Chamber and committees

Before I answer that, I invite Fiona Hodgkiss to speak about the consultation and engagement process.

11:45

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.

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 will hand over to Christina McLaren on that technical point.

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.

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.

In what regard?

Just for clarification, Dr Gulhane, are you talking about a scenario in which no visits at all would be possible?

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.

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.