Scottish COVID-19 inquiry publishes academic scoping research on care homes during the pandemic and Scottish Government publishes National Care Service (Scotland) Bill

The Scottish COVID-19 inquiry has recently published 14 academic research reports commissioned as part of the planning process in the early stages of the inquiry’s work. This blog firstly considers two of the five reports published under the portfolio of “the provision of health and social care services”.

One of the reports, compiled by the School of Health and Social Care at Edinburgh Napier University notes that “Care home residents were subject to severe restrictions for many months, including bans on visits, being unable to leave the home, and being cared for primarily in their room. This caused great distress and is likely to have contributed in a number of cases to cognitive and emotional decline and even death. The need for some restriction was understandable, given the vulnerability of care home residents and the large number of deaths in the sector. However, the legal basis of the restrictions is unclear, and there was arguably discrimination in respect of this group, compared with the rest of the community. There is little evidence in the early months of consideration of the human rights of residents and their families including the proportionality of measures generally or in individual cases. Matters improved from autumn 2020, although the guidance on outbreaks meant that many residents still faced severe restrictions for many weeks.”

Another of the reports, prepared by Edinburgh University Law School, states that 50% of all COVID-19-related deaths in Scotland between March and June 2020 involved care home residents, and that a lack of testing before hospital patients were discharged to care homes contributed to COVID-19 outbreaks.

The points made in these reports has potential to further complicate the legal and factual issues for consideration in any COVID-19 claims against care homes, especially the point on a lack of testing before patient discharge from hospitals to care homes in the context of causation.

It is important to note that nothing in the research reports is binding on the inquiry. The inquiry will make its own findings and recommendations in due course. This inquiry, chaired by the Scottish Judge Lady Poole, was established on 28 February 2022. A link to the current terms of reference for the inquiry is here. A link to the inquiry’s website is here.

In a separate development, though with potential to impact on the future running of care homes in Scotland, the Scottish Government introduced to the Scottish Parliament a National Care Service (Scotland) Bill on 20 June 2022. If enacted, this legislation would allow Scottish Ministers to transfer social care responsibility from local authorities to a new, national service. The Bill also includes provisions to underpin what has become known as “Anne’s law”, designed to ensure that adult care home residents have the right to remain connected with those important to them. Another of the Bill’s provisions is to give Scottish Ministers a new power to issue directions to care homes on visiting arrangements including when the care home is experiencing an outbreak situation. The Bill will need to pass through three legislative stages at the Scottish Parliament before it may be passed for Royal Assent to become law for subsequent implementation. The legislative process itself is likely to take several months. A link to the Scottish Parliament’s webpage on this Bill is here.

Zoe McDonnell, partner and Greg MacDougall, partner  

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