Northampton General Hospital NHS Trust v Jessica Mercer [2024] EWHC 2515 (KB)

“[The MCA] is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full capacity… [I]n R(Burke) v General Medical Council [2006] QB 273, Lord Phillips of Worth Matravers MR accepted…that…a patient cannot demand that a doctor administer a treatment which the doctor considers is adverse to the patient’s clinical needs’ (para 55). Of course, there are circumstances in which a doctor’s common law duty of care towards his patient requires him to administer a particular treatment, but it is not the role of the Court of Protection to decide that. Nor is that court concerned with the legality of NHS policy or guidelines for particular treatments. Its role is to decide whether a particular treatment is in the best interests of a patient…incapable of making the decision for himself.”

“A decision by an NHS hospital not to provide in-patient care in an individual case might, in principle, be challengeable on public law grounds by judicial review if the decision were tainted by improper purpose or had been made in breach of statutory duty or otherwise contrary to law. But if such a decision were taken on clinical grounds, it would not be open to a claimant in such proceedings to adduce expert evidence with a view to impugning the clinical basis of the decision. Any attempt to adduce such evidence for that purpose would go well beyond the limited circumstances in which expert evidence is admissible in judicial review proceedings …[I]nsofar as [a claimant] seeks to raise collateral challenges to the hospital’s clinical judgment by way of public law defences [in possession proceedings], it is difficult to see why the court should ….entertain evidence….not be admissible on direct challenge.”

“A person commits an offence if—(a) the person causes without reasonable excuse and while on NHS premises, a nuisance or disturbance to an NHS staff member who is working there…(b) the person refuses, without reasonable excuse, to leave the NHS premises when asked to do so by a constable or an NHS staff member, and(c) the person is not on the NHS premises for the purpose of obtaining medical advice, treatment or care for himself or herself.”

“(1) Where a relevant trust is responsible for an adult hospital patient and considers th[ey are] likely to require care and support following discharge from hospital, the relevant trust must, as soon as is feasible after it begins making any plans relating to the discharge, take any steps that it considers appropriate to involve (a) the patient, and (b) any carer of the patient. (2) In performing the duty under subsection (1), a relevant trust must have regard to any guidance issued by NHS England.”

“Planning and implementation of discharge should respect an individual’s choices and provide them with the maximum choice and control possible from suitable and available options… People should be supported to participate actively in making informed choices about their care, including [discussing]… longer-term financial impact of different care options after discharge. Conversations should begin early as part of discharge planning..not wait until the person is ready to be discharged….. Where an individual wishes to return home and their family member or unpaid carer is unwilling or unable to provide the care needed, NHS bodies, local authorities and care providers should work together to assess and provide the appropriate health and social care provision required to facilitate the individual’s choice, where possible, and enable a safe discharge..... ….If a person does not accept a short-term package or temporary placement from [available] options…following discussion they should be discharged to an alternative…appropriate for their short-term recovery needs. People do not have the legislative right to remain in a hospital bed if they no longer require care in that setting, including to wait for their preferred option to become available.”

“Refusal by the patient or carer to accept discharge arrangement should have the consequences and risks fully explained and documented and escalated to Discharge Lead Nurse, and IDT. Direction of Choice should be engaged with immediate effect. Consideration should be given to the patient’s mental capacity…”

“The Claimant brings this claim to enforce its private law rights as property owner. [In] private law, MB became entitled to occupy the room she is currently in because the Claimant permitted her to do so by admitting her to the Hospital. The Claimant has now terminated her licence to occupy that room. It follows that she is now a trespasser. Ordinarily, the Claimant would be entitled to an order for possession pursuant to CPR Pt 55 Barnet Primary Care Trust v H [2006] EWHC 787 (QB), (2006) 92 BMLR 17 (Wilkie J) and Sussex Community NHS Foundation Trust v Price (HHJ Coe QC).”

“Patients have no right to occupy beds or rooms in hospitals except with the hospital’s permission. A hospital is entitled as a matter of private law to withdraw that permission. In deciding whether to [do so], the hospital is entitled and indeed obliged to balance the needs of the patient currently in occupation against the needs of others who it anticipates may require the bed or room in question. Unless its decision can be stigmatised as unlawful as a matter of public law, there is no basis for the court to deny the hospital’s proprietary claim to restrain the patient from trespassing on its property.”

