[2024] EWHC 2515 (KB) (4 October 2024) https://www.bailii.org/ew/cases/EWHC/KB/2024/2515.html
FACTS:
Ms Mercer, the defendant to this action for possession in the ordinary civil court, is wheelchair dependent, requires support with her personal care and medication, and also has diagnoses of Autistic Spectrum Disorder and Emotionally Unstable Personality Disorder. She has lived in residential accommodation for almost all of her adult life, living at St Matthews Home for nine years prior to her admission to hospital.
She was transferred to the Claimant Hospital’s Willow Ward to treat cellulitis of her leg on the 14th April 2023, and declared medically fit for discharge on the 25th April, following treatment. However, the original plan for her to return to St Matthews failed due to a dispute between the Home and Ms Mercer and her mother (Mrs Mercer).
Despite placement searches by the Adult Social Care team at North Northamptonshire Council (‘NNC’), she then remained in the Hospital for a further 18 months.
An arrangement deemed to meet her needs (24-hour care in a Supported Living setting) then became available.
Ms Mercer was extremely anxious about moving from residential accommodation to supported living, with her and her mother fearing she might hurt herself or others there.
As such, she refused to leave the hospital and wanted a placement in residential accommodation, either at St Matthews or a similar care home, closer to her mother. However, her care and support assessment had concluded that this would not be necessary.
As she refused to vacate her bed, the Hospital Trust sought a possession order.
LEGAL ISSUES:
In his judgment, Judge Tindal took care to outline the relevant legal frameworks relevant to the granting of a possession order, concerning Mental Capacity, Human Rights and the Equality Act.
The judge outlined three situations in which a hospital has a legal right to remove people, who do not need to stay, from a hospital bed. Firstly, under s.119(b) Criminal Justice and Immigration Act 2008, regarding patients who are actually disruptive, it is a criminal offence to refuse, without reasonable excuse, to leave NHS premises when asked to do so by a constable or NHS Staff member.
However, it is the latter two which are of potential relevance to Ms Mercer’s case.
Patients with no Mental Capacity or Disability Constraints
Firstly, following a certain procedure, hospitals may remove patients who are medically fit for discharge, yet refusing to leave, where their refusal is not affected by any sort of mental health or mental capacity issue.
In this situation, the hospital must first try to engage with the patient to reassure them and encourage them to leave, as required under s74 Care Act 2014 (CA). This provision holds that where a Trust responsible for an adult hospital patient considers the patient is likely to require care and support following discharge, the Trust must as soon as feasibly possible after it begins making any plans relating to the discharge, take any steps that it considers appropriate to involve the patient, and any carer of the patient. In performing this duty the Trust must also have regard to any guidance issued by NHS England.
As the corresponding guidance make clear, a patient who is fit but unwilling for discharge does not have the right to remain in hospital if they no longer require care in that setting. They have no right to wait until their preferred option becomes available where care assessed as adequate will otherwise be provided.
Where the patient’s ongoing care and accommodation is the responsibility of the local authority, the patient’s objections and concerns should be directed towards the authority (and escalated if necessary to the Local Government and Social Care Ombudsman or a claim made for Judicial Review: R(HL) v SoSSC [2023] ACD 79). There is no discussion in the judgment as to how practical that will be for any of the parties concerned, given the time that those remedies take, however.
The patient has no private law defence to possession in this situation, but as the hospital is a public body, the person may raise a public law defence if illegality under public law can be proven – for example if the hospital failed to have regard to national NHS guidance regarding involvement of others, under s74(2) CA, or a failure to fulfil its duty as a public authority under s6 Human Rights Act 1998 not to violate Convention rights. However, such human rights claims in the context of hospital discharge have proved difficult to evidence, in practice.
Patients with impaired Mental Capacity / Disability Constraints
However, if the patient’s refusal to leave is influenced by their mental health or mental capacity issue, additional legal complexities arise regarding the hospital’s ability to remove them, relating to protections under the Equality Act 2010 (EqA) and the Mental Capacity Act 2005 (MCA).
Firstly, under s6 EqA, a patient is deemed to have a disability if they have a ‘physical or mental impairment with a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.’
As Judge Tindal makes clear, a hospital is a ‘service-provider’ under s29 EqA, which can be liable for disability discrimination if it fails in its duty under ss.20-21 EqA to make reasonable adjustments for a disabled patient, before (for example) seeking possession. Section 15 EqA further provides that a service provider discriminates against a disabled person if it ‘treats them unfavourably because of something arising in consequence of their disability and cannot show the ‘treatment is a proportionate means of achieving a legitimate aim’.
