Options to solve so-called “bed-blocking” are in the headlines again, following an apparent decision by NHS Sefton to begin using anti-trespass laws to evict patients taking up beds inappropriate for their needs and which are desperately needed by others.

According to a recent survey, the problem of bed-blocking is getting worse. Increasing numbers of patients, particularly the elderly, are deemed fit enough to leave hospital but are nonetheless remaining there. Sometimes this is because of a delay in putting care plans into place which results in “delayed discharge” but on other occasions it is due to a refusal by the patient to accept transitional care arrangements, so called “bed blocking”.

This causes a real problem, costing the NHS millions of pounds a year. So what can be done about those who wilfully refuse to give up their hospital beds?

In a landmark case in 2006 (Barnet Primary Care Trust v X [2006] EWHC 787 (QB)), NHS Barnet obtained a High Court order to recover possession of one of its beds at Finchley Memorial Hospital from an elderly patient who, according to the judge, “simply refused to engage with the process of discharging him”. The patient was also ordered to make a contribution of £10,000 towards the trust’s costs. This was an extreme case given that the patient had remained in hospital for nearly three years after being declared fit for discharge. However, there is no legal reason why the same procedure cannot be used where the delay has been much briefer. In essence, trespass is a remedy for the infringement of possession. Thus anyone who can prove they are entitled to possession of premises, even if they are not the freehold owner, may bring an action to recover that possession from someone with a lesser right. Even a health provider occupying premises under a licence arrangement should have the locus standi to evict anyone with lesser rights of occupation than itself.

Of course, the mere threat of legal proceedings may be sufficient to persuade a patient previously unwilling to move on.  

Aside from civil action, a patient refusing to give up his or her bed could potentially be guilty of a criminal offence. Section 119 Criminal Justice and Immigration Act 2008 created a new offence of “causing nuisance or disturbance on NHS premises”. A person who is not on NHS premises for the purposes of obtaining medical advice, treatment or care, who causes nuisance or disturbance to an NHS staff member and who refuses to leave when asked to do so, may be removed from the premises by the police or an authorised NHS officer and is liable to a fine on conviction. While the legislation was no doubt intended primarily to deal with persons posing a threat to security or impeding staff from carrying out their work, it could in theory be applied to troublesome and abusive patients refusing to engage with proper efforts to move then to transitional care since it specifically states that once a person has received advice, treatment or care (or has had it refused within the last eight hours), then he is no longer on the premises for the purposes of obtaining that treatment etc. and therefore potentially falls within the ambit of the section. It remains to be seen how successful the remedy would prove in such cases.

What is paramount however is that whatever seemingly unusual powers are exercised in relation to patients are used only when absolutely necessary to provide facilities for others and in appropriate and caring fashion. If the local authority social care cuts are to be as serious as we are led to believe, the pressure from patients on the acute sector will increase significantly.