“[T]he Code does not have the binding effect a statutory provision or a statutory instrument would have. It is …guidance and not instruction…[B]ut it is much more than mere advice an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so…In reviewing any challenge to a departure from the Code, the Court should scrutinise the reasons given by the hospital for departure with the intensity that the importance and sensitivity of the subject matter requires.”

“[T]he reason why a decision to require a patient to leave a hospital is unlikely to infringe Art.3 ECHR is because it is based on a prior decision not to provide in-patient care. Such a decision engages the state’s positive (and limited) obligation to take steps to avoid suffering reaching a level that engages Art.3, rather than its negative (and absolute) obligation not itself to inflict such suffering. Where a decision to discontinue in-patient care involves the allocation of scarce public resources, the positive duty can only be to take reasonable steps to avoid such suffering: cf R (Pretty) v DPP [2002] 1 AC 800, [13]-[15]. It is difficult to conceive of a case in which it could be appropriate for a court to hold a hospital in breach of that duty by deciding, on the basis of an informed clinical assessment and against a background of a desperate need for beds, to discontinue in-patient care in an individual case and accordingly, to require the patient to leave the hospital…” iii) As to Art.8 ECHR right to a private life and autonomy, whilst clinicians must respect it when a capacious patient refuses treatment save in emergency situations when the refusal is uncertain (Pindo Mulla), it is unlikely to give rise to a positive obligationto provide treatment (especially since even the Art.2 ECHR right to life only does so in the very limited circumstances discussed in Lopes De Sousa), as once again Chamberlain J explained in MB at [59]: “[For the] argument based on Art.8 ECHR…the difficulties ….are even more pronounced. Lord Brown said this in R(McDonald) v LBKC [2011] HRLR 36 at [16]: ‘[C]lear and consistent jurisprudence of the Strasbourg Court establishes ‘the wide margin of appreciation enjoyed by states’ in striking ‘the fair balance … between the competing interests of the individual and of the community as a whole’… is even wider when issues involve an assessment of the priorities in the context of the allocation of limited state resources’. Even though the decisions to cease to provide in-patient care to MB and to require her to leave plainly interfere with her right to respect for private and family life…the interference is justified…to protect the rights of others, namely those who, unlike MB, need in-patient treatment ..bearing in mind the broad discretionary area of judgment.” (iv) As to the Art.5 ECHR right to liberty, there will only be a ‘deprivation of liberty’ in social care provision if the individual’s ‘concrete situation’ is such that they are ‘under continuous supervision and control and not free to leave’, which is attributable to the state and to which they do not or mentally cannot consent: Cheshire West v P [2014] AC 896 (SC). But whilst that is a common argument to the Court of Protection under s.21A and Sch.A1 MCA by patients in such regimes in hospitals and care homes who want to go home, it cannot work in reverse for patients who want to stay in hospital not to go home. v) Finally, Art.14 ECHR discrimination is once again unlikely to have much impact in this context, as Chamberlain J again explained in MB at [60]: “Nor does reliance on Article 14, read with Article 3 or Article 8, take matters any further. The decision to decline in-patient care to MB does not discriminate against her on the ground of her disabilities. The Hospital has treated her in the same way as a patient with different disabilities or with none: it has determined whether to continue to offer her in-patient care on the basis of her clinical need for such care. To the extent that this is itself discrimination against those, like MB, whose disabilities make them perceive a need for things for which there is in fact no objective need, the discrimination would be justified even outside the context of a public health emergency….”

“Mental capacity is decision-specific and time-specific and assessments should not be of [a patient’s] ability to make decisions generally. If there is a reason to believe a person may lack the mental capacity to make relevant decisions about their discharge arrangements at th[at] time….a capacity assessment should be carried out as part of the discharge planning process. Where the person is assessed to lack the mental capacity to make a relevant decision about discharge, any best interests decision must be made in line with the Mental Capacity Act. No one who lacks the relevant capacity should be discharged to somewhere assessed to be unsafe…Capacity assessments and best interests decisions must consider the available options. Onward care and support options which are not suitable…or available…at the time of hospital discharge cannot be considered in either mental capacity assessments or ‘best interests’ decision-making. Just as a person with the relevant capacity does not necessarily have a legislative right to remain in an acute or community hospital bed if they no longer require care in that setting, neither is this an option for a person who lacks the mental capacity to make relevant decisions about discharge. In certain circumstances during discharge planning, health and care providers might determine that someone is, or will be, ‘deprived of their liberty’…[which must comply with Art.5].”