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 Intervention Orders

24. Where there is a serious risk to life, health or wellbeing to persons in a care home, Scottish Ministers can to apply to the Sheriff Court or Court of Session for an emergency intervention order. This intervention order will appoint a nominated officer to take over the operational leadership of a care home.

25. The Scottish Ministers will normally ask the Court to appoint the Chief Social Work Officer (CSWO) of the Local Authority as the nominated officer. This is in recognition of the unique responsibilities of the CSWO to provide leadership and governance across the full range of social care and social work services. The CSWO has responsibility for functions provided directly by the Local Authority, either through delegation to another statutory body or in partnership with other agencies. Where social work and social care services and support are procured on behalf of the Local Authority, including from the independent and voluntary sector, the CSWO has a responsibility to advise on the specification, quality and standards of the commissioned services and support.[1]

26. Factors which may be considered when making a decision on whether it would be appropriate to intervene could include, but are not restricted to:

  • Where the Care Inspectorate have raised significant concerns regarding serious imminent risk to life, health or wellbeing to Scottish Ministers, or have made clear their intention to apply for the cancellation of a care home services registration or have made an application for cancellation to the Sheriff Court.
  • Under new powers, the Care Inspectorate must report to the Scottish Parliament fortnightly on the care homes which have been inspected. The Care Inspectorate must also inform Scottish Ministers, no later than 24 hours before an inspection is scheduled to take place. These reports will provide details where there are any concerns which may lead to consideration of intervention.
  • Where the Care Inspectorate have used enforcement powers to issue an improvement notice and/or a suspension has been placed on the service due to a lack of improvement.
  • Actions or requirements from any relevant criminal investigations or proceedings
  • Where members of the senior leadership in the partnership and the Care Home Clinical and Care Professional Oversight Group[2] raise significant concerns via their Health Board to Ministers.
  • Where Scottish Ministers have been made aware of serious concerns either from an individual, Local Authority or Health Board, media or other route, they may request the Care Inspectorate to carry out an unannounced inspection or consider immediate intervention. The findings from this may lead to consideration of further intervention.

27. As well as receiving regular updates from the Care Inspectorate and from NHS Directors of Public Health, informed by the Care Home Clinical and Care Professional Oversight Groups, Scottish Ministers can obtain information that is relevant to the use of these powers from Local Authorities, Health Boards (including Healthcare Improvement Scotland), the Care Inspectorate, Scottish Social Services Council, Mental Welfare Commission, Nursing and Midwifery Council and Police Scotland. The information that can be obtained is any that Ministers consider may be relevant to their decision to use the powers to intervene.

28. The Adult Support and Protection (Scotland) Act 2007 confers statutory powers and duties on named bodies, including Local Authorities, the Care Inspectorate, Health Boards, the Mental Welfare Commission and Police Scotland to co-operate in order to protect adults at risk, and these bodies may hold information relevant to decision making. The Nursing and Midwifery Council and Social Services Scotland Council have investigatory functions relating to individuals and their professional conduct, which may mean that they also hold relevant information. It will be crucial that any relevant information is provided to Scottish Ministers as quickly as possible if requests for information are made.

29. The majority of care in Scotland is delivered to a high quality, therefore the need to exercise these powers is only envisaged to be required in extreme situations. Providers of care homes, and those working in them, are committed to delivering high quality, compassionate care and keeping those who live, visit and work there safe from harm. If there are any concerns at any stage, to life, health or wellbeing our expectation is that providers, the Care Inspectorate, Local Authorities and Health Boards would work together to ensure these can be addressed promptly. If an emergency intervention had been put in place, we would expect providers to be willing and agreeable to working with any nominated officer, and their team.

30. In the exceptional circumstances that a provider is unwilling to work with any nominated officer and/or their team and other partners, these powers provide assurance that swift interventions can be made. They also ensure the continuity of care for residents in care homes and reduce the risk of residents having to be moved out of their current care setting, their home. Moving residents can cause a detrimental impact on an individual’s health and wellbeing and in the current situation, any plan to transition an individual to a new home becomes more difficult with the risk of transmission and/or infection.

