Official Report 548KB pdf
Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2026 [Draft]
The next item on our agenda is consideration of a draft Scottish statutory instrument that has been laid under the affirmative procedure, which means that it requires approval by resolution of the Parliament before it can become law. The purpose of the instrument is to increase the value of payments for personal care and nursing care by 2.23 per cent. The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 3 February 2026 and made no recommendations in relation to it.
We will have an evidence session on the instrument with the Minister for Social Care and Mental Wellbeing and supporting officials. Once any questions have been answered, we will proceed to a formal debate on the motion. I welcome Tom Arthur, the Minister for Social Care and Mental Wellbeing, and the following Scottish Government officials: Christina McLaren, unit head for fair work in adult social care; and Ian Turner, deputy director for the adult social care workforce and fair work.
I invite the minister to make a brief opening statement.
Good morning. I thank the committee for the opportunity to speak about a proposed amendment to the Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002.
The draft regulations will make routine annual increases to the rates for free personal and nursing care. The payments help to cover the cost of those services for self-funding adults in residential care. This year, we are again proposing to apply an uplift based on the gross domestic product deflator, which has been used historically as the inflation measure to increase the rates. That means that the weekly payment rates for personal care for self-funders will rise from £254.60 to £260.30 and that the nursing care component will rise from £114.55 to £117.10.
The most recently available official statistics show that a reported 10,920 self-funding residents aged 18 and above were in receipt of free personal and nursing care payments in 2024-25. Those residents should all benefit from the changes.
Thank you, minister.
I have a couple of questions. I declare an interest as a practising national health service general practitioner.
First, have you engaged with providers to see whether the uplift will actually cover the costs?
As you will understand and appreciate, we have on-going engagement with providers. When taking such decisions, we must balance a range of considerations relating to the overall affordability of public finances. As we have done in previous years, we have taken the approach, through the regulations, of basing the inflation uplift on the GDP deflator. Ultimately, wider considerations are for providers and residents who have a contract with those providers.
I understand how you have come up with that figure, but my question was not about that. I asked whether you have engaged with providers to see whether the uplift will actually cover the cost of care.
I appreciate that there will be a range of circumstances, depending on the provider. We have wider engagement, but, in this specific case, we are making a contribution by providing an inflation uplift based on the GDP deflator.
I do not know whether Christina McLaren wants to come in.
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A working group works with us every year on the process for such regulations. Scottish Care is part of that group, alongside COSLA and other local authority representatives, so a wide range of interests are represented. We are comfortable with the process that we have gone through and the arrangements that we have made.
Is the funding increase ring fenced?
Funding for the uplift will be committed. Ultimately, the level of funding will depend on overall uptake, but funding will be provided to ensure that the uplift can be delivered.
Could a local authority spend the money on other things, or could it be used only for the uplift?
I will hand over to Christina McLaren on that technical point.
The formula is based on analysis of what we expect uptake to be in the coming year. The allocation will cover that, and there is on-going dialogue to ensure that the numbers meet the figures that we transfer to local authorities for the uplift. In all previous years, take-up has been less than the amount that we have allocated.
Are local authorities obliged to pass on all the money in full?
They are obliged to use the money for everyone who claims it as part of the financial assessment in relation to the overall picture of how someone pays for their care.
What has happened to the underspend?
It is usually a very small amount of money, so we are pretty sure that the funding is accurate. There is on-going discussion with COSLA, but I am not aware that the money goes back to the Scottish Government.
There have been significant increases in the cost of delivering personal and nursing care, so any increase in funding is valuable and welcome. Minister, you indicated the potential financial constraints on delivering any more funding. My worry is that not delivering more funding is a false economy, because the costs will appear on another page of the ledger if we do not get this right. What work has been done, not just on this specific issue but across the wider portfolio, to assess the impact of not delivering what could be delivered?
On the broader question about financial viability, there is on-going close engagement with providers and health and social care partnerships. On this specific measure, as well as the inflation uplift this year, there have been above-inflation uplifts in recent years, in recognition of the pressures and challenges that exist. We recognise that there are financial challenges for providers, but we operate in a very pressurised environment regarding public finances, so we must balance a range of priorities. In doing so, we are providing additional funding through the uplift for the coming year.
