On Friday 18 June 2021, the Coronavirus (Extension and Expiry) (Scotland) Bill 2021 (the "Bill") was introduced to Scottish Parliament as an emergency bill and has subsequently been debated week from 22 to 24 June. On Friday 25 June, the Bill was passed bringing into effect another set of extensions and expirations to the Coronavirus (Scotland) Act 2020 ("the 2020 Act").
This new set of extensions and expirations will affect the day to day running of local authorities, with particular impact on those involved in social care.
Expiries
Children
Throughout the pandemic, the Children's Hearings systems continued to operate with the addition of more relaxed timescales. Foster care could also be utilised more flexibly as well as legal orders remaining open to review and appeal.
Recently, use of these provisions has become more limited and as such the Bill provides for a return to pre-COVID arrangements from on 30 September 2021. Transitional arrangements will be triggered in relation to child protection orders, appeals and compulsory supervision orders meaning the orders themselves will continue to operate. Similarly, foster placements set up under the provisions of the 2020 Act will remain in place following 30 September 2021.
Vulnerable adults: cases of adults with incapacity
The 2020 Act introduced "stop-the-clock" provisions meaning guardianship orders would not expire for as long as such provisions were in force.
Similar provisions were enacted in relation to certificates authorising medical treatment for adults with incapacity.
Having such provisions in force for longer than necessary raises human rights concerns surrounding guardianship orders continuing without sufficient review. Such provisions will therefore expire on 30 September 2021.
Care homes
Under the 2020 Act care homes were required to make daily reports to the Care Inspectorate covering the number of deaths and in each case whether coronavirus was the cause of death. The 2020 Act also required the Care Inspectorate to produce a fortnightly report for the Scottish Ministers including information including which care homes had been inspected and the findings.
The Bill provides that such measures will no longer be required as of 30 September 2021.
Extensions
There have been a number of extensions of provisions relating to the care home sector.
Care Homes: Emergency direction and emergency intervention orders
The Public Services Reform (Scotland) Act 2010 as amended by the 2020 Act and the associated regulations provided health boards with emergency powers throughout the pandemic whereby they can direct care home providers to take steps to protect residents from coronavirus. In the event, a health board's direction is not followed, the health board can seek entry, put the recommended steps into action and recover the costs thereafter. Further, in the event the running of a care home is causing serious risk to life, health or wellbeing, the Scottish Ministers may apply to the court to appoint an officer to replace whoever may have been originally in charge.
While these powers have never been formally exercised throughout the pandemic, the Scottish Government has acknowledged that the sector remains vulnerable with new variants emerging and therefore may require support in the future. As such, the Bill allows for these provisions to remain in force until March 2022.
Powers to purchase care home service and care at home providers
Similarly, local authorities are currently empowered to acquire a care home or a care at home service where they are subject to financial strain or their service is substandard in its protection of residents against coronavirus. Reflecting the risk coronavirus continues to pose to the care home sector, the Bill extends the lifecycle of these provisions until 31 March 2022.
Care services: giving of notices by the Care Inspectorate
Finally, under the Bill, the Care Inspectorate may continue issuing their notices electronically until 31 March 2022.
For further information in relation to the housing sector, see our additional blog here.
If you have any questions in relation to the above, please do not hesitate to contact Fiona McLeod.
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