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Over the past year, the Mental Welfare Commission for Scotland (MWC) has investigated reports of patients with mental illnesses, dementia and brain injuries - known as ‘patients with incapacity’ - being transferred from hospital to care homes without the laws governing their consent being followed.
The vast majority of 'patients with incapacity' suffer from dementia.
The MWC found that at least 20 people in Scotland who lacked the capacity to agree to move from hospital into a care home setting were unlawfully transferred, despite care homes being overrun by coronavirus outbreaks during the first wave of the pandemic, because there was "pressure on wards to clear beds".
The MWC only used a 10% sample of hospital-to-care-home transfers, meaning the real number is likely significantly higher.
From the data sample, one patient from Edinburgh was found to have been moved unlawfully between March and May 2020, and another from West Lothian.
The report found there was a “general lack of understanding of the law” and that “assumptions were made about whether legal “powers were in fact in place”.
A confidential briefing note, sent to Edinburgh City Council members by Edinburgh Health and Social Care Partnership (HSCP) chief officer Judith Proctor, said this was ‘counter to people’s human rights’.
The note, seen by the Local Democracy Reporting Service, reads: “The report highlights some inconsistencies in the use of legal authority across Scotland and also highlights a serious concern that in some cases they reviewed, that no clear legal authority was utilised, counter to people’s human rights.
“The MWC report sets out that Edinburgh HSCP was one of a number of partnerships where a range of methods were utilised to facilitate discharges but also notes that Edinburgh was one of 12 partnerships where the MWC found a case or cases where ‘no legal authority’ was found.
“The MWC have recently, following the publication of their report, confirmed that there was one case in Edinburgh that they had concern with and that we are in active discussion with them about this case to better understand any associated practice issues.”
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.
"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.
“This 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”.
In response, councillors from the city’s Conservative and Green Party groups tried to introduce emergency motions at a meeting of Edinburgh City Council on Thursday May 27, to discuss the findings.
However - the council’s ruling SNP/Labour administration refused to accept the motions, but did accept an emergency motion congratulating Josh Taylor on becoming the undisputed light-welterweight world champion.
The motions will instead be heard at the next full council meeting in June.
Defending the decision to refuse to hear the motion, SNP council leader Adam McVey, Leith, said: “I absolutely agree that these issues are of utmost importance - they need to be treated with seriousness and adaptation that they require.
“We need to discuss these things when we have the facts, and we don’t have all the facts yet.
“We have some very serious recommendations from the commission, and it is our responsibility to look at that as a council properly - not, dare I say, to cobble together an emergency motion which is thrown at elected members with only a couple of hours notice.”
Conservative councillor Phil Doggart said: “It is a disgrace that the City of Edinburgh Council believes the unlawful discharge of anyone from hospital is not worthy of urgent debate.
“Councillors will have had plenty of opportunity to read the Mental Welfare Commission’s report into discharges, so any suggestion that submitting an urgent motion on the matter is knee jerk is ludicrous.
“Given the report also contradicts an answer provided by the leader of the council, presumably under advice from officers, failure to discuss this matter is a dereliction of duty by the SNP/Labour administration.
“Of course, it is perfectly acceptable to accept an urgent motion congratulating a sportsman.
“Priorities seem to be inverted. Time for a change to make sure the issues that affect the residents of Edinburgh are discussed in the place where their representatives sit.
Green councillor Melanie Main said: “I am dismayed that the emergency motion was not discussed today.
“It sought to give prompt attention to a potentially huge issue.
“In the report, only 10% of cases were reviewed, so we don’t know if any of the remaining 90% patients being discharged from hospital to a care home have been treated as they should have been.
“Edinburgh needs to know what happened in all of these sensitive cases and the sooner this is started the better.”
In December, NHS Lothian said it had identified five cases of patient transfers from its hospitals to care homes that coincide with outbreaks within care settings during the first wave of the coronavirus pandemic.
A number of those five patients have been assessed as either ‘probable’ or ‘possible’ causes of care home outbreaks, but NHS Lothian is refusing to give an exact number, claiming that ‘statistical governance disclosure control prevents release of the exact number’.
A spokesperson for the Edinburgh Health and Social Care Partnership, which comprises Edinburgh City Council and NHS Lothian, said: “The HSCP welcome the MWC report and recognise the importance of reviewing the recommendations to ensure best practice.
"At this moment in time the Mental Welfare Commission have provided no detail in relation to the specific case where they believe no legal authority was in place at the point of discharge.
"As soon as we have that information we will review the circumstances and act accordingly.
“Discharge from hospital can be complex for people with ongoing support needs and in these cases it is always a multi-disciplinary process involving clinical staff and social work and social care professionals.
"The MWC have indicated that they will be reaching out to partnerships shortly so, ahead of this discussion, we are closely reviewing the report and its recommendations along with our partners in City of Edinburgh Council and NHS Lothian, and will work together on any learning arising from this.”