We broke law by moving patients to care homes, admit docs
DOCTORS have admitted they broke the law by transferring vulnerable patients from hospitals into care homes during the first wave of the pandemic – a move which could mean the NHS is sued for millions.
Whistleblowers have told one of Scotland’s care commissioners they moved patients out of hospitals without their consent between March and May to boost capacity.
The exodus of elderly patients into care homes has been blamed for the heavy death toll in the facilities – described by one Nationalist MP as ‘beyond comprehension’.
Health Secretary Jeane Freeman defended the moves at the time, insisting they were ‘entirely appropriate’.
However, confiding in the Mental Welfare Commission (MWC), hospital and council staff have admitted they may have breached part of the Social Work (Scotland) Act by moving people without prior approval.
Under the law, a patient and any interested parties including relatives or legal guardians must be consulted before they are moved from hospital to a care setting.
‘Local intelligence’ gathered by the MWC suggests this crucial legal step may have been bypassed as hospitals battled to find space to treat patients and coronavirus tightened its grip on the nation.
Now, in a significant intervention, the MWC has launched a probe into the whistleblower claims – and has demanded all 31 Health and Social Care Partnerships across Scotland provide it with the paperwork for hospital to care homes moves between March 1 and May 31.
If the investigation reveals that medics and social workers broke the law, it will open the floodgates for hundreds of families to demand compensation from the NHS.
Scottish Conservative health spokesman Donald Cameron said: ‘These are extraordinary allegations and must be dealt with with the utmost seriousness.
‘Our elderly and most vulnerable have been betrayed throughout the pandemic and grieving relatives urgently deserve answers from the SNP Government.
‘The allegations give added immediacy to the need for an inquiry into what happened in care homes.’
According to the Law Society of Scotland, of the 4,807 patients discharged from hospitals into care homes between March 1 and May 31, 272 had dementia, 145 delirium and 112 lacked sufficient capacity to consent to a transfer.
The organisation urged the Scottish Government to declare what legal basis they had for the moves.
Now the MWC, which provides legal advice to medics about dealing with patients who lack mental capacity, has heard from a number of whistleblowers.
They have admitted – via the MWC’s advice line – that dementia patients were being rushed out of hospital without their legal consent in a bid to free up space.
The illegality, the MWC said, may stem from the bypassing of a particular section of the Social Work (Scotland) Act.
Section 13Za of the 1968 Act, which refers to the provision of services for incapable adults, is part of the legal framework to safeguard moves into care homes.
It requires a dementia patient – or their guardian or family – to consent to any move from a hospital into a care setting. The Coronavirus (Scotland) Act, which gained Royal assent in April, contained emergency legislation that would have allowed the easing of Section 13Za, meaning that medics and social workers would not need to consult the adult and interested parties when moving an adult to residential accommodation.
However, the easing of Section 13Za was never introduced, and expired in September.
It means that by law, medics and social workers were still required to get consent to move a patient throughout the first wave.
Last night MWC chief executive Julie Paterson said: ‘Our advice line has been extremely busy since March. Among many other calls, we were hearing concerns about the legality of moves of people from hospital to care homes.
‘We heard similar comments through our regular contacts across health and social care services. It was enough for us to decide to instigate a specific project where we could do that. For us, it is essential people’s rights are respected and everyone is treated lawfully.
‘I hope this work will help all of us to get clarity on what happened and why. We will publish the report as soon as the work is completed.’
Last night, Scottish Labour health spokesman Monica Lennon said: ‘Dangerous actions at the height of the pandemic cannot be swept under the carpet.
‘The Scottish Government is delaying a full-blown public inquiry despite parliament voting for it to start immediately.’
A Scottish Government spokesman said: ‘Decisions to discharge patients are not made by Ministers, they are made by health and social care professionals, alongside the patient and their family members.
‘Ministers have already confirmed there will be a public inquiry into all aspects of the impact and handling of Covid-19, and this would include care homes.’
‘Relatives urgently deserve answers’