Do you agree that, by investing in social care, we could prevent much more costly interventions, including hospital interventions? There is an issue in how we balance funding and how we measure the outcomes from inputs.
I do not disagree with your point about the value of investment in social care. Investment in social care is of tremendous benefit and value for the individuals who receive social care and for the wider health and social care system. Much of the longer-term strategic work that has been undertaken, and on which I think there is broad political consensus, is in recognition of the value of social care and ensuring that—notwithstanding the significant challenges that we operate under with regard to the public finances—we are working constructively to ensure that enough resource is going into the system.
In the budget that is making its way through the Parliament, there is an increase in investment in health and social care—specifically social care—and local government. There is broad recognition and shared understanding of the value of social care and the importance of investment in it.
We move on to agenda item four, which is the formal debate on the instrument on which we took evidence. I remind the committee that officials may not speak in the debate.
I believe that Sandesh Gulhane wishes to make a point before we move to the debate.
No, not before—during.
Okay. I call the minister to move and speak to motion S6M-20534.
That the Health, Social Care and Sport Committee recommends that the Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2026 [draft] be approved.—[Tom Arthur]
Minister, do you wish to contribute anything else to the debate?
I have nothing further to add.
I declare an interest as a practising NHS GP.
I support the principle behind the instrument. Personal and nursing care are fundamental for dignity in later life and uprating payments is necessary and welcome. However, we must be honest about the pressures that are facing the sector. Care providers are dealing with rising workforce costs, energy bills, insurance premiums and regulatory requirements. The question is not whether an uplift is appropriate but whether it is sufficient. If it fails, the consequences do not sit quietly in our social care sector; they present as delayed discharge, hospital pressures and workforce instability.
The minister said that it was not possible to increase the payments for social care above the GDP deflator because of budgetary pressures, but then £149 million was found for resident doctors, £36 million for rolling out GP walk-in centres that GPs say will not work and £30 million was found for an NHS app that will not be rolled out until 2030 and, as we are talking specifically about social care, £30 million has been spent on a national care service that has not been delivered. Those are concerns. We should be putting money into personal care and ensuring that it is free, because that is what was said.
As I said earlier, I recognise the importance and value of investment in social care, in and of itself as a good, and a deliverer of high-quality services to individuals, and also because of its importance as part of the overall functioning of our health and social care system.
We operate in a challenging and pressurised environment for public finances. In recent years, across multiple sectors, challenges have ensued from economic and fiscal turbulence. That is well understood and well documented. We are committed to engaging constructively with providers and local partners to ensure that we can maximise the resource that is available in the system.
Ultimately, it is for any member to engage with the budget process in the Parliament if they wish to make representations to the Government for additional resources.
My concerns are similar to those of my colleague Sandesh Gulhane. At the end of the day, I will vote in favour of approving the instrument because any uplift is crucial. However, what we are discussing is in no way reflective of what is required. As has been rehearsed by my colleague, huge amounts of money have been spent in other areas. If we are going to tackle the issues in social care and the connections with delayed discharge and prevent people from having to go into hospital care, we are going to have to think about it much more seriously than we currently are.
I will vote for the uplift, but I want to put those comments on record, because I do not think that the measures provide nearly what we need to do to tackle the issues that we have at the moment.
I recognise the points that committee members have made with regard to the financial pressures that we are all operating under, and I welcome members’ support for the instrument.
The question is, that motion S6M-20534 be agreed to. Are we agreed?
Members indicated agreement.
Motion agreed to,
That the Health, Social Care and Sport Committee recommends that the Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2026 [draft] be approved.
That concludes consideration of the instrument. I suspend the meeting to allow for a changeover of supporting officials.
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Meeting suspended.
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On resuming—
Care Home Services (Visits to and by Care Home Residents) (Scotland) Regulations 2026 [Draft]
The next item on our agenda is consideration of a second affirmative instrument. This draft statutory instrument requires approval by resolution of the Parliament before it can become law.
The purpose of the instrument is to impose new duties and responsibilities relating to visiting arrangements on providers of care home services for adults. The duties come in the form of regulations made under section 78(2) of the Public Services Reform (Scotland) Act 2010, as required following modifications made by section 14 of the Care Reform (Scotland) Act 2025.
