HOSPITAL discharges of some patients to care homes in Scotland during the early days of the pandemic were unlawful, a new report claimed yesterday.

A report by the Mental Welfare Commission into decision-making for people in hospitals who lack capacity studied a sample of all discharges to care homes from March to May 2020.

The new report, Authority To Discharge, studied the detail of 457 moves — about 10 per cent of those reported by Public Health Scotland — and found 20 of those to have been unlawful.

According to the commission, a number of these were related to the pandemic, including a misinterpretation that the Social Work Act had been eased.

One Health and Social Care Partnership (HSCP) introduced alternative applications for guardianship orders, making decisions “internally” instead of through the courts.

The commission also asked about 338 moves reportedly authorised using Welfare Power of Attorney or Adults with Incapacity legislation and found that workers in hospital discharge were not always fully aware of powers held by attorneys or guardians.

Care home placement also caused confusion in some cases where someone was admitted but remained liable for their property.

The report recommends HSCPs conduct full training for staff to ensure they understand the law, capacity and assessment, while the Care Inspectorate has urged to take account of the report in their inspection activity. 

Authors have also said the government should monitor the delivery of the recommendations and ensure consistency across HSCPs.

Commission chief executive Julie Paterson said: “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.

“These findings are very disappointing and may mean that many more moves were made without valid legal authority.”

A Unison Scotland spokesman said: “Obviously proper training to recognise patients’ needs and rights matters. It won’t make much difference though if staff aren’t also empowered to insist those rights are upheld.

“Staff need to be able to put patients’ needs first without having to be afraid of the consequences for themselves.”

Scottish Labour’s deputy leader Jackie Baillie asked the government whether it would order an urgent review and ask the Lord Advocate to investigate this breach of the law.

She said: “This is shameful. The grieving families and burned-out staff deserve answers.  
 
“Scottish Labour will continue to fight for the answers surrounding this tragic episode and will not let the SNP sweep its deadly failures under the rug.”

A Care Inspectorate spokesman welcomed the report and said it would be taking the recommendations forward, while the Scottish government said they expect these to be “addressed in full.”