The Scottish Parliament has passed legislation, the Coronavirus (Scotland) (No. 2) Act 2020 (“the 2020 Act”) which gives new powers to health boards and to the Scottish Government to intervene in the operations and management of care homes in Scotland. The new powers sit alongside the existing powers of the Care Inspectorate to impose conditions on registration of care homes and to apply to a court to cancel such registration.
The 2020 Act creates two new powers in relation to care home providers: “emergency directions”, exercisable by health boards, and “emergency intervention orders”, which can be granted by a court on application by the Scottish Government. These interventions have the potential to significantly impact care home providers financially, legally and reputationally.
An “emergency direction” is a targeted instruction given by a health board to a care home provider, aimed at addressing a specific issue. The issue in question must, for give rise to a “material risk” to the health of people at a care home “for a reason related to coronavirus”. If a care home fails to implement an emergency direction, the health board could seek a court order to implement the order itself. In such circumstances, the care home provider could be required to pay the health board’s expenses both for implementing the order and for taking the matter to court.
Care providers served with an emergency direction are entitled to understand the steps that they need to take and the reason why the NHS Board considers it necessary to intervene in this fashion. In certain circumstances, it may be possible to challenge the issue of an emergency direction in court.
Emergency intervention order
An “emergency intervention order” is a more general intervention in the management of a care home than an emergency direction. An emergency intervention order can be applied for by the Scottish Government. The court must grant the application if it is satisfied that, unless the order is made, there will be a serious risk to the life, health or wellbeing of people at the care home for a reason relating to coronavirus. The order can be imposed for up to 12 months.
There is special provision for the Scottish Government to exercise the powers that would be available under an emergency intervention order prior to making an application to the court, but an application must be made within 24 hours in such circumstances.
Under an emergency intervention order, the Scottish Government can appoint a “nominated officer” in respect of a care home. The nominated officer is, in effect, a statutory manager and has the power to direct and control the care home and to take any steps they consider necessary to ensure service at the care home is provided to an appropriate standard. The care home provider requires to comply with any direction given by the nominated officer.
A care home provider may be able to oppose the granting of an emergency intervention order by a court. In addition, even after such an order has been granted, a care provider will be entitled to ask the court to lift or vary the order.
Reflection on new powers
On one view, the new powers represent something of a “halfway house”, in which a care home provider retains its registration but is subject to additional state intervention. It is not clear, however, that the new powers will tackle many of the real problems faced by care home providers in the public health emergency, such as a lack of personal protective equipment.
Care home providers faced with the possibility of intervention, either under existing powers or those implemented by the 2020 Act, should act responsibly and pragmatically, taking advice where necessary. It may be possible to mitigate the effects of intervention, or where appropriate, to challenge it in court. Brodies has the experience and expertise to assist providers across the care sector.