Covid push to clear Scotland's hospital wards led to 'unlawful' transfers to care homes

Investigators said they had been told of "pressure on wards to clear beds" between March and May 2020 as hospitals prepared for an influx of Covid patients, but stressed that they also uncovered evidence of long-standing inconsistencies and misunderstandings within health and social care partnerships (HSCPs) about the law surrounding adults with incapacity.

Julie Paterson

Julie Paterson, chief executive of the Mental Welfare Commission for Scotland, 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."

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The probe stems from concerns first raised by a judicial review spearheaded by the Equality and Human Rights Commission, which led in December 2020 to NHS Greater Glasgow and Clyde and care home chain owner HC One Oval Ltd agreeing to end the practice of placing patients in care homes without legal authority.

The EHRC told the Court of Session that it was aware of at least 54 cases of patients who lacked the capacity to consent being transferred into secure accommodation in Glasgow and held there for weeks or years, pending the appointment of a welfare guardian.

The Mental Welfare Commission, who had been party to the judicial review, subsequently wrote to the chief officers of all 31 HSCPs in Scotland requesting information on patients transferred from hospitals to registered care homes between March 1 and May 31 2020.

From this they were able to identify 457 relevant cases where the patients had lacked the mental capacity to consent to the move. This represented around 10 per cent of all hospital-to-care home transfers which occurred during the period.

Further analysis found that 20 were "clearly unlawful" in the sense that they had taken place without any proper legal authority.

These occurred in 11 HSCP areas: Aberdeen, Aberdeenshire, Moray, Argyll and Bute, Borders, Edinburgh, North Ayrshire, North Lanarkshire, Orkney, Shetland and West Lothian.

The report also notes that 113 patients were moved into care homes initially on a temporary basis, adding that "HSCPs told us that there was pressure on wards to clear beds".

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Seven patients had been transferred into respite facilities, normally used to give short breaks to carers, but some had remained there long-term with "significant implications" for their finances if they were also meeting the costs of their own homes in the community.

The report states: "We received feedback from HSCPs that suggested a focus on beds rather than people. This raises significant concerns in relation to the rights, will and preferences of the most vulnerable adults who lack capacity."

The MWC said it was "particularly concerned" about cases where incapacity was "assumed" because the patient had a Power of Attorney without any formal assessment of incapacity taking place which is "crucial for this legal authority to become valid".

Of the 267 cases where moves were based on a PoA, 70 had no record of when the PoA was granted and in 78 cases the HSCP practitioners said they not read the PoA document.

The MWC also found cases where patients were moved based on S.47 orders used to certificate medical treatment in people with incapacity but which "[do] not extend to decisions in relation to a significant move to a registered care setting with 24-hour supervision at all times".

Two thirds of adults with incapacity transferred from hospitals to care homes had dementia and nearly half were over 85 (Source: MWC)

The agency said it repeatedly found HSCP staff unaware that moving patients into care homes without due process - even if they believed it to be in their best interests - could amount to an unlawful "deprivation of liberty".

It said: "Those involved in discharge planning were under significant pressure to manage delayed discharges, which felt like a process of 'emptying beds' and it was a 'battle' to retain focus on the person."

The MWC has issued a series of recommendations, including demands for staff training and improved record-keeping.

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Henry Simmons, chief executive of Alzheimer Scotland’s, said the findings were "deeply troubling".

He said: "We acknowledge that this is a complex issue however the fact remains that moving someone who cannot consent, to a care home or other setting, without appropriate legal safeguards is simply not acceptable."

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

A spokeswoman for COSLA, the umbrella body for councils who form HSCPs with health boards, said: “We welcome this report and will consider the recommendations contained within it.”

A Scottish Government spokeswoman said it is working with HSCPs “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".