Nominated Officer

31. It is the role of the nominated officer to take operational leadership of the care home, ensuring the relevant improvements are made to the quality of care being provided. They will perform this function for the time specified in the order, which can be for a period of up to 12 months. The duration of an order may be extended by the court by a further period of up to 6 months. The service provider must comply with any directions made by the nominated officer in relation to the care home service being delivered by the provider. Scottish Ministers will normally nominate the Chief Social Work Officer due to their statutory responsibilities described in paragraph 25 and the provision of social care being a statutory responsibility of Local Authorities.

32. There are only a small number of statutory roles that would be qualified to undertake this role – the Chief Social Work Officer or Chief Executive of either the Health Board or Local Authority. It is expected that Scottish Ministers will consult with the Local Authority Chief Executive and Chief Social Work Officer ahead of proposing or confirming this appointment. Where a Chief Social Work Officer is not appointed but the Chief Executive of the Local Authority or Chief Executive of the Health Board were asked, Scottish Ministers will likewise discuss this with them prior to confirming their nomination.

33. Although appointed by Scottish Ministers, where the nominated officer is an officer of a Local Authority of Health Board, they are acting on behalf of the Local Authority or Health Board respectively. For example, if the nominated officer is the Chief Social Work Officer, they are acting on behalf of the Local Authority and remain accountable to the Chief Executive of the Local Authority.

34. Whilst an individual will be made the nominated officer, it is recognised that a range of professionals from across the health and social care sector will be involved with the care and support of care home residents. We would expect in any instance where a nominated officer has taken over the operation of a care home that the care home provider will respond positively and act on their directions. We would also expect individuals from the Local Authority, Health Board, and other partners to work with the nominated officer, to ensure that they can carry out the required functions.

35. To perform the required functions, the nominated officer is authorised to:

  • Enter and occupy the accommodation;
  • Direct and control the provision of the care home service;
  • Do anything considered necessary to ensure the service is provided to an appropriate standard.

36. It will be for the nominated officer to use their professional judgement when making decisions in regards to the operational leadership of the care home. They will be required to look at a range of options and powers available to them.

37. The role of the nominated officer is to provide operational leadership. Due to other duties the nominated officer may be required to perform, it is unlikely that they would be available and present in the care home to carry out the day-to-day operation of the service. Therefore, the nominated officer can delegate aspects of the role to other, suitably qualified, individuals. The nominated officer will continue to be accountable for action taken under the emergency intervention order.

38. Whilst the nominated officer acts on behalf of their respective body, they continue to be accountable to Scottish Ministers regarding the ongoing progress and required action in the care home. As such, the nominated officer will be required to provide regular updates to the Scottish Ministers regarding the current situation in the care home, the actions taken to address the issues and future measures that may be required. The reporting requirements will either be agreed with the nominated officer or set out in the application to the Court for an Emergency Intervention Order.

39. It may be deemed appropriate for the Scottish Government to provide resource to the nominated officer in order to carry out this role. Further support for this will be discussed as part of the overall package of support being made available to nominated officers from the Scottish Government.

40. It is critical that the role of nominated officer must be covered if there was to be any absence. It would be for the nominated officer to inform Scottish Government of contingency plans to cover this role. This would be expected in normal circumstances for the officer’s general duties, but is important to emphasise the need for clear contingency plans to ensure this role is covered in exercising the emergency intervention order.

41. Contractual arrangements, or those set out within a Memorandum of Understanding, between the provider and the Local Authority or Health Board should cover matters of indemnity insurance for the nominated officer. Advice will differ subject to the specific context and individual circumstances. Where this power is being used and additional information is sought, queries should be directed to the Scottish Government via CareHomesCovidSupport@gov.scot.

Application

42. Where the Court is satisfied that unless the order is made, for a reason relating to coronavirus there will be a serious risk to the life, health or wellbeing of persons at the accommodation, the Court can make such interim order as it thinks fit. This will allow urgent action to be taken if necessary before the Court’s final determination of the Application.

43. Scottish Ministers may intervene prior to making an application to the Court where they are satisfied that it is essential to do so to prevent an imminent and serious risk to the life or health of people at the accommodation for reasons relating to coronavirus. Where Scottish Ministers intervene, they must make an application to the court within 24 hours of exercising this power. If Scottish Ministers decide to exercise their powers prior to making an application, Scottish Ministers must notify the affected provider and appropriate authorities 44, as soon as practicable. It will be important at this point to work closely with the provider and the Care Inspectorate to agree an approach to communicating with staff, residents and their families. It is crucial that people are kept aware of the circumstances at the appropriate times and are provided the relevant support and assurance.

