Managing disagreements around discharge arrangements

Hospitals across the country are coming under increasing pressure as a result of the current winter crisis. NHS Providers has written to Jeremy Hunt to outline concerns that the NHS does not have sufficient beds or staff to manage the volume of required admissions. The need for Trusts to promptly discharge patients who are well enough to leave hospital has never been more intense.

Many delays in discharge arise where patients will require ongoing care or otherwise cannot return home immediately. However, hospitals are also faced with patients who are fit to be discharged, but where the patient (or their family) is refusing discharge.

Hospital inpatients may have concerns around: the level of ongoing care they will require; a perceived or actual shortage of resources in the community; family, social or environmental factors; psychological or psychiatric illness; or a perception that they will be at risk if discharged. A breakdown in communication or trust between a patient (and their family) and hospital staff may exacerbate existing concerns and may impede collaborative discharge planning.

Taking formal legal action to remove a patient from hospital is always a last resort for NHS organisations. However, with determined opposition to discharge from a patient who no longer requires inpatient care, Trusts can be left with no option but to consider legal proceedings in order to redeploy scarce resources where they are truly needed.

Any Trust faced with a patient refusing discharge will need to give careful consideration to that individual’s needs and rights. Consequently, the Trust will need to be able to put forward clear and compelling evidence to demonstrate the availability and suitability of after-care arrangements. The Trust will also need to demonstrate that it has sought to engage as far as possible with the patient and their family and has provided all relevant information to assist the patient in participating in the plan for discharge. Where the possibility of Court action is present, obtaining legal advice early on in the process can facilitate this evidence-gathering process and put Trusts in the strongest possible position should they need to take legal action.

Points to Consider:

• Does your organisation have a clear patient discharge policy? Are your staff aware of the policy, and is it considered and applied in all cases? Does the policy recognise the possibility of patients refusing to be discharged?
• Does your organisation have clear lines of communication with local Community and Mental Health Trusts as well as Local Authorities? Is there effective co-working on discharge plans?
• Do you have effective systems in place for collecting and retaining evidence of discharge plans, discussions with patients, and co-working with other healthcare providers and Local Authorities?
• Would you feel confident that you knew when to get legal input if a patient challenged their discharge?

Hempsons has significant experience assisting Trusts in these very challenging circumstances and is able to bring specialist legal expertise from a range of fields (including the Court of Protection, contentious property matters, and public and human rights law) to bear in order to secure the best outcome for Trusts, whether inside or outside the Court process. If you would like to discuss these issues further, please contact Rachel Croft, Sam Stone or Stephen Evans.