Evidence required to show lockdown hospital discharges were lawful

Evidence is urgently required to show whether all hospital patients discharged to care homes during the height of the coronavirus pandemic were moved lawfully.

The Law Society of Scotland has called on the Scottish Government to provide data on the legal basis of the transfers, due to the lack of information in the recent Public Heath Scotland report on more than 4,800 patients transferred from hospital to care homes between March and May of this year. The Society is concerned by the absence of data showing that appropriate legal processes were followed to ensure no violation of the human rights of patients who could not or did not validly consent to the move.

The report shows that, of the 4,807 patients discharged over the three months, 272 had dementia, 145 delirium and 112 lacked sufficient capacity to consent to testing for Covid-19. While patients were assessed for their ability to consent to testing, information is not provided on their ability to give valid consent to the transfer.

Adrian Ward, Convener of the Law Society of Scotland’s Mental Health and Disability Sub-Committee, said: “It is a startling omission by Public Health Scotland in its 58-page report to have no account or analysis of the legal basis for transferring those patients. With such a lack of information, we are deeply concerned about whether the rights of these individuals have been upheld, particularly any who lacked capacity to give valid consent.

“There are a number of questions that need answers. How many of these patients were assessed as being competent to consent to the transfer? How many did so? Was their consent properly documented? It seems likely from the report that many people so transferred lacked relevant capacity to consent to the transfer. Yet, there is no acknowledgement of the necessity for a legal process to move such patients, or to record what it was and that it was properly followed.

“The fundamental right to liberty and security is guaranteed by Article 5 of the European Convention on Human Rights. Unless a procedure prescribed by law has been properly followed, patients taken from their beds to be put and kept somewhere other than where they were admitted from, even temporarily, without their competent consent, were unlawfully deprived of their liberty.

“We urge the Scottish Government to release this data immediately, to demonstrate whether any patients were moved unlawfully, in violation of their fundamental rights.”