Podcast: Complex hospital discharges

Hi everyone and welcome to this podcast on complex hospital discharges. My name is Sophie Bowes and I’m a partner in the inquests and advisory team at Hempsons. Some of you may have been to my webinar on this topic, which was more detailed, but today we’re going to have a quick look at the key points involved in hospital discharges and what you as an organisation should be thinking about when you are aiming to discharge patients from hospital as quickly as possible.

So, the main points that we’re going to be looking at today are thinking about the discharge to assess model that all hospitals should be following when they’re thinking about discharging patients in a timely and safe manner. We’ll talk a bit about your internal discharge policy, some common problem areas, how to escalate delayed discharges, and then we’ll finish by talking about a couple of case studies.

So, to start with, many of you may be familiar with the discharge to assess model. In brief, the discharge to assess model aims to get patients out of hospital as soon as they are clinically fit to leave. This is really with the aim of reducing the number of patients who are taking up hospital beds when they don’t necessarily need to be there. So the problem of beds being filled by patients who are clinically fit to leave has been an increasing one in recent years. The government has introduced some extra funding at various points to try and tackle this, but it still remains a problem today.

So under the discharge to assess model, the trusts are expected to carry out regular clinical reviews of patients. So the aim is to have twice daily ward rounds to identify those patients who are clinically ready to go home. Under the discharge to assess model, the place that the patient is going only has to be suitable for their needs at the time. There isn’t a requirement to have carried out a long-term assessment of the patient’s needs and be looking for a long-term discharge destination. Now the majority of patients will be going straight home and they won’t have any ongoing support needs. So those patients are fairly straightforward and certainly the aim is to identify that they are fit to go home as soon as possible and discharge them promptly.

There will be categories of patients who do require either support at home or to be moved into another environment. For example, whether that is some sort of supported living or a care home environment. Now, under the discharge to assess model, that environment and that support that’s provided just has to be suitable in the short term. So the discharge must be safe, the patient must be informed about what’s going to happen, but it isn’t necessary for that discharge destination to necessarily be suitable longer term. Under the discharge to assess model, the aim is that any longer term assessments take place in the community once the patient has been discharged from hospital.

So when you are thinking about trying to make sure the patients that are under your care are discharged in the way that the discharge to assess model envisages, the main thing to be thinking about is having those regular clinical reviews to make sure you are identifying when the patient is ready to leave, and then getting them discharged safely as soon as possible. Now, for those patients who do require a support package, or they need to go to alternative accommodation, you’re going to be needing to plan that fairly early on in the patient’s admission to hospital, and certainly well in advance of identifying that they are fit to be discharged, to make sure that you do have the appropriate arrangements in place.

So thinking about, as an organisation, how can you make sure that your discharge is run as smoothly as possible? The main thing is that you want to be having a discharge policy in place, and that discharge policy will help staff understand what’s expected of them and help guide them through the process to make sure that hopefully by the time we do reach the point that those patients are clinically fit for discharge, everything is in place for them to go home. So, your discharge policy internally should reflect the discharge to assess model. So it needs to include regular clinical reviews and identifying when patients are fit to go home. It should also cover planning the discharge. So timelines are really important when it comes to getting a timely discharge for patients. So from very early on in the patient’s admission, as soon as it becomes clear what their needs are going to be, you need to be liaising with other organisations, for example, the local authority to make sure any support packages are in place. It’s likely to be the case that you’ll need to have meetings with other organisations, particularly in complex cases, to make sure that the support package and any accommodation is ready in good time for the patient being clinically fit for discharge.

The discharge policy also needs to include things like template letters. So once a patient does get to the point of being fit for discharge, you want to be issuing them with a letter. Your policy can include a standard letter so that patients and staff are all clear about what’s expected and you have consistency in your approach. Where the discharge policy becomes particularly important is if things don’t go to plan. So in an ideal world, a patient will be told that they’re fit for discharge, they’ll be given a date to leave and they will leave on that date, all the arrangements will be in place, and things will go smoothly. Unfortunately, that isn’t always what happens if, for example, either the patient refuses to leave, or there’s a problem with the arrangements, the discharge policy needs to help staff with what they do in that situation.

So there needs to be timescales in the discharge policy that help staff understand how long, for example, they would wait before giving patients more of a warning that they need to leave, for example. So in a situation where a patient has been told to leave and they refuse to go, which is a situation will come on to look at in a little bit more detail shortly, staff need to know what do they do next? Do they issue them a letter? Do they wait a bit longer to see if they go? How do they approach that? And there needs to be a very clear escalation process set out in your discharge policy to make sure that staff understand what to do and that each situation is dealt with in the same way. It’s really important that you deal with each situation in a very similar way as far as possible to make sure that patients don’t have a complaint that perhaps, you’ve treated somebody else differently to them.

