The planned emergency powers are being put forward as a Scottish Government amendment to the Coronavirus (Scotland) (No. 2) Bill ahead of Stage 2 this week.

Under the amendments, strengthened emergency powers will be available to ensure continuity of care if there was a significant risk to the life, health or wellbeing of individuals, or that a provider was unable to deliver care due to failure.

The move comes in response to a growing number of COVID-19 deaths in Scotland’s care homes, notably ten residents at the Home Farm care home on Skye.

If passed by the Scottish Parliament, the emergency powers will provide assurance to those who depend on care services, their families, and the staff that deliver care, that additional oversight and support is available in the rare circumstances that it may be required.

The amendments include:

• Giving Scottish Ministers the power to apply to the sheriff court for an emergency order to temporarily intervene and manage the services provided in a care home. Under the proposals Scottish Ministers would be enabled to exercise those powers in the interim before a sheriff has reached a conclusion to ensure support can be put in place as quickly as possible, but would be subject to an application to the sheriff being made.
• Such an order would be made, provided that it appears to the sheriff that there is a serious risk to the life, health or wellbeing of any person in a care home for any reason connected with COVID-19. 
• An order can be in place for a maximum of up to 12 months.
• There are rights of appeal against a decision to grant the order and powers to enable further detail to be set out in regulations.
• The Care Inspectorate already have the power to make an application to the sheriff to cancel the registration of a service where it has concerns regarding the life, safety and wellbeing of any person at the home. If the outcome of that process is that registration has been cancelled, under the new proposals Scottish Ministers would be able to apply for an emergency order to enable a nominated officer (for example, a health board or local authority) to temporarily intervene and run the care home, if there is a serious risk to the life, health and wellbeing of persons at the home due to the current pandemic.

Health secretary Jeane Freeman said: “The coronavirus pandemic has significantly impacted social care services around the world. In the face of this challenge, staff in care homes across Scotland have been working incredibly hard to care for their residents.

“It is of paramount importance that anyone living in a care home or using other care services, as well as those supporting them, are provided with the best possible care. We will do everything we can to ensure that remains the case. We are fortunate that this high standard of care is the norm for the vast majority of care home residents in Scotland.

“However, for the duration of this pandemic I believe that it is critical that a clear safety net is in place to ensure that if a care provider was unable to continue to deliver services, that the people who depend on those services should not be impacted. Our proposals build on established powers and would put beyond doubt that immediate action can be taken if continuity of care was jeopardised for any reason.

“The Care Inspectorate has a robust inspection regime for the care sector and the further steps we are hoping to take, if the parliament agrees, help bolster that work and would only be exercised as a last resort. There is guidance available for care providers on how to manage the current situation, which the Scottish Government expects to be followed. Every resident in our care homes, their family and the staff who work there should be kept safe from harm and we are prepared to take action where this is not the case.”

Meanwhile, the Scottish Government has published new arrangements to give clinical and care professionals at NHS boards and local authorities a lead role in the oversight for care homes in their area.

Every health board and local authority must put in place a multi-disciplinary team comprised of key clinical leads and the area’s chief social work officer.

The team’s remit will include daily discussions about the quality of care in each care home in their area, with particular focus on implementation of infection prevention and control, and the provision of expert clinical support to residents who have coronavirus.

The short paper ‘Coronavirus (COVID-19) - enhanced professional clinical and care oversight of care homes’ also highlights issues around testing and contact tracing with escalation measures in place if issues cannot be resolved.

The paper builds on recent actions to ensure care home residents can be kept safe, including new guidance for the sector and amendments to the Coronavirus (Scotland) (No. 2) Bill which would ensure the swiftest possible intervention if care home residents are being put at serious risk due to services failing

Ms Freeman added: “It is of paramount importance that those using services, including residents of care homes and those supporting them, are provided with the best possible care and the Scottish Government is doing everything in its power to ensure that is the case.

“All organisations including care providers are responsible for effective and safe care in their services and are expected to work closely together and at pace to give effect to these arrangements. While these are unprecedented times, everything possible must be done to protect care home residents and staff from the effects of COVID-19.

“These new arrangements will ensure clarity and consistency across the country about the role of health boards and local authorities in helping to keep their residents safe from coronavirus and should be seen alongside other recent action the Scottish Government has taken, including publishing revised guidance for the sector, and amendments to the Coronavirus Bill being discussed at parliament next week. I want to assure staff, residents and their families that a safe residential environment in care homes remains our top priority.”

• Read all of our articles relating to COVID-19 here.