During the height of the Coronavirus pandemic we heard stories of hospital patients being discharged to care homes, some of whom had not even been tested for Coronavirus.

The Scottish Government recently produced a Public Health Scotland report which confirmed that 4,800 patients were transferred from hospital to care homes between March and May of this year. The report showed that out of 4,807 patients discharged over the 3 months, 272 had dementia, 145 had delirium and 112 lacked sufficient capacity to consent to testing for Covid-19. What has not been provided in the report is data on the legal basis of the transfer. In the 58-page report, there is no analysis of the legal basis for transferring the patients. Under Article 5 of the European Convention on Human Rights a person’s fundamental right to liberty and security is guaranteed. Once someone has been admitted to the hospital, they must either consent to being discharged or a procedure prescribed by law must be followed. If this is not done, the patients have been unlawfully deprived of their liberty. It is for this reason that the Law Society of Scotland has raised various questions with the Scottish Government. Without knowing how many patients were assessed as being competent to consent to the transfer it would seem that many people who were discharged and transferred to care homes lacked the relevant capacity to consent to the transfer. The Scottish Government has been urged to release this data immediately in order that it may be determined whether any patients were moved in breach of their fundamental human rights.

In England, action against the Government is already underway with a High Court ruling in favour of Dr Cathy Gardner and Fay Harris whose loved ones died in care homes with covid 19. Dr Gardner’s lawyers claimed that prior to her father’s death the care home was pressured into accepting a hospital patient who had tested positive.

A judicial review will now be carried out and will look into the Government’s handling of the crisis. The daughters will argue that the Government failed to protect care home residents and breached their human rights. This will have huge ramifications for the families of at least 30,000 people who died in care homes with Covid this year. If the Scottish Government cannot provide the evidence which has been requested by the Law Society, it may only be a matter of time before an action is raised against the Scottish Government.