As such, if a hospital seeks possession (the ‘unfavourable treatment’) because of a patient’s refusal to leave hospital (‘something’) due to a known mental disability, it will have to prove possession would be proportionate.
Furthermore, aside from the issue of discrimination, a hospital is a ‘public authority’ owing the Public Sector Equality Duty to ‘have regard’ to the needs ‘to advance equality of opportunity’ for disabled people and to take different steps for them than for non-disabled people under s149 EqA.
Separately, s2 MCA states that ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’
Section 3 MCA further clarifies that the person is unable to make a decision if unable to understand, retain or use the information relevant to the decision (or to communicate it). As such, capacity is ‘issue-specific’ and ‘time-specific’ in that someone may have the capacity to make one decision (eg consent to treatment) but not another (eg consent to discharge from hospital / leaving the hospital).
In this way, a patient may have capacity under the MCA to make all relevant decisions, yet still have a ‘mental impairment’ amounting to a disability under s6 EqA. Whereas the concept of mental disability relates to a long-term effect, mental capacity relates to the ability to make a particular decision at a particular time.
JUDGE TINDAL’S JUDGMENT:
In the present case, Judge Tindal granted the possession order.
Prior to the first hearing, the Claimant Hospital had evidenced (in line with national NHS and internal guidance) that Ms Mercer had been medically fit for discharge since April 2023. The local authority had investigated almost 120 different placements for Ms Mercer before assigning her to the placement deemed to meet her assessed care needs – a Supported Living placement specialising in working with those with Ms Mercer’s disabilities, initially with 2:1 care day and night during transition, before reducing to 1:1 care with 2:1 at specific times.
However, the first hearing was adjourned, due, amongst other things, to an inability of Ms Mercer and her mother being able to participate effectively; relatively little information provided on Ms Mercer’s undisputed and long-term diagnoses of Autistic Spectrum Disorder (‘ASD’) and Emotionally Unstable Personality Disorder (‘EUPD’) relevant to both disability under the EqA and capacity under the MCA; no assessment of her capacity to litigate; and no Equality Impact Assessment (‘EIA’) addressing the proportionality of possession.
Contrastingly, at the adjourned hearing, these issues were remedied. Ms Mercer was able to attend remotely, and, on her preference, have her mother speak for her. The gaps in evidence were filled by the Hospital and Ms Mercer herself. Furthermore, EIAs were provided by NNC giving more details on the proposed placement and its proportionately given the urgent need of the hospital for the bed. Finally, evidence was provided to the satisfaction of the judge that Ms Mercer had mental capacity in all relevant areas.
The judge was thus satisfied that possession was a proportionate means of achieving a legitimate aim, with no relevant public or private law defences engaged. As such, if Ms Mercer wished to challenge the assessment of her care needs due to her extreme anxiety, she would need to challenge this through the Local Authority’s routes, but could not continue to avoid her departure by remaining in the Claimant Hospital when she did not need a bed there.
COMMENTARY
Significance of s15 Equality Act
Judge Tindal’s discussion of the relevant caselaw underscores an interesting point about the operation of the public law duty in comparison to the private law property rights of the hospital.
Indeed, in University College London Hospitals NHS v MB [2020] EWHC 882, the private law property rights of the hospital were emphasised, in that the patient had no private right to occupy the bed except with the hospital’s permission. In that case, the patient’s lawyers did not appear to raise the s15 EqA duty, likely because the case was decided in April 2020 when the rising numbers of people hospitalised due to COVID meant the Trust urgently required her bed. As such, the exceptional nature of the COVID crisis meant arguments that such ‘unfavourable treatment’ was disproportionate would have been very unlikely to succeed.
Rather, in the present case, although the ‘beds’ crisis in the NHS is emphasised, there is no current national emergency, and Judge Tindal firmly upheld the significance of Equality Impact Assessments on proportionality when granting possession orders, even adjourning the first hearing, inter alia, due to evidence lacking in this area.
Mental Capacity Assessment
Furthermore, in Barnet Primary Care Trust v H [2006] EWHC 787 (QB), a patient remained in hospital for almost three years when medically fit for discharge, obstinately refusing suitable placements before a possession order was eventually obtained. Similarly, in Sussex Community NHS Foundation Trust v Price, the patient behaved similarly for nearly a year and was not only evicted, but also required to pay the hospital’s legal costs of £10,000.
However, in these cases, as well as in MB, mental capacity was not discussed in detail.
In the present case, Judge Tindal made it clear that ‘it is imperative that a hospital contemplating a possession claim considers whether there is reason to believe the patient may lack mental capacity.’ He outlined that although s1 MCA states there is a ‘presumption of capacity’, failure to undertake a capacity assessment if there is any ‘reason to believe the patient may lack capacity’ would breach NHS guidance and may justify refusal of a possession order, due to the serious resulting consequences.
