Anne's Law Draft Regulations - consultation response

Identification of Essential Care Supporters - Regulation 2

Purpose

The Care Reform (Scotland) Act recognises that some family and friends are also 'Essential Care Supporters' – an integral part of the care team for their loved ones. Anne’s Law recognises their role in providing care, support and companionship.

This section of the regulations explains how care home providers should identify Essential Care Supporters for their residents. An Essential Care Supporter could someone who has been the resident's main carer, or simply a close contact, like a family member or friend. It explains what the provider must consider, including: 

• consulting the resident and the resident's personal plan
• checking that the identified person would like to do it

Regulation 2 wording

    1. A provider must—

• 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.
  • a) the identity of the person must be in accordance with the resident’s wishes or, where appropriate, those of their representative,
  • b) the provider must not have reasonable cause to believe that—
    • i) the person to be identified may cause harm to the resident, or
    • ii) the person to be identified would act contrary to the best interests of the resident or would have any adverse effect on the resident, and
  • c) the provider must be satisfied that the person to be identified is able to undertake that role for that resident and is willing to do so.
  • a) prepare or review a resident’s personal plan under regulation 5 (personal plans) of the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011, and
  • b) consult—
    • i) the resident, or where appropriate, their representative as set out in the resident’s personal plan, and
    • ii) with such relatives and friends of the resident as set out in a resident’s personal plan.

   2. A provider must apply all of the following criteria in determining who is to be identified as a residents’ Essential Care Supporters—

   3. In order to identify and determine a resident’s Essential Care Supporter, the provider must—

1.Do you agree or disagree with these statements?

Yes we agree

2.Is there anything else you think care home providers should think about when they are identifying an Essential Care Supporter?

We agree with the clear criteria outlined in Regulation 2 for identifying Essential Care Supporters. The framework appropriately centres the resident's wishes whilst building in necessary safeguards. The requirement to consult personal plans and ensure willing participation from proposed supporters reflects good practice principles that social workers would recognise and support.

However, we believe care home providers should consider several additional factors when identifying Essential Care Supporters. Robust capacity assessments, conducted by appropriately qualified professionals, are essential where there are concerns about a resident's ability to make this decision. Such assessments should follow the principles of the Adults with Incapacity (Scotland) Act 2000, involving guardians or welfare attorneys where appropriate.

Regular reviews of Essential Care Supporter arrangements are crucial as circumstances change over time. We've seen in practice how family dynamics can shift, how supporters' own health or circumstances may alter their ability to fulfil the role, and how residents' needs and wishes may evolve. The regulations should encourage providers to build these reviews into routine care planning processes rather than waiting for problems to emerge.

The question of safeguarding requires careful consideration. Whilst the regulations mention having 'reasonable cause to believe' someone may cause harm, providers need clear processes for addressing safeguarding concerns, including liaison with social work services. This is particularly important in cases where concerns are subtle or historical, or where there are conflicting accounts from different family members.

Cultural and linguistic considerations also matter deeply. The Essential Care Supporter should ideally be able to communicate effectively with the resident and understand their cultural preferences and needs. We have seen how vital this is for residents from minority ethnic communities or those whose first language isn't English.

From a practical standpoint, providers should assess whether the proposed Essential Care Supporter has the physical ability, time, and proximity to fulfil this role meaningfully. There is little value in identifying someone who lives hundreds of miles away and can rarely visit, when a more local friend or relative could provide more consistent support.

We also emphasise the importance of recognising that Essential Care Supporters themselves may need information, guidance, and emotional support to fulfil their role effectively. This isn't just about identifying someone and leaving them to get on with it – there should be a partnership between the care provider and the supporter.

Finally, clear conflict resolution processes are essential. In our experience, disputes about who should be an Essential Care Supporter can become deeply distressing for all involved. Having transparent processes for addressing these situations, potentially involving independent mediation or social work input, would help prevent harmful conflicts.

Right To Visit: General - Regulation 3

Purpose

This section explains that care home providers must ensure that residents can have visitors in the care home and that they can leave the care home to visit people they know.

Regulation 3 wording
 

1.   A provider must facilitate visits—
   • a) to residents (“internal visits”), and
   • b) by residents (“external visits”).
2. Facilitating visits under paragraph (1)(b) does not require a provider to—
   • a) take or accompany a resident to a place outwith the accommodation provided by the care home service, or
   • b) arrange or pay for someone else to do so.

