12/11/2019
The overwhelming majority of patients wish to leave hospital as soon as they are medically fit and well. When a patient, or their family on their behalf, refuses to accept a discharge plan or transfer to other care arrangements however, the issue of delayed transfers of care can be a contentious one.
There is considerable pressure on NHS Trusts to ensure an appropriate flow of patients whether in an acute or a community setting. Vulnerable patients in hospital long-term risk hospital acquired infections and ill effects from a lack of mobility and independence. Inpatient beds are required for new patients and resources should be utilised by those with the greatest need.
Reasons for delayed transfers are numerous. The King’s Fund (an independent charity) explain that the reasons (by way of a summary) can include:
In extreme cases, patients or their representatives put up barriers or refuse to engage with the discharge and care planning process, holding up discharge for weeks or months. Matters can be complicated if there are questions about a patient’s mental capacity or freedom to make a decision because of the influence of others, such as family or friends. There are often monetary considerations for a patient if they are unable to return home and have to face for the first time the prospect of care home charges.
Engagement with all relevant parties is crucial throughout the discharge process, to facilitate the discharge plan, and ensure that safe arrangements for discharge are in place. NHS Trusts should have clear discharge planning procedures with standard processes in place. Early communication with the following people and organisations should be considered:
If legal action has to be taken the courts will want to see that genuine attempts were made at resolution and that a discharge plan was followed, with all communications documented.
If a patient on discharge will have ongoing care needs, the NHS body should make a referral to a CCG for NHS Continuing Healthcare Funding assessment. Discharge should not however be delayed while the assessment is performed and indeed the Framework for NHS Continuing Healthcare Funding envisages that the assessment will generally be undertaken in a non-hospital setting. Hospital Trusts should also liaise with the relevant local authority so that they can also assess a patient’s needs. Meaningful engagement at this stage is advisable; especially where there is a potential for a dispute about any assessment, the mode of care (e.g. care at home or care/nursing home), the options available, or the financial position of the patient.
The funding of social care is a complicated and contentious topic. When a patient has specific healthcare needs and are eligible for NHS Continuing Healthcare Funding this is non-means tested and funding is provided without cost to the patient. Social care which is provided by the local authority is means tested and although some limited nursing care can be provided without cost, the patient will often have to fund aspects of the care or accommodation provided. Fears over self-funding social care are understandably common and can result in undue pressure being put on patients by their family not to leave hospital. Patients do however need to address these issues directly as these are not for NHS Trusts to resolve. Advice and input from the relevant local authority can be helpful and potentially ameliorate any resistance to a transfer from hospital.
Up to date evidence in relation to the patient’s ability to make decisions about their residence, care and treatment is vital, particularly where the patient’s lack of mental capacity is nuanced or fluctuating. A lack of mental capacity should be established before any decisions can be made in the patient’s best interests, either via best interests decision-making (with or without a Deputy/Attorney) or in the Court of Protection.
Mental capacity assessments can be carried out by suitably qualified professionals (e.g. clinicians or social workers) but evidence from an expert may be advisable if there is uncertainty on capacity. Where there is disagreement as to discharge and all attempts at resolution have failed, then the Court of Protection is the ultimate adjudicator. An application to the Court for a discharge decision can be made. This will usually be made with the support of the local authority/CCG with details as to the care following discharge before the Court. Following discharge no further obligations on the NHS Trust arise.
Consideration should be given to whether the patient is under any undue influence or control from others, such as family members or friends. Even if the patient is considered to have mental capacity, they may not be free to make a decision about their residence and care for fear of repercussions or disapproval. In such cases, the involvement of the safeguarding or social work teams should be considered.
When a patient lacks capacity all discharge arrangements including court applications should be carefully considered to avoid a breach of a patient’s human rights on discharge.
Options in this situation are wider and can include (in summary):
In the face of an absolute refusal to leave, civil legal action, to seek an order for possession of the hospital bed or room can be taken. This was ordered in Barnett Primary Care Trust v X [2006] where X (who had no need for medical or nursing care) had refused to engage in the discharge process and could not return to his home as it was uninhabitable and repair works were slow.
More recently, in Sussex Community NHS Foundation Trust v Price [2016] the claimant applied for (and was granted) an order for possession of its own intermediate care bedroom as the patient had no medical reason to occupy it and refused to engage with the Trust or the local authority.
To succeed, the Trust must evidence an interest in the land, show that the patient is a licensee for the purposes of medical treatment (not a tenant), that medical treatment is not required, and that the licence has been revoked, such that the patient is a trespasser. Any such action is likely to attract publicity and both Barnett and Sussex were heard in the High Court, and not the County Court. In Sussex this was because of the “particular sensitivity and at least the prospect that this [claim] would have met with a public law defence and required some significantly more complex consideration than is usual in a possession action in the county court”.
Hospital transfers can be contentious and complicated. There might be strong feelings about how social care is funded and provided, family dynamics, communication with and between statutory services, and, limited NHS resources. Litigation will generally be avoided but where patients are genuinely fit for discharge from hospital, the courts are likely to require little persuasion that an option, even an interim one, outside of the hospital setting is preferable.
