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Hospital bed possession during Covid-19

Injunctive relief will be granted to remove a patient from a hospital ward when their licence to occupy has been terminated, despite the current stay on possession proceedings. The recent case of University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB) confirmed this.

Paragraph 2 of PD51 Z provides for a stay in “All proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession”. The stay lasts until Friday 26 June 2020. Paragraph 3 provides “For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2.”

The case

MB was a patient in The National Hospital for Neurology and Neurosurgery. She had complex mental health issues and neurological and psychological conditions. She was assessed as medically fit for discharge. Pursuant to the government guidance following the outbreak of the Covid-19 pandemic she was given notice of discharge to adapted accommodation and a package of care to meet her clinical and other needs. Her licence to remain was terminated by the hospital and when she refused to leave, possession proceedings were commenced.

The Judge took the view that MB had full capacity to take decisions about her discharge from the hospital and her care package post-discharge and to take the decisions necessary to defend the proceedings.

The hospital gave evidence that not only was the bed required for critically unwell patients but also that remaining in a hospital environment placed MB at unnecessary risk of contracting COVID-19. It was stated that it was “therefore undoubtedly in [MB’s] best interests to be discharged to a safer location urgently.”

The hospital emphasised the need, in light of the current Covid-19 emergency, to discharge all patients who can be cared for at home as per recent guidance.

Whilst concerns were raised by MB about the adequacy of the care package and accommodation the hospital was clear that they did not consider that a serious decline in MB’s mental health was likely provided that she had the appropriate support following her discharge. MB maintained that the likely effect of discharge would be to cause extreme distress and possibly self-harm or suicide.

The Judge recognised the right of the hospital to enforce its private law rights as property owner. Following termination of the licence to occupy which had been permitted on admission, MB had become a trespasser.

The Judge found that ordinarily, the hospital would be entitled to seek an order for possession pursuant to CPR Pt 55. Barnet Primary Care Trust v H [2006] EWHC 787 (QB), (2006) 92 BMLR 17 (Wilkie J); Sussex Community NHS Foundation Trust v Price (HHJ Coe). However possession claims are currently stayed. A property owner is in general also entitled to an injunction to enforce its rights as against a trespasser Manchester Corporation v Connolly [1970] Ch 420 and Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11, [2009] 1 WLR 2780. A hospital is no different from any other proprietor in this regard.

Where an interim injunction effectively determines the claim, it will be necessary however to satisfy the court that there is clearly no public law defence to the claim; and the balance of convenience and other discretionary factors must also be considered. Consideration was given to whether the hospital’s decision to cease to provide in-patient care had been taken in breach of its public law obligations. It is well established that such a breach can be relied on by way of defence to private law proceedings: Wandsworth v Winder [1985] AC 461. Representations were made on behalf of MB that the termination of the licence breached MB’s rights under Articles 3, 8 and 14 ECHR and the hospital’s obligations to MB as a disabled person under the 2010 Equality Act.

The Judge made an Order for MB to leave the hospital the following day. Mr Justice Chamberlain explained that “the present situation does not involve a comparison of the needs of two identified patients. But the decision to withdraw permission for MB to remain in the hospital is still a decision about the allocation of scarce public resources. Decisions of this kind are a routine feature of the work of hospitals and local authorities, even when there is no public health emergency. The fact that we are now in the midst of the most serious public health emergency for a century is likely to accentuate the need for such decisions. The absence of evidence identifying a specific patient or patients who will be disadvantaged if MB remains where she is does not mean that such patients do not exist. It is important when considering human rights defences in cases of this sort not to lose sight of that.”

Comment

Whilst the judgement is not unexpected in the present climate and as regards decisions taken in respect of ‘bed- blocking’ there are aspects of the case which are worth bearing in mind and which will have an impact on decision making :

  •  MB was capacitous and able to make decisions about her accommodation and care
  •  MB did not agree with the care plan but did agree in general terms with discharge
  •  MB was medically fit for discharge since May 2019
  • The local authority (Camden) was able to make an offer of specially adapted accommodation  promptly with 24 hour care provided 7 days a week
  • Public law challenges are preserved in the Covid-19 landscape
  • Even when there is no public health emergency, decisions about public resources will continue to be made

Practical points

  • Identify appropriate cases for decisions about resources as early as possible
  • Encourage communication within teams
  • Document decision making
  • Provide rationale for decisions
  • Ensure that current guidance is followed and document when and how that is applied
  • Engage with all relevant agencies


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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