It is not uncommon to hear of the patient with capacity who resists hospital discharge, but who has no medical cause to remain.Their reasons are legion, but when all is said and done, they would rather stay in your hospital than return either to their home, or to another NHS establishment. You will probably be accustomed to the ensuing difficulties when trying in a kindly, dignified and humane fashion to discharge them; thus making way for a patient who needs treatment. This is rarely straightforward.

The English courts have rarely been involved in the process of ensuring that unwilling patients leave hospital, but on the occasions they are, useful principles are established. In 2006 a case was decided where a gentleman was originally admitted (in December 2002) with a one week history of declining mobility, and lumbar pain. Further investigation revealed stenosis of his spinal canal, although intervention was neither provided nor required, other than a splint for foot drop. A seven year history of substantial bilateral groin hernias was also noted, causing discomfort and some difficulties with micturition. The risks of hernia surgery outweighed the benefits, and an expectant approach was prescribed, both by surgeons and anaesthetists. By May of 2003, an ‘expectant’ clinical approach was established, and his subsequent stay in hospital until the hearing in 2006 was prolonged only by his unwillingness to go home.

There was no medical reason for his continuing admission, other than for two brief chest infections coinciding with his residence in the hospital. The chest infections reflected moderately severe chronic obstructive respiratory disease, for which the latter required no medical intervention necessitating residential care. During 2004, the question of operation for his hernias was revisited, the patient asserting that he should have the choice as to whether he would have a repair, and noting that he would welcome death as a complication….the surgeons were not persuaded to operate.

It was accepted by all that his home was uninhabitable. The hospital authorities (who were pleading to repossess the bed on the ward that he was occupying) had identified residential homes that agreed to take him, and could supply the limited social care he required. Evidence from the ward manager confirmed that he required only minimal assistance with the activities of daily living, and thus either sheltered accommodation or residential care would be suitable for him. But the patient would not engage in this process, maintaining the view that he needed treatment in hospital.

The court was satisfied that the hospital had done all it reasonably could to make possible this man’s orderly discharge from hospital; that the hospital had no alternative other than apply for repossession; and that the patient had taken no opportunity to contradict the hospital’s evidence. The existence of alternative arrangements, in the form of residential homes willing to look after the patient meant that there was no breach of his human rights. The court ordered the patient to leave hospital within 14 days, and imposed upon him £10,000 in costs.

This year a case has emerged with similar facts. A lady originally requiring orthopaedic surgery was admitted in August 2015 to a rehabilitation unit, but by the November needed no nursing care and was refusing all therapy. However, she claimed her mobility had not improved sufficiently for her to leave. She had refused to communicate either with the Trust or the local council; and refused to provide relevant information which might have enabled other care arrangements to be put in place. The patient did not instruct lawyers to oppose the Trust’s plea to repossess her room, and the court found that there was no medical reason why she should not return home. The court granted the Trust the right to repossess the room, and awarded costs against the patient.

These are depressing stories; whilst a much-needed bed is being occupied by someone who does not need it, the incumbent plainly wants very much to remain where he or she is. That in itself prompts sympathy for the patient’s plight.

Nevertheless, these cases reinforce the fact that no patient is entitled to occupy a bed if they do not need clinical care requiring continuing hospital admission. We need to ensure that all options are explored for patients in this unenviable position. In doing so, it is highly likely that we will be able to discharge them in a manner which preserves their dignity, and does not undermine clinical humanity. It will be rarely necessary to seek judgement in court; but from these cases, it appears that the media have understood the dilemma faced by hospitals.

Robert Wheeler
Department of clinical law, November 2016

Refusing a hospital discharge