A report published today by the Mental Welfare Commission confirms that Scottish solicitors were right to raise the alarm over discharges of vulnerable people from hospitals to care homes.

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: “Today’s 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.”

Evidence required to show lockdown hospital discharges were lawful

We have called on the Scottish Government to release data showing the legal basis for moving hospital patients to care homes at the height of the coronavirus pandemic, due to the lack of information in a recent Public Health Scotland report.
Adrian Ward

Our 2021 priorities: Incapacity, mental health and adult care and protection

Adrian Ward makes the case for cross-party commitment to coordinated and updated legislation across adult incapacity, mental health, and adult support and protection law and practice, one of our priorities for the next Session of the Scottish Parliament.