So your discharge policy needs to explain what staff do as soon as patients don’t leave. So, the answer to that is that if a patient refuses to leave on the expected date, you need to immediately kick into the next stage of your escalation policy. So unless there is a significant problem, for example, the accommodation has fallen away and that’s why the patient’s refusing to leave (which obviously is completely reasonable), if there isn’t a problem like that, and it’s simply a case of the patient saying, “I’m not happy, I don’t want to go”, you need to immediately be moving to the next stage of the escalation policy. If you don’t do that, one of the risks is, as I said,  you’re not being consistent between cases and where that becomes a particular problem is if you do have a need to, for example, go to court to make sure that the patient leaves in future. That’s a very unusual situation, but it is one that we do encounter. And one of the things that the court will be looking at is have you followed your own policy and have you been consistent in what you’ve told the patient? So that’s something’s that’s really important to keep in mind when you’re drafting your policy and it may be that you want to have a solicitor look over the policy before it’s finalised to make sure you are including everything that you need to within that internal discharge policy.

When thinking about that escalation process, some things to keep in mind are that you want to be trying to resolve things in an amicable way, if at all possible. So one of the common situations that we see is that the patient isn’t happy with the arrangements that have been put in place for the discharge, and that’s why they say they’re not going to leave. What’s important at that point is that you sit down with the patient and potentially with any family members, if they want to bring somebody for support, and understand what their concerns are. It may also be necessary to bring in other organizations, for example, the local authorities, or any other organisations that’s helping with the patient’s care so that they can also be involved in those discussions. And the aim is really to try and resolve the patient’s concerns and reassure them that there are suitable arrangements in place and that things are going to be fine if they are being discharged, and try and deal with those concerns as quickly and as amicably as possible.

Ideally you would be able to resolve those and set a new discharge date and the discharge can then go ahead. Obviously, sometimes that won’t happen. Sometimes the patient will remain unhappy and at that point you need to be thinking about where to go next. Some of where to go next will depend on whether that patient has capacity or not. So in terms of patients who do have capacity, in some ways that’s more straightforward. If you are satisfied that they have the ability to make decisions about their treatment, not a concern about their understanding or whether they, you know, have the ability to make that decision about where to go and whether to leave. In those situations, there’s various options open to you. Normally, as I said, we are aiming not to escalate the situation. I know some organisations will sometimes get security involved or sometimes even call the police. They are quite high risk approaches to take and certainly we wouldn’t advise doing that without taking some specific legal advice first on whether that’s appropriate.

If you really have reached the point where there is no reasoning with the patient, they are refusing to go, and potentially they’ve been taking up the bed for some time, it may be that the route you have to go down is to go to court. In the situation where you’re dealing with a patient who has full capacity and you don’t have any concerns in that respect, the claim that you are likely to need to bring is a property possession claim, and that’s on the basis that patients have the right to remain in a hospital bed for as long as they clinically need to be there and the Trust is happy to have them. However, once you have told them to leave, you told them they’re clinically fit to go and they no longer have any need to be in that bed, you are effectively withdrawing their right, or what we call their license, to be in the hospital bed. And as part of your escalation policy, you need to be issuing the patient with a letter explaining that, and explaining that they no longer have the right to be in that bed. And certainly your hospital discharge policy policy should include that as part of the escalation process if all of the measures have failed. And if you’ve done that, you’ve made it clear to the patient they have no right to be there any longer, and they’re still refusing to leave, as I said, it is likely you’re going to be issuing a property claim, to regain possession of that bed. That’s a claim that you will need to involve solicitors in, so certainly well before reaching that point, you would want to be seeking legal advice.

The situation’s slightly more complicated if you have a patient who lacks capacity. So if you have a patient who doesn’t have capacity to be making decisions about their discharge and future accommodation and future care, that’s the type of case that we would need to be issuing in the course of protection. So in those cases, it’s more complicated than a possession claim and the courts will be looking in more detail of what arrangements are in place for the patient. Again, that’s certainly a claim you would need legal assistance with, both for actually bringing the claim, but also for making sure that you have taken all the relevant steps before going to court and making sure that you have all the necessary evidence available for the court to consider if you do get to that point. It is important for me to emphasise that going to court in this type of situation really is a last resort, and meetings and discussions with the patients are usually enough to resolve the problem. It is very unusual that for a case of a patient refusing to leave, it’s necessary to escalate it up to the point of going to court, but that does happen.