44. Appropriate authorities comprise the Care Inspectorate, the Local Authority and Health Board where the care home is located, and Healthcare Improvement Scotland.

45. The court must make an emergency intervention order if it agrees that, unless the order is made, there is a serious risk to the life, health and wellbeing of those at the accommodation for reasons relating to coronavirus. The court may also include such incidental provisions as it thinks fit, for example, prohibiting the sale of the accommodation or disposal of assets used in the provision of care at the accommodation.

46. Where the court makes an intervention order, which can be granted in the absence of a provider, Scottish Ministers must then give a copy, as soon as practicable to the affected provider and to those appropriate authorities. The order will begin with immediate effect, unless specified differently.

Varying, Extending or Revoking an Intervention Order

47. The court may vary, extend or revoke an intervention order and interim intervention order on the application of the Scottish Ministers or the affected provider. An order can be extended for a further period of up to 6 months and may be revoked either immediately or on a date specified by the court.

48. There are a number of reasons why a court may extend the order, such as the provider failing to co-operate with the nominated officer fully in order to allow the care home to be returned to, and maintained at, an appropriate standard within the original period of up to 12 months; or failing to address the concerns that led to the intervention. Likewise, there are a number of instances where an order may be revoked, particularly if there has been sufficient improvement made and assurance given that there would no longer be a risk to the life, health or wellbeing of those people in the care home should the provider resume control of operations.

49. There will be various factors to consider when making a judgement on whether the relevant improvement has been made and advice will be sought from the nominated officer, Care Inspectorate, Local Authority, Health Board and Healthcare Improvement Scotland to allow the Scottish Ministers to make that decision. As well as the views of these public bodies, it will be important to consider the willingness of the care provider to learn and improve, the steps taken by the provider to put necessary steps in place, and the views of the clinical and professional team working in the partnership area. In coming to any judgement of whether to revoke an Order, Scottish Ministers and the Court would need to be persuaded that there would be no serious risk to the life, health or wellbeing of persons should the service continue in operation.

50. If an order is revoked, the provider may resume control of the operations of the service. Following this, the Care Inspectorate may decide to increase or adjust the frequency of inspections of the care home rather than in the current 12 month cycle. It would be expected that there be continued dialogue with the care home and the relevant statutory bodies to ensure that a high standard of care is continued to be delivered.

Financial implications

51. Where an emergency intervention is made, the provider of the care home service remains liable for all outgoings. Where any additional costs are incurred by the nominated officer, those costs can be recovered from the provider.

52. Although it will be for the lead intervening delivery organisation to decide upon, it is important that proper consideration is given to the appropriateness of recovering any costs from the provider. If recovering financial costs would be at the detriment to individuals in the home, then there should be caution in doing so. For example, if recovering costs would see the provider go into financial distress and ultimately administration, then there should be caution and careful consideration as to whether this would be appropriate.

Appeal process

53. Where an application for an emergency intervention order, or an interim order, is granted or refused, the usual rights of appeal from decisions of a Sheriff apply as set out in the Court Reform (Scotland) Act 2014. Similarly, where an application for an emergency intervention order, or an interim order is determined by the Court of Session, the usual rights of appeal against decisions made by a Court of Session judge, as set out in the Court of Session Act 1988, will apply.

Compensation Claims

54. No right of action can arise on the basis of loss, injury or damage incurred by a provider or individual due to Scottish Ministers exercising or failing to exercise their functions under 65A of the 2010 Act or in obtaining information from the bodies set out.

55. Where the Local Authority is the leading intervening body and where there are concerns that the insurance they hold is insufficient to cover liabilities for intervening in the care home then they are able to join the Clinical Negligence and Other Risks Indemnity Scheme (CNORIS). If further advice is required on these circumstances, questions can be directed to the Scottish Government Office of the Chief Social Work Advisor.

Further Provision

56. Scottish Minister may, by regulations, make further provisions to the emergency intervention orders.

57. Section 65B provides that Scottish Ministers may make further provisions to the emergency intervention orders in Section 65A by laying regulations before the Scottish Parliament. Those regulations are subject to the ‘made affirmative’ procedure. This means that the regulations will take effect when they are made (signed) and will cease to have effect if they are not approved by the Scottish Parliament within a 28 day statutory period of the day on which they were made.

Contact

Email: CareHomesCovidSupport@gov.scot

Back to top