University College London Hospitals NHS Foundation Trust v MB (Rev 1) [2020] EWHC 882 (QB)
The Claimant, the NHS Trust, sought possession from the Defendant, a patient called MB, of a bedroom on a ward of the hospital. The ward was intended for those requiring acute neuropsychiatry care for up to 14 days (sometimes up to 28 days).
The Claimant argued that the possession claim was urgent as the bed was needed for other patients due to the COVID-19 pandemic and because, in any event, MB was at increased risk of contracting COVID-19 and therefore staying on the ward was contrary to her interests. The Claimant argued that MB could be discharged to specially adapted accommodation with a care package provided by the local authority. MB’s case was that she wished to be discharged but had concerns about the adequacy of the care package offered by the Claimant.
Background
MB was originally admitted to hospital on 18 February 2019 with a functional neurological disorder manifesting as limb weakness, tremors and speech disturbance. She also suffered from chronic fatigue, migraine, generalised pain, PTSD, disrupted attached, OCD, possible borderline personality disorder and Asperger’s syndrome. She required help with personal care. During her stay in hospital, her behaviour had been exceptionally challenging and aggressive, limiting her progress.
Discussions regarding discharge of MB and a care package had been ongoing for over a year. However MB had declined the care packages offered to her, primarily on the basis that none of the packages included 24 hour care. A 24 hour package was eventually agreed followed by an assessment to determine ongoing need, but this was rejected by MB as she wanted a guarantee of 24 hour care for at least 1 year. At the time of the hearing, she also required some adaptations to be made to the accommodation into which she was to be discharged. MB argued that if her requirements were not met, she would be at risk of self-harm or suicide.
Some of the adaptations had been made, but they were not all deemed to be clinically necessary. Clinical evidence was also presented by the Trust as to MB’s mental state, namely her risk of self-harm and suicide. The evidence suggested that MB had, in the past, threatened deliberate self-harm when her needs were not met and that there was no mental health reason to keep her in hospital.
Furthermore, the judge proceeded on the basis that MB had capacity.
Legal framework
The legal framework was set out by the judge at [37] to [39]. He noted that ordinarily the Trust would be entitled to seek an order for possession pursuant to CPR Part 55 but, due to the current general stay on possession claims effected by CPR 51Z PD this was not possible. However, as paragraph 3 of the PD notes, this stay does not affect claims for injunctions against trespassers (i.e. MB).
It was noted that the effect of the injunction would be tantamount to final relief, such that it should not be granted if there was clearly no defence to the action. It was agreed that it would be wrong to grant the injunction if there was an arguable case that the Hospital’s decision to cease to provide in-patient care had been taken in breach of its public law obligations.
At [51] the judge also noted: “Patients have no right to occupy beds or rooms in hospitals except with the hospital’s permission. A hospital is entitled as a matter of private law to withdraw that permission. In deciding whether to withdraw permission, the hospital is entitled and indeed obliged to balance the needs of the patient currently in occupation against the needs of others who it anticipates may require the bed or room in question. Unless its decision can be stigmatised as unlawful as a matter of public law, there is no basis for the court to deny the hospital’s proprietary claim to restrain the patient from trespassing on its property. Where what is sought is an interim injunction which would effectively determine the claim, it is necessary for the court to be satisfied that there is clearly no public law defence to the claim; and the balance of convenience and other discretionary factors must also be considered.”
Judgment
MB argued that the judge should adjourn and allow her to obtain her own expert evidence. This was refused for 3 reasons:
- In judicial review proceedings challenging a decision by a hospital not to provide in-patient care to a patient on clinical grounds, it would not ordinarily be open to the Claimant to adduce expert evidence impugning the clinical basis of the decision. That would go beyond the limited circumstances in which expert evidence was permissible in JR proceedings. Although these were not JR proceedings, MB sought to raise collateral challenges to the Hospital’s decision to remove her by way of public law defences and so it was appropriate to apply the same principles.
- The clinicians’ clear view was that MB did not require hospital care and could safely be discharged. Clinicians could not be compelled to provide treatment which they considered to be contrary to their clinical judgment and it would be wrong to entertain evidence with a view to requiring them to do so.
- Thirdly, and practically, given the COVID-19 pandemic, it was highly unlikely that MB would be likely to obtain independent expert evidence in a reasonable timeframe. The practical effect of the adjournment would be to delay MB’s discharge at the exact time her bed was needed, due to the pandemic, thus defeating the purpose of the application. The judge acknowledged that the expert evidence in front of him was not compliant with CPR Part 35 as the doctors were employed by the Trust, but his views represented those of an impressive MDT and were supported by two further clinical witnesses.
As to the risk to MB of discharge, the judge found that there was no dispute that MB’s physical needs could be met satisfactorily by the care package proposed. He also found that MB frequently exhibits abusive and challenging behaviour to those providing care for her; that Camden Council had done a great deal to meet MB’s concerns but that given her past behaviour it was unlikely they would ever be met; that MB used threats of self-harm and suicide to persuade others to meet her needs but there was no evidence of her actually resorting to self-harm; that the risk of self-harm or suicide to MB was low if discharged; that MB was likely to suffer extreme distress if discharged but it could be managed with the proposed care package.
The judge also considered MB’s concerns regarding the care package in turn and concluded that each concern raised could not be met reasonably by Camden and that they had already gone to significant efforts to meet MB’s concerns.
The judge then considered whether it was clear that MB had no public law defence to the claim. MB did not argue that the decision to require MB to leave was irrational in the Wednesbury sense.
As to Article 3 ECHR, MB’s submissions were summarised as follows at [53]: “if it can be established that, unless her concerns are addressed, discharge will precipitate suicide, self-harm or extreme distress rising to the level of severity necessary to qualify as inhuman or degrading treatment within the meaning of Article 3 ECHR, the Hospital is legally precluded from discharging her until those concerns are met, even if her concerns are, from an objective clinical point of view, unreasonable and unwarranted.”
The judge disagreed, finding that, given the unfortunate nature of MB’s condition, where she suffered extreme distress frequently, this would effectively allow MB to veto any action with which she did not agree. Furthermore, where a hospital decides, rationally and in accordance with a lawful policy, to allocate finite resources to patient A over patient B, they are not precluded from doing so by Article 3.
The hospital had made a decision to discontinue in-patient care. This decision engaged the State’s positive obligations under Article 3, which were to take all reasonable steps to avoid suffering. In the present case, reasonable steps had clearly been taken.
In any event, even if the question were simply whether discharge in current circumstances would lead to suffering rising to the level of severity required to engage Article 3 ECHR, the clinical evidence in the present case did not suggest that such suffering was likely to occur. MB’s risk of self-harm or suicide was moderate to low and the provision of a 24 hour care package would be an appropriate safeguard.
As to Article 8, the interference with MB’s private and family life was clearly justified in order to protect the rights of others. MB’s arguments as to discrimination, based on Article 14 ECHR and the Equality Act, also failed.
The balance of convenience was clearly in the Hospital’s favour. MB had access to care if her health deteriorated. If the order was not granted, the Hospital would lose access to a bed which may be needed, and staff would likely spend a lot of time caring for MB when such inpatient care was not necessary.
Chamberlain J granted an order requiring MB to leave the ward by 12pm the next day.
Simon Sinnatt from 1COR Brighton acted for the Claimant Trust in this case. He did not contribute to this article.