Prospective
14Visits to or by care home residentsS
(1)The Public Services Reform (Scotland) Act 2010 is modified as follows.
(2)After section 78A insert—
“Regulations under section 78: visits to and by adult care home residentsS
78BIdentification of Essential Care Supporter
(1)The Scottish Ministers must exercise the power under section 78(2) to impose a duty on providers of care home services for adults to—
(a)identify for every resident of accommodation provided by the care home service at least one individual as an Essential Care Supporter, unless—
(i)doing so would be contrary to the resident’s wishes, or
(ii)nobody can be identified who is able and willing to be the resident’s Essential Care Supporter, and
(b)maintain a record of the Essential Care Supporters identified.
(2)The Scottish Ministers must set out in regulations under section 78(2)—
(a)the criteria to be applied in determining who a resident’s Essential Care Supporter is, and
(b)the consultative process with the resident and others by which that determination is to be made.
(3)The duty described by subsection (1) must be framed so that a provider of a care home service must have regard to the code published under section 78E in carrying out the duty.
78CRight to visits: care home residents
(1)The Scottish Ministers must exercise the power under section 78(2) to impose a duty on providers of care home services for adults to facilitate visits—
(a)to residents of accommodation provided by the care home service (“internal visits”),
(b)by residents of accommodation provided by the care home service (“external visits”).
(2)The duty must be framed so that a provider of a care home service may only suspend visits (specifically or generally) if the provider has reasonable cause to believe that it is essential to do so to prevent a serious risk to the life, health or wellbeing of—
(a)in the case of internal visits, persons at the accommodation,
(b)in the case of external visits (either or both)—
(i)persons at the accommodation, or
(ii)persons at the place where the visit would take place, but for the suspension.
(3)The duty must also be framed so that, where a provider of a care home service has suspended visits due to a serious risk of a kind described in subsection (2), the provider must take all reasonable steps to eliminate or substantially mitigate the risk so that the suspension of visits can be lifted as soon as practicable.
(4)The duty must also be framed so that, even in cases where a provider of a care home service has reasonable cause to believe that suspending visits is essential to prevent a serious risk, the provider must continue to facilitate visits to or by a resident if—
(a)either—
(i)the provider has reasonable cause to believe that, before the suspension of visits is lifted, the resident will have—
(A)died, or
(B)undergone, or begun to undergo, a significant deterioration in physical or mental condition, or
(ii)the provider has reasonable cause to believe that—
(A)the suspension of visits is causing, or is likely to cause, serious harm to the resident’s health or wellbeing, and
(B)that harm outweighs the serious risk, and
(b)the resident and the person visiting, or being visited by, the resident agree to take any action or precaution that the provider reasonably considers would mitigate the serious risk to any extent (other than a negligible one).
(5)The duty must also be framed so as to create a presumption that the suspension of visits to a resident by the resident’s Essential Care Supporter is likely to cause serious harm to the resident’s health or wellbeing.
(6)Subsection (4) does not preclude the duty from being framed so as to include other circumstances in which visits to or by a resident must continue to be facilitated.
(7)The duty must also be framed so that a provider of a care home service must have regard to the code published under section 78E in carrying out the duty.
(8)Facilitating external visits, as mentioned in subsection (1), does not entail a provider of a care home service—
(a)taking, or accompanying, a resident somewhere outwith accommodation provided by the care home service, or
(b)arranging or paying for someone else to do so.
78DFurther provision to be made in connection with section 78C
(1)The Scottish Ministers must exercise the power under section 78(2) to impose a duty on the providers of care home services for adults to—
(a)review, following a valid request, its decision about the suspension of internal or external visits,
(b)notify SCSWIS when the provider suspends internal or external visits.
(2)The duties described by subsection (1) must be framed—
(a)to define what constitutes a valid request to a provider for the purposes of the duty,
(b)so that a provider of a care home service must have regard to the code published under section 78E in carrying out the duties.
(3)Subsection (1)(b) does not preclude the duty from being framed so as to create exceptions to the requirement to notify SCSWIS in relation to the suspension of internal or external visits.
