Mental health patient ordered to leave hospital bed to make room for COVID-19 patients – the High Court’s decision
The High Court’s decision in University College London Hospitals NHS Foundation Trust v MB  EWHC 882
In the first reported case of its kind, a High Court judge has ordered that a woman be discharged from hospital in order to make room for COVID-19 patients. In his judgment, Mr Justice Chamberlain said the hospital stated that the need was “urgent because the COVID-19 pandemic meant that the bedroom is urgently needed for other patients” and because “it is contrary to MB’s interests to remain in the hospital, where she is at increased risk of contracting COVID-19”.
The patient, referred to only as MB, had occupied the hospital bed for a year. She suffered with mental health difficulties and was the sole occupant of a side room, where she was looked after by a 24-hour registered mental health nurse.
The trust brought a claim for possession of the patient’s bed on 2 April. The hospital's possession claim was said to be urgent because the COVID-19 pandemic meant that the bedroom was urgently needed for other patients; and because in any event it was contrary to MB's interests to remain in the hospital, where she was at increased risk of contracting COVID-19. The hospital argued that MB could be safely discharged to specially adapted accommodation provided by the local authority, Camden London Borough Council, with a care package, which the trust considered more than adequate to meet her clinical and other needs.
In fact, discussions relating to MB’s care had been ongoing for more than a year and the trust had tried to discharge her twice, but she had refused to cooperate. MB’s legal representative argued that she did want to be discharged, but was concerned that the care package was inadequate owing to her complex needs, and that she would be at risk of suicide or self-harm. Discharging her in those circumstances would be contrary to the trust's obligations under Articles 3, 8 and 14 of the European Convention on Human Rights and contrary to sections 29 and 149 of the Equality Act 2010.
The court’s decision
A particularly interesting feature of this decision was how the Coronavirus Act 2020 and its bar on possession proceedings, which was designed to protect tenants, was relevant in this case too, preventing the trust from simply seeking an order for possession. It is important for healthcare providers to be aware of this and that the solution is to seek an interim injunction.*
The trust brought this claim to enforce its private law rights as property owner. As a matter of private law, MB became entitled to occupy the room she was currently in because the trust permitted her to do so by admitting her to the hospital. The trust terminated her licence to occupy that room so it followed that she became a trespasser. Ordinarily, the trust would have been entitled to seek an order for possession pursuant to CPR Pt 55: see for example Barnet Primary Care Trust v H  EWHC 787; Sussex Community NHS Foundation Trust v Price  EWHC 3167. That was not currently possible because of the general stay on possession claims effected by Practice Direction 51Z. The stay does not, however, affect claims for injunctions as a result of paragraph 3 of the Practice Direction. A property owner is in general entitled to an injunction to enforce its rights as against a trespasser: see the decisions of the Court of Appeal Manchester Corporation v Connolly  Ch 420 and Supreme Court in Secretary of State for the Environment, Food and Rural Affairs v Meier  UKSC 11. A hospital is no different from any other proprietor in this regard.
In this case, the trust's application was for an interim injunction, but the effect of such relief, if granted, would be tantamount to final relief. That does not preclude absolutely the grant of such relief, but it meant that the judge should not grant it unless satisfied that there was clearly no defence to the action. The balance of convenience and other discretionary factors also had to be considered.
Having obtained as much evidence as possible in the short timeframe available, necessitated by the urgent nature of the hospital’s application, the judge granted an order for possession of the bed which MB had ben occupying to the hospital. This was for a number of reasons, including the fact that the care plan which was in place with the local authority was sufficient to meet her complex medical needs, albeit MB did not accept this. The judge noted however that, in view of her medical conditions, this was unlikely ever to be the case and the care package was, in all the circumstance, entirely reasonable and appropriate.
As to her being at risk of suicide or self-harm, there was no evidence that she had previously attempted either, and, on the evidence, the risk of her doing so if discharged from hospital was moderate to low whilst, more importantly, it was appropriately managed via the provision of 24-hour care and the availability of specialist mental health support.
The judge went on to note that it was a tragic feature of MB's complex constellation of mental health difficulties that she frequently suffered extreme distress, whether in hospital or not. But, if the hospital were precluded from doing anything which might precipitate such distress, it would soon end up in a situation where it was legally precluded from taking any step other than in accordance with MB's wishes. In this case, MB would be entitled to insist on the provision of whatever she considered she needs as a condition of discharge from hospital, even if the result of her doing so were that the needs of others could not be met. That, the judge observed, was not the law, because her needs were not the only ones that the law regarded as relevant.
Conclusions and implications
This was a sad case. The decision to withdraw permission for MB to remain in the hospital was, as the judge himself stated, a decision about the allocation of scarce public resources, which are a routine feature of the work of hospitals and local authorities, even when there is no public health emergency. However, the pandemic, the most serious public health emergency for a century, is likely to accentuate the need for such decisions.
Notwithstanding the circumstances of this case, it is likely that any similar cases will turn on their own specific facts, with the individual nature of the particular patient’s medical conditions and requirements having to be carefully considered in each and every instance, as hospitals inevitably find themselves carrying out complex and delicate balancing acts when it comes to the allocation of increasingly limited resources as the need for beds for COVID-19 patients only becomes more pressing.
Given the current spotlight on care homes and the concern about outbreaks of COVID-19, it will be interesting to see if the court is as willing to issue an interim injunction in cases where it’s proposed that the patient be discharged to a care home where there are fears residents may have COVID-19, albeit they may not have been tested.
*Practice Direction 51Z, first issued by way of the 117th Practice Direction Update on 27 March 2020, was amended, after this judgement was handed down, on 17 April 2020. The amendment was effective from 18 April 2020 and clarifies that the stay which PD 51Z imposes on possession proceedings does not apply to a claim against trespassers to which CPR 55.6 applies.