This week saw the publication by the Mental Welfare Commission in Scotland of a review of the legality of moves of patients from hospitals to care homes at the height of the pandemic. Their new report – Authority to discharge – report into decision making for people in hospital who lack capacity – is a study of a sample of all discharges from hospitals to care homes from March to May 2020.
The Commission studied 457 individual moves – representing around 10% of all such moves reported at the time by Public Health Scotland – looking at legal authority behind each decision to move a person who did not have capacity to decide for his or herself. The data was supplied by every Health and Social Care Partnership (HSCP) in Scotland apart from Highland, who did not meet the timescale for the report.
Of the 457 cases, the Commission found unlawful moves of 20 people. For some of these moves, there had been specific pandemic related reasons, for example, a misinterpretation that easement of the Social Work Act had been enacted as a result of the Coronavirus (Scotland) Act 2020 when in fact this legislation was never activated and was removed in September 2020. One HSCP introduced an alternative to applications for guardianship orders, making decisions ‘internally’ rather than recourse to the courts, the critical safeguard for individuals. This particular practice started in response to the pandemic and ended in August 2020.
The Commission analysed all of the 457 cases further to assure legal rights were respected and protected beyond the 20 clearly unlawful moves. The Commission asked about the 338 moves said to have been authorised using a Welfare Power of Attorney or Adults with Incapacity legislation. They found that those working in hospital discharge were not always fully aware of the powers held by attorneys or guardians (this was the case in 78 out of 267 cases of power of attorney related moves) or indeed whether the attorney’s powers had been activated or guardianship orders granted. The Commission also found confusion in relation to the reported nature of the care home placement, with potential impact on rights to protection of property where the person was admitted to a care home but remained liable for their property.
Essentially practice was not consistent within some HSCPs or across them despite the range of existing guidance and policy to draw on. As a result Mental Welfare Commission made eight recommendations in the report for HSCP’s including asking for each of them to conduct a full training needs analysis and training programme for their staff to ensure they understand the law, capacity and assessment. There are two recommendations for the Care Inspectorate, including asking them to take account of this report in their inspection activity. There final recommendation is for the Scottish Government to monitor the delivery of their 8 recommendations and to ensure consistency across HSCP’s.
Last month the Crown Office revealed that at least 3,400 Scottish care home residents may have died from Coronovirus since March 2020. See the interactive map of where they died produced by the BBC from the Crown Office figures which you can access HERE.
There is going to be a public inquiry into what has gone wrong during the Coronovirus pandemic. Moving vulnerable people out of hospital’s where COVID-19 cases were reported to Care Homes with virtually no recorded cases at the time, almost everyone admits now was clearly the wrong thing to do. Many countries did it, including all the UK home countries and many other legislations across the Western World. Finding out that many of the moves may have been carried out illegally and without the consent of those involved who ultimately were still moved, just highlights the injustice done to care homes. Many of those homes did object to the practice and did complain at the time but the discharges and transfers continued nonetheless.
Its time for our care homes to be treated as the valued part of the Health and Social Care system that they really are, and not as the dumping ground and easy solution for NHS problems, as could be argued when you put the two stories above together.
As Julie Paterson, chief executive of the Mental Welfare Commission, 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 …worryingly our report found 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. … We call on Health and Social Care Partnerships across Scotland, the Care Inspectorate and the Scottish Government to read our report in detail and act swiftly on our recommendations”.