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.    

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Article 2: right to life in a state-funded care home?

On 10 June 2020, the Court of Appeal handed down its judgment on the case of Maguire v Her Majesty’s Senior Coroner for Blackpool and Fylde and ors. This landmark judgment considered the engagement of Article 2 of the European Convention on Human Rights (ECHR) in the context of inquests relating to vulnerable adults who lack capacity living in state-funded care homes.

The facts:

The deceased, known as Jackie, had learning disabilities, behavioural difficulties and some physical limitations. She lived in a care home supervised and funded by the local authority which provided accommodation and care for vulnerable adults, like Jackie, who lacked capacity to make decisions about their living arrangements and welfare. Jackie was subject to Deprivation of Liberty Safeguards (DoLS) and had a history of objecting to medical treatment.

Jackie died in hospital on 22 February 2017. The cause of death was 1) perforated gastric ulcer and peritonitis and 2) pneumonia. A number of failures by care staff and medical professionals were identified and investigated during the inquest. Jackie’s family were critical of actions taken during the 48 hours prior to her death including:

  1. the GP’s decision to triage Jackie by telephone instead of attending in person
  2. a failure by an NHS call handler to relay a full account of Jackie’s history to the paramedics and
  3. the absence of a care plan to address Jackie’s refusal to attend the hospital.

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COVID-19 – telemedicine in care homes

As part of the guidance from the British Geriatrics Society in relation to managing patients with or suspected to have COVID -19 in a care home setting, care home staff should be trained to check the temperature of residents displaying possible signs of COVID-19 using a tympanic thermometer. The guidance states that care home staff, where possible, should also be trained to measure other vital signs including blood pressure, heart rate, pulse oximetry and respiratory rate. This information can then be used by external healthcare practitioners such as GPs during virtual ward rounds and will help to triage and prioritise support of the care home residents and their care staff according to patient need.

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