THE move to discharge hundreds of elderly patients from hospital into care homes during the coronavirus pandemic may have breached the law, the Herald can reveal.
Both the Law Society of Scotland and Edinburgh Napier University’s Centre for Mental Health and Capacity Law have highlighted concerns that adults who have ‘capacity’ issues such as mental illness, learning disability and dementia may have been discharged or moved “without due legal process”.
Concerns in part surround whether account is taken of the wishes of the patient or family.
The legal experts have been joined by the Scottish Human Rights Commission in calling for an independent monitoring or review of the discharges.
The movements have been blamed for seeding Covid throughout Scotland’s network of over 1000 care homes, and exposing elderly and vulnerable residents to the disease.
Critics of the Scottish Government claim the elderly had been “rushed out of hospital” as part of the drive to clear NHS beds in readiness for Covid cases.
Official data reveals that in February and March alone over one in three patients (1500) on delayed discharge were moved to care homes and 2,800 went home.
Some 22% of delayed discharge patients at July 6 were ‘adults with incapacity’.
As of Thursday, 46% of the 4,247 Covid-19 registered deaths in Scotland were in care homes.
Concerns about the status of hundreds of vulnerable patients has been raised initially by Edinburgh Napier University’s Centre for Mental Health and Capacity Law, which in an analysis has highlighted human rights failures in the way the Scottish Government has handled the crisis.
In an analysis it said it was “very concerned” that since the start of the pandemic adults who lack capacity may have been discharged or moved without due legal process in what appeared to be a violation of the the European Convention on Human Rights (ECHR) and the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD).
The breaches relate to the ECHR right to personal liberty and security and the right of respect for private and family life and the CRPD violation also relates to equal rights for people with disabilities.
READ MORE: Revealed: The scale of “hasty” move of elderly from hospital to Scots care homes over coronavirus
It was concerned that some of the discharges may have resulted in “inappropriate and discriminatory restrictions on individual autonomy without a legal basis”.
It noted that deprivations of liberty can “potentially arise in many care-related situations, for example, physical restraint, isolation, and restrictions of movement and contact with family”.
It added: “We therefore strongly recommend that there is independent monitoring or review of these discharges.”
In an earlier more wide-ranging analysis, Jill Stavert, director of the university centre has said that it was “striking that relatively little attention” appeared to have been paid in the development of emergency Covid legislation and guidance to the requirements of the ECHR and CRPD, Further concern has arisen with section 13ZA of the Social Work (Scotland) Act 1968 (SWSA) which she said allowed local authorities to move an adult who lacks capacity to a care setting.
Normally local authorities must adhere to the principle that account has to be taken of the adult’s present and past ascertainable wishes and feelings and the views of guardians, attorneys, named persons and primary carers when making decisions about such a move.
The use of section 13ZA is expressly ruled out if a welfare guardian is in place or in the process of being appointed.
Concerns have been raised that the Coronavirus (Scotland) Act 2020 removes the requirement to take account of the views of the adult and others, and permits section 13ZA to be used even if a guardian has been appointed who could legally authorise the placement.
“It calls into question whether it is legitimate to disregard an individual’s rights to respect for private and family life and exercise of legal capacity to this extent,” she said.
“Clearly, the importance of providing access to appropriate supported decision-making, or support for the exercise of legal capacity, to actively support persons with mental disabilities to make their voice heard in health and welfare decisions on an equal basis with others cannot be underestimated.”
The ECHR is embedded in the UK and Scottish legal framework by the Human Rights Act 1998 requiring public authorities to give effect to its rights and allowing for those rights to be enforced through national courts and tribunals.
Ms Stavert said European Convention on Human Rights concerns arise when people who lack capacity have been moved to a care setting under the modified SWSA measures.
“This category of persons may find themselves deprived not only of their liberty but also automatic judicial review of its lawfulness both during and after the operation of the emergency measures,” she said.
Ms Stavert added that the “ECHR purchase is even greater in Scotland where non-compliant devolved legislation and policy is unlawful and thus unenforceable”.
