Scottish Government urged to show discharges to care homes were ‘lawful’

The Scottish Government is being urged to provide evidence to show that patients transferred from hospitals to care homes during the coronavirus pandemic were moved lawfully.

The Law Society of Scotland said it was a “startling omission” that such information was not in a Public Health Scotland report on the issue.

With such information not being available, Adrian Ward of the Law Society said he was “deeply concerned” about whether people’s rights had been upheld, particularly for patients who could not or did not consent to being moved.

According to the Law Society, of the 4,807 patients discharged between March 1 and May 31, 272 had dementia, 145 suffered from delirium and 112 lacked sufficient capacity to consent to testing for Covid-19.

Mr Ward, convener of the Law Society of Scotland’s mental health and disability subcommittee, said: “It is a startling omission by Public Health Scotland in its 58-page report to have no account or analysis of the legal basis for transferring those patients.

“With such a lack of information, we are deeply concerned about whether the rights of these individuals have been upheld, particularly any who lacked capacity to give valid consent.

“There are a number of questions that need answers. How many of these patients were assessed as being competent to consent to the transfer? How many did so? Was their consent properly documented?

“It seems likely from the report that many people so transferred lacked relevant capacity to consent to the transfer. Yet there is no acknowledgement of the necessity for a legal process to move such patients, or to record what it was and that it was properly followed.

“The fundamental right to liberty and security is guaranteed by Article 5 of the European Convention on Human Rights. Unless a procedure prescribed by law has been properly followed, patients taken from their beds to be put and kept somewhere other than where they were admitted from, even temporarily, without their competent consent, were unlawfully deprived of their liberty.

“We urge the Scottish Government to release this data immediately, to demonstrate whether any patients were moved unlawfully, in violation of their fundamental rights.”

It raised the issue after last month’s report showed more than 100 people who had tested positive for Covid-19 were discharged from hospitals into care homes without first receiving a negative test.

This happened 113 times between March 1 and May 31, Public Health Scotland found.

Between March 1 and April 21 there were 3,599 discharges from hospitals to care homes, with the majority (81.9%) not tested for coronavirus.

Speaking at the time the report was published, First Minister Nicola Sturgeon said it showed that when other factors such as the size of a care home were factored in, “hospital discharges were not found to have contributed to a significantly higher risk of an outbreak”.

A Scottish Government spokesman said: “The Scottish Government is clear that any decisions taken with respect to adults lacking capacity should put their rights, will and preference first and foremost.

“Decisions to discharge patients are not made by ministers, they are made by health and social care professionals, alongside the patient and their family members.

“Where someone is most appropriately cared for after discharge is based on a multi-disciplinary assessment of the individual’s needs and wishes.

“But we have also been clear for those moving from hospital to another setting, especially care homes, steps need to be taken to ensure this happens safely.

“Our priority throughout the Covid-19 pandemic has been to save lives, and we have taken firm action to protect people, including care home staff and residents.

“Ministers recognise the careful balance required between the right to life, given the potential risk posed by the pandemic, and the right to be consulted in actions that affect a person.

“Scottish ministers have already confirmed that there will be a public inquiry into all aspects of the impact and handling of Covid-19, and this would include care homes.”