COVID-19 and Scottish care homes: an update

On Monday 13 July 2020 Scottish Government reported that no COVID-19 (C-19) deaths had been registered in Scotland on any of the five preceding days. However – on the same day – Scottish Government also reported that public health teams were investigating after seven new cases of coronavirus – picked up by routine testing – had been traced to a single care home in the greater Glasgow area. All seven people who tested positive were asymptomatic at the point of testing.

The First Minister advised the public not to be “alarmed” and that the increases in daily cases were “still very low” whilst emphasising that “on any occasion where there is an increase … we look very thoroughly to see if there are any patterns or particular causes for concern.” In respect of the specific care home case, the First Minister confirmed that the government would be liaising with the relevant health board and that further testing would be carried out along with infection prevention and control measures being led by the local health protection team.

The Scottish Health Secretary added that the “standard procedure” would be for the care home to be closed to new admissions and for extra support to be made available by primary care teams.

Scottish care homes have come under ever-increasing scrutiny throughout the period since C-19 was declared a “notifiable disease” in Scotland on 22 February 2020. For background analysis on this, readers may be interested in our care home-specific blog of 7 May 2020 (link here) and our article of 30 April 2020 on the implications of C-19 for Scottish fatal accident inquiries (link here).

Significant developments since 7 May 2020 include:

  • The Lord Advocate, who is responsible for investigating all sudden, unexpected and unexplained deaths in Scotland, announcing two specific additional categories of C-19 deaths which must be reported to the Crown on the basis that deaths in these extra categories give rise to public anxiety. The first category is all C-19 or presumed C-19 deaths where the deceased might have contracted coronavirus in the course of their employment or occupation, for example, care home workers, front-line NHS staff, public transport employees and emergency service personnel.  The second category is all C-19 or presumed C-19 deaths where the deceased was a resident in a care home when the virus was contracted.
  • The creation by the Lord Advocate of a dedicated unit within the Crown Office and Procurator Fiscal Service to consider C-19 deaths reported to the Crown and investigate those on a multi-agency basis working with other agencies that have relevant responsibilities, for example the Health & Safety Executive, local authorities, the Care Inspectorate and the police. Scottish prosecutors are now investigating many C-19 deaths in what is likely to be Scotland’s biggest ever Crown Office inquiry involving hundreds, perhaps thousands, of fatalities. The outcomes of the multi-agency investigations remain to be seen but there is at least the potential for criminal prosecutions, fatal accident inquiries and / or a full public inquiry on C-19 and Scottish care homes.
  • Scottish Government have committed to a public inquiry into the government’s response to coronavirus.
  • At the start of June 2020, rules of court were introduced enabling Scottish Ministers to apply for an emergency intervention order in relation to a care home service in certain situations (link here).
  • The Scottish Parliament’s C-19 committee met for the eleventh time on 24 June 2020. The remit of this committee is to consider and report on Scottish Government’s response to C-19 including the operation of powers under the Scottish C-19 primary legislation and secondary legislation arising from that. The Scottish Parliament is now in summer recess until 9 August 2020 but will meet every Thursday until then. The next Scottish parliamentary election remains scheduled for 6 May 2021 with dissolution of the current fifth session of the Scottish Parliament likely in March 2021.
  • In the second half of June 2020, various media outlets reported “landmark (civil) legal action” against a Glasgow care home in which questions on the testing of residents and staff and the provision of personal protective equipment have been raised.

Scotland is now in phase 3 of a 4 phase “route map through and out of the crisis.” Whatever practices and procedures will ultimately be in place thereafter, it seems clear that questions arising from the pandemic will continue to be asked long after the crisis is over. Early legal advice is essential if you – or your business – are involved in any of the Crown or multi-agency matters highlighted in this blog.


Zoe McDonnell, Head of Regulatory, BLM

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