Analysis: Free personal care is a flagship for Scottish devolution, proudly cited by all parties as showing Scotland�s priorities are more compassionate than its neighbours.

Free personal care is a flagship for Scottish devolution, proudly cited by all parties as showing Scotland's priorities are more compassionate than its neighbours.

The SNP shared credit with Labour and LibDem ministers, but has now been landed with the fast-rising bill and legal problems, alongside growing tensions with the judiciary.

Difficulties with free personal care are not new. Critics see it as a subsidy for affluent Scots, and the wrong priority with scarce resources. Some warn costs will soar with spiralling numbers of older Scots having long-term care needs.

The legislation has also been criticised for lack of clarity, one reason the incoming SNP administration asked Lord Sutherland of Houndwood, an architect of the policy, to review its operation and report by March.

Argyll and Bute was first to admit it could not afford the policy, using a waiting list for those assessed as needing care. It was over that policy William McLachlan, a 61-year retired IT consultant from Helensburgh, went to the Public Services Ombudsman, Alice Brown, with his father's case. The elder William McLachlan was 90 last year when he was assessed as deserving care. Argyll and Bute Council began to pay for it three months later, and refused to backdate.

Professor Brown found against the council, issuing one of several warnings to the then Scottish Executive that the law needed clarified. Councils and lobbyists for the elderly said likewise, and Argyll and Bute Council opted to expose the law's weaknesses through challenging the Ombudsman's findings in the Court of Session.

The elder Mr McLachlan died by the time of the hearings, with expensive counsel on both sides at the public's expense. The local authority argued it could not provide services without having resources. If that argument had been won, it could have led to extensive use of waiting lists - but it was not.

Lord Macphail ruled yesterday that those deemed to need personal care should get it without delay.

To widespread astonishment, the council won a different argument, introduced late in proceedings and which appeared to be an afterthought: that it was not liable to pay at all for someone, such as Mr McLachlan, who had arranged his own place in a private care home and was funding it himself.

Lord Macphail's agreement with that has implications that go much further than waiting lists. For the 9500 elderly Scots who are "self-funders" in residential homes, with the means to pay for their own room and board, councils can now choose whether to pay them personal care allowances of £145 per week - this year costing £71m.

In his ruling, Lord Macphail acknowledged courts should heed legislators' intentions, and it was clear they wanted this policy to be for all, but he ruled there is no way round the "unambiguous" wording of the Community Care and Health (Scotland) Act 2002, and that courts "cannot ignore the natural meaning of the clear words the legislature has chosen to use".

In other words, the law is poorly worded and needs amendment, but with the ruling is a tough message to Scottish Government ministers, with whom judges are having increasingly difficult relations over sentencing and questions of judicial independence.

A legal torpedo has holed this flagship policy - urgent action is needed to repair it.

Patient in Dundee hospital contracts C diff superbug

An elderly patient at a Scottish hospital has been struck down by potentially lethal Clostridium difficile.

Doctors at Ninewells Hospital in Dundee have confirmed to the family of Annie Murdoch that the 79-year-old has acquired the infection. But they denied a general outbreak of the bug.

Mrs Murdoch has been in hospital for more than three months after a fall on holiday in Tenerife.

The development comes days after six patients were treated for C diff infection at the Victoria Infirmary, Glasgow. On Monday it was revealed four had recovered and two were still showing symptoms. NHS Greater Glasgow and Clyde were unable to give updates on their condition last night.