This article takes a look at some of the latest legislation and court decisions affecting the care home sector.

The Health and Care (Staffing) (Scotland) Act 2019

The Health and Care (Staffing) (Scotland) Act 2019 comes in to force in April 2024

Statutory guidance which will be issued by the Scottish Ministers, to accompany the Act. The purpose of the guidance is to support organisations in meeting the requirements imposed on them by the Act, and relevant secondary legislation.

The Act imposes duties on care service providers such as care homes, but also on a range of organisations including Health Boards, Special Health Boards (such as NHS 24 and the Scottish Ambulance Service), local authorities, integration authorities, Healthcare Improvement Scotland, and the Care Inspectorate.

As we wrote about previously, the Act will require organisations providing health care and care services to ensure appropriate levels of staffing, and adequate staff training. Any organisations providing health care services will also have duties regarding:

  • "assessing staffing in real-time,
  • identifying, mitigating and escalating risks,
  • seeking clinical advice on staffing,
  • ensuring adequate time is given to clinical leaders for staffing responsibilities, and
  • reporting the use of high-cost agency workers."

Once in force, organisations will have to comply with the requirements of the Act, and take account of the Statutory Guidance.

Further information from the Scottish Government can be found here.

Recent Cases

Two prosecutions in the last year have demonstrated the importance of care home operators considering risks to residents properly, and preparing suitable risk assessments to address any concerns or hazards relating to individual residents.

St David's Care Forfar Limited, May 2023

A care home was recently fined £100,000 in the Sheriff Court, arising from a finding of criminal liability in respect of the death of a resident from hypothermia. The care home appealed this fine, but the appeal was unsuccessful.

The incident occurred when a resident with learning difficulties and advanced dementia was able to exit the premises during the night, through a fire door that was not equipped with an alarm system, and was locked out. The resident was found early the following morning, and while an ambulance was called and attempts made to warm the resident, she died from hypothermia.

The resident's individual risk assessment indicated that a motion sensor should be active in her room in order to alert staff to movement at night. Despite this, in the six months before the resident's death, the available motion sensor had consistently failed to activate on detecting movement. It was also noted that prior to her death, a piece of tape had been applied over the sensor. Neither of the carers on duty on the night of the resident's death were aware of this.

The care home pled guilty to infringement of sections 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974, and a fine of £100,000 was imposed, discounted from £150,000 due the guilty plea. The care home appealed against this fine on the basis that it was disproportionate due to the small size of the company, which was a privately owned care home for up to 22 residents, and the level of culpability. The appeal was heard in the High Court of Justiciary before Lord Pentland and Lady Wise.

Lord Pentland, in refusing the appeal, concluded that the level of culpability had been assessed with regard to several aggravating features, namely the failure to conduct a proper risk assessment; the resident's high vulnerability and behavioural risks; and the lack of an alarm system on the fire door, which was considered a gross failing. He noted there was "nothing to alert the carers on duty to the fact that the deceased had left her bedroom, gone to the dining room and used the dining room fire door to leave the building". He concluded there was in fact a high or very high level of culpability on the part of the care home; and, that the fine imposed by the sheriff was proportionate and appropriate.

Tigh Na Muirn Residential Home

Another recent case also demonstrated the importance of suitable risks assessments.

In this case, a vulnerable resident drank cleaning sanitiser that had been left in his room, and died as a result.

It was found that the resident's infection control plan did not consider risks arising from the storage of chemicals in his room, although it stated that cleaning products used in the room should be stored on top of the bathroom cabinet. Clinical wipes would have been the most suitable option as per the risk assessment, but supply issues arising from the COVID-19 crisis made their use impracticable and therefore the plan was altered to include liquid cleaning sanitiser. However, the risks posed to the resident by means of the storage of cleaning sanitiser in his room had then not been adequately assessed.

Following the incident, locked boxes were installed outside the rooms of residents to store everything required for potential COVID needs.

The home was fined £20,000 which was increased to £60,000 on appeal.


Lara Graham

Senior Solicitor

Laura McMillan

Partner & Director of Advocacy