There has been a considerable amount of coverage in the press over recent weeks of the unprecedented pressure on hospitals, the rising demand for hospital beds and the lack of resources in the health service. Multiple factors have been given for this including an increased elderly population, a move to community models of care, drive for efficiency savings and cuts in social care.

Whilst the public would understand the impact of these factors on availability of beds, there is an additional factor causing considerable difficulty for hospitals up and down the country, which only surfaces when drastic steps – legal proceedings - have to be taken to recover beds. As advisors to the health service for over 25 years, we have seen a steady increase in the number of requests for assistance and advice in this area.

Whilst in many cases a discharge may be delayed because of the difficulty in identifying a suitable placement to which to discharge to (and then the availability of a bed there), a large proportion of discharges are increasingly being ‘blocked’ by family members or carers who either do not engage in the discharge process at all, or having engaged, delay the discharge because of concerns over the proposed placement.

In some cases the reasons for a delay in discharge or the concerns raised are genuine. Yet in others when looked at closely, the concerns appear in fact to be a tactic deployed to avoid having to pay for what can be costly placements (in the case of self-funders) where discharge is to a place other than the individual’s home, or disengagement with or by family members or unrealistic expectation and inflexibility on the part of the individual and family.

Applications for possession of beds by the NHS, whilst a last resort, are gaining slow but sure momentum. In March 2006, Barnet Primary Care Trust (Barnet Primary Care Trust -v- X [2006] EWHC 787 (QB), (2006) 92 B.M.L.R. 17) successfully applied for possession of a bed from a patient who had been fit for discharge since the end of May 2003. We understand that in 2011 two other trusts, both in Merseyside, threatened to make applications to alleviate bedblocking. In November 2014, Bournemouth and Christchurch Hospitals were in the press: ‘Hospital in legal threat to evict elderly patients who are bedblocking: NHS chiefs’ hardline warning to families’. On 7 October 2016, the High Court granted Sussex Community NHS Foundation Trust’s (Sussex Community NHS Foundation Trust -v- Price (7 October 2016) (unreported) (Westlaw)) application for possession of a bedroom occupied by a patient in a hospital care unit for over a year (and awarded it £8,000 in costs). And on 1 December 2016, James Paget University Hospitals NHS Foundation Trust successfully recovered possession of a bed from a patient who had been medically fit for discharge for two years.

Legal principles

  • As public bodies it is important to remember that the Human Rights Act 1998 is engaged and in these circumstances in particular Article 8 of the European Convention on Human Rights, i.e. the right to a private life.
  • NHS care (and associated accommodation) is free at the point of need and that ends when the patient is assessed as being medically fit for discharge.
  • Sections 119 and 120 of the Criminal Justice and Immigration Act 2008 (CJIA 2008) provide the NHS with a statutory right to remove a person from NHS premises where the person is causing a nuisance or disturbance to an NHS staff member working there; refuses without reasonable excuse to leave NHS premises when asked to do so and is not on the NHS premises for the purpose of obtaining medical advice.
  • Applications for possession are predicated on trespassing laws. Patients, visitors etc are on NHS trust premises ‘under licence’ i.e. entry is permitted for a legitimate purpose such as receiving healthcare, visiting relatives, making deliveries etc. When the licence is withdrawn, or the legitimate purpose comes to an end, the patient, visitor etc becomes a trespasser.

Addressing bedblocking

  • If NHS trusts do not already have in place ‘discharge’ policies they should do so as soon as possible devising ‘stages’ in the discharge planning process (the final stage being the eviction process) allowing for local resolution within robust but reasonable timescales;
  • Enter into dialogue with your local authority (LA) and clinical commissioning group(s) (CCG) to agree robust discharge processes;
  • Provide training to discharge care teams and co-ordinators so that they can confidently address issues as they arise (jointly with the LA/CCG where possible);
  • Enter into dialogue with patients on discharge planning as soon as is practically possible - most patients will have a recorded estimated date of discharge set on admission;
  • Ensure discussions around discharge planning are documented;
  • Consider case conferences or round table meetings with patients and their families/carers where concerns have been raised or issues arise;
  • Be clear that discharge policies and local resolution processes are and have been followed;
  • Invoke the statutory powers available under the CJIA 2008;
  • Consider changing the status of the patient to that of a private patient and charging for bed occupancy, provision of meals, personal care etc; and
  • As a last resort, do not be afraid of saying that an application to court for recovery of the bed and associated legal costs may be made.

Conclusion

The pressure on resources and beds which is increasing day-by-day calls for the adoption of a more focussed and robust approach to bedblocking. Threats of complaints, referrals to professional bodies and media involvement should not detract from this.

Whilst applications to court for recovery and possession of beds are and should continue to be used as a tool of last resort, the health service should not be afraid of going down that route if the circumstances warrant this. Reassurance can be taken from the fact that there is a growing trend, and acceptance we would say, of formal action being taken when local resolution has failed. That said, the need to do so can be negated by ensuring that staff dealing with discharge understand the legal parameters within which they are to work and with policies that are clear, concise and provide a step-by-step guide to discharge planning. Finally, remember, you are not alone.