The Delegated Powers and Law Reform Committee considered this instrument at its meeting on the 10 February 2026 and, while it made no recommendations on the instrument itself, it said in relation to regulation 8 that it welcomed the Scottish Government’s intention to publish the code of practice in advance of the requirement coming into force and highlighted to this committee its correspondence with the Scottish Government on that point.
We will now have an evidence-taking session on the instrument with the Minister for Social Care and Mental Wellbeing and supporting Scottish Government officials. Once our questions have been answered, we will proceed to a formal debate on the motion.
I welcome to the committee Tom Arthur, the Minister for Social Care and Mental Wellbeing; Jennifer Gilmour, team leader, social care immediate response and improvement; Fiona Hodgkiss, unit head, social care immediate response and improvement; and Laura Kennedy, solicitor.
I invite the minister to make a brief opening statement.
Thank you for the invitation to discuss this instrument.
Like everyone, I am sure, I have been profoundly moved by the brave campaigning of the care home relatives group, and I fully acknowledge the emotional harm and trauma experienced by residents, families and others who were unable to see one another for such long periods during the pandemic.
These regulations are about learning from those experiences to ensure that they cannot happen again. They were shaped through engagement with people who live and work in care homes, and I want to acknowledge the vital contributions made by all our stakeholder groups. The regulations deliver on the Parliament’s intention as set out in section 14 of the Care Reform (Scotland) Act 2025, and I have been struck by the cross-party collaboration that has brought us to this point.
If approved, the regulations will establish in law that care homes must allow and support visiting. Visiting may be suspended only where it is essential to prevent a serious risk to life, health or wellbeing, but even in those exceptional circumstances, care homes must still facilitate visits for people nearing end of life, or where the harm caused by suspending visits would outweigh the serious risk identified. Our intention is to safeguard residents’ ability to maintain family life and meaningful contact, and the regulations achieve that in a way that is compatible with the European convention on human rights, ensuring that any limits are lawful, necessary and proportionate, and that rights are balanced in a carefully considered, person-centred way.
Crucially, the regulations recognise essential care supporters as the people most important to the resident. That, for many, lies at the heart of Anne’s law. By establishing a legal presumption that restricting access to an essential care supporter is likely to cause serious harm, the regulations significantly strengthen the position of such a person by providing legal protection for their vital role.
The regulations are the result of extensive engagement, including an online survey; visits to care homes to hear directly from residents, families and staff; and discussions with national organisations and professional bodies. I am pleased that most respondents agreed that the regulations are clear and understandable, particularly with regard to providers’ duties to identify an essential care supporter, to enable visiting and to provide for a transparent review process.
I want to thank those who responded to the online consultation and to Parliament’s call for views, and I have noted the desire for clear, practical guidance on this matter. Although the regulations establish the duties, the accompanying code of practice, which will be available before the regulations come into force, will set out how they will work in practice.
I commend the regulations to the committee, and I am happy to respond to any questions.
Thank you for that opening statement, minister. We have a number of questions, and I will go first to Sandesh Gulhane.
I declare an interest as a practising NHS GP.
Is the designation of an essential care supporter a statutory right for residents, or is it at the discretion of providers?
That is set out clearly in the regulations. I would draw the committee’s attention to the following regulation, which says that
“A provider of a care home service for adults must … identify for every resident of accommodation provided by the care home service at least one individual as an Essential Care Supporter”
and then provides further detail on circumstances in which that would not happen. It is set out in the regulations.
Who holds the ultimate clinical responsibility for risk decisions—the provider or public health authorities?
In what regard?
In saying that an essential care supporter cannot come into a care home.
Just for clarification, Dr Gulhane, are you talking about a scenario in which no visits at all would be possible?
Yes.
In such a situation, there would have to be consideration of the balance of rights. We would be talking about an exceptionally extreme set of circumstances in which there would be conflict with regard to the balance of rights that has to exist between the ability to have access to an essential care supporter and any clear and present risk to life or wellbeing.
Ultimately, such decisions will have to be taken in the context of the overall prevailing circumstances and environment, consistent with what is set out in the regulations and the legislation. In that particular set of circumstances, it would be the provider who would take the decision.
My officials might want to add to that.
