Legal concerns after hospital patients moved to care homes at height of pandemic

A new report looking into patients being moved from hospitals to care homes in Scotland at the height of the coronavirus pandemic has raised legal concerns – with some going beyond the early days of restrictions.

The Mental Welfare Commission’s new report into decision-making for people in hospital who lack capacity has studied a sample of all discharges from hospitals to care homes from March to May 2020.

Public Health Scotland said last month it “cannot rule out” a link between hospital discharges and Covid-19 outbreaks in care homes, with nearly a third of those experiencing an outbreak.

The new report, Authority to discharge, studied the detail of 457 moves – around 10% of the number reported at the time by Public Health Scotland – and found 20 of those to have been unlawful.

According to the Commission, a number of these were related to the pandemic, including a misinterpretation that the Social Work Act had been eased as a result of the Coronavirus (Scotland) Act 2020 when the legislation was never activated and removed in September that year.

One Health and Social Care Partnership (HSCP) introduced alternative applications for guardianship orders, making decisions “internally” instead of recourse to the courts – the Commission found this started in response to the pandemic and ended in August 2020.

The Commission also asked about the 338 moves said to have been authorised using Welfare Power of Attorney or Adults with Incapacity legislation and found those working in hospital discharge were not always fully aware of the powers held by attorneys or guardians (in 78 out of 267 cases).

Care home placement also caused confusion in some cases, the report suggested, where someone was admitted to a care home but remained liable for their property.

Eight recommendations in the report have been made for HSCPs including asking each to conduct a full training needs analysis and programme for staff to ensure they understand the law, capacity and assessment.

The Care Inspectorate has two recommendations, including asking to take account of this report in their inspection activity, and a final recommendation for the Scottish Government asking that they monitor the delivery of the recommendations and to ensure consistency across HSCPs.

Chief executive Julie Paterson (pictured) said: “People who lack mental capacity and who are being cared for and treated in care homes and hospitals are among the most vulnerable in our society.

“The focus of this report was to examine the detail of a sample number of hospital to care home moves of people from across Scotland, to check that those moves were done in accordance with the law during the early stages of the pandemic.

“Some of our concerns relate specifically to the significant pressures of the pandemic. But worryingly, the report also finds more endemic examples of poor practice.

“Lack of understanding of the law, lack of understanding of good practice, confusion over the nature of placements, misunderstanding over power of attorney.

“These findings are very disappointing and may mean that many more moves were made without valid legal authority.

“This report also finds a lack of uniformity from one HSCP to another, with different approaches to national legislation and guidance adopted in different areas.”

A Care Inspectorate spokesman said: “This is an important report. We welcome the opportunity to consider its findings carefully and will be taking the recommendations from it forward.

“The rights of people experiencing care are paramount. Our work is aligned to Scotland’s Health and Social Care Standards which ensures that our approach to our scrutiny, assurance and quality improvement focuses on protecting people’s rights.”

A spokeswoman for the Scottish Government said: “We welcome the Mental Welfare Commission report, and expect its recommendations to be addressed in full.

“Any decisions taken with respect to adults lacking capacity – which are made by health and social care professionals in consultation with the individual or their families and representatives independently of ministers – should put their rights, will and preference first and foremost.

“The Scottish Government is working with Health and Social Care Partnerships to improve the process, so that frail, older people do not have to spend any longer than necessary in hospital, while ensuring discharges are lawful. We will also continue to engage with Health and Social Care Partnerships to share good practice.”

A spokesman for local government body Cosla said: “We welcome this report and will consider the recommendations contained within it.”

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