is considered jointly to ensure consistency, avoidance of duplication, omission and most effective use of resources in development.  

As indicated at 1 above, it would be helpful to have an overarching strategy for the Health Boards and their (various) Local Authority partners, inclusive of the performance management arrangements.

2(a) The definition of appropriate advice and information as defined in the Measure (Section 3);

It is agreed that careers must have access to the right information - at the right time to support their caring role in line with the requirements placed on NHS organisations for information and involvement and that care must be taken to ensure that such information, generic and specialist, does not conflict with information provided from other sources.

Information provision must, however, be balanced with appropriate means of conveying and receiving information and the volume of work placed on the organisations who are providing it.  There may also be times when there is a potential conflict between the advice and information that may benefit carers, and that which may be of benefit to the person being cared for. Perhaps this should be acknowledged and, if possible, priorities clarified.  

2(b) Local authorities must ensure that in deciding what services to provide to or/for a carer or the person cared for, they consult the carer. Also authorities are required to ensure that they consult carers before they make decisions of a more general nature about service provision to or for carers and the persons cared for. (Sections 2 (1) (b) & (c));

Agreed.  The inclusion of carers in consultations regarding general decisions about the nature of service provision planned or provided is supported.  

The legislative framework for Local Government in respect of their duty of care to those for whom they provide services would need to be reviewed to ensure this requirement is appropriately reflected and that processes put in place to support carers directly or through partners are not resource dependant.   

The engagement mechanisms being established by the new Health Boards, including their Stakeholder Reference Groups, also need to take this requirement into account, so it is helpful to see the need for consultation enshrined in this measure.     There will, however, be a need to ensure that carers are supported to understand how their views are taken into account, particularly if it is not possible to implement their views.

2 (c)   Welsh Ministers with the power to make regulations about the following:

i. the services in respect of which the duty to prepare a strategy applies;

ii. the matters to be dealt with in the strategy;

iii. how and when the strategy is to be published;

iv. keeping the strategy under review (including setting a period after which the strategy must be reviewed or replaced);

v. the consultation which must be undertaken before or during the preparation, implementation or review of the strategy;

vi. arrangements to monitor and evaluate the implementation of the strategy; (Section 5 (2) (a)-(f));

Agreed.  The Health Board recognises that to ensure consistency across Wales, it is important that the Welsh Assembly Government determine appropriate strategic direction. However, it is also important that national direction has adequate flexibility to ensure local needs can be reflected.

Timing of the strategy is important and should be aligned with other enabling strategies in respect of formulation and implementation (eg HSC&Wb and Childrens Plans) to make best use of resources, and be consistent with consultation requirements already placed on the NHS.  

2(d) Welsh Ministers would be able, for each strategy, to designate an NHS organisation as the lead authority for the purposes of co-ordinating and overseeing the preparation and publication of the strategy and any subsequent review.(Section 5 (3)); and

It is assumed that this refers to ministers having the option to designate an NHS, as opposed to Local Authority, as the lead authority.  Although this could have benefits, eg as being more likely to result in a consistent approach across the localities for which the Health Board is responsible, it is inconsistent with the traditional responsibilities held by Local Authorities for developing services, understanding and engagement with carers.  

The intention also needs to be clarified.  As currently written, it implies that the Lead Authority could be switched between one strategy period and the next, a step that would be considered inconsistent with long-term aims to build and develop a consistent strategy and partnership approach.  It could also be interpreted as suggesting that one NHS organisation may lead on behalf of other NHS as well as partner organisations, in which case many issues related to decision making, allocation of resource, governance, accountability and arbitration would need to be determined.  It is assumed that this is not the intended interpretation.

2(e) The proposed Measure would also place a duty upon the lead authority, or, where there is no designated lead, the responsible authorities acting together, to submit the strategy to Welsh Ministers. Welsh Ministers would then be required to inform the responsible authorities that they are satisfied with the draft strategy, or if they were not satisfied, give the responsible authorities such directions as considered necessary for ensuring that the strategy complies with their requirements.(Section 6);

The latter proposal would be consistent with the duty of care placed on both the National Health Service and Local Authorities in the development of Health Social Care and Well Being Strategies, albeit that these strategies are submitted to Welsh Assembly Government rather than direct to a responsible minister.  The enhanced ministerial accountabilities that would be realised by this proposed measure are noted.

As indicated above, should there be one lead authority, it is felt that the Local Authorities are better placed to assume this responsibility because of their existing  breadth of contact with all groups of carers and links with local communities on the whole spectrum of service provision.

If a joint approach is considered appropriate, as several statutory partnerships embrace significant responsibilities for carers (eg HSC&Wb, C&YP) tasking Local Service Boards with overall responsibilities for performance management  may offer some benefits.  Alternatively, the scope to establish multi-agency scrutiny arrangements that is currently being explored by some LSBs (including Bridgend and Neath Port Talbot), in line with the recommendations of the Beecham report Beyond Boundaries, and subsequent Making the Connections guidance, may point to means through which joint strategies such as this can be monitored on behalf of local citizens.

