Under pressure: freeing up hospital beds

The Covid-19 pandemic has highlighted the importance of having hospital beds available to patients who need them.  The pandemic has also shone a light on the scarcity of these beds due to the immense pressure that NHS Trusts have faced over the last few years.

It is therefore important for NHS Trusts to be aware of the options available to them when faced with a patient who refuses to leave his or her hospital bed when it is no longer required.

With waiting times for both emergency and elective care on the rise, NHS Trusts are coming under increasing pressure to ensure that patients, once deemed capable, are discharged in order to keep hospital beds free for those who require them. Data suggests that there are more than 12,000 patients currently in hospitals throughout England deemed by the NHS to no longer need hospital care.

NHS England has encouraged Trusts to consider taking legal action against patients who refuse to leave hospital beds when step-down care is made available. 

NHS Trusts faced with the issue of a patient who refuses to vacate his/her bed have two main legal options available to them.

Option 1: Possession order

The first option is to seek a possession order from the court. In Sussex Community NHS Foundation Trust v Price (2016), a bedroom in a hospital care unit was occupied by an elderly patient for many months without any medical reason for doing so. The patient had suffered a broken leg in a car crash and was initially admitted to the care unit in August 2015. Following her course of treatment, the patient had not required a nurse since November 2015 and had declined all therapy in subsequent months. The patient was asked to leave on many occasions but refused to do so because she felt her mobility had not improved.

The Trust applied to the court for an order requiring the patient to give up possession of the bedroom. The court found that the patient had no right to remain on the hospital premises and the Trust had discharged its duties to the patient. The Trust was awarded possession and legal costs of £8,000 although it is not known whether the Trust sought to recover those sums from the patient.

Option 2: Statutory rights

In addition to the course of action pursued in the Sussex Community case, NHS Trusts also have statutory rights under the Criminal Justice and Immigration Act 2008 to remove a person from NHS premises where the person:

• is causing a nuisance or disturbance to staff members;
• is not receiving medical treatment; and
• refuses to vacate the premises upon being asked to do so.

These statutory powers also cover people who have received medical treatment and no longer require care, meaning that they would have extended to the elderly patient in the Sussex Community case mentioned above, whilst also dispensing with the need to approach the court. The power to remove falls to an ‘authorised officer’, defined by the 2008 Act as any NHS staff member authorised by the relevant Trust to exercise the powers conferred under the 2008 Act.

There will be situations where, owing to the sensitivities involved, it would be inappropriate to ask an NHS staff member to remove persons from the premises. It may be prudent in those instances to apply to court for a possession order.

It follows that each situation in which persons are asked to leave NHS Trust premises will entail its own nuances and obstacles. It is therefore vital that any course of action to be taken in relation to these issues should be both legally robust while also sensitive to the facts of the situation.

Christopher Bartley and Harry Bambury