Ultimately it would be the provider—the care home—that would take the decision and it would not do that in isolation. It would do it on the advice of the local health protection team and the social work team, which understands the individual’s needs.
The code of practice will set out the range of advice that a care home needs to source in order to come to that conclusion. Anne’s law advocates an individualised approach—not a blanket approach—that is based on the person’s needs and risk assessment. Is that helpful?
It is, yes. If a resident has dementia and they have designated one child as their ECS and another child disputes that years later after a falling out, who makes the adjudication on that?
There does not have to be just one ECS. That is clear in the regulations and the code of practice. A resident may choose more than one.
In that situation, it would always be negotiated. There are sometimes difficult family circumstances, and they would need to be worked through at the time of identification and in any circumstances where it is imperative that a resident sees their essential care supporter. That is the kind of thing that care homes go through every day already, because it is in the health and social care standards that residents get to nominate visitors. Does that answer your question?
The issue is that family dynamics are liable to change. For example, if one child is away, it is quite reasonable for the other child to be nominated as an ECS, but what happens when the child who was away comes back? Can they then become an ECS if the patient has dementia?
The key point is that a flexible approach needs to be taken that is based on the needs and circumstances of the resident. If it is appropriate for somebody else to come because the other person is away, the care home would support that. Jennifer Gilmour will be able to say more about that, because she wrote the code with stakeholders. It emphasises that flexibility is required and it is based on the needs of the individual and what would minimise distress for them.
Obviously, the legislation has come about through exceptional circumstances, and the concern is that, if such circumstances were to happen again, the protections that are provided to residents and close family members would be needed. We do not want this to be used to say, “We have one ECS and the other child cannot be one”. I just do not want to see that happening. If, as you say, a flexible approach is taken, that seems eminently sensible.
I note that regulation 3 does not define what facilitation is required in practice. Can you clarify the definition of the expected actions that a care provider must take to support visits, particularly external visits? Supplementary to that, what do you mean by external visits? Does it just mean visits to an essential care supporter, or will it include medical appointments and the like?
I will ask officials to come in on that in a moment. However, I will highlight—this might also come up in subsequent questioning—that a lot of the operational detail is set out in the code of practice. That will be published ahead of time and it will provide answers to many of those questions.
The regulations have been developed through close engagement with a range of stakeholders, including providers, and they include the point about external visits, clarifying the obligations on a provider and what the expectations would be. A lot of work has been undertaken to ensure that the regulations provide the legal framework, but how that is operationalised will be reflected within the code of practice.
My officials can respond to your specific question.
That was one of the things that came up during the consultation that we carried out on the regulations. People were looking for a bit more detail on what some of the definitions mean. That is definitely reflected in the code of practice; we picked that up wherever possible.
On the definition of “facilitation”, the code talks about a requirement to “support” and “allow” visits. There are examples of the types of things that care homes might do to provide those opportunities for care home residents to receive or make visits themselves. The code also makes it clear that providers do not have to bear the costs of those additional visits as a result of the regulations under Anne’s law.
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We are talking about a future code of practice that will not be legally binding. Are there concerns about how it might be implemented?
The code of practice has a statutory basis and represents the operationalisation of the regulations, giving it a very strong foundation. The Care Inspectorate will oversee it—it will inspect against the code of practice as part of its routine inspections.
If the Care Inspectorate is inspecting against a code of practice that is not legally binding, what enforcement powers would it have?
The code is based in law, which is obviously legally binding. The Care Inspectorate can take enforcement action against care homes. Ultimately, it can alter how they operate. The Care Inspectorate can take a whole range of steps, and that would be the final measure that is available to it.
There will be a three‑month grace period after the regulations come into force, during which the Care Inspectorate will support the care home sector to implement Anne’s Law, including by disseminating information to care providers, residents, families and friends so that they understand the situation and their rights.
Good morning. We have reviewed information on the suspension of visiting, which was raised in various written submissions. The submission from Dumfries and Galloway health and social care partnership questioned who actually makes the decision to suspend visits and how that aligns with health protection and social work responsibilities. Can you elaborate on how you will ensure consistency in decisions to suspend visiting?
