Whenever I go on about legal literacy to some of my NHS clients, the most excitement is always apparent when we discuss so-called bed-blocking. It seems to me that there are interim consultants working on projects to ease bed blocking, all over the country, when all that is really needed is some understanding of whose duty it is to do something, and what, when, and some grasp of how to make it happen!
There’s just been a new case reported in which the Hospital Trust was awarded possession of a bedroom in a hospital care unit that was being occupied by a person who refused to leave and had been there for a year. It was the Sussex Community NHS Trust Foundation hospital that won the case.
If you know your law, that wouldn’t even be a surprise. A similar case, decided MANY years ago, and which still astonishes readers, Barnet Primary Care Trust v X  EWHC 787 (QB), (2006) 92 B.M.L.R. 17 was referred to. That was in 2006, I would emphasise.
The woman in this case was ordered to pay £8,000 in costs – but I bet that that is nothing compared to the aggravation caused for officers and managers over many many months of discussion. So let us engage brains, therefore, for a moment!
A patient is on hospital premises at the invitation of the Trust, and does not acquire any right to remain there beyond the purpose of their admission and take-up of the space. Thereafter they are a trespasser and not owed a duty of care, at least not one in relation to literally any situation; merely as to their safety with regard to the state of the premises, the duty that’s owed to all visitors and even to trespassers in hospitals.
The woman had suffered a broken femur and was operated on and admitted to the rehabilitation facility in August 2015 – a year ago. However, she no longer had any need to take up a bedroom in the unit. She was assessed as having the same mobility level as before the surgery, and as being able to live at home, albeit with some help from social services.
I suspect that the real argument was about what she should be getting in her own home and whether it should be charged for because there is other detail in the report about failure to engage with the council with her financial information. But she had never issued proceedings against the council and they were not part of the case.
She could not use stairs but with a walking frame could walk 40 metres. She had not required a nurse since November 2015 and had declined all therapy. And she didn’t turn up at the hearing.
As in the Barnet case, mind you, there is never any info about what became of the person when the bailiffs came to implement the possession order. My knowledge of law tells me that as soon as the person’s things have been put outside on the hospital steps and the person has been offered a wheelchair to the entrance, on pain of the bed being carried outside, the person realises that their situation has changed, and welcomes the attention of social services, which must then offer an assessment all over again.
People want to know whose duty it is, in various situations, because of arguments about harm arising during delays: so here is the answer, for free.
If a person is entitled to CHC status because a positive recommendation has been made by the MDT who did the DST, and the CCG has ratified it, or there’s a delay before the formal decision for a reason that is not the person’s fault – or if the person has merely been positively checklisted and is awaiting a DST, and should be out of the hospital, then their rights to have their needs met are as against the CCG – interim beds and the NHS’s duty to procure them are covered in the National Framework (albeit not mentioned in the discharge guidance in the Care Act Guidance???).
If a person has NOT been assessed as entitled to CHC, or positively checklisted, then their rights are for either local authority care or care through their own arrangements, depending on their financial resources.
If they are in need of a residential or nursing placement, and they lack mental capacity to make arrangements, they are indubitably the responsibility of the council, regardless of their personal wealth, (because they will be full cost payers, but placed by the council) with only two exceptions. The MCA allows for the laying on of hands on the person of an adult lacking mental capacity and provides legal protection if the MCA has been complied with. DoL Safeguards are available where necessary (as long as the person is properly regarded as lacking capacity).
One exception is where the person’s relatives are conscientiously and coherently (ie rationally, with evidence) suggesting that they are not fit for discharge – in which case the NHS should be bloomin’ grateful to them for pointing this out, because it will likely avoid a claim for negligent discharge if true. All possible investigations should be made – relatives are often correct.
The other exception, potentially, is where an appointed deputy or attorney with access to sufficient resources from the person’s assets, should be making arrangements and acting in the best interests of the person. In that situation, the council could legitimately say that the person is not owed a duty by the council, but cannot just wait for a deputy or attorney who – for whatever reason is doing absolutely nothing to sort the patient’s care needs out – that’s the representative’s ROLE, for goodness’ sake – and if they are not doing it, they are not fit to be the representative and then that’s a safeguarding issue.
It may well be down to the council’s market management failure that there is nowhere appropriate for the person to go to, through the representative’s arrangements, but the primary role of that representative is a best interests one, which should mean that FINDING somewhere and arguing about liability for the cost later, is what the representative does. Their responsibilities can be pointed out to them forcefully if necessary. The CoP will do so, in the end.
If a person in the bed does NOT lack capacity, then, of course, if they are over the capital threshold, it is not the authority’s obligation to make the placement; but they do have to be given the benefit of the 12 week disregard rules before arriving at that ‘above threshold’ decision. Even then, however, the council should be seen conscientiously to exercise its discretion in SOME cases – at least to place people who are not eligible, because of the power in s19 so to do – for good reasons, for instance where the person is only slightly over the threshold and it makes no sense to make them self fund in a more expensive home that would be available to them for less money if only the council made the arrangements.
If they are NOT over the capital threshold, then their rights to have their needs met appropriately are as against the relevant council in every case, if they want the council to meet them – and if the council has nowhere to place the person which is suitable for all the assessed needs in the opinion of the council’s care planners, and available in the sense of having a vacancy, then that’s a commissioning failure and the council will have to make arrangements either at the full contractual cost of an available suitable placement, or place the person further afield and somehow manage the person’s emotional and psychological needs to see their relatives and be visited – so as to avoid a judicial review or human rights claim or at the very least a complaint.
If a person who is entitled to council arrangements wishes to go to a particularly lovely home, despite being able to be accommodated by the council at the properly arrived at personal budget rate for that person, somewhere suitable, the person’s friends or relatives can choose to pay a top-up – and the person can do so themselves if they are entitled to the disregard or are on a deferred payment.
A person stuck in hospital who will need HOME care arrangements, not CARE HOME arrangements, is entitled to them regardless of their personal wealth and will merely be assessed to be a full cost payer.
If there is a lack of care worker capacity in the local market for provision of home care, that’s a commissioning failure and the council cannot simply stick to its tendered or local ‘going’ rate, then – it MUST procure suitable arrangements and thus exceed the budget set for home care, because a duty is a duty.
In circumstances where a person has relatives who’d be prepared to do the care if paid, the person may be able to have a direct payment with permission to pay their relatives.
There we go. I feel better now, and I hope you do too!
Please do call me if you want this sort of strategic legal input to your management of public services, or training for more legal literacy.