Hospital care of the elderly Elderly care conference 2015 – Mark Barnett

Discharge or eviction?

Mark Barnett, Browne Jacobson LLP

What are the numbers?

• February 2015

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134,508 total delayed days, of which 90,705

66.56% attributable to the NHS

26.07% attributable to social care

7.37% attributable to both

acute

• main reason in the NHS - patients awaiting further non-acute NHS care

main reason in social care – patients awaiting care package in their

own home

note that in both NHS and social care, another big reason was

“patient or family choice”

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Discharge – the issues

• a safe discharge – where is P going?

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is it an appropriate placement?

is there an appropriate package of care in place?

who is responsible – health, social care or both?

• does P have capacity?

– if not, you must consider the MCA advance decisions and / or LPA

what are the options?

and deprivation of liberty and the

– best interests,

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– use of DoLS

Practical steps

• do you need to hold a multidisciplinary team meeting to resolve any issues?

hold a best interests meeting if P lacks capacity

ensure there are consistent and robust records that

P is medically fit for discharge

is a second / independent opinion necessary?

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Criminal provisions

• Criminal Justice and Immigration Act 2008 – created a criminal offence of “causing nuisance or disturbance on NHS premises”

a person not on NHS premises for the purposes of obtaining

medical advice, treatment or care, who causes nuisance or

disturbance to an NHS staff member and who refuses to leave

when asked to do so, may be removed from the premises by the

police or an authorised NHS officer

liable to a fine on conviction

exemption includes if the removal would endanger P’s physical or

mental health

how practical is it to use this?

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Possession orders

• Barnet PCT v X (2006) – P had remained in Finchley Memorial Hospital for nearly 3 years having been declared fit for discharge

could not return home as uninhabitable

repeated attempts to transfer to residential home – at least 3

confirmed they could take him

P refused to engage with the discharge process

substantial evidence of efforts made over the years

possession order for the hospital bed and P ordered to pay £10,000

of the PCT’s costs (but could have been more if proper notice

given)

no breach of Article 8 given the alternative arrangements

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What do you need to consider?

• has everything been done to secure a safe and appropriate discharge? There must be a definitive discharge plan

has everything been done to get P’s agreement? •

• is the safety of staff and / or other patients at risk from family members?

have all alternatives been explored?

ensure you keep a clear and consistent record of

P or

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all efforts to engage with P and / or family

discussions and correspondence with social care

P’s medical needs (or lack of)

discharge planning / MDT meetings

Consider as well

• article 8 issues – Right to respect for private and family life

P’s mental capacity and application of Mental Capacity

Act 2005

exhaust every avenue before considering criminal

provisions and / or possession order

seek legal advice

publicity – be prepared for negative headlines whatever

you do…

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Any questions?

Get in touch if you

questions or would

information.

have any

like further

t +(0)1392 458768

e mark.barnett@brownejacobson.com