If a hospital fails reasonably to assess a patient’s capacity and treats the person as not having capacity to consent to treatment or discharge when in fact they do have it, the hospital will not have a defence under ss5-6 MCA to otherwise tortious acts like medication or restraint or hands on removal by security guards, even if clinicians believed those acts were in the patient’s best interests. Conversely, if a hospital without an MCA assessment wrongly assumes a patient has capacity when they do not, the patient cannot consent to leaving hospital, which therefore requires a lawful best interests decision under s4 MCA if there is objection, by the Court of Protection under ss16-17 MCA, or, if not, by the hospital under s5 MCA.
If a hospital discharge team fails to comply with the MCA in discharging an incapacitous patient to an unsuitable placement, they can be liable in tort for resulting injury, as in Esegbona v King’s NHST [2019] EWHC 77 (QB). (We do not think that the same applies to a social work decision-maker, for reasons beyond the scope of this commentary.)
In Ms Mercer’s case, despite the judge being satisfied on the evidence that she had mental capacity in all relevant areas, he equally emphasised her vulnerability as someone who had been in institutionalised care her entire adult life and was evidently dealing with extreme anxiety regarding discharge to her new placement. While legal compliance and assessed care provision were achieved on paper, Mrs Mercer’s fears that her daughter would self-harm, hurt her carers, or even attempt suicide in the new placement were still not addressed (aside from deferring possession for a week to help Ms Mercer prepare for departure).
Considering that Ms Mercer was not thought to lack capacity, and thus decisions could not be taken ‘in her best interests’ under s4 MCA, Ms Mercer could not be forced to accept her new placement. Under her ECHR rights, the Art. 8 right to private life and autonomy, as explained in MB, is unlikely to give rise to a positive obligation to provide her with what she wanted, which was to go back to the care home or to a facility closer to her mother. As Judge Tindal said, it could only be hoped, not guaranteed, that the transition would go smoothly. As her care was now the responsibility of the Council, it appeared that her only remedy for altering the care arrangements would be taking up her clearly ongoing concerns with the Council, and escalating them to the LGSCO, the Monitoring Officer within the council, or applying for judicial review.
We wonder if she might simply be advised to refuse to sign the tenancy, given that she could not be made to take up tenure contrary to her wishes. But the danger would be that she would be regarded as refusing the offer of the service, although tellingly, the tenancy would not be being offered by the Council (as far as we know, this was not a case of direct provision due to assessed and acknowledged accommodation ‘plus’ needs) so she would need judicial review anyway, to make the point that care cannot be made conditional upon accommodating oneself and paying for accommodation that one does not want, simply in order to save a Council money.
Checklist for Granting Possession Orders
To finish, as Judge Tindal’s and the above discussion makes clear, the legislation relating to mental health is extremely complex. Three very different statutes intersect to determine the necessary procedures: the Mental Health Act 1980 (‘MHA’), Mental Capacity Act 2005 (‘MCA’) and to a lesser but still crucial extent the Equality Act 2010 (EqA’). Moreover, mental disability can also give rise to need for care and support under the Care Act 2014 (‘CA’).
The judge provided a checklist he considered would be helpful for hospitals in future cases seeking a possession order for a patient whose refusal to leave may be affected by mental health or mental capacity issues, as extracted below:
(i) Has there been full and holistic preparation of the patient for discharge?
- Has NHS guidance / local policy on ‘patient involvement’ been followed?
- Has there been sufficient liaison with the relevant local authority if it will be responsible for accommodation and/or care provision and funding?
- Has it been explained to the patient and carer: how ongoing medical/care needs will be met, who is responsible for meeting them and what the patient or carer can do if they are unhappy about the provision?
(ii) Have there been all necessary mental capacity assessments of the patient?
- Does the patient have capacity to consent or object to (1) discharge and/or (2) placement (as opposed to treatment)? If not, an application to the Court of Protection may be required if there is any dispute.
- If both, do they have capacity to defend possession/injunction proceedings? If not, a suitable Litigation Friend will need to be found (who may be the person required to be served with the claim under CPR 6.13).
- Either way, if the patient would struggle to attend or participate physically and is a ‘vulnerable party’ under CPR 1A, the claimant hospital could suggest to the Court a remote hearing and facilitate it from hospital.
(iii) Has the proportionality of possession (or an injunction) been assessed?
- Is the patient’s refusal to leave in consequence of a mental disability?
- Have all reasonable lesser alternatives to possession or an injunction been tried but not succeeded in the patient leaving the hospital voluntarily?
- Can the physical and psychological impact on the patient of being removed from hospital home or to the proposed placement be safely managed?