Coronavirus (Scotland) (No. 2) Act 2020: advisory note on emergency directions and intervention orders etc.

Practical detail on the use of powers in the Coronavirus (Scotland) (No. 2) Act 2020 regarding directions to care home providers, emergency intervention orders, and powers to voluntarily purchase a care home or care at home service.


Care Homes: Emergency Directions

11. A Health Board can direct a care home, for reasons attributable to coronavirus, to take specific actions where they find this to be necessary in circumstances where there is a material risk to the health of individuals at a care home. These would be steps which are required to be carried out within a specified time frame and must relate directly to reducing the risk to the health of those in the care home whilst ensuring that residents’ care needs are also met. A formal written direction setting this out would be sent by the Health Board to the care home provider. Scottish Government officials will be made aware that specific requirements are being made at the time a direction is issued 17.

12. This is in addition to the statutory functions of the Care Inspectorate as the scrutiny body and regulator for social care and social work services, and Local Authorities which have the statutory duty for social care under the Social Work (Scotland) Act 1968 and for adult support and protection. Duties under the Adult Support and Protection (Scotland) Act 2007, such as the duty to inquire where there are concerns about an adult’s safety and wellbeing, or undertaking Large Scale Investigations where there are concerns that there may be systemic issues, should continue to be undertaken. However, it will be important to ensure these duties are considered in the context of the additional supports and powers now in place where these are exercised. Any further enquires relating to pre-existing duties or functions should be directed to the Scottish Government’s Office of the Chief Social Work Adviser.

Care Home Clinical and Care Professional Oversight Group

13. The Scottish Government has convened multi-disciplinary teams in each Health Board and Local Authority area including the following senior professional roles:

  • The NHS Director of Public Health
  • Executive Nurse Lead
  • Medical Director
  • Chief Social Work Officer
  • Health and Social Care Partnership Chief Officer: providing operational leadership

14. This group of professionals in each partnership area will form a Care Home Clinical and Care Professional Oversight Group (CHCCPOG). This Group are expected to be supported by their Health Board, Local Authority, and healthcare associated infection (HAI) lead, to hold discussions about the quality of care in each care home in their area, with particular focus on infection prevention and control, but also to provide appropriate expert clinical support to residents who have Coronavirus:

1. Care needs of individual residents

2. Infection prevention and control measures, including PPE and cleaning requirements

3. Staffing requirements including workforce training and deployment

4. Testing arrangements for outbreak management and ongoing surveillance.

15. These senior leaders are responsible and accountable for the co-ordination and provision of multi-agency professional oversight, analysis of issues, development and implementation of solutions required to ensure care homes remain able to sustain services during this pandemic and can access expert advice on, and implementation of, infection prevention and control and secure responsive, clinical and other appropriate support when needed.

16. This Group may make recommendations and provide advice on particular action required in individual care homes to the provider. Where these actions are agreed by the Group as proportionate and reasonable, and a risk has been identified to the health of those in the home, the Health Board will make a direction to the care home to adopt these particular actions.

17. This Group meets daily during the current situation and reports to the Scottish Government via the Directors of Public Health, on a weekly basis, including such information as the total number of care homes discussed and the number of homes presenting a clear and present risk to the health and wellbeing of people at the home. Where any intervention is to be made Scottish Ministers must be made aware at the time a direction has been made, this should be via reporting to the Scottish Government Care Home Policy team: CareHomesCovidSupport@gov.scot.

18. It will be for the range of professionals within the Group to make a judgement on the specific actions that may be requested of a care home. Examples of these requests may include:

  • Deep cleaning of a care home where there has been an outbreak or where there is a reason to believe this is necessary in this particular home to prevent outbreak.
  • Utilising staffing from either the Health Board or Local Authority. This could be to augment existing staffing, to provide leadership and to offer additional training and support, particularly in matters relating to infection control and protection, if it was felt required.
  • Ensure training and support, and the necessary records are up to date.

Amend or Withdraw a Direction

19. Where these directions have been made the Health Board can change or withdraw the direction for intervention at any point. This may be on the basis that the steps taken are suitable to produce improvement.

Consideration of Guidance

20. When issuing a direction to a specific care home the Health Board must have regard to any guidance which has been issued by the Scottish Ministers in relation to their application.

Taking Action

21. Providers of care homes are committed to continuous improvement and the delivery of high quality care, and work closely with health and social care partnerships to ensure standards are met. We would expect in any instance where a Health Board has made a specific recommendation or ask of an individual care home that the care home provider will respond positively and will act on those recommendations. Where specific requirements have been made through emergency directions, we would also expect these requirements to be met. Actioning recommendations and specific requests made through directions, provides assurance to statutory bodies, residents and their families, and staff that the care home is proactively ensuring that those in the home continue to be safe and that any adult at risk of harm is supported and protected.

22. In the instance that a Health Board is not satisfied that the necessary steps have been taken, the Health Board can, amongst other things, enter the home and carry out this function themselves, recovering the costs incurred from the provider. If a provider does not cooperate or allow the Health Board to enter the care home then the Health Board can apply to a sheriff for a warrant to gain access to allow those specified steps not satisfactorily carried out to be taken. Where a warrant is granted this will expire 28 days after the day on which it was granted, or earlier if the specified steps have been completed. Where a provider does not comply with a warrant, this would constitute a relevant offence for which the Care Inspectorate would be entitled to seek cancellation of a care home provider’s registration

23. There may be instances where a provider thinks they have taken the necessary steps, as requested, but the Health Board does not believe those steps to be satisfactory. In those instances, the care provider and the Health Board would be expected to discuss the outstanding issues and agree a way forward. Where the Health Board is ultimately not satisfied, they can amend their direction to provide further detail on the steps required, take the further specified steps themselves or issue a further direction in order to require the necessary action to be taken. If the terms of a direction are not complied with, the Health Board may again take steps to carry out the necessary action themselves.

Contact

Email: CareHomesCovidSupport@gov.scot

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