The Coronavirus (Scotland) (No. 2) Act 2020 (“the Act”) introduced several changes to the regulation and governance of care homes in Scotland. The Care Inspectorate has produced a helpful summary of the key provisions of the Act for care home providers. We previously discussed the powers given in the Act to health boards and the Scottish Government to intervene in the running of care homes.

In addition to these new powers, the Act established statutory reporting obligations for both care homes and the Care Inspectorate in relation to coronavirus. The statutory obligations were introduced as a result of concerns expressed by opposition politicians as to a perceived lack of transparency in relation to the reporting of coronavirus-related deaths in care homes.

Statutory obligations

Under the Act, every care home provider now has a legal obligation provide a daily update to the Care Inspectorate on:

  • the number of deaths of residents in the care home from coronavirus
  • the number of deaths of residents in the care home that are suspected to be attributable to coronavirus,
  • the total number of deaths in the care home irrespective of whether or not they are attributable to coronavirus.

The Care Inspectorate is under a corresponding obligation to report total numbers of each of the above categories to Scottish Ministers on a weekly basis, who in turn must place the information before the Scottish Parliament.

Analysis

It is worth noting that, even before these obligations were placed on a statutory footing, equivalent notifications were already required by Care Inspectorate guidance.

The placing of these obligations on a statutory footing is indicative of the public and political concern in relation to coronavirus in care homes, and the desire for transparency in this regard. Against that backdrop, a failure by a care home provider to properly or timeously comply with its statutory obligations has the potential to cause it significant reputational damage.

In addition, though, a failure of this type may be regarded by the Scottish Government or Care Inspectorate as a safeguarding issue. It therefore may serve as a trigger for consideration of the new powers of intervention found elsewhere in the Act, or of existing Care Inspectorate powers in relation to a provider’s registration.

Brodies has the experience and expertise to assist providers across the care sector. For more information please contact Jackie McGuire or your usual Brodies contact.

Contributor

Tony Convery

Associate