(4)In this section—
(a)references to internal and external visits are to be construed in accordance with section 78C(1),
(b)references to suspending them cover doing so specifically or generally.
78ECode of practice on care home residents’ right to visits
(1)The Scottish Ministers must prepare a code of practice providing guidance on fulfilling the duties imposed in accordance with sections 78B(1), 78C(1) and 78D(1).
(2)The code must provide that in fulfilling those duties the following are to be treated as paramount considerations—
(a)the importance to residents of visits in—
(i)promoting their dignity,
(ii)promoting their physical and mental health and emotional wellbeing, and
(iii)realising their human rights,
(b)the importance of recognising and supporting the vital role that people who are not care home staff (for example close relatives and friends) play, alongside staff, in providing their loved ones with regular care (including companionship, personal support and advocacy).
(3)The code may—
(a)provide guidance on how to—
(i)implement an effective visiting policy,
(ii)adapt personal care plans to include residents’ visiting preferences or requirements,
(iii)communicate timeously in writing with those affected about any change to visiting arrangements including the reasons for the change,
(b)set out what the Scottish Ministers consider constitutes best practice in—
(i)facilitating visits,
(ii)care home staff working collaboratively with residents and their friends and families to facilitate visits in the way that best supports residents’ needs,
(c)give examples of—
(i)the means which providers could use to eliminate or mitigate a serious risk of a kind described in section 78C(2),
(ii)factors which may be taken into account in making an assessment about whether the harm caused to a resident in suspending visits outweighs the risk,
(d)any other guidance relating to fulfilling the duties mentioned in subsection (1) that the Scottish Ministers consider appropriate.
(4)The Scottish Ministers must—
(a)publish the code in a manner that is accessible to the public within the period of one year beginning with the day on which this section comes into force,
(b)review and, if they consider it appropriate, prepare and publish a new version of the code in such manner as they consider appropriate by the end of each review period, and
(c)take such steps as they consider appropriate to promote awareness of the code to providers of care home services for adults.
(5)In carrying out a review of the code, the Scottish Ministers must—
(a)have particular regard to any representations that have been made to them about the most recent version of the code by—
(i)providers of care home services for adults and their staff,
(ii)the residents of accommodation provided by those services,
(iii)those residents’ family, friends and other visitors, and
(b)invite, and take into account, views from SCSWIS on—
(i)whether, since the most recent version of the code was published—
(A)any trends have emerged in the suspension of internal or external visits (see section 78C(1)),
(B)it has identified any areas of concern, or examples of good practice, in relation to the discharge of the duties imposed in accordance with sections 78B(1), 78C(1) and 78D(1),
(C)meaningful regard is being had to the code by the providers of adult care home services,
(ii)what changes to the code would be appropriate.
(6)Before publishing any version of the code, the Scottish Ministers must consult—
(a)SCSWIS,
(b)Public Health Scotland,
(c)such persons, or groups of persons, who they consider represent the interests of—
(i)providers of care home services for adults,
(ii)the residents of accommodation provided by such care home services, and
(iii)the families of such residents.
(7)When the Scottish Ministers publish a version of the code, they must also publish an adaptation of that version of the code designed to be understood by people with learning difficulties or other conditions affecting how they process information.
(8)In this section, “review period” means the period of 5 years beginning with the day on which the latest version of the code was published.
78FInterpretation of sections 78B to 78E
In sections 78B to 78E—
“care home service for adults” has the meaning given in section 82F,
“Essential Care Supporter”, in relation to a resident of accommodation provided by a care home service, means the individual recorded as the resident’s Essential Care Supporter in fulfilment of the duty imposed in accordance with section 78B(1),
“provider”, in relation to a care home service, is to be construed in accordance with the definition of “provide” in section 105.
78GReview of operation of duties imposed in accordance with sections 78B to 78D
(1)The Scottish Ministers must prepare, and make publicly available, a report on the operation of the duties imposed on providers of care home services for adults in accordance with sections 78B(1), 78C(1) and 78D(1).
(2)The duty under subsection (1) must be fulfilled within 2 years of this section coming into force.”.
Commencement Information
I1S. 14 not in force at Royal Assent, see s. 39(2)