Plans for the Scottish Government's flagship care service include a "shocking" bid to impose criminal sanctions over failure of staff to share sensitive patient information and over the handling of complaints, it can be revealed.
The uncovered 'criminalisation' clauses have been strongly criticised as the Scottish Government seeks to pursue proposals for the proposed National Care Service.
Concerns have emerged that the National Care Service (Scotland) Bill states that ministers may through regulations provide a scheme that allows care records to be shared so that services can be provided "efficiently and effectively" on behalf of the care service and the National Health Service.
And it states that the regulations may create "sanctions (civil or criminal) for those who fail to comply" with information sharing requirements.
It also sets out plans to make provisions about complaint handling, including remedies that are to be available.
And it again says that ministers may create civil or criminal sanctions for those who fail to comply.
It has been described by the respected think tank Common Weal, which has an interest in supporting the care design, as a "nightmare state" plan for thousands of care workers.
Nick Kempe, a former Head of Service for Older People and Adults in Glasgow and chairman of Common Weal's Care Reform Group, said: "This enables the Scottish Government to criminalise the workforce where they fail to share information in certain aspects. This has pretty big implications and is of immense concern. It is like a brave new world.
"Potentially, you would be criminalised working in care homes and not giving information to the health board over what is happening to people."
People working in health and care are registered and covered by professional codes of practice. If they break that code - and that generally includes requirements for confidentiality but also clauses about when to share or report issues of concern - they can face professional disciplinary action, including having their registration removed.
"There are therefore already sanctions in place for people who fail to share information where it's absolutely required," said Mr Kempe.
"Normally if you fail to do something that is required as part of your job, it is the responsibility of employers to address the issues causing this. Someone may be failing to carry out their functions due to lack of training, because they are overworked, because they don't have the tools necessary for the job, for example IT. Replacing this approach by sanctions, whether civil or criminal, is extraordinary and there was no consultation with those in the workforce who might be affected before this clause was drafted."
Amanda Burgauer, head of Common Weal added: "To put that much power in the hands of ministers is shocking. How can ministers decide on criminalisation.
Nicola Sturgeon said in September, 2021, that the plans for a National Care Service will be "one of the biggest ever achievements of this Parliament — and, just like the National Health Service in the wake of the Second World War, it will be a fitting legacy of the trauma of Covid".
As of June, 25, there have been a total of 17,695 deaths in Scotland where Covid was mentioned on the death certificate - with 13 registered in the latest week. Around a third are estimated to have occurred in care homes.
The Scottish Government initially said the new service could cost up to £500m to deliver, but Scottish Parliament researchers have estimated that the total bill over five years could be between £664m and £1.3bn.
Under the changes, adult social care - and potentially other areas including drug and alcohol services and children's services - would be taken out of the hands of local authorities and given to newly-formed, regional care boards which would ultimately be responsible to ministers.
Under the legislation, ministers would also be able to transfer health and care services from the NHS and health boards to the National Care Service and new care boards, which would be responsible for delivering care locally.
Staff currently working for the NHS would still be employed by the NHS, but could be required to deliver services for which the National Care Service is responsible.
But the National Care Service (Scotland) Bill has been criticised for its lack of detail and in March the bill was paused until June 28.
The first vote on the bill was pushed back until after the Holyrood summer recess.
Local authorities and trade unions are among those raising concerns.
So far the bill is at 'stage one' of parliamentary scrutiny, where Scottish Government committees gather views on the legislation before presenting it to MSPs to debate.
Another dilemma outlined by Common Weal in compliance of information sharing is the issue that IT systems in different parts of the care system do not communicate with each other.
Primary care professionals working on the frontline of health and care in Scotland aired their concerns to ministers four years ago about the effectiveness of data sharing between different parts of the NHS and community care providers.
Representatives from professional medical bodies including GPs, dentists, optometrists and pharmacists have raised a series of ICT issues including “clunky IT systems that don’t talk to each other”.
Mr Kempe added: "Besides failing to consult anyone, what the Scottish Government failed to ask is why information is not shared at present. Their answer would appear to be that they believe lots of people working in health and social care are rotten apples who deserve to be sanctioned.
"The reality is that the primary reason information is not shared is probably the fact that many computer systems just don't communicate with each other, including within the NHS which is wholly the responsibility of the Scottish Government at present.
"Other reasons are lack of time and the difficulty of finding out who it is that information needs to be shared with. The consequence of all the different IT systems is information stored in lots of different places."
The bill, however, does not lay out what sanctions would be imposed if there was to be criminal or civil action and Common Weal say that getting the police involved in workplace matters raises a "whole set of other issues".
A Scottish Government spokesman said: “We are committed to a National Care Service that ensures consistent, high quality social care support and community healthcare that meets peoples’ needs across the country. Over the summer we’re continuing to host co-design events to reach even more people from all across Scotland and keep them at the heart of what will be the single biggest public sector reform since the creation of the NHS.”
The spokesman said there will be further consultation and impact assessment before any arrangements over data sharing arrangements are introduced.
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