Delayed discharge remains a significant issue for NHS Trusts. The latest data showed that in May 2024 over 12,000 people were in hospital in England who no longer needed to be there. This is a slight decrease from a peak of over 14,000 in January 2024, but shows a serious, and ongoing problem for NHS Trusts to manage.

Delays in discharge can be attributed to long waiting times to secure care plans for home support by the NHS and/or social services as well as limited residential placements available for patients who are unable to return home. However, occasionally the delay is a result of a patient refusing to leave their hospital bed once they’ve been confirmed as medically fit for discharge.  

Occupation of a hospital bed 

The admittance of a patient onto a ward suggests there is an implied licence to occupy. Upon no longer requiring inpatient medical treatment and being assessed as medically fit for discharge the licence is terminated, meaning any patient who refuses to leave the hospital is a trespasser.  

A recent case involving an NHS Trust outlines the processes that Trusts must take to obtain possession from patients who refuse to vacate a hospital bed where they have been assessed as having capacity to make their own decisions.  

Step-by-step guide for NHS Trusts to obtain possession from a bed blocker 

Guidance from this case provides a useful checklist for NHS Trusts seeking possession from a patient who is refusing to leave their hospital bed despite being medically fit for discharge: 

• Has there been full and holistic preparation of the patient for discharge? 

The Trust will need to demonstrate that NHS guidance and local policy on ‘patient involvement’ has been followed. The Trust will also need to be satisfied that sufficient communication with the relevant local authority has occurred if accommodation and/or additional outpatient care is required. Lastly, the Trust must ensure communication with the patient has been adequate and all necessary information about next steps and support surrounding discharge has been provided to them.  

• Have there been all necessary mental capacity assessments of the patient? 

The Trust will need to conduct capacity assessments to confirm that the patient can consent or object to discharge and/or the placement being offered (if required), in addition to having capacity to conduct the litigation.  

Depending on the assessments and needs of the patient, we can advise on next steps, such as applying for a possession hearing to be conducted remotely or assisting with finding a suitable Litigation Friend for the defendant.   

• Has the proportionality of possession been assessed? 

The final criteria the Trust must demonstrate is that suitable risk assessments have been carried out to minimise the impact of discharge on the patient. The Trust must ensure the safety of the patient and of their staff and be confident that obtaining possession via the Court process is the only option remaining in the circumstances.  

How Capsticks can help  

We have a team with expert knowledge and extensive experience of dealing with these difficult cases. We are able to advise you on the best processes to remove the patient, whether it be use of reasonable force or an application to the Court for a possession order.  

We can also provide further support on ensuring the correct arrangements are made for the patient’s discharge, including liaising with relevant agencies and having the necessary legal protections in place.  

Contact our team to find out how we can support you.