3. How will the proposed Measure change what organisations do currently and what impact will such changes have, if any?

From a legal perspective, implementation of the measures would require alteration of legal documentation requirements and governance expectations which will take time to address and progress through WAG’s legal framework and locally.  Alternatively, this requirement could be placed on the Health Board and its Local Authority partners through the existing HSC&Wb arrangements.

From a service perspective, the proposed Measure would add new emphasis to current partnership work to address carers’ needs and wishes as the introduction of a statutory duty on the Health Board would require recognition of the requirements for fulfilment of the duty as part of the Board’s corporate governance framework.

As indicated at 2(b) above, the implementation of the measure with Local Authority partners might also help secure sustained, consistent services that will improve the effectiveness of NHS services, eg reduced delayed transfers of care.

Co-ordination will be required across the Health Board to ensure a consistent framework and accountability as the Health Board currently works in close partnership with all local authorities to develop and deliver strategies and plans for carers through locally established mechanisms.  Thus the development of a Carers’ strategy will require the above mechanisms to be reviewed and strengthened to ensure fitness for purpose, including robust performance management arrangements.

Strategy implementation will require significant input to ensure it is embedded in the organisational culture, with ongoing and increasing resources required to ensure that all aspects can be delivered to meet the aims of the Measure and the ensuing strategies.

4. What are the potential barriers to implementing the provisions of the proposed Measure (if any) and does the proposed Measure take account of them?

This measure would face the key barriers commonly associated with multi-agency partnership working, notably those involving how to achieve multi-agency commitment and implementation, monitoring and review mechanisms, coupled with the new challenges associated with balancing the achievement of Health Board wide consistency and sensitivity to local priorities and resources.  

The Measure perhaps needs to take into account the need to build on strong, existing, foundations - eg existing joint Carers’ strategies developed in local partnerships under the leadership of Local Authority colleagues - to make continual, sustained, progress, particularly during a period of substantial chance for public services.

A further, if existing, challenge is that of increasing public awareness of the rights, including financial assistance, to which carers are entitled and the support available to ensure that they access these.

5. What are the financial implications of the proposed Measure for organisations, if any? In answering this question you may wish to consider Part 2 of the Explanatory Memorandum (the Regulatory Impact Assessment), which estimates the costs and benefits of implementation of the proposed Measure.

This needs to be reviewed locality by locality, as well as on an all-Wales basis before a definitive response can be provided.  Although the main financial implications would appear to relate to strategy development and the need to address engagement, information and advice provision, supporting carers on a continuing basis may well require a step change in the level of resources continuously available for this purpose.

Local Government currently have a legislative requirement on spending and allocation of resources for carer issues which some Local Authorities report to be fully committed currently.  This would need to be reviewed if this measure is to be progressed as its implementation could incur substantial resources dependant upon the size of the organisation and the extent of the support expected.  In some key areas such as provision of information and advice the impact will be substantial, and some resources are identified as being available for this function.  However in other areas, eg the engagement of carers liaison officers, could require additional investment of a curtailment of activity elsewhere to fund.  

6.  Are there any other comments you wish to make about specific sections of the proposed Measure?

The introduction of the measure signals a huge step forward in acknowledging and supporting the invaluable and often hidden workforce that unpaid carers comprise.  However, as indicated above (1), further, more specific guidance will be required from WAG to ensure that the requirements for carers strategies include clear accountability and outcome monitoring framework, inclusive of shared performance measures for Local Authorities and the NHS.

7. What are your views on powers in section 8 for Welsh Ministers to make subordinate legislation?

Some flexibility in decision making which will facilitate balancing national direction with local need would be welcome as the need for consistency in desired outcomes and measures for carers across Wales may bring with it a need to distribute resources to meet different needs across different geographical areas.

Further clarification on the likely extent of any subordinate legislation to be developed would be welcome.

8. Question 2(c) above sets out the powers to make regulations (subordinate legislation) that the Proposed Measure would give to the Welsh Ministers. It is proposed that all of these powers would be exercised by the 'negative resolution procedure'1. Has the appropriate balance been struck between the provisions in the Measure and the power delegated to Welsh Ministers, to set out the detail of the requirements to be placed on the relevant authorities in Wales through subordinate legislation? Is the use of the negative procedure appropriate in each case or are any of the powers sufficiently significant for the affirmative procedure to apply?

With the proviso flagged at 2(d) above, It is believed that an appropriate balance has been struck between the provisions in the Measure and the power delegated to the Welsh Minister.  These powers will serve to provide more effective ipolitical and legislative support for carers.