In May of this year the Mental Welfare Commission (MWC) for Scotland published a report on decision making for, and legal underpinning of, the transfer of people from hospitals to care homes, where the individual lacked the capacity to make the transfer decision themselves. The report can be found here Publications | Mental Welfare Commission for Scotland (mwcscot.org.uk)
Background
The Adults with Incapacity (Scotland) Act 2000 is the main legal provision for safeguarding the welfare, and managing the finances and property, of adults who lack capacity to make decisions for themselves. The MWC has a statutory safeguarding role in relation to adults whose capacity to make decisions, or take actions to promote and safeguard their own welfare, is impaired due to a mental disorder.
During the pandemic concerns were raised with the MWC regarding whether the appropriate legal authority was always used to underpin discharges from hospitals to care homes. Accordingly, the MWC undertook inquiries, seeking information from all Health and Social Care Partnerships, where the operational function of facilitating these moves is held.
A sample period of 1 March 2020 to 31 May 2020 was used. Within that period, there were 731 transfers to care homes. Of those, 457 were of people who lacked capacity and therefore in-scope.
Findings
The inquiry found that in 20 cases the move had not been lawful. The cases were spread across 11 Health and Social Care Partnerships. The inquiry identified a range of factors contributing to these unlawful moves. The final report includes 11 recommendations, aimed at addressing the issues identified. Three of these actions sit with the Care Inspectorate and Scottish Government. Each area must return a response to the actions by 21 August 2021.
Although the recommendations are directed at Health and Social Care Partnerships, in recognition of their lead role in facilitating these discharges, in practice aspects sit with Local Authorities and Health Boards, such as access to medical consultants, legal services and training. Therefore, the MWC has asked also Local Authorities and Health Boards to support delivery of any required improvements. East Dunbartonshire The inquiry did not find any examples of unlawful moves taking place in East Dunbartonshire, where a robust approach to the application of The Adults with Incapacity (Scotland) Act 2000 is taken. A response to the recommendations will be developed in collaboration between the Health and Social Care Partnership, the Local Authority, and the Health Board, and will be submitted in line with the required timescale.
This will be reported through the Health and Social Care Partnership’s governance structures and will be brought to a future meeting of the Housing, Health and Care Forum for information.