3.Do you agree or disagree with this statement?

The duty for care home providers to facilitate visits is clearly described within the regulations

Yes we agree

We appreciate the straightforward recognition that this includes both visits to residents and by residents – the latter is sometimes overlooked but equally important for maintaining community connections and autonomy.

That said, practical guidance will be essential on what 'facilitate' means in practice. Care providers need clarity on reasonable adjustments for residents with cognitive impairment or communication difficulties – for instance, how to support someone with advanced dementia to maintain meaningful contact with visitors. There are questions about how to balance facilitation with other care priorities and staffing levels, particularly in smaller care homes with limited resources. The interface with social work involvement in care planning and reviews also needs to be clear, especially where social workers are actively involved in supporting particular residents.

Suspension of Visiting - Regulation 4

Purpose

In normal circumstances, there should be no restrictions on visits in or out of the care home. Care homes should not operate booking systems and should not normally impose any limitations on the number of visitors or the frequency, timing or duration of visits.

This section explains that visits may only be suspended if there is a serious risk to life, health or wellbeing. This includes both visitors coming into the home and residents leaving to visit people they know. If a care home needs to suspend visits, they must quickly evaluate how that decision will impact their residents' rights. For example, they will need to consider the care home building, its residents and the nature of the risk. Each decision will depend on individual circumstances and the present risk.

Regulation 4 wording


 

1. A provider 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—
   • a) in the case of internal visits, any person at the accommodation,
   • b) in the case of external visits, the resident or any other person at the accommodation, or persons at the place where the visit would take place.
2. Where a provider has suspended visits in accordance with paragraph (1), 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.Do you agree or disagree with these statements?

Yes we agree

We strongly agree that the threshold for suspending visits – requiring a serious risk to life, health, or wellbeing – is appropriate and rights-based. This high bar is essential to protect residents' fundamental rights to family life and social connection. The requirements on providers to take reasonable steps to eliminate or mitigate risk so that suspensions can be lifted quickly demonstrate the regulations' commitment to treating suspension as a last resort.

However, the success of these provisions will depend heavily on how they're implemented in practice. Professional assessment must underpin any decision to suspend visiting. These decisions should involve multi-disciplinary discussion, including consultation with social work services, particularly where there are adult protection concerns or questions about capacity. Social workers bring expertise in risk assessment, safeguarding, and rights-based practice that would strengthen decision-making in complex situations.

We cannot stress enough the importance of individualised risk assessment. Generic blanket suspensions should be rare. Each assessment should carefully consider individual resident circumstances – their health status, capacity, living arrangements within the care home, and the specific nature of the risk. What constitutes serious risk for one resident may not for another. Similarly, the impact of suspension will vary greatly depending on individual circumstances and relationships.

The principle of proportionality must guide all decisions. The least restrictive option should always be sought first. Before suspending visits entirely, providers should consider alternative measures: outdoor visits, screen visits, additional PPE, testing protocols, time-limited visits, or visits restricted to specific areas of the care home. Only when such alternatives genuinely cannot mitigate the serious risk should suspension be considered.

Regular review of suspension decisions is crucial. Given how quickly circumstances can change – particularly in health crises – suspension decisions should be reviewed at least weekly, if not more frequently. These reviews should be documented, showing that the provider is actively seeking to lift the suspension as soon as possible.

Clear documentation throughout is essential. Records should capture the risk assessment, the decision-making process, alternatives considered, who was consulted, and the rationale for the final decision. This protects both residents' rights and provides accountability for providers' decisions.

Essential Visits - Regulation 5

Purpose

This section explains that even when visiting has been suspended, some types of visits must still go ahead. These are called 'Essential Visits'. It sets out what types of visits these are. 

One type of essential visit includes where a suspension of visits is causing or likely to cause serious harm to a resident’s health or wellbeing. That serious harm will always require to be weighed against the serious risk that led to the suspension.  However, Anne’s Law also includes a legal presumption that suspending visits from an Essential Care Supporter is always likely to cause serious harm to their loved one’s health and wellbeing. This presumption will therefore be taken into account when undertaking the balancing exercise required between the serious harm to the resident and serious risk that justifies the suspension to visiting, in order to determine whether an essential visit of this type should be permitted.

