Coronavirus pandemic: Scotland's treatment of elderly people in care homes must be investigated by independent inquiry – Richard Leonard

The decision to move elderly hospital patients to care homes without a coronavirus test and other controversial choices must be thoroughly examined, writes Richard Leonard MSP.

How Scotland treats its older generation says a lot about the kind of society it is, says Richard Leonard

A human rights-based inquiry is necessary to consider what has happened in our care homes during the coronavirus pandemic. The inquiry should be “independent, prompt, determine responsibility, be subject to public scrutiny and must allow for the involvement of next of kin”.

This is not just my view. It is the view of the chair of the Scottish Human Rights Commission, Judith Robertson. The Commission acknowledges that there are legitimate human rights concerns about what has happened in Scotland’s care homes over the last four months. The Commission believes these concerns fall under Article 2 of the European Convention on Human Rights (ECHR). This covers the right to life, as well as other ECHR-backed rights such as the right to be free from inhuman and degrading treatment, the right to a private home and family life, and the right to non-discrimination. The Commission wrote to the Scottish Government back in April.

The Law Society of Scotland has gone even further. In its submission to a Scottish Parliament inquiry which is looking into the “measures taken by the Scottish Government and other public bodies and the impacts they may have on equality and human rights”, the Law Society is scathing about the blanket issuing of ‘Do Not Attempt Cardio Pulmonary Resuscitation’ (DNR) forms, which they describe as part of a wider “culture of unnecessary de-personalisation”. It is a culture which has not spontaneously emerged, but which has been planned for.

Human rights concerns have also been raised about the policy of solitary confinement of older people in care homes, especially those with dementia who experience heightened distress.

The Scottish Government’s decision to rush through the early discharge of 1,431 older patients from hospital and move them into nursing homes without their consent, or even the knowledge of their families, represents in the Law Society’s view both a “deprivation of liberty” and the denial of the right to a private and family life. Add to that the certain knowledge that none of these older patients were tested for Covid-19 before they were admitted to residential and nursing home care and the violation is compounded.

Sturgeon’s flimsy defence

On the Scottish Government’s guidance for nursing home and residential care, in which it explicitly called for residents in long-term care with Covid-19 to be denied admission to hospital, without any individual assessment, the Law Society of Scotland concluded: “This is a violation of rights to treatment and to non-discrimination and would also point to breach of key requirements for consultation in relevant legislation.”

This guidance was in place from the March 13 to May 15, during which time outbreaks of the virus, and deaths in care homes were at their height. When I challenged the First Minister on this in Parliament last week, she tried to hide behind a rather flimsy defence that this was not her advice but that of the Chief Medical Officer.

The decision to impose a blanket ban on transfers to hospitals for care home residents was both a political choice, and a moral one. It is impossible to conclude other than this must have had political sign-off. When I raised the policy with the First Minister in April, she denied there was any such guidance.

When I asked for an urgent review of what had happened in Scotland’s care homes so that we can rapidly learn lessons before any second wave arrives, I was told this was unnecessary. But in a democracy, there must be scrutiny.

When we consider that care home residents comprise 0.7 per cent of the population of Scotland yet 47 per cent of all Covid-19 deaths in Scotland have been in care homes – over 50 per cent if we take account of care home residents who died in hospital. This has become more than simply a crisis within a crisis, it is without question the greatest scandal of the pandemic to emerge so far.

‘Fight a fire blindfolded’

Standing up for the human rights and upholding respect for older people should have been central to the SNP Government’s approach. But it appears that the reverse is true.

In the rush to prepare and protect the National Health Service, social care was overlooked.

The early strategy of testing and contact tracing was abandoned, which in turn exposed staff in care homes, the people they work with and the vulnerable and susceptible people they care for to a greater risk of the virus spreading, and so to a higher risk of death. As the World Health Organisation warned at the time, to contain and defeat the virus you need to know where it is, it is not possible to “fight a fire blindfolded” hence their mantra of “test, test, test”.

The European Centre for Disease Prevention and Control recommended that staff in long-term care facilities should be tested on a regular basis: twice weekly. We have never got close to that.

The shortage of Personal Protective Equipment in the social care sector was predicted in the desk-top planning initiative Exercise Iris run by the Scottish Government in 2018. Just as it had been predicted in the 2015 Scottish Government-led simulation exercise Silver Swan which also warned of gaps in preparedness in social care. So these are not concerns raised with the benefit of hindsight but raised in the knowledge of foresight which was not acted upon.

A need for action

How we treat our older people says a lot about what kind of society we are. This summer, Scottish Labour will be developing our vision for a National Care Service with people – and not profit – at its heart. We will put this vision to the people of Scotland as a key pillar of our manifesto in next year’s Scottish Parliament elections.

But there is clearly a need for action now. Where there is a violation of the human rights of those who are themselves no longer in a position to speak out, it places a greater responsibility on the shoulders of those who can.

So I for one will continue to speak up, that’s the very least that can be done, in memory of those who have lost their lives, and to fight for the living.

Almost a third of Scotland’s adult care homes still have a current case of suspected Covid-19. So this battle is not done and if there is a second wave, we must ensure that there is no second scandal.

Richard Leonard is leader of the Scottish Labour Party

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