Coronavirus Scotland (No. 2) Act 2020 – Implications for the Care Sector

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The Coronavirus (Scotland) (No. 2) Act 2020 (the Act) was given Royal Assent on 26 May 2020. As with the earlier Coronavirus (Scotland) Act 2020, the purpose of the Act is to provide the Scottish Government and other local and national regulatory bodies with additional powers considered necessary to respond to the emergency situation caused by the coronavirus pandemic. 

As a result of the recent political and media scrutiny of the number of coronavirus-related deaths in care homes, the Act introduces new powers which will directly affect care homes in Scotland. These new powers have been added into, and will be available in addition to those currently available to the Care Inspectorate in terms of, the Public Services Reform (Scotland) Act 2010. It is important to remember that the existing powers under the 2010 Act can be exercised in situations which are unrelated to coronavirus.

There are three key changes introduced by the Act which are of particular significance for the care sector:

  1. Health Boards now have the power to give a written direction to a care home service provider requiring it to take certain specified steps to reduce the risk to health at the care home (for example, by carrying out a deep cleaning of the premises). A Health Board can exercise this power if it considers that, for a reason related to coronavirus, there is a material risk to the health of persons within the care home. 

    If a service provider fails to comply with such a direction, the Act allows the Health Board to apply to the Sheriff for a warrant to enter the care home and carry out the specified steps. Having done so, the Health Board is entitled to charge the care home service provider for the cost of that intervention.

  2. The Scottish Ministers may now apply to the Sheriff for an "emergency intervention order". Such an order authorises the Scottish Ministers to appoint a "nominated officer" to enter and occupy a care home and take over the running and management of the service for an initial period of up to 12 months. That initial period can be extended by a further 6 months.

    The Sheriff can also make an order preventing the existing service provider from selling the care home or disposing of any assets related to it for the period where the nominated officer is in place.

    The Sheriff can only grant an emergency intervention order if satisfied that, unless the order is made, for a reason related to coronavirus there will be a serious risk to the life, health or wellbeing of a person within the care home.

    However, the Sheriff can grant the order on an interim basis without any notice being given to the service provider and, in extreme cases where there is considered to be an imminent and serious risk to life or health for reasons related to coronavirus, the Scottish Ministers may appoint a nominated officer to step in immediately and take over management of the service, before any application is made to the Sheriff. 

  3. The Act permits Local Authorities and Health Boards to purchase (a) care homes; (b) care home service providers; or (c) care at home service providers, if (i) they are in financial difficulty; (ii) there is considered to be a threat to the life, health or wellbeing of those receiving the services; or (iii) if the relevant provider has ceased to offer the services. Such an acquisition can only be made with the agreement of the relevant service provider.

The Act also imposes an obligation on care home service providers in Scotland to report daily to Social Care and Social Work Improvement Scotland (SCSWIS) on the number of deaths in their care homes. This report must include not only deaths which are related (or suspected to be related) to coronavirus, but also those which are considered to be unrelated to it.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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