Regulation 5 wording

1. Even in cases where a provider has reasonable cause to believe that suspending visits is essential to prevent a serious risk of the kind described in regulation 4(1), the provider must continue to facilitate visits to or by a resident, in accordance with regulation 3, if—
   • a) the provider has reasonable cause to believe that,
     • i) before the suspension of visits is lifted, the resident will have died, or undergone (or begun to undergo) a significant deterioration in physical or mental condition, or
     • ii) the suspension of visits is causing, or is likely to cause, serious harm to the resident’s health or wellbeing and the harm outweighs the serious risk, and
   • 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).
2. In determining whether the exception in paragraph (1)(a)(ii) is applicable, it is to be presumed 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.

5.Do you agree or disagree with these statements?

Yes we agree

We strongly agree with the presumption that suspension of Essential Care Supporter visits is likely to cause serious harm to residents' health and wellbeing. This presumption is consistent with robust evidence about the importance of close relationships to physical and mental health, particularly for older people and those with long-term conditions. Research shows that social isolation can have impacts comparable to major health risks, and for care home residents Essential Care Supporters often provide irreplaceable emotional, practical, and advocacy support.

The provision for essential visits when death is imminent or significant deterioration is expected is both humane and necessary. We have all witnessed the profound regret and grief that can follow when families are prevented from being with their loved ones at life's end. Similarly, the recognition that suspended visiting may itself cause serious harm that outweighs the risk that justified suspension demonstrates sophisticated understanding of the complex balancing required.

However, we must acknowledge that these decisions will be extremely challenging in practice. Balancing serious harm against serious risk requires skilled professional assessment, potentially involving social work and health professionals. Care home managers shouldn't be expected to make such weighty decisions without access to professional consultation and support.

The requirement for visitors to agree to mitigation measures is entirely appropriate, but guidance will be needed on what constitutes 'reasonable' precautions. During the COVID-19 pandemic, we saw enormous variation in what different providers requested, from sensible measures like hand hygiene and mask-wearing to requirements that were impractical or ineffective. Clear, evidence-based guidance on reasonable precautions would help ensure consistency and prevent unreasonable barriers.

Beyond the categories specified in Regulation 5, we believe essential visits should also include independent advocacy visits. Where a resident has an independent advocate, these visits should continue to protect their rights and interests, particularly during periods when normal visiting is suspended and residents may be more vulnerable.

Social work visits, including assessment, review, and safeguarding functions, must be able to continue. Social workers have statutory duties toward some care home residents, and preventing such visits could leave vulnerable people without essential protection and support.

Access to legal representatives, especially where there are welfare guardianship or power of attorney matters to address, is crucial. Legal issues don't pause during visiting suspensions, and residents need to be able to access legal advice and representation.

Healthcare professionals – community psychiatric nurses, occupational therapists, physiotherapists, and other healthcare providers – may be essential to residents' wellbeing and should be able to visit when their input is critical to a resident's care.

For some residents, spiritual or religious support is a significant part of their identity and wellbeing. Where this is the case, visits from religious ministers or spiritual advisors should be considered essential.

Finally, interpreters or cultural liaisons may be essential for communication and maintaining cultural connections for residents from minority ethnic communities or those who don't speak English as a first language.

6.If you don't think the visits listed in the regulations should be classed as Essential Visits, what types of visits should be?

Review of Decision to Suspend Visiting - Regulation 6

Purpose

This section explains:

• that a decision to suspend visits must be reviewed if someone asks for a review
• the grounds for requesting a review

More detail on how this would work in practice will be included in the code of practice.

Regulation 6 wording

1. Where a provider has decided to suspend visits, the provider must review that decision upon receipt of a valid request as described in paragraph (2).
2. A request must be in writing and made on one or more of the following grounds—
   • a) that a visit should continue because one of the situations described at regulation 5(1)(a) apply,
   • b) that there has otherwise been a failure to comply with the code of practice so far as it relates to the suspension of visits, or
   • c) that there has been a change of circumstances which requires a review of the decision to suspend visits.

7.Do you agree or disagree with these statements?

Yes we agree

The review mechanism outlined in Regulation 6 is essential for accountability and rights protection. We agree that the grounds for requesting review are appropriate, covering situations where essential visits should continue, where there have been failures to comply with the code of practice, and where circumstances have changed.

To strengthen this mechanism, we suggest that reviews should involve someone not involved in the original decision wherever possible. This independence helps ensure objective reconsideration and builds trust in the process. Local authority social work services should be consulted as part of reviews, particularly for residents with whom they're actively involved. Social workers can provide independent professional perspective and help ensure that residents' wider circumstances and needs are properly considered.

