Scottish care homes – COVID-19 and human rights

On 26 September 2020, the Herald newspaper reported that “moving elderly from Scots hospitals to homes during coronavirus pandemic may have been illegal.” The article focuses on the discharge from hospitals to care homes of “hundreds” of adults lacking in full legal capacity (ability to make relevant decisions). Edinburgh Napier University’s Centre for Mental Health and Capacity Law has expressed concern that since the start of the COVID-19 (C-19) pandemic, movement from hospitals to care homes of adults without capacity may have taken place without due legal process and in violation of the European Convention on Human Rights (ECHR) and the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD). ECHR rights said to be engaged include the right to personal liberty and security and the right to respect for private and family life. The CRPD aspect concerns equal rights for people with disabilities. Particular issues arising include the extent to which steps were taken to ascertain whether particular adults were capable of expressing a wish and whether family members and any legal guardian were consulted before people were moved.    

A Scottish Government spokesperson is quoted in the article saying “The Government does not direct discharge decisions, which are made by health and social care professionals based on the individual patient’s needs. If somebody is discharged to a care home or any other setting it is because that has been assessed as the best place to meet their needs.  Our priority throughout the Covid-19 pandemic has been to save lives, and we have taken firm action to protect people, including care home staff and residents. There has never been guidance or policy to actively move patients unwell with Covid-19 into care homes – and ministers recognise, the careful balance required between the right to life, given the potential risk posed by the pandemic, and the right to be consulted in actions that affect a person.” Earlier, on 6 May 2020, the First Minister explained in the chamber of the Scottish Parliament that where a patient in hospital has the virus they must have two negative tests before they can be discharged and that a patient without the virus discharged to a care home must be tested 48 hours before discharge and must also be isolated for 14 days where the result is not known.

On 27 May 2020, the First Minister committed Scottish Government to holding a public inquiry into the handling of all aspects of the C-19 pandemic, including those relating to care homes. On 30 July 2020, the First Minister made clear that she was “committed to a human rights-based approach” to this inquiry and that “human rights should absolutely be at the centre of all we do now and in the future but also should be at the centre of any look back at what’s happened up until now.

Additional ongoing activity at the Scottish Parliament on issues around C-19, care homes and human rights includes work by the Health and Sport Committee on the impact of C-19 on care homes and care at home services and work by the Equalities and Human Rights Committee on the impact of C-19 on equalities and human rights.

Issues on hospital to care home transfers have the potential to complicate yet further any care home-related civil claims for C-19 personal injury damages. Complex legal issues on standard of care and causation may arise in any C-19 civil claim. Additional complexities which may arise in care home cases where there have been transfers include issues on the particular transfer decision-making process and the extent of due diligence in pre-admission testing. The fact that more than one organisation may have been involved in any decision to transfer has potential to complicate C-19 care home civil claims even more.

Greg MacDougall – Partner and Solicitor Advocate at BLM

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