Legal briefing: staying in bed

Delayed discharge can be caused when clinically well patients refuse to go home. In such circumstances, what is the legal position for trusts faced with coercing patients to leave? Ian Long explains

Following the introduction of legislation to tackle delayed transfers in 2003, the NHS has struggled to reduce instances of.bed blocking.

The legislation required the NHS and local authorities to co-operate over the intended discharge of patients needing community care services. The NHS was given the power to charge councils a daily rate if a patient's discharge was delayed because a council failed to make appropriate arrangements.

However, delayed discharge can also be caused by clinically well patients simply refusing to go home. In such circumstances, what is the legal position for trusts faced with coercing patients to leave?

Protection from eviction

An unexpected problem lies in the fact that a patient may be treated as a 'residential occupier', giving him or her rights under the Protection from Eviction Act, especially after a long-term admission.

In such circumstances, trusts must take care that any efforts to persuade a patient to leave do not contravene the act, which makes it an offence to:

• interfere with the peace and comfort of an occupier;
• persistently withdraw services;
• take these steps with the intention of encouraging an occupier to leave.

As such, withdrawing food from a patient because they have been discharged may be illegal.

Similarly, efforts to persuade a patient to leave may contravene the right to respect for his or her private life/family/home, as laid down by the Human Rights Act. Withdrawing food may also be classified as inhuman or degrading treatment, which the act forbids.

Persuading patients to leave

To prevent the risk of potential claims on these grounds, trusts should have in place appropriate policies to deal with such situations. Dialogue with the local authority may remedy the problem if the patient needs community care services. Otherwise, trusts might seek to enlist the help of relatives to persuade a patient to go home.

If all else fails, trusts face the task of attempting to persuade a patient to leave. Any such efforts should be recorded in writing to avoid misunderstandings further down the line. Trusts must make clear that a daily charge will be levied and that, if necessary, court proceedings will be taken to evict the patient. If such action is required, the trust should ask the court to make an order for payment of its legal costs by the patient.

This was the approach taken by Barnet primary care trust over a bed-blocking instance last year. The court ruled that the trust's approach was in accordance with the Human Rights Act, granted possession of the hospital bed to the trust, and ordered the patient to pay£10,000 legal costs.

Delayed discharges continue to vex bed managers. The problem requires careful and skilful management. Once it is apparent that a patient is unlikely to co-operate, however, swift action by trusts will help to free the bed as early as possible and keep costs to a minimum.

Ian Long is a health law expert at Browne Jacobson. For more information, visit www.brownejacobson.com