We responded to the Scottish Government consultation on the regulations for Anne’s Law
The Care Reform (Scotland) Act was passed by the Scottish Parliament in July. The Act, amongst other reforms, introduces Anne’s Law, which has many similarities to our campaign for the legal right to a Care Supporter, Gloria’s Law.
The Act states that for every care home resident, at least one Essential Care Supporter should be identified.
As part of its implementation, the Scottish Government ran a consultation on the draft Anne’s Law regulations, and we responded.
Some key points from our response are addressed below:
Identification of the Essential Care Supporter
The responsibility is on the care provider to identify the care home resident’s Essential Care Supporter, and the regulations set out that the provider must be confident that the person will not have “any adverse effect” on the resident and must not “act contrary to the best interests of the resident”. We have concerns about this, as the provider’s role should be to facilitate as much as possible, the resident’s wishes. Any adverse effect is broad language and best interest decisions should only be brought in when the person doesn’t have capacity to make this decision themselves. We must ensure that residents’ Care Supporter can be their desired advocate. Unfortunately, many of the people we support face challenges where their access to their loved one is restricted when they are seen by the care provider as a “problem relative” for trying to advocate in response to poor care.
The duty to facilitate visits
The regulations describe that the care provider has a duty to facilitate visits “to residents” and “by residents”. This section described in detail what isn’t expected of providers. We would like to see more description of what it means to facilitate visits. It also states that this regulation doesn’t require providers to “arrange” for someone to take a resident outwith the care home, but without explanation of what is expected, we worry the semantic difference between facilitating and arranging visits could be confusing.
Essential visits
The regulations describe a legal presumption in Anne’s Law that suspending visits from an Essential Care Supporter is always likely to cause serious harm to their loved one’s health and wellbeing. In the draft regulations, a suspension of visits can be lifted if it is “causing, or is likely to cause, serious harm to the resident’s health or wellbeing and the harm outweighs the serious risk”
This regulation feels very confusing - by setting it as standard that stopping visits causes serious harm, but also making the risk of serious harm a reason that visits should go ahead, makes it difficult to follow in what circumstances visits could be stopped. On something so vital, we think it should be much clearer. It also makes it a challenging threshold to weigh other risks against.
Review of suspension of visits
The regulation describes that the decision to suspend visits must be reviewed if someone asks for a review. We would like these requests not be limited to being made in writing, to make it as simple and accessible as possible for people to be able to request a review.