Dealing with ‘bed-blockers’ during the Coronavirus outbreak

To discharge or not to discharge? Does the patient become a trespasser?

University College London Hospitals NHS Trust v MB

The age old problem of discharging people who no-longer require hospital care or treatment and who refuse to take up a local authority care package is in the lime light – now more than ever.

In this judgement, out today, the High Court is clear that a healthcare provider is entitled to an order requiring a patient to vacate the bed when they no longer require in-patient care.

The Facts

MB had been in hospital for over a year with complex psychological problems. Medical staff believed she could be safely discharged into a 24-hour care package (subject to three month review). MB refused to go arguing it was insufficient and that she would take her own life if forced out of hospital. The court determined the care package on offer did meet MB’s needs despite threats of self-harm. The hospital had terminated MB’s licence to occupy her room and was in desperate need of beds during the pandemic and issued proceedings for:

1. An order for possession; and
2. An injunction order to enforce its right against MB as a trespasser.

The Law

Many arguments were raised in respect of the patient’s human rights, disability discrimination, breach of duty and whether or not the patient could bring forward her own expert evidence to show she still required hospital care. These were all rejected. 

Cutting to the chase, we can take on board the following points – many of which simply restate the current law:

• [Restating the well-established principle] the court could not require clinicians to provide treatment contrary to their own clinical judgement;
• The Trust had properly ended the patient’s licence to occupy and MB had become a trespasser;
• A ‘balance of convenience’ had to be made which came down in favour of the Trust (and even more so in the current crisis). If the order was made, the patient would not be left without care but if it was not made another patient could well suffer; and
• The interim injunction ordering the patient to vacate the bed was made.

Concluding comments

In passing, we need to note, the order for possession (1. above) could not proceed because of the general stay on possession claims during the Covid-19 pandemic.

This did not stop an injunction order being made which was not affected by recent temporary changes to the rules. A property owner is still entitled, in general, to an injunction to enforce their rights as against a trespasser.

We have recently provided advice to clients in respect of the discharge of patients who no longer require hospital care. More than ever, it may be necessary to discharge and we can advise on a case by case basis

More information: Stuart Knowles