New report finds illegal moves from hospitals to care homes during pandemic

A new report has found “wider concerns” over adherence to the law for patients moved from hospitals to care homes at the height of the pandemic.

The report by the Mental Welfare Commission studied of a sample of all discharges from hospitals to care homes from March to May 2020, raising significant concerns that are “not exclusively the result of the pandemic”.

The Commission studied the detail of 457 individual moves – representing around 10% of all such moves reported at the time by Public Health Scotland – looking at the legal authority behind each decision to move a person who did not have capacity to decide for his or herself.

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 Health and Social Care Partnership (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 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 (as 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.

Practice was not consistent within some HSCPs or across them. Some staff reported that moving from one HSCP to another brought differences in practice into sharp focus, despite existing guidance and policy.

The Mental Welfare Commission is now asking all HSCPs to conduct a full training needs analysis for their staff to ensure they understand the law, capacity and assessment. The Commission is also asking that the Scottish Government monitor the delivery of the recommendations to ensure consistency across HSCPs.

Julie Paterson, Chief Executive of the Mental Welfare Commission, said some of the findings uncovered in the report hint at endemic poor practice.

“Some of our concerns relate specifically to the significant pressures of the pandemic,” Paterson said, continuing: “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.”