Possession orders for hospital beds – a checklist
What is the guidance on possession orders for hospital beds? In the recent case of Northampton General Hospital NHS Trust v Mercer [2024] EWHC 2515 (KB), the Court provided legal and practical guidance, in the form of a checklist, for hospitals who are seeking possession orders in relation to patients whose refusal to leave hospital may be affected by mental health or mental capacity issues.
The Court also noted that such guidance would also be useful in more complex cases where injunctions may be sought.
The facts
Within this case, Northampton General Hospital NHS Trust (“the Trust”) sough a possession order against Ms Mercer (“the Defendant”), after she refused to leave hospital despite being declared medically fit for discharge.
The Defendant, aged 34, has several disabilities. She is wheelchair-dependent and requires support with her personal care and medication administration. The Defendant also has diagnoses of Autistic Spectrum Disorder and Emotionally Unstable Personality Disorder. She has also lived in residential accommodation for most of her adult life.
On 14 April 2023, the Defendant was admitted to Northampton General Hospital (“the Hospital”) for treatment of cellulitis in her right leg. Following treatment, the Defendant was declared medically fit for discharge on 25 April 2023.
It was originally intended that the Defendant would return to St Matthews, a residential home she had previously lived at for nine years. However, this plan fell through as a result of a dispute between the Defendant and her mother (Mrs Mercer), and the home.
As a result, the Defendant remained at the Hospital while the adult social care team at North Northamptonshire Council attempted to locate a suitable alternative placement for her.
Eighteen months later, the Defendant was offered a placement which met her personal needs by providing 24-hour care in a supported living environment. However, she refused to leave the Hospital due to extreme anxiety about the proposed patient. Both the Defendant and Mrs Mercer believed that the Defendant may hurt herself, her carers or even attempt suicide if she was moved from Hospital.
Following the refusal of this placement, the Defendant stated that she wanted a placement in residential accommodation either at St Matthews or at a similar care home closer to her mother. However, the Defendant was assessed as not needing this.
Consequently, on 14 August 2024, the Trust sought a possession order over the room at the Hospital that the Defendant was occupying.
The Court’s Consideration
During the consideration of the matter, the Court took some time to review the relevant legislation and case law within this area. Specifically, His Honour Judge (“HHJ”) Tindall took some time to consider the provisions of the Mental Capacity Act 2005, Mental Health Act 1983 and the surrounding case law.
Drawing the above threads together, HHJ Tindall provided a checklist that he considered would be helpful to a hospital seeking a possession order, in relation to a patient whose refusal to leave hospital may be affected by mental health or a mental capacity issue.
This checklist is set out below:
- 1) Has there been full and holistic preparation of the patient for discharge?
- a. Has NHS guidance / local policy on ‘patient involvement’ been followed?
- b. Has there been sufficient liaison with the relevant local authority if it will be responsible for accommodation and/or care provision and funding?
- c. 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?
- 2) Have there been all necessary mental capacity assessments of the patient?
- a. 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.
- b. 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).
- c. 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.
- 3) Has the proportionality of possession (or an injunction) been assessed?
- a. Is the patient’s refusal to leave in consequence of a mental disability?
- b. Have all reasonable lesser alternatives to possession or an injunction been tried but not succeeded in the patient leaving the hospital voluntarily?
- c. Can the physical and psychological impact on the patient of being removed from hospital home or to the proposed placement be safely managed?
HHJ Tindall then emphasised that, whilst the few cases so far suggest that possession or an injunction has been ordered after a patient had been fit for discharge for a period of approximately a year, the particular quantity of time is less important that the quality of the evidence on those issues justifying possession or an injunction.
The Decision
Within his decision, the Court considered that the Hospital had evidenced that:
- 1) The Defendant had been medically fit for discharge since her cellulitis treatment in April 2023;
- 2) It had complied with the national NHS guidance and its own policy;
- 3) It had shown why the Defendant’s planned return to her residential care home had broken down; and
- 4) The Defendant had been assessed as being the responsibility of the local authority.
The Court noted that the local authority had investigated over 120 placements and had located an appropriate supported living placement, which the Defendant had refused.
It was also stated that, initially, there was relatively little information regarding the Defendant’s diagnoses relevant to both disability under the Equality Act 2010 and capacity under the Mental Capacity Act 2005.
In addition to this, the Court noted that, initially, there was also no assessment of the Defendant’s capacity to litigate and no equality impact assessment addressing the proportionality of possession. However, it was also recognised that these gaps were filled at a later hearing when the Defendant was assessed as having capacity to defend proceedings.
The Court considered that the Defendant had clearly become institutionalised and that, in combination with her conditions, had led her to severe anxiety over the proposed move to a supported living placement for the first time.
However, the Court noted that this was the local authority’s assessment of the Defendant’s needs for care and support and if she wished to challenge it, she had to do so with the local authority in the first instance, then by complaint to the Ombudsman, or by claiming judicial review of the assessment.
As such, applying his checklist, HHJ Tindall considered that the Defendant could not continue to avoid her departure by remaining in the hospital when she did not need a bed there, but other patients did.
Consequently, as he considered that a possession order was a proportionate means of achieving a legitimate aim and as the hospital had complied with the public sector equality duty, HHJ Tindall granted the Trust’s application for a possession order.
This article has been co-written by Luke Williams, Eve Piffaretti and Richard M Jones.
Blake Morgan has significant experience in advising upon health and social care matters. Should you require advice upon any of the matters raised in this article, please contact Eve Piffaretti.
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