Free Personal Care - three words that represented an innovative, enterprising and forward-thinking Scotland. The Community Care and Health (Scotland) Act of 2002 showed how a devolved region of the United Kingdom could break away from the accepted norm and create a fairer, more dignified system of care for our elderly. Its key aim was ‘to remove the discrimination against older people who have a chronic or degenerative illness’ and was based on the premise that it was a universally accepted principle that medical and nursing care in the NHS was provided free, so why not apply the same to care in a home or indeed at home? Legislation doesn’t often have compassion embodied in its legal speak but this did and oh, how service users across the Border envied our approach. Free Personal Care became a byword for politics with a heart, and all the better for being distinctly Scottish. It was a touchstone for a caring society and was enacted by embryonic politicians who had already taken a bit of a bruising over their choice of parliament building and quality of ability. It was a key manifesto pledge of the Liberal Democrats and its agreed passage a clincher in the Labour/Lib Dem coalition but more than that, it achieved cross-party support. Perhaps enthusiasm overtook common sense and legal judgment. From its inception, the legislation was mired in confusion about costs, assessments and contracts. When should the local authority take responsibility for paying for this care – at point of need, at point of formal needs assessment or when the care began? Guidance about fundamental issues such as how food could be prepared and where, was, at best, opaque and some councils were found wanting in how they implemented the spirit of the Act. However, until last week’s legal judgment by Lord Macphail in the case of an elderly man who had been assessed as in need of personal care but put on a waiting list, the general view remained that Free Personal Care was available to all at point of need. That has now been thrown into doubt, in as much as there is no apparent legal obligation on the local authority to start paying for care until the care can be provided. This gap always existed and despite the predictable political slings and arrows being aimed at the SNP for not sending legal counsel to court to explain the ins and outs of the Act, it was a gap that revealed a badly crafted piece of legislation that has been under constant scrutiny by independent bodies and parliamentary committees since it began. To try to put any blame on the SNP Government for a policy that everyone applauded, that the last administration enacted and that the SNP Government was the first to offer extra funding for and set up a Commission under Lord Sutherland to review, is disingenuous, especially now we know that the last administration was also invited to send legal counsel to court and declined. In the next 20 years, nearly one and a half million Scots will be pensioners – a third of the Scottish population. As a caring nation, we will have a responsibility for their care needs and that is too important a task to boil down to political point scoring. If we are grown up enough to look after our elderly, we are old enough to revisit a piece of well intentioned legislation and rework it with knowledge, experience and expertise. But we also need to be brave enough to ask if we can afford it.

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