In those circumstances, it would be for the provider to respond to the specific events and context that led to the decision being made. Regulation 4 says:
“A provider of a care home service for adults may suspend visits (either to and by all residents in the care home or to and by specific residents) only 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—
in the case of internal visits, any person at the accommodation,
in the case of external visits, the resident, any other person at the accommodation, or persons at the place where the visit would take place.”
I am taking the time to read that out, so that it is set out clearly on the record, but the context is already set out in the regulations. A responsible provider will draw on a range of advice and expertise in taking such decisions.
The code, which will be published ahead of the regulations coming into force, will provide further information on that process. My officials may want to add to that.
I will make two points. First, providers have responsibility for taking those decisions. Secondly, they are not doing that in isolation; they are taking advice from health and social work professionals. Does that help?
The suspension of visits arose because of the Covid pandemic. That was an international health crisis, as opposed to a local issue, such as a norovirus outbreak, for which different measures would be put in place for visiting, including a requirement for personal protective equipment to be used. I suppose that it is not an isolated decision; it must be made collaboratively, in recognition of what is going on across the country.
Many of the decisions that are taken on a local, day-to-day basis are simply about what is happening locally. The decision might relate only to that care home and what is happening locally. In the example that you gave, Anne’s law is relevant because it means that you cannot take a blanket approach and simply shut a care home; you have to take an individualised approach based on several factors, including the issue at hand, the care home’s structure, its staffing, and the needs of the individual residents, including those individuals involved in the issue.
Engagement is required between all the professionals involved, including Public Health Scotland, local authorities and health and social care partnerships, but what is required in that engagement? Is there a formal requirement for a process that will outline how they come to a decision?
There are already good processes in place through which care homes operate with local health protection teams, which advise them on a daily basis if there is an issue. The regulations build on that.
Although the focus of the regulations is on the care home providers, who are the ones taking those decisions, there are implications for guidance for other health professionals, such as the public health professionals who advise the care homes. There are already good relationships there, which the regulations will support, but we are also clear that it is everybody’s responsibility to ensure that meaningful connection is supported.
It is important to understand that the regulations do not exist in a vacuum. They exist in the context of long-established legal frameworks, which range from human rights frameworks and the ECHR to public health measures. There is also a context of a culture of established working relationships between a range of relevant bodies and of the expertise that is contained in those bodies. Providers have clear obligations around the health, safety and wellbeing of residents, visitors and those who work in a care home setting. When considering the regulations, it is important to appreciate the wider context in which they are situated.
Good morning. I have some questions around the review process. Regulation 6 requires a care home provider, on receipt of a valid request, to review a decision. Concerns have been raised with us about that. One is about whether there could be proactive rather than reactive reviews. Another concerns the fact that there is no judicial appeal route. Has there been any consideration of that?
On the first point, the code of practice will provide more detail around expectations in relation to reviews. On the second point, there are currently processes for making complaints directly to a provider or to the Care Inspectorate. Again, we must appreciate the wider context in which the regulations exist, and the importance of the code in terms of providing that operational detail.
I do not know whether my officials have anything to add—I see that they do not.
You say that the guidance will contain some information about how the Care Inspectorate will be involved if a review is in place. How will that process work?
As an example of the process, if a family member asks for a review of a decision not to allow them to come in as an essential care supporter, they can request a review on certain grounds, which will be detailed in the code. If they are not happy with the outcome of that, they can appeal to the care home; and if they are not happy with the outcome of that, they can go to the Care Inspectorate. Often, that happens through a formal complaints process. If they are not happy with the outcome of the Care Inspectorate’s review, they can go to the ombudsman. Ultimately, after all that, judicial review is available, but it is not the route that people would normally go down.
Essentially, the regulations are being made in the context of an existing process for people to challenge what is going on in the way that care homes are doing things.
My initial thought is that I can imagine that, sometimes, a review request might be time sensitive in order to support family members and to get that appropriate access. Will the system allow for that?
Yes, absolutely. We recognise that some of the decisions that the code of practice covers will have to be taken rapidly. The time sensitivities are very much recognised in the code.
That is appreciated.
A concern has been raised about the requirement for review requests to be submitted in writing. I just want to be sure about accessibility, because some people may have family members who cannot go down that route.
