The Mental Welfare Commission for Scotland says it has identified a series of instances where the law was broken when people were moved from hospital to care homes at the height of the pandemic – and some ‘endemic’ bad practice amongst some health and social care partnerships (HSCPs) pre-dating the pandemic.

The watchdog investigated the legal authority behind the decisions to transfer 457 people who did not have capacity to agree to the move themselves.

It found that, for 20 people, the process had been unlawful.

In a report published this morning into the legality of a series of discharges – and specifically how decisions were made for people who lacked capacity to make them themselves – the Commission says it has highlighted inconsistencies and misunderstandings of the law.

This included an instance where one partnership decided to introduce its own process for applying for guardianship orders, ignoring its legal duty to involve the courts.

In the early days of the pandemic, the Scottish government asked NHS boards and HSCPs to reduce delayed discharge numbers by a total of 900 over March and April.

Local areas had different reactions to the target to reduce discharges, with some describing them as an “unnecessary additional pressure” and saying it would not have been safe to reduce delayed discharges any further, according to interviews with HSCP leaders.

The Commission says it found a lack of understanding of Adults with Incapacity legislation.

Analysing 338 moves recorded as having been authorised using a Welfare Power of Attorney, they found that those working on hospital discharges weren’t fully aware of what powers were held by a particular attorney or guardian and whether that attorney’s powers had ever been activated or a Guardianship Order granted.

The report, Authority to Discharge, cites the example of one HSCP that, for several months last year, operated an alternative process for applications for guardianship orders, deciding to make decisions in-house rather than complying with what the Commission says is a critical safeguard of going to the courts.

In another instance, HSCPs believed that they were following an easing of the rules under the Social Work Act brought in under emergency coronavirus legislation when, in fact, the legislation was never activated.

The Chief Executive of the Mental Welfare Commission, Julie Patterson, says their investigation into a sample of around 10% of those discharged to care homes from hospital across Scotland sought to establish whether the process was done in accordance with the law:

“People who lack mental capacity and who are being cared for and treated in care homes and hospitals are amongst the most vulnerable in our society.

“Some of our concerns relate specifically to the significant pressures of the pandemic.

“But, worryingly, the report also finds some endemic examples of poor practice: lack of understanding of the law, lack of understanding of good practice, confusion over the nature of placements, missed understanding over power of attorney.

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

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

“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.”

The Mental Welfare Commission makes eight recommendations in the report for Health and Social Care Partnerships 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.

 

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