Bed Blocking, Possession Orders and Discharge Planning: Guidance from the Court

The recent case of Northampton General Hospital NHS Trust v Mercer [2024] EWHC 2515 spotlights the pressing issue of “bed-blocking” in NHS hospitals. In May 2024, over 12,000 patients in England were in hospital who no longer needed to be there, yet remained in hospital, often due to care planning delays.

The Judge in this case, HHJ Tindal, gave legal and practical guidance in the form of a checklist for hospitals seeking possession in relation to patients whose refusal to leave hospital is not thought to be affected by mental health or mental capacity issues. 

The patient was a 32-year-old female with diagnoses of Autistic Spectrum Disorder and Emotionally Unstable Personality Disorder. She was also wheelchair-dependent and required support with her personal care and medication. She had been medically fit for discharge since April 2023, but refused to leave hospital for 18 months due to the anxiety about her proposed placement. 

A placement had been identified for the patient which the Adult Social Care team at North Northamptonshire Council and the Hospital considered would meet her needs, through provision of 24 hour care in a supported living placement. The patient and her mother were concerned about the placement identified and the patient requested a placement in residential accommodation, either at her previous placement or somewhere closer to her mother, however she had been assessed as not requiring residential accommodation.

After exhausting alternatives, the hospital sought a court order for possession. 

The law recognises that a patient who is fit but unwilling for discharge does not have the right to remain in hospital, but the hospital should engage with them and comply with both the national guidance from NHS England, and any internal policy within the hospital. The Hospital Discharge and Community Support guidance issued by NHS England in January 2024 , which was referred to by the Judge, makes it clear that “People do not have the legislative right to remain in a hospital bed if they no longer require care in that setting, including to wait for their preferred option to become available”.

The Judge noted, at paragraph 20 of the judgment, that “if the patient's care and accommodation will be the responsibility of the local authority and the patient objects to it, the hospital should involve that authority and explain to the patient that they need to take up concerns with it… rather than remaining in the hospital. However, ultimately if a hospital has done that and followed national guidance and its own policy, but reached an impasse with a patient whose refusal to leave is not affected by a mental health or mental capacity issue, strictly speaking the hospital could simply evict the patient”. That is what the hospital decided to do in this case.

The court balanced the patient’s fears against the hospital’s urgent need to free up resources for other patients. The Judge detailed the various potential public law defences to a possession claim of this sort, which include:

1. A failure by the hospital to have regard to national NHS guidance under s.74(2) Care Act 2014. 
2. A failure by the hospital to follow its own policy without good reason.
3. Any breach of the hospital’s duty as a public authority under s.6 Human Rights Act 1998 not to violate the European Convention on Human Rights.

Importantly, the Judge also emphasised the importance of the hospital considering whether there is reason to believe the patient may lack mental capacity, as this may necessitate an entirely different approach from the hospital, including potentially an application to the Court of Protection. 

In this case, the hospital had carried out assessments of the patient’s capacity, which confirmed she had the capacity to make decisions about her discharge and the court proceedings. 

Ultimately, the Judge concluded that the identified supported living arrangement sufficiently addressed the patient’s needs. It was noted that the local authority had investigated over 120 different placements and had found a supported living placement specialising in working with those with the patient’s disabilities. 

Ultimately, the court ruled in favour of the hospital, granting a possession order. 

The judgment provides the following useful checklist for a hospital seeking possession in relation to a patient whose refusal to leave hospital is not thought to be affected by a mental health or mental capacity issue:

1. Has there been full and holistic preparation of the patient for discharge?
   
   • Has NHS guidance / local policy on 'patient involvement' been followed?
   • Has there been sufficient liaison with the relevant local authority if it will be responsible for accommodation and/or care provision and funding?
   • Has it been explained to the patient and carer: how ongoing medical/care needs will be met, who is responsible for meeting them and what the patient or carer can do if they are unhappy about the provision?
2. Have there been all necessary mental capacity assessments of the patient?
   • Does the patient have capacity to consent or object to (1) discharge and/or (2) placement (as opposed to treatment)? If not, an application to the Court of Protection may be required if there is any dispute.
   • If both, do they have capacity to defend possession/injunction proceedings? If not, a suitable Litigation Friend will need to be found (who may be the person required to be served with the claim under CPR 6.13).
   • Either way, if the patient would struggle to attend or participate physically and is a 'vulnerable party' under CPR 1A, the claimant hospital could suggest to the Court a remote hearing and facilitate it from hospital.
3. Has the proportionality of possession (or an injunction) been assessed?
   • Is the patient's refusal to leave in consequence of a mental disability?
   • Have all reasonable lesser alternatives to possession or an injunction been tried but not succeeded in the patient leaving the hospital voluntarily?
   • Can the physical and psychological impact on the patient of being removed from hospital [to their] home or to the proposed placement be safely managed?

Comment

The checklist provides useful, practical guidance for Trusts faced with these difficult situations.

Although the Trust in this case (correctly) applied for a possession order, the judgment also refers to an alternative route which can be used, which applies specifically to patients who are being ‘disruptive’, within the meaning of the Criminal Justice and Immigration Act 2008, which contains a bespoke criminal offence where a person “(a) causes without reasonable excuse and while on NHS premises, a nuisance or disturbance to an NHS staff member who is working there… (b) the person refuses, without reasonable excuse, to leave the NHS premises when asked to do so by a constable or an NHS staff member, and (c) the person is not on the NHS premises for the purpose of obtaining medical advice, treatment or care for himself or herself." Although there is no suggestion that this provision was applicable in this case, Trusts should be aware of this as an alternative route in appropriate cases.

It is also worth noting that the first hearing in this case had to be adjourned, partly because the patient and her mother were not in a position to be able to participate effectively at the first hearing, but also partly because:

• There was relatively little information about the patient’s undisputed and long-term diagnoses of Autistic Spectrum Disorder ('ASD') and Emotionally Unstable Personality Disorder ('EUPD'), which would be relevant to both disability under the Equality Act 2010 and capacity under the Mental Capacity Act 2005.
• The hospital had provided assessments of the patient’s capacity to consent or object to her discharge and placement, but there was no assessment of her capacity to litigate.
• There was no Equality Impact Assessment ('EIA') addressing the proportionality of possession and whether all lesser alternatives had first been explored. 

Trusts that are considering making an application for a possession order should therefore ensure that these matters are properly considered and that the relevant documentation is available in advance of any hearing, to avoid unnecessary delays. 

Finally, Trusts should also be mindful of the guidance ‘Discharging People at Risk of or Experiencing Homelessness’ published on 26 January 2024 and any further considerations that this may give rise to. For further information on that guidance, please refer to our article: Homelessness and Health - Guidance for the NHS involved in the discharge of patients

Written by Tyla Glover