1. The Coronavirus (Scotland) (No. 2) Act 2020 is emergency legislation which sets out a range of provisions that ensure swift interventions in care homes where there is a serious risk to individuals. These are:
- Emergency Directions - Health Boards can make specific asks of care home providers where they believe there is a material risk to health within the care home due to coronavirus. These asks must relate directly to reducing the risk to health. Where the Health Board believes they haven’t been complied with, it can, subject to the court’s approval, take steps to ensure they are carried out.
- Emergency Intervention Orders - Ministers may apply to the Court to appoint a nominated officer to temporarily take over the operation of a care home if there is a serious risk to life, health or wellbeing within the home; where there is an imminent and serious risk to life or health Ministers can exercise the powers before making an application to the Court.
- Powers to purchase care home and care at home services - Putting beyond doubt the powers available to Local Authorities to purchase a care home or care at home services and Health Bodies to purchase a care home by agreement. These are for voluntary purchases only and do not grant powers for compulsory purchases.
2. The powers are all related to coronavirus and can only be used in a situation where coronavirus is a factor in the failure of service. They are also included in emergency legislation meaning that the provisions which create these powers only last for as long as the 2020 Act remains in force. The powers will be available for the duration of the Act, which is presently due to last for 6 months unless extended. The Act came into force on 27 May 2020.
3. This note sets out each of these powers and provides practical information on how they should be used and the process in doing so. The provisions in the emergency legislation apply to all care homes, i.e. provision for both adults and children, and care at home services (in relation to the purchasing power provisions). This note only applies to adult services, and it is not presently envisaged that further information will be developed for children’s services. However, any enquiries relating to children’s residential care should be directed to the Scottish Government’s Office of the Chief Social Work Adviser.
4. The powers that have been put in place allow certain public bodies and Scottish Ministers to make the swiftest of interventions where required to do so. The circumstances in which we would expect these powers to be used, however, are rare. The standard and quality of care in Scotland is predominately high and the circumstances which these powers relate to are where there are significant failings or serious/ imminent risk to life, health or wellbeing. These powers are additional to the processes which are currently in place. The Scottish Government will continue to work alongside local systems to agree actions and next steps. In the rare situations that these powers may be used, the Scottish Government will work with the local systems to ensure they have the appropriate support. Where there are concerns about individual care homes, these should be directed to Scottish Government via CareHomesCovidSupport@gov.scot.
5. During this pandemic it’s important to recognise that the Care Inspectorate, Local Authorities, Health Boards and other statutory and professional bodies that work in the social care sector, continue to carry out their roles and responsibilities, although these may be discharged differently due to the circumstances.
6. When exercising powers set out in this advice, consideration to existing guidance must be given. The Scottish Government continues to work with Health Protection Scotland, Care Inspectorate and other bodies to ensure that all relevant guidance for the social care sector is published and kept up to date. This includes but is not restricted to:
- Information and guidance for care home settings.
- Incident or outbreak control tool for social or community care or residential settings.
- Advice for social or community care and residential settings staff.
- Interim guidance on Covid-19 PCR testing in care homes and the management of positive residents and staff.
- Adult support and protection guidance for chief officers relating to COVID19
7. This note should be read alongside other relevant published guidance. Up to date guidance for care homes and the wider care sector can be found on the websites for Health Protection Scotland, the Scottish Government and the Care Inspectorate.
8. In making any decisions to intervene it is important that there is a balance between clinical and care priorities. There is a need to balance the clinical approach to safeguard life while also protecting human rights and ethical principles, including engagement, choice and control. This ensures that health needs are not being met to the detriment of a person’s mental health or wellbeing. To do this it will require a holistic approach which will be best delivered by the multi-disciplinary decision making groups which are in place. Integrated working across clinical and social care professional groups to make the most appropriate decisions is critical.
9. These provisions are specifically about making interventions in externally procured care however, where there are failures in service, it is expected that the relevant interventions would be made irrespective of the ownership of the service i.e. public, private or third sector. The powers are intended for care services run by the private or third sector to ensure there are appropriate procedures in place for Ministers or public bodies to intervene immediately when there is a need to do so.
10. We would expect a Local Authority or Health Board run home to make similar directions and put in place appropriate procedures where there are any concerns regarding quality. The enhanced oversight arrangements that have been put in place do not differentiate between homes depending on ownership, nor do our expectations about the standards of care being delivered.