Requests could be made via email, a letter in the post, or, for example, an online form that is made available by the provider. Clearly, we want to ensure that the process is as accessible as possible. Again, that is reflected in the code.
There are elements in the code about supporting people to make requests in writing, so it is not seen as a separate thing. There is support for somebody doing that in the way that is most suitable for them. Laura Kennedy can say where the definition of “in writing” is taken from.
The definition of “in writing” that applies in these regulations is from the Interpretation and Legislative Reform (Scotland) Act 2010. That allows for other forms of writing, as the minister has said, such as email. The act says that writing includes
“words in a visible form”.
It is expected that individuals would be supported in ways that are set out in the code, so that there is a record of the request for that review and the grounds for that request.
That is helpful. I appreciate that we need a record, but, particularly in those circumstances, there may be people who need a certain level of support to put something in writing.
I want to turn to the notification process. Regulation 7 requires that, where a care home provider has decided to suspend visits, it must, as soon as practicable, notify the decision to various named people and agencies. However, respondents to the committee’s call for evidence raised some concerns and highlighted areas for improvement. For example, the regulations do not specify how quickly notifications must be issued. Can you commit to introducing clear timescales for notifications to ensure consistency and protect residents’ rights?
Again, that will be picked up in the code of practice. My officials might want to say something specific on the timescales.
I was just checking the draft code of practice. It lays out timescales for ideal scenarios. In keeping with the rest of Anne’s law, the code makes clear that the circumstances have to be taken into consideration. If one resident is affected by a suspension of visiting, the expectation is that that notification would be made very quickly. However, in a complex case in which multiple people or families had to be notified, the process could be expected to take longer.
The target timescale in the code of practice is within 24 hours—that is the expectation—but there is some softening of language around it to allow for complex cases and to make sure that Anne’s law takes many things into consideration and does not take a blanket, black-and-white approach.
Is there anything in that part of the draft code about what the maximum time allowed would be?
The target time is 24 hours. The code is being consulted on with a range of care home providers, care home residents and Public Health Scotland, so the timescales could be subject to change, depending on the feedback. However, that is currently the target time.
We would expect that it would take no more than 24 hours for notifications to be made. In a simple case, we would expect that it would happen much more quickly than that—perhaps even almost as soon as a decision is made. However, as I said, there could be circumstances in which things are extremely complicated and there are dozens and dozens of people to contact, and that would have to be taken into consideration.
Will the minister comment on calls for the notifications to be extended to include wider multidisciplinary teams and agencies other than those in the regulations?
Before I answer that, I invite Fiona Hodgkiss to speak about the consultation and engagement process.
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In our consultation on the SSI, we got feedback about who else should be notified. The original draft of the SSI said that the Care Inspectorate should be notified when a decision had been taken to suspend visiting. In the consultation, the families were clear that they and the essential care supporter also needed to be notified, so that was added.
Similarly, as a result of engagement with Social Work Scotland and social work professionals, we added the chief social work officer to the list of those who should be notified. In practice, that will mean that the chief social work officer will internally inform other teams in the local authority who have oversight of the care home, such as the commissioning and contracts team, which monitors the delivery of the national care home contract and the standards within the care home from a local authority’s perspective. That widens the multidisciplinary team, which you asked about. The public health protection team would already be involved, so they would be aware of the suspension. Does that help?
Yes. That addresses some of the comments that have been made to the committee about who was to be notified. Will the Government monitor compliance to ensure that notifications are issued properly?
Yes. There is a requirement for ministers to review the operation of Anne’s law after, I think, two years, and to review the code after five years. That work will be on-going. Of course, the Care Inspectorate will also have a role to play, so there will be on-going engagement and scrutiny. Further, it will be for Parliament to decide what it does, but I imagine that it will continue to maintain a strong interest in the matter.
Good morning. I want to speak about human rights and how we balance them with other considerations, which you have spoken about in your answers and in your opening statement. The regulations allow the suspension of visits where a provider has reasonable cause to believe that it is essential to prevent serious risk.
What specific human rights criteria will providers be expected to apply when they are determining whether the threshold is met? How will you ensure that visiting restrictions are genuinely a last resort and that they are proportionate and time limited, given the concerns that we have heard about the lack of clarity that there could be about terms, such as “reasonable cause” and “serious risk”?