“Coping with the Covid-19 pandemic may result in unprecedented demands being made on health and social care services, and measures have been proposed or adopted to address this,” she said. “Whilst such measures may impact on the extent to persons with mental disabilities, and others, may enjoy the protections that such rights provide, these protections cannot be completely, disproportionally and discriminatorily reduced.
The Law Society of Scotland which shared the Napier centre’s concerns said Article 5 of ECHR is breached whenever someone who has not consented to an arrangement is put somewhere where they are under continuous supervision or control and are not free to leave. That applied to anyone who is moved from one place to another, where they have not been able to consent to that move – whether they object or acquiesce.
The Law Society in an assessment said that the law continues to apply “with full force and effect” during the pandemic, because the UK is not one of the European states that have derogated from Article 5.
Any decisions made regarding community care services for ‘adults with incapacity’ are made under the existing provisions of section 13ZA of the Social Work (Scotland) Act 1968.
But the Law Society says that the section cannot be used for any action that would amount to a deprivation of liberty.
And it said that can arise in a wide variety of care situations, including potentially situations of physical restraint, isolation and where individuals’ ability to leave the care setting or having contact with family is restricted.
The Law Society said: “In the context of the pandemic, considerable efforts have been made to reduce delayed discharges, both in order to free up hospital capacity and create a better outcome for individuals at risk of acquiring infection in hospital.
“The concern expressed by Edinburgh Napier University’s Centre for Mental Health and Capacity Law, which we share, is that some of those discharged to care placements may have been adults who were incapable of making decisions about their care and thus moved under section 13ZA powers.
“Some of those discharges may have resulted in deprivations of liberty which have not been authorised by an appropriate legal process.”
The Scottish Human Rights Commission has added its weight to the concern talking of the “potential for deprivations of liberty and inappropriate restrictions on autonomy”
Ms Stavert said in her analysis published in the International Journal of Law and Psychiatry that although it would be wrong to be over critical of the Scottish Government’s response “at great speed to an unprecedented public health emergency”, that reaction “under stress may demonstrate weaknesses of the current system of legislative and policy development”.
“The state has an obligation to protect life and to take all necessary measures to ensure the protection and safety of persons with disabilities in emergency situations,” she said. “At the same time, however, the state must guarantee individual rights to liberty, autonomy, dignity and the highest attainable standard of physical and mental health on an equal basis for all. Any limitation of such rights must have a legal basis and be necessary, proportionate and non-discriminatory.”
“The ECHR recognises that crises may exist where it might be appropriate to reduce human rights safeguards. However, state discretion, or the margin of appreciation, afforded to states to determine when an emergency threatening the life of the nation exists and which measures to take is not completely beyond the supervision of the European Court of Human Rights. States do not therefore have an entirely free rein in these circumstances.”
She added: More positively, the Scottish emergency legislation did explicitly state that in exercising functions conferred on them, the Scottish Ministers must have regard to opportunities to advance equality and non-discrimination.
“However, it may be that the full implications of the CRPD approach to equality and non-discrimination have yet to be fully absorbed by policy makers.
“This, and the lack of engagement with disabled people’s organisations, is something which we believe should be addressed in future legal and policy responses to Covid-19.
“This would demonstrate a commitment to the requirements of the CRPD to take into account the protection of people with disabilities in all policies and programmes, to consult with people with disabilities, and to promote the training of professionals and staff in the rights recognised in the Convention.”
A Scottish Government spokesman said: “The Government does not direct discharge decisions, which are made by health and social care professionals based on the individual patient’s needs.
“If somebody is discharged to a care home or any other setting it is because that has been assessed as the best place to meet their needs.
“Our priority throughout the Covid-19 pandemic has been to save lives, and we have taken firm action to protect people, including care home staff and residents.
“There has never been guidance or policy to actively move patients unwell with Covid-19 into care homes – and ministers recognise the careful balance required between the right to life, given the potential risk posed by the pandemic, and the right to be consulted in actions that affect a person.”