Thousands of elderly patients were discharged from hospitals to care homes in the early months of the pandemic to free up hospital beds in a move the Scottish Government later admitted was a “mistake”
In a report, Authority to Discharge, the Mental Welfare Commission for Scotland has analysed around 10 per cent of these moves – 457 patients – and found 20 were unlawful.
The “disappointing” findings expose “endemic examples of poor practice”, the commission said, some of which pre-dates the pandemic.
A lack of understanding of the law, power of attorney and good practice mean many more than 20 patients are likely to have been moved unlawfully, said Julie Paterson, chief executive of the commission.
Jackie Baillie, Scottish Labour health spokesperson, called the moves “scandalous”.
Scottish Care, which is a representative body for independent social care, said the report made for “disturbing reading”.
A previous report from Public Health Scotland found that it “could not rule out” a link between hospital discharges and later Covid-19 outbreaks in care homes. Thousands of patients were moved without Covid-19 tests and some were moved even after testing positive.
It comes as a rise in Covid cases was reported in Glasgow and East Renfrewshire, as door-to-door PCR testing commenced in Pollokshields.
Case rates have fallen in Midlothian and the situation in Moray continues to improve.
Scotland recorded its highest daily case total in almost a month on Wednesday, at 394. However, test positivity is still relatively low at 1.6 per cent.
Unlawful moves from hospitals to care homes were made across 11 different Health and Social Care Partnerships (HSCPs) around the country, the report found, although the specific locations were not listed in the document.
Practice was not consistent across HSCPs, or in some cases within the same HSCP.
In some cases vulnerable patients were moved under new legislation drawn up during the Covid-19 pandemic, which had not actually been activated.
In other cases laws around power of attorney or guardianship had not been correctly followed.
Ms Paterson 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."
The commission has made eight recommendations for HSCPs, including asking each to conduct a full training needs analysis and programme for staff to ensure they understand the law, capacity and assessment.
There are two recommendations for the Care Inspectorate, including taking account of this report in their inspection activity, and one for the Scottish Government, that it monitors delivery of the recommendations and ensures consistency across HSCPs.
A spokesperson for Scottish Care said the report exposed “very real knowledge and skills’ gaps in discharge practice from hospital to care homes and the community”.
"Organisations like Scottish Care have long argued that it is critical that we reform our processes around discharge from hospital, especially for those who may have diminished or fluctuating capacity,” the spokesperson said.
"This means we need to involve families, relatives and staff from care homes and homecare at a much earlier stage in decision-making.
"There are simply too many instances where decisions are being made with a limited knowledge of the best interests and needs of the person involved. A professional knows best attitude has no place in modern care and support.
"That is regrettable at any time, but especially so during a pandemic.”
Ms Baillie renewed calls for a Scotland-specific inquiry into the handling of the pandemic.
"The discharge of untested patients into care homes was scandalous and fanned the flames of the virus,” she said.
"We already know that this dangerous practice led to many deaths and breached the human rights of those in our care homes.
"We need an immediate, Scotland-specific inquiry into the government's failures during the pandemic.”
A spokesperson for COSLA, which represents Scotland’s councils, said they welcomed the report and would consider its recommendations.
A spokesperson 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.
“The rights of people experiencing care are paramount. Our work is aligned to Scotland’s Health and Social Care Standards, which ensures that our approach to our scrutiny, assurance and quality improvement focuses on protecting people’s rights.”
The Scottish Government also welcomed the report.
A spokesperson said: “Any decisions taken with respect to adults lacking capacity – which are made by health and social care professionals in consultation with the individual or their families and representatives independently of ministers – should put their rights, will and preference first and foremost.
“The Scottish Government is working with Health and Social Care Partnerships 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. We will also continue to engage with Health and Social Care Partnerships to share good practice.”