The issue involves a number of areas. The balance between the right to private and family life and the right to life is a key issue. That involves a scenario in which there is a clear danger of risk to life, health and wellbeing. These are not easy decisions to take, and that is why the code of practice goes into those matters in some detail and seeks to provide support in that regard.
I would regard a situation in which no visits at all were possible as extremely rare and remote. There would have to be an absolutely extreme set of circumstances, and we have sought to ensure that the rights of essential care supporters are clearly stated in the regulations and in the code.
We could start entertaining hypothetical situations and speculating about what might happen, but, ultimately, it will come down to a judgment that will have to be made. However, there is no ambiguity around the expectations that are set out in the regulations, which will be the law of the land, as passed by Parliament. The code of practice will help, as it will illustrate and flesh out some of the detail around how those regulations will be operationalised. However, I appreciate the sensitivity of the issue, and I want to provide assurance about the intention behind the regulations and why we have taken the approach that we have. That will be further buttressed by what is in the code.
It is helpful for us to understand that the code will seek to flesh out the scenarios, because we do not want to scenario plan today and think about different instances in which it could be applied. The information should be contained in the guidance and the code to give operators an understanding of how they should balance human rights and look at each situation before they come to conclusions.
Laura Kennedy, do you want to add anything on the balance of rights?
Both the provision in the Care Reform (Scotland) Act 2025 and the regulations were drafted in a way that ensures that they equip providers to apply the human rights principles when making those decisions.
My final question is about whether you could commit to ensuring that there is greater oversight, which you have already spoken about, and enhanced review mechanisms to limit the discretion of providers so that that the rights of residents are consistently maintained and they are consulted and have a voice in decisions that are being made.
There is a clear expectation of the utilisation of best practice for communication and engagement, as set out in the regulations. For example, the identification of an essential care supporter is clearly set out in the regulations. The importance of the agency, autonomy and rights of the individual residents and their involvement in the process is implicit. I also note that the 2025 act places duties on the Scottish ministers to report on how some of the new responsibilities that are placed on care home providers have been put into operation. In particular, there is a duty to identify an essential care supporter for every resident, facilitate visits and, following a valid request, review a decision about the suspension of visits. The report would need to be published within two years of the regulations coming into effect.
I hope that that helps to provide some reassurance that the legislation that is coming into effect is not the end of ministerial involvement and engagement. There will be close scrutiny and review, and there will also be on-going engagement and monitoring as part of that.
Further changes could come forward when you are looking at the review mechanisms and processes.
Of course. I cannot compel future Governments and Parliaments, but I imagine that the Parliament would want to take a keen interest in how it is operationalised and in the learning that comes from that, notwithstanding the statutory commitments for review. Learning will inevitably emerge from any new provision that comes into operation. The care standards have been in place for some time now and there has already been a significant amount of learning, which is reflected in the consultation and engagement that we had before lodging the SSI. The learning and information will be at the disposal of ministers and the Parliament in considering any future amendments that would be required, either to the regulations or, indeed, to the code.
To summarise, there will be opportunities for the code and regulations to be revisited based on learning, which demonstrates the importance of close engagement and monitoring. For example, if it were to come to the attention of ministers or a future Government that changes were required to improve operational efficiency or to avoid any unintended consequences, there would be opportunities to make those changes, as there would be with any regulations. Given that this is being done through secondary legislation, it is not something that requires a new act of Parliament and can be done in a relatively quick, efficient and effective manner.
The oversight by ministers is formalised in two ways: a progress report will be required within two years, and there is a requirement for a review of the code. The 2025 act specifies what should be considered when reviewing the code. That is about the operation of Anne’s law in practice; there should be good practice and information about how it is being delivered. That is a formal process for on-going review.
I think that members of the committee were involved in helping to strengthen the oversight aspect at stages 2 and 3 of the Care Reform (Scotland) Bill. The legislation very much reflects the aspiration to ensure that we are not just putting out something with no oversight. There will be ministerial oversight on an on-going basis.
We now move to item 6, which is the formal debate on the instrument on which we have just taken evidence. I remind the committee that officials may not speak in the debate. I invite the minister to speak to and move motion S6M-20536.
