Authority to discharge: Report into decision making for people in hospital who lack capacity
Julie Paterson, Chief Executive
People are admitted to hospital for specialist care and treatment based on their health needs. When people are clinically well enough to then leave hospital, they should receive all necessary information and support to return to their home, whether that is their own house or an alternative community setting which is their home. It is not in anyone’s interests to stay in hospital when there is no clinical reason to do so. Planning discharge from hospital is therefore critical to ensuring that people leave hospital fully included in decision making, fully informed and with appropriate support. For those people who do not have the capacity to fully participate in discharge planning processes, legal frameworks must be considered to ensure appropriate lawful authority and respect for the person’s rights. All adults have the right to receive the right support at the right time in the right setting for them. In this report we decided to combine concerns about moves from hospitals to care homes during the early months of pandemic restrictions with a recent judicial review case we were involved in to find out more about the legality of hospital to care home moves. This report is based on information submitted to us by Health and Social Care Partnerships (HSCPs). It finds cases of reported unlawful moves. Some of the practice concerns relate specifically to the pandemic. But, worryingly, the report also finds more endemic examples of poor practice, not specifically pandemic related. 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 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. Our report raises significant questions of training and approach in Health and Social Care Partnerships - issues that are dealt with in our recommendations. Chief Officers of Health and Social Care Partnerships provided information as requested and, from the outset, shared the Mental Welfare Commission’s commitment to identifying any learning and/or recommendations for improvements in practice. We hope that leaders of HSCPs and the Care Inspectorate, as regulatory body, now take recommended action to improve practice and outcomes for the most vulnerable adults in our society.