Introduction

Facilitating the discharge of people from hospital can be a complex process and can be even more challenging when the individual lacks capacity to make decisions about this. The COVID-19 pandemic has added additional pressures and demands.

The Mental Welfare Commission (PDF) recently raised concerns raised about inconsistent practice taking place when supporting people to move to a care home.

We’ve developed this brief guide to share a range of useful information and good practice resources which new or redeployed social workers involved in hospital discharges might find useful.

This guide is not intended to replace any local good practice or training on this topic. National and local policies and procedures should be the main source of information.

We hope this information will help improve the confidence of staff involved in hospital discharges. If you feel you need additional support or guidance please speak to your employer.

Social work during the COVID-19 pandemic can be more stressful than usual so it’s important to look after yourself. The National Wellbeing Hub has a range of advice and support on how to look after your emotional and psychological wellbeing.

Discharge planning

Facilitating the discharge of people from hospital can be a complex process. Effective discharge planning to enable people to leave hospital safely requires a person-centred and coordinated approach. Social workers, along with a range of other professionals, play a key role in hospital discharge processes. This involves supporting individuals and their families or carers adjust to illness, access support and plan for any post-discharge resources they might need.

During the pandemic, the relationship between social workers and those requiring support to leave hospital is even more critical. Increasing pressures and demands on services means that decision making and the prioritisation of resources needs to be carefully considered. Social workers should ensure decisions are underpinned by an in-depth understanding of statutory frameworks, ethical principles and consideration of any potential harm that might occur as a result. Human rights should always be central to decision making.

Moving into a care home for long term care is a significant life altering decision for an individual and their family. If a move to a care home is undertaken as a hospital discharge it is vital that assessment and decision making surrounding the move follows legislation, policy and guidance. It is vital that it should not result in any negative impact on an individual’s health and wellbeing or breach their human rights. If there are any concerns about an individual’s capacity to consent to a move to a care home, then you should seek an assessment of capacity.

Click on the different subsections marked with crosses below to view key legislation, guidance and useful information.

Social workers involved in hospital discharges should be knowledgeable about the application of specific legislation in relation to their powers and duties, along with broader guidance and good practice. They should use this knowledge to aid decision making and the delivery of care which supports choice and control, wellbeing and safety for individuals and their families or carers.

Social workers should be familiar with the following key pieces of legislation.

Social Work (Scotland) Act 1968

The Social Work (Scotland) Act 1968 is the primary legislation for social work intervention in Scotland and creates the duty under section 12 to 'promote social welfare'.

Section 13ZA of the Social Work (Scotland) Act 1968

Section 13ZA of the Social Work (Scotland) Act 1968 permits local authorities to arrange the provision of community care services ‘where it has been decided that an adult’s needs call for the provision of a community care service and it appears to the local authority that the adult is incapable in relation to decisions about the service’. It states that local authorities ‘may take any steps which they consider would help the adult (with incapacity) to benefit from the service’, this would include moving an individual to a care home (residential accommodation). Involvement of a Mental Health Officer might be appropriate in cases where an individual is considered to lack capacity.

Undertaking a move under this provision should only happen if:

  • there is no identified guardian or welfare attorney
  • there is no application in the process of being determined for an order under the Adults with Incapacity (Scotland) Act 2000 relevant powers
  • there are no objections from the individual involved or any interested party.

Any decisions taken under this section of the Act should be clear and accountable paying specific attention to the needs and past and present wishes of the individual involved. If any individual needs help to put their views across you can seek the use of an independent advocacy service. If there are specific communications issues you should get specialist advice on how best to facilitate the person to share their views.

Any moves to a care home under the provision of section 13ZA should be agreed by all professionals and carers/family members involved and not result in any restrictions of liberty for the individual. You should follow your local policy and guidance on the use of S13za.

Adults with Incapacity (Scotland) Act 2000

The Adults with Incapacity (Scotland) Act provides a legal framework for making decisions on behalf of another person (if the individual has been assessed as lacking capacity to make such decisions). It can cover welfare, property, financial affairs and medical treatment. It recognises that, as far as possible, people should have autonomy and be able to control their own lives, and another person can only make decisions on their behalf when it is justified and necessary.

Mental Health (Care and Treatment) (Scotland) Act 2003

The Mental Health (Care and Treatment) Act sets out when and how people can be treated if they have a mental illness, learning disability or related condition (called a 'mental disorder' in the Act) and when they can be treated or taken into hospital against their will. The Act contains 10 principles and a range of safeguards (such as 'Advance Statements') to help professionals protect and promote the rights of people receiving care.

Adult Support and Protection (Scotland) Act 2007

The Adult Support and Protection (Scotland) Act 2007 aims to protect those adults who are unable to safeguard their own wellbeing, property, rights or other interests and they are at risk of harm because they are affected by disability, mental disorder, illness, physical or mental infirmity. Harm means all harm including neglect and organisational or institutional harm.

Social Care (Self-directed Support) (Scotland) Act 2013

The Social Care (Self-directed Support) (Scotland) Act 2013 requires local authorities in Scotland to offer people four choices on how they can get their social care: direct payment; person receiving services directs available support; local authority arranges support; a mix of the other options.

Human Rights Act 1998

The Human Rights Act gives further effect to rights and freedoms guaranteed under the European Convention on Human Rights. In care settings, the Human Rights Act supports and strengthens the other Acts listed here. Everyone, wherever they live in Scotland, is entitled to have their human rights protected and as a social worker you play a key role.

There is lots of guidance and information to support hospital discharges and specifically issues arising when an individual lacks capacity to make decisions relating to this. The content in this section supplements the information shared in the legislation section and you should read them together. Please note this is not an exhaustive list.