I encourage the committee to support the draft regulations.
I move,
That the Health, Social Care and Sport Committee recommends that the Care Home Services (Visits to and by Care Home Residents) (Scotland) Regulations 2026 [draft] be approved.
Motion agreed to.
That concludes our consideration of the instrument. Minister, you and your officials are free to leave.
National Health Service (Functions of the Common Services Agency) (Miscellaneous Amendments) (Scotland) Order 2026 (SSI 2026/20)
The next item is consideration of two instruments under the negative procedure. The purpose of the first instrument is to dissolve NHS Education for Scotland and transfer functions carried out by that body, as well as its property, rights, liabilities and obligations, to the Common Services Agency for the Scottish health service.
The Delegated Powers and Law Reform Committee considered the order on 10 February and drew it to the attention of the Parliament on the basis that the provisions in part 1 of the schedule have been made by what appears to be an unusual or unexpected use of the powers conferred by the parent statute, in the absence of an express power to amend the primary legislation and in the absence of a fuller explanation from the Scottish Government.
No motion recommending annulment has so far been lodged in relation to the order. Do members have any comments?
I first make a declaration of interests as a practising NHS GP and as someone who went through the NES scheme. Although a reduction in the number of quangos is always welcome, I have a number of questions that I think are worthy of consideration.
How will GP training, specialty training and continuous professional development all be protected during the transition period? What financial savings are expected? When do we expect to see the financial savings? Will the measure result in any measurable workforce improvements?
How would you wish those questions to be answered?
An ideal scenario would be to discuss those questions with the minister, but I think that we can write to the minister.
Thank you for that.
I propose that the committee does not make any recommendations in relation to the instrument. Are members content with that?
Members indicated agreement.
NHS Education for Scotland and Common Services Agency (Transfer of Staff) Regulations 2026 (SSI 2026/23)
We now come to the second instrument. The purpose of the regulations is to provide for the transfer of staff from NHS Education for Scotland to the Common Services Agency on 1 April 2026, and for all members of the management committee of the CSA to be entitled to renumeration for their role as members of that committee, other than executive members, who are also employees of the CSA.
The Delegated Powers and Law Reform Committee considered the instrument on 3 February and made no recommendation in relation to it. No motion recommending annulment has so far been lodged.
As no members have any comments that they wish to put on the record, I propose that the committee does not make any recommendation in relation to the instrument. Are members content with that?
Members indicated agreement.
Draft Mental Health (Care and Treatment) (Scotland) Act 2003 Remedial Order 2026
The next item is consideration of a proposed draft order. I put on record that I am a registered mental health nurse and a bank staff nurse with NHS Greater Glasgow and Clyde.
The proposed draft order must be laid before Parliament for a 60-day period, together with a statement of reasons for proposing to proceed by remedial order rather than by other means.
Ministers are proposing to make a remedial order under section 12 of the Convention Rights (Compliance) (Scotland) Act 2001. That power allows the Scottish ministers to make remedial orders to remedy an incompatibility with convention rights.
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The purpose of the proposed draft order is to address the judgment in X v Mental Health Tribunal for Scotland [2022] CSOH 78, which held that the tribunal’s lack of power to specify recorded matters for patients subject to a compulsion order amounted to “unjustified discrimination” under article 14 of the European convention on human rights. Following the ruling, the Scottish ministers concluded that amendments to the Mental Health (Care and Treatment) (Scotland) Act 2003 were necessary to ensure compliance with article 14 of the convention.
The statement of reasons accompanying the proposed draft order states:
“Scottish Ministers consider that a Remedial Order under the general procedure is the most appropriate and proportionate means of remedying the legislative defect, ensuring equality of treatment for civil and forensic patients while maintaining safeguards and flexibility within the mental health system.”
The Delegated Powers and Law Reform Committee considered the proposed draft order on 10 February and noted a number of points in relation to it.
As members do not have any comments to make, I propose that the committee notes the proposed draft order but does not make any recommendations in relation to it. Are members content with that?
Members indicated agreement.
At our next meeting, we will commence stage 2 proceedings on the Non-surgical Procedures and Functions of Medical Reviewers (Scotland) Bill.
That concludes the public part of this meeting.
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Meeting continued in private until 12:22.