THE "unlawful" practice of sending elderly patients - including many with dementia - to live in locked units in Scotland for up to a year without legal authority has been stopped after court action.
The Equality and Human Rights Commission have reached a settlement on ending the "unlawful detention of adults with incapacity" by Scotland's biggest health board NHS Greater Glasgow and Clyde.
The public body, responsible for the promotion and enforcement of equality and non-discrimination laws say legal proceedings against the health board and HC One Oval Ltd, the owner of a chain of care home has now been halted after NHSGGC agreed to end the practice of placing patients in care homes in Glasgow without legal authority.
It said HC One Oval Ltd have also agreed not to accept the transfer of patients from hospitals in terms of this previous practice.
The commission is understood to have been aware of at least 54 patients who had been placed in “interim care” beds in secure accommodation, prompting “legitimate” human rights concerns over their deprivation of liberty.
The EHRC said the practice first started in 2017 and it was referred to them in October, 2018.
The equality body had been pursuing a judicial review at the Court of Session after it discovered that patients who were medically fit to be discharged from hospital but who lacked capacity to make decisions about their personal welfare were being transferred into and held in two care homes in Glasgow "without consent or lawful authority". They also did not have a legal guardian to assist them.
It said the people were kept in homes for periods ranging between a few weeks and a year, pending the appointment of a welfare guardian.
The commission maintained that the patients were kept in locked accommodation controlled by a keypad entry system and that Police Scotland would have been contacted if they had left the facility.
The EHRC argued this practice was unlawful, discriminatory and contrary to the United Nations Convention on the Rights of Persons with Disabilities and the European Convention on Human Rights.
Last month a report confirmed that dozens of patients who had tested positive for Covid-19 were transferred from Scottish hospitals to care homes.
Deaths in care homes account for about half of Covid-related deaths in Scotland, with about 2,000 resident deaths in October.
Some families of those transferred have complained that it was done without their agreement.
The commission began its probe when it was notified of a mental health tribunal in 2018 concerning an elderly woman, who was diagnosed with dementia and schizophrenia, but was assessed as fit for discharge from Glasgow’s Queen Elizabeth University Hospital.
She was transferred to an interim care bed at a care home for nine months in circumstances where there was no lawful authority for her detention.
The commission has told the Herald that the settlement follows extensive talks aimed at improving the process for discharging adults with incapacity from hospital "so their dignity and human rights are respected".
They say all of the existing patients in the two units that they know about have now been discharged and the health board "committed to working with their partner local authorities to ensure that all patients and their families know what is happening and what their rights are".
Lynn Welsh, head of legal at the EHRC said: “It is critical that decisions about people’s lives take account of their will and preferences and are centred on their dignity and human rights. NHS Greater Glasgow and Clyde have accepted that our human rights concerns were legitimate and have taken concrete steps to end the practice”
“We are pleased to conclude the legal proceedings we have taken against NHS Greater Glasgow and Clyde and HC One Oval Ltd with an agreement which will safeguard the rights of elderly and disabled people. We are confident that the revised patient pathway we have agreed with NHSGGC should achieve that.
“We are grateful to the Mental Welfare Commission for lending their expertise as an interested party and to NHS Greater Glasgow and Clyde for working with us constructively to improve their practices. We will be ensuring other health boards are aware of the outcomes of this case and that they have safeguards in place to ensure their patients’ human rights are respected.”
EHRC said that a hearing before Lady Carmichael in the Court of Session yesterday (Thursday) saw all parties agree to dismiss the judicial review on the basis of the agreement reached between the health board and HC One Oval Ltd.
EHRC said that the health board had been working "constructively" with the EHRC since January to "improve" their practices going forward.
A spokesman for HC-One said that they played no role in the health board's decision or policy making process when it caome to placing people in their homes.
“Providing a safe, kind and caring home for our residents is at the heart of what we do," he said.
"At all times we have prioritised the health, wellbeing and rights of the residents that we care for and indeed the quality of care was not at issue in the proceedings.
"Our involvement in this matter came about because we were providing a high-quality care service to these individuals under contract with NHSGGC.
"The contract in question was inherited from the previous owners and it is no longer active and no current residents are supported under this agreement."
A spokesman for HC-One said that they played no role in the health board's decision or policy making process when it come to placing people in their homes.
“Providing a safe, kind and caring home for our residents is at the heart of what we do," he said.
"At all times we have prioritised the health, wellbeing and rights of the residents that we care for and indeed the quality of care was not at issue in the proceedings.
"Our involvement in this matter came about because we were providing a high-quality care service to these individuals under contract with NHSGGC.
"The contract in question was inherited from the previous owners and it is no longer active and no current residents are supported under this agreement."
A health board spokesman said: "At all times the wellbeing, dignity and compassionate care of our patients is central to what we do. This includes focusing on the on the individual needs of the patient, and ensuring the right care and rehabilitation environment.
"When an elderly, frail or vulnerable person no longer requires clinical care and are ready for discharge from hospital, we work to support a discharge into a more suitable environment as it is often inappropriate for them to remain in an acute medical ward for a prolonged period. Thus, the decision to move patients is always taken in their best interests, and in collaboration the consultant, ward staff, their families and alongside social workers and where appropriate advocates all acting in their interests. These considerations take into account the individualised approach to care and rehabilitation provided in alternative settings.
"We have engaged with the EHRC over a number months to understand their concerns and to resolve issues raised during the process. We are confident that by working with the EHRC and by taking the agreed, that we can continue to provide for the wellbeing of our patients in the best environment possible and ensure the mechanisms are in place to protect patients’ legal rights in line with immediate clinical needs and family decision making."
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereLast Updated:
Report this comment Cancel