Residents and families should be informed of their right to independent advocacy support in making review requests. The process of challenging a provider's decision can be intimidating, and advocacy support helps ensure that residents' voices are genuinely heard.

Transparency in the review process and its outcomes is vital. All parties should understand what will happen, when, and how decisions will be communicated and implemented.

Additional grounds for review might include concerns about the decision-making process itself – where there are worries that proper procedures weren't followed or relevant factors weren't considered. New information that wasn't available when the original decision was made should trigger reconsideration. Where suspension is having a significantly more serious impact on a particular resident compared to others, this disproportionate impact should be grounds for review. Finally, where the person requesting review can propose alternative ways to mitigate risk that weren't previously considered, this should be heard.

8. If you think there should be any other grounds on which a request could be made please list them here

9.Following a request to review a decision to suspend visiting, how long should the care home have to respond with a conclusion?

Regarding timeframes, given the serious impact of visiting suspension on residents' wellbeing, response must be swift. We suggest providers should acknowledge receipt of review requests within 24 hours and provide an initial decision within 48-72 hours. Where more time is genuinely needed – for instance, to convene multi-disciplinary discussion – this should be communicated with an explanation and maximum timeframe given. If reviews will take longer, consideration should be given to interim arrangements to mitigate harm whilst the review is ongoing.

Notification of Decision to Suspend Visiting - Regulation 7

Purpose

This section explains who a care home provider must notify when they suspend visits. This is Social Care and Social Work Improvement Scotland (SCSWIS) which is commonly known as the Care Inspectorate, and the Chief Social Work Officer of the local authority.

Regulation wording
 

1. Where a provider has suspended visits in accordance with regulation 4, the provider must as soon as practicable notify that decision to—
   • a) Social Care and Social Work Improvement Scotland,
   • b) the chief social work officer of the local authority in whose area the care home is located.

10.Do you agree or disagree with these statements?

Yes we agree

We strongly agree with the notification requirements in Regulation 7. Notifying the Care Inspectorate and the Chief Social Work Officer when visits are suspended provides essential external oversight of significant rights restrictions. This accountability mechanism helps ensure that providers don't take such decisions lightly and that there is broader awareness when visiting restrictions are in place across the sector.

Such notifications also enable providers to access advice and support when making difficult decisions. Both the Care Inspectorate and social work services can offer guidance on managing complex situations whilst upholding residents' rights.

From a safeguarding perspective, ensuring social work services are aware of visiting suspensions is important, as there may be adult protection implications that require social work involvement.

For the purposes of this policy, ‘as soon as practicable’ should be understood to mean within 24 hours of the decision to suspend visiting, or as soon as reasonably possible thereafter in the event of weekend or public holiday closures. Guidance should clarify what information should be included in notifications to ensure consistency and usefulness. The Chief Social Work Officer notification should trigger consideration of whether social work involvement is required for specific residents, particularly those who may be especially vulnerable or for whom visiting restrictions could have serious consequences

About You

We’d like to know more about who is responding to this survey. This helps us understand the feedback in context and make sure the views of different groups are being included. 

Your answers will only be used for analysis and reporting purposes. They will not be used to identify you personally.

Please select the option that best describes you. If you are responding on behalf of an organisation, we’ll also ask for your organisation’s name and type.

11.Who are you responding as?

Individual

On behalf of an organisation

Impacts on care home provider

We’d like to understand how the proposed duties might affect care home providers. This information will help us assess any potential costs, operational impacts, and support needs, such as training or guidance for staff.

Your responses will contribute to the Business and Regulatory Impact Assessment (BRIA), which ensures that the regulations are practical and proportionate for care home services.

Please answer the following questions based on your organisation’s current situation.

12.What type of care does your care service provide?

Care Homes for Older People

Care Homes for People with Physical and Sensory Impairments

Care Homes for People with Learning Disabilities

Care Homes for People with Mental Health Problems

Care Homes for People with Drug and Alcohol Misuse Problems

Short Breaks and Respite Care Services for Adults

13.How many residents do you currently support?

14.What impact will these duties have on your care home?

15.Do you anticipate any further additional costs associated with these additional duties?

Yes

No

16.What training or guidance will care home staff require?

Final thoughts

17.Is there anything else you’d like to say about how the regulations are written or how they might work in practice?