So before we finish off, I wanted to talk a bit about two cases where Trusts have issued court proceedings because patients have refused to leave, and there’s some really important learning to take away from both of those. So the first of the cases that I wanted to talk about was a case from 2024, which is Northampton General Hospital NHS Trust v Mercer. So this is obviously a very recent case and the judge gave some really helpful guidance for NHS Trusts when it comes to managing delayed discharges.

So, as a brief overview, the patient in this case had been medically fit for discharge for over a year, and there was a supported living placement that was set up and available for her to move to. She wasn’t happy with that, she wanted a full residential placement, and had refused to leave on that basis. The hospital was happy that she had capacity and was satisfied there were no issues in that respect, so they issued possession proceedings, so that the patient had to leave the bed. As I said, the real takeaway from this case is that the judge provided some very helpful guidance for hospitals when dealing with discharge disputes involving adults with capacity, and he provided a checklist of things for organisations to be thinking about and keeping in mind before thinking about getting to the point of issuing court proceedings.

So the first point on the checklist was the Trusts need to consider whether there has been a full and holistic preparation of the patient for discharge, and what’s included within this is thinking about whether local and national guidance has been followed. So that links back to the discharge policy that we discussed and why it’s so important to have a policy and to take that consistent approach, because if you do end up in front of a judge, they may well be asking whether that policy has been followed. The second thing is, have any other organisations been involved? So in this case it was the local authority. Had they been involved throughout, had they been involved in discussions with the patients, to try and help resolve the dispute? And also within this, has the patient being fully involved as well? So has it been explained to them what care will be provided on discharge? So sometimes one of the concerns is that the patient doesn’t feel they’re going to have the support they need. Has someone sat down with the patient to explain exactly what is on offer and why that will be sufficient to meet their needs? So they’re all the things you need to be thinking about under that first heading about the full and holistic preparation.

The second point is, has there been all the necessary mental capacity assessments? So you would hope before getting to the point of being in court that you would’ve carried out a mental capacity assessment, but it is really important that you have done that. So it needs to be very clear to the judge that the patient definitely does have capacity to consent or object to the proposed plans. The second element of capacity you need to be thinking about if you are going to be issuing court proceedings is whether that patient has capacity to litigate. So not only does the patient need to have capacity to consent or object to the discharge arrangements, they will also need to have capacity to participate in the court proceedings. And if they don’t, obviously arrangements will need to be made to make sure that they do have appropriate representation of someone representing their interests.

The final point on the checklist that the judge gave was whether the trust has considered the proportionality of procession proceedings. So things to consider under this heading are whether there’s any sort of mental disability that may be a factor in the patient’s refusal to leave, and whether there’s any other alternatives that could be considered other than going to court. Now, as I said, I think court will always be a last resort. I think the majority of Trusts will have exhausted every other option before taking steps to issue proceedings. But it is really important to be thinking about whether there is anything else you can do to resolve the case more amicably before taking steps to issue court proceedings.

The next point that the judge made was that it’s really important to think about whether actually physically removing the patient from the hospital can be safely managed and any psychological impact that that may have on the patient. Patients are often very distressed by the time we get to the point of going to court and when the dispute has been going on for a while, it’s very upsetting for them and it is really important to be managing that as sensitively and effectively as possible. So thinking about extra psychological support, any mental health support that might need to be put in place is really important.

And then finally, the judge also said it’s important for Trusts to be thinking about whether an equality impact assessment is needed as well. So these are all things that perhaps you wouldn’t necessarily be thinking about immediately, but the courts have said needs to be certainly on your radar when you’re thinking about issuing court proceedings. And in light of this case, we can expect that if you were to issue proceedings and be in front of a a judge, they will be going through this checklist and you’ll be expected to have covered all the points that were mentioned by the judge.

But I think what is really important to mention about this case is in the judicial comments within the judgment is the judge made it very clear that if the hospital has taken all steps to arrange a safe discharge, appropriate arrangements are in place, there is a safe package of care there, all the guidance has been followed, policy has been followed, and ultimately it just hasn’t been possible to resolve the dispute, it is appropriate to issue court proceedings and it may be appropriate, obviously, subject to the judge’s assessment for that patient to be issued with an order that they must leave. So that option is very much available as a last resort.

Another important point to finish on about this particular case is that the judge also went through the relevant defences that might be available to the patient, and it’s important for me to mention those just so you are aware of what the patient may say in making sure that you have covered off these points as well. So the three defences that the judge mentioned were: firstly, that the hospital hasn’t had regard to National NHS guidance under Section74(2) of the Care Act. The second is a failure by the hospital to follow its own policy without any good reason. And the third was a breach of the hospital’s duty as a public authority under Section 6 of the Human Rights Act 1998, not to violate the European Convention on Human Rights. So what these really come down to is making sure that you as an organisation are liaising with the relevant authorities to make sure that there is an appropriate package of care in place, you are following your policy, and you are making sure that you’re taking into account the Human Rights Act and a policy legislation as well. As I said before, it’s likely that if you’ve been through the checklist that we discussed a few moments ago, you will have covered all of these points and those defences won’t be available, but it is important to keep them in mind.