Scottish Government guidance on choosing a care home on discharge from hospital (PDF) (2013) provides advice on managing choice of care homes for people assessed as requiring ongoing long term care in a care home, following a hospital stay.

Discharging Adults with Incapacity – A practical guide for health and social care practitioners involved in discharge planning from hospital (PDF) by Health and Social Care Scotland (2019) focuses on the various aspects of discharge planning for individuals with ongoing health and social care needs after discharge.

Scottish Government guidance on the provision of care services to adults with incapacity (PDF) (2007) has information about section 13ZA of Social Work (Scotland) Act 1968.

Scottish Government (2002) A short guide to act: Adult with Incapacity (Scotland) Act 2000 (PDF) and Communication and Assessing Capacity: A guide for social work and health care staff (PDF) might also be useful.

Scottish Government (2008) Adults with incapacity: code of practice for local authorities contains detailed guidance on all the statutory functions which are given to local authorities under the Adults with Incapacity (Scotland) Act 2000. It is relevant to not only social workers, but NHS staff involved in hospital discharge.

The Mental Welfare Commission provides good practice guides on a range of topics relating to capacity. In particular, the Working with Adults with Incapacity Act - for people working in adult setting good practice guide (PDF) indicates that the five principles of the Adults with Incapacity (Scotland) Act 2000 should underpin good practice when someone is considered not to have capacity. This can include decisions taken when considering the application of Section 13ZA of the Social Work (Scotland) Act 1968. They have also produced good practice guidance on supported decision making (PDF) (2021) which explains why supported decision making is important and can help ensure a human rights based approach to decisions about care and support for an individual with incapacity. You might also find the guidance on S13ZA and the Cheshire West Supreme Court Decision (PDF) (2014) helpful.

The Scottish Government has produced guidance and forms relating to adults with incapacity. They have also shared key messages on Adults who lack capacity - discharge process: key actions (2020) designed to strengthen existing guidance and assist in sharing good practice and learning.

The Iriss Hospital to Home toolkit has some useful tools that can help social workers in their practice.

The Scottish Human Rights Commission Care about Rights project helps realise the human rights of older people using care and support services.

The Health and Social Care Alliance have produced this report ‘Being Human: A human rights-based approach to health and social care in Scotland' (PDF). The report covers the development and importance of embedding human rights in health and social care, particularly for people who are disabled and living with long term conditions. It also includes several case studies.

This short PDF leaflet, 'A human rights-based approach: an introduction' by the Scottish Human Rights Commission provides a brief overview of the PANEL principles and how the ‘FAIR’ flowchart can help you translate the principles into practice.

The information is this section supplements the guidance and resources shared in the previous section. It relates specifically to responding to the COVID-19 pandemic.

It is vital that any social worker involved in a hospital discharge considers the legal and ethical issues from a human rights-based approach. The UK Government (Department of Health) published an ethical framework for adult social care in response to the pandemic in 2020. It provides a useful set of principles to consider in all cases but especially when organising and delivering social care support for adults. This might be explicitly helpful when dealing with complex hospital discharge issues. There is also a Coronavirus (COVID-19): ethical advice and support framework from the Scottish Government which is intended to support NHS staff.

The Mental Welfare Commission published a position statement on 13ZA (PDF) during the pandemic. It gives advice to services on the existing legal position when considering these moves.

Statutory guidance for local authorities sets out changes to social care assessments resulting from the Coronavirus Act 2020 as updated on 6 November 2020.

Social Work Scotland (SWS) provide regular updates about social work practice, policy and guidance.

The Scottish Association of Social Workers (SASW) provide updates for social workers on a range of practice issues which may prove helpful.

The SSSC has published several COVID-19 resources to support social service workers which might be useful.

Carers

Relationship-based practice and partnership working are vital to providing effective and sustainable support and the need to seek approaches that empower and build on strengths. Social workers involved in hospital discharges should ensure that those they are working with are fully involved in decision making about their care. The family and carers of these individuals should also be key partners in this process. Carers may also wish to be considered for a referral for independent advocacy.

The Carers (Scotland) Act 2016 defines specific rights and duties upon organisations for both adult and young carers. Under the Act a ‘carer’ is an individual who provides or intends to provide care for another individual. If you identify an individual as a carer, you should offer them their own assessment and carer support plan.

Hospital discharge planning should involve carers and family members as this can contribute to good outcomes for the individual requiring care and the carer or family member. The Health and Social Care Scotland resource Involving Carers in Discharge Planning – A practical guide for health and social care practitioners involved in discharge planning from hospital (PDF) (2019) offers practical advice on how to work with carers and family members.

Click on the subsection marked with a cross below to find more information about carers.

There is lots of guidance and information on involving carers to achieve better outcomes for everyone involved. The content in this section supplements the information shared in previous sections and is not an exhaustive list.

Working in partnership with carers results in better outcomes for everyone involved – for the cared for person, for the carers and, ultimately, for the service. Equal Partners in Care (EPiC) is intended for all staff who come into direct contact with carers in their day-to-day jobs. It is also intended for anyone with a workforce education and learning role, and/or managers who support the workforce to improve outcomes for carers and the people they care for.

Statutory guidance for practitioners sets out their responsibilities to implement all aspects of the Carers (Scotland) Act 2016.

The Carers' charter sets out carers' rights under the Carers (Scotland) Act 2016.

The SSSC's Understanding Personal Outcomes booklet (PDF) provides guidance on using a personal outcomes approach in support planning with carers.

NHS Education Scotland’s (NES) leaflet Supporting relatives and informal carers - top tips for mental health workers (PDF) offers some key message to consider when working with family members and carers.

The Mental Welfare Commission’s Carer and Confidentiality good practice guidance (PDF) also offers practice advice on the importance of involving carers and how to manage potentially complex issues around confidentiality and information sharing.

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