The Mental Welfare Commission studied 457 individual moves - representing around 10 per cent of all such moves reported at the time by Public Health Scotland and looked at the legal authority behind each decision to move a person who did not have capacity to decide for themselves.

Of the 457 cases, the commission found unlawful moves of 20 people. For some of these moves, there had been specific pandemic related reasons, for example, a misinterpretation that easement of the Social Work Act had been enacted as a result of the Coronavirus (Scotland) Act 2020 when in fact this legislation was never activated and was removed in September 2020. One HSCP introduced an alternative to applications for guardianship orders, making decisions ‘internally’ rather than recourse to the courts, the critical safeguard for individuals. This particular practice started in response to the pandemic and ended in August 2020.

The commission analysed all of the 457 cases further to assure legal rights were respected and protected beyond the 20 clearly unlawful moves. The commission asked about the 338 moves said to have been authorised using a welfare power of attorney or adults with incapacity legislation. They found that those working in hospital discharge were not always fully aware of the powers held by attorneys or guardians (this was the case in 78 out of 267 cases of power of attorney related moves) or indeed whether the attorney’s powers had been activated or guardianship orders granted.

The commission also found confusion in relation to the reported nature of the care home placement, with potential impact on rights to protection of property where the person was admitted to a care home but remained liable for their property.

Practice was not consistent within some HSCPs or across them. Some staff reported that moving from one HSCP to another brought differences in practice into sharp focus. This is despite a range of existing guidance and policy.

The Mental Welfare Commission made eight recommendations in the report for Health and Social Care Partnerships including asking for each of them to conduct a full training needs analysis and training programme for their staff to ensure they understand the law, capacity and assessment.

There are two recommendations for the Care Inspectorate, including asking them to take account of this report in their inspection activity.

The final recommendation is for the Scottish government to monitor the delivery of the recommendations and to ensure consistency across Health and Social Care Partnerships.

Julie Paterson, chief executive, Mental Welfare Commission, said: “People who lack mental capacity and who are being cared for and treated in care homes and hospitals are among the most vulnerable in our society. The focus of this report was to examine the detail of a sample number of hospital to care home moves of people from across Scotland, to check that those moves were done in accordance with the law during the early stages of the pandemic.

“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. Lack of understanding of the law, lack of understanding of good practice, confusion over the nature of placements, misunderstanding over power of attorney. These findings are very disappointing and may mean that many more moves were made without valid legal authority.

“This report also finds a lack of uniformity from one HSCP to another, with different approaches to national legislation and guidance adopted in different areas.

“We call on Health and Social Care Partnerships across Scotland, the Care Inspectorate and the Scottish Government to read our report in detail and act swiftly on our recommendations”.

Amanda Millar, president of the Law Society of Scotland, said: “The Mental Welfare Commission’s report on moves of patients from hospitals to care homes during the pandemic makes for worrying, although sadly not unexpected reading. This confirms the concerns we have raised throughout about whether the rights of individuals have been upheld, particularly where they may have lacked capacity to give valid consent.

“The Law Society has called for cross-party commitment to coordinated and updated legislation across adult incapacity, mental health and adult support and protection law, and I urge the Cabinet Secretary for Health and Social Care, Humza Yousaf, to make this a priority in the new parliamentary session.”

Adrian Ward, convener of the Law Society’s Mental Health & Disability Committee, added: “[The] shocking report from the Mental Welfare Commission confirms the alarm with which practising solicitors across Scotland have reported vulnerable people being shifted from one place to another as hospital beds were prioritised for others, without regard to their rights as human beings or to the requirements for due legal process. The commission is to be commended for a massive amount of work in a short period investigating a large sample of individual cases, and drawing from them conclusions and recommendations which the Law Society entirely supports.

“The lack of training and education of frontline staff in basic issues of lawfulness and human rights compliance reflects the experience of practising solicitors. Lying behind these shortcomings is the long failure to put in place in Scotland appropriate legal provision to enable situations that would otherwise contravene Article 5 of the Human Rights Convention to be appropriately managed, with suitable safeguards.

“The Scottish Law Commission published draft legislation for this purpose in 2014. It is a matter of urgency that their draft be reviewed, updated and enacted. Having such a clear scheme in place would not only safeguard the rights and welfare of vulnerable individuals, but would reduce pressures, uncertainties and workload for many, including the courts.”