Finally, just before we finish, I wanted to touch on another case where possession proceedings were issued. So this is a case from 2020, shortly after the start of the COVID pandemic where the hospital Trust issued proceedings on the basis they needed to get the bed back, in part because of the pandemic. So this is University College London Hospitals NHS Foundation Trust v MB. This was a case that was heard in April, 2022. The Trust submitted that it was appropriate for the patient to leave; they were clinically fit to go, there was accommodation lined up, but the patient wasn’t happy with that accommodation, specifically with the location of the accommodation. Why this case is interesting is because there was quite a detailed consideration of the Human Rights Act side of things.

So the patient’s argument was that requiring her to leave the hospital would be breaching her human rights, specifically under articles 3, 8, and 14. And in the analysis, the judge went through those articles in the Human Rights Act and in summary, what he concluded was that although discharging a patient would inevitably engage their human rights, interference with those human rights could sometimes be justified. And what he said in relation to the Article 3 rights was that in some circumstances a hospital might have to decide which of two patients has a better claim to a bed. So, inevitably by one patient taking up a bed, that means that another patient can’t move into that bed, and that other patient also has human rights that would be engaged as well. So in some circumstances, a hospital is having to think about, well, I have to move patient A out to allow patient B to move into that bed. And what the judge said was that it is lawful for a hospital to take the view that the patient who needs that bed has a greater need than the patient who is currently taking up that bed. So Article 3 of the European Convention of Human Rights does not preclude a hospital from evicting a patient from a bed to make sure it is freed up for another patient who needs that. And importantly, it’s not necessary to identify a specific individual patient who needs the bed; it’s sufficient to say there will be a patient who needs that bed without identifying them as an individual.

So I think that’s really important because as an organisation, it means that you have that support from the courts, that in certain circumstances, it is appropriate to say to a patient, you can’t stay because another patient needs that bed and their clinical need is greater than yours. So, much of the discussion in MB was about the balancing of the human rights of the patient who is in the bed, versus patients who have a need for that bed, and it is an interesting case and certainly if you have time to have a look at that case and read a little bit more about the Human Rights Act or the European Convention of Human Rights Analysis, that’s something that’s really worthwhile doing. Unfortunately we don’t have time to go into more detail about it in this podcast, but it is certainly a really helpful case for Trusts and there’s some really helpful learning points in there as well.

So to start wrapping up the podcast and thinking about some important takeaways from what we’ve discussed today, the key things to be keeping in mind are to be working to make sure that patients who are fit for discharge are identified as soon as possible and that you have arrangements for their discharge in place in good time. So, once they are clinically fit, they can be discharged to a safe and suitable environment. That’s likely to include working collaboratively with other agencies well in advance of the discharge date to make sure that any home support or a care home environment is available and ready to go. The second point is it’s really important to have a clear and consistent discharge policy, which includes an escalation process. If there are problems with discharging a patient, that process should aim to resolve any disputes amicably, but it should also include going to court as a last resort. As we’ve discussed, it’s really important to be seeking legal advice well in advance of getting to that point, to make sure that you are following the proper process. And if you do get to the point of needing to issue court proceedings, you’ve done everything in the correct order; you’ve made sure you’ve considered things such as capacity, all the relevant assessments of taken place, etc. And finally, based on the cases that we have talked about, it’s really important to be thinking holistically and thinking about the bigger picture when it comes to the patient, making sure that you really have taken all possible steps to resolve the dispute before thinking about going to court and thinking about how that discharge will be managed if you are successful in getting an order for the patient to leave. And finally, what I would say, is it’s a really good idea to seek legal advice early on, even if that’s only to check that things are on the right track or to get an external more objective view about things that you could perhaps do to resolve a dispute. You don’t necessarily have to get any detailed advice early on, but I think if you are envisaging that this is a dispute that could become quite problematic, getting legal advice at the early stage is certainly beneficial.

So that brings us to the end of our podcast. It has been a bit of a gallop through all things relating to complex discharges, and there is a lot more to say. As I mentioned at the beginning of the podcast, I have recently done a webinar on complex discharges, which goes into a lot more detail. That webinar is available on our YouTube channel, and I would encourage you to check it out if this is an area that particularly interests you. Thank you very much for joining me today, and I hope to speak to you again soon.