In response to a coronavirus outbreak in Home Farm Care Home on the Isle of Skye the Care Inspectorate applied to the Sheriff Court for an emergency order cancelling the registration of the care service. In a recent statement, the Care Inspectorate announced it had dropped the legal action against the service.

Legislative framework

The Public Services Reform (Scotland) Act 2010 ('the 2010 Act') confers a general duty on the Care Inspectorate of furthering improvement in the quality of social services. To facilitate fulfilment of this statutory duty, section 59 of the 2010 Act requires that any person seeking to provide a care service must apply to the Care Inspectorate for registration of the service.

Under section 65(1) of the 2010 Act, the Care Inspectorate may apply to the sheriff for an order cancelling the registration of a care service. This is an emergency power afforded to the Care Inspectorate which is separate to the standard procedure for cancelling a service provider's registration outlined in section 64 of the 2010 Act. The sheriff may grant an order under section 65 of the 2010 Act where it appears that, unless the order is made, there will be a serious risk to the life, health or well-being of persons.

Background

On 14 May 2020 the Care Inspectorate announced that it had applied to the Sheriff Court for an order cancelling the registration of Home Farm Care Home in Portree, Skye. This decision had been made following an inspection which identified 'serious and significant concerns about the quality of care experienced by residents at Home Farm Care Home'. The inspection had been undertaken after a large number of residents and staff at the service tested positive for coronavirus. The Care Inspectorate highlighted that if the order was granted this could mean 'new arrangements' being put in place for the residents of the service.

In a further statement on 10 June 2020, following a decision by the court to continue the matter for two weeks, the Care Inspectorate announced it had noted some improvements in the quality of the care received by the residents at the service. However, it considered it necessary to continue to pursue an order under the 2010 Act while it sought assurances from the service and NHS Highland that the improvements would be sustained.

Again, on 24 June 2020, the Care Inspectorate reiterated that they had noted improvements in the care received by the residents at the service but legal action was still required.

Decision

Finally, on 18 August 2020, the Care Inspectorate announced that it would no longer be seeking the cancellation of the service's registration. In this statement the Care Inspectorate explained that it had monitored the situation and was satisfied there had been a considerable improvement in the quality of care received by the residents. Importantly, the 'serious risk' which necessitated an order under section 65 of the 2010 Act had been addressed.

Commentary

The driving force behind any decision by the Care Inspectorate will always be the well-being of residents. As was highlighted in the present case, the Care Inspectorate was trying to find the means of addressing the concerns raised during the inspection which caused the least disruption to residents. Clearly, cancelling the services registration would cause significant disruption to those residents and in this case was eventually avoided.

This case has demonstrated that the Care Inspectorate will use its statutory powers under section 65 of the 2010 Act where it considers it necessary to do so. Had the 'serious risks' identified in the inspection not been addressed, the Care Inspectorate would have undoubtedly continued to pursue an order under the 2010 Act. However, often a more pragmatic solution, for both the Care Inspectorate and service providers, can be achieved by parties proactively engaging and cooperating to improve the quality of care received by residents. 

After working closely with the service provider and the Care inspectorate in response to this case, NHS Highland recently announced it has received government funding to purchase Home Farm care home.

For more information on the law relating to care services in Scotland, please contact Johanna Boyd, Finlay Mackenzie or your usual Brodies contact.

Contributor

Finlay Mackenzie

Associate