Committee
Health, Social Care and Sport Committee 17 February 2026 [Draft]
17 Feb 2026 · S6 · Health, Social Care and Sport Committee
Item of business
Subordinate Legislation
Care Home Services (Visits to and by Care Home Residents) (Scotland) Regulations 2026 [Draft]
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 the same item of business
The Convener
SNP
The next item on our agenda is consideration of a second affirmative instrument. This draft statutory instrument requires approval by resolution of the Parli...
Tom Arthur
SNP
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 rela...
The Convener
SNP
Thank you for that opening statement, minister. We have a number of questions, and I will go first to Sandesh Gulhane.
Sandesh Gulhane
Con
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...
Tom Arthur
SNP
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 ser...
Sandesh Gulhane
Con
Who holds the ultimate clinical responsibility for risk decisions—the provider or public health authorities?
Tom Arthur
SNP
In what regard?
Sandesh Gulhane
Con
In saying that an essential care supporter cannot come into a care home.
Tom Arthur
SNP
Just for clarification, Dr Gulhane, are you talking about a scenario in which no visits at all would be possible?
Sandesh Gulhane
Con
Yes.
Tom Arthur
SNP
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 i...
Fiona Hodgkiss (Scottish Government)
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 loc...
Sandesh Gulhane
Con
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 m...
Fiona Hodgkiss
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 ...
Sandesh Gulhane
Con
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 E...
Fiona Hodgkiss
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 e...
Sandesh Gulhane
Con
Obviously, the legislation has come about through exceptional circumstances, and the concern is that, if such circumstances were to happen again, the protect...
Brian Whittle
Con
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 provid...
Tom Arthur
SNP
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 operationa...
Jennifer Gilmour (Scottish Government)
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 som...
Brian Whittle
Con
We are talking about a future code of practice that will not be legally binding. Are there concerns about how it might be implemented?
Jennifer Gilmour
The code of practice has a statutory basis and represents the operationalisation of the regulations, giving it a very strong foundation. The Care Inspectorat...
Brian Whittle
Con
If the Care Inspectorate is inspecting against a code of practice that is not legally binding, what enforcement powers would it have?
Jennifer Gilmour
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 ...
Emma Harper
SNP
Good morning. We have reviewed information on the suspension of visiting, which was raised in various written submissions. The submission from Dumfries and G...
Tom Arthur
SNP
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 ...
Fiona Hodgkiss
I will make two points. First, providers have responsibility for taking those decisions. Secondly, they are not doing that in isolation; they are taking advi...
Emma Harper
SNP
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 outbr...
Fiona Hodgkiss
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 hom...
Emma Harper
SNP
Engagement is required between all the professionals involved, including Public Health Scotland, local authorities and health and social care partnerships, b...