Northampton General Hospital NHS Trust v Mercer [2024] EWHC 2515 (KB) concerns the challenge of delayed discharge from hospital and, specifically, when the delay to discharge comes from the fact that the patient considers that they cannot leave. The judgment, reflecting (no doubt) the frustration of the hospital Trust involved, talks of ‘bed-blocking’ and ‘refusal,’ but it might be felt that the facts disclosed a slightly more complex picture than that. As (deliberately) described in relatively short terms by HHJ Tindal, sitting as a Judge of the High Court:
3. Ms Mercer is aged 34 and has several disabilities. She is wheelchair-dependent and requires support with her personal care and medication, but also has diagnoses of Autistic Spectrum Disorder and Emotionally Unstable Personality Disorder. She has lived in residential accommodation for most of her adult life. Before she was admitted to Northampton Hospital (‘the Hospital’) on 14thApril 2023 for cellulitis of her right leg, she had lived at a home called St Matthews for nine years. She was transferred to the Claimant Hospital’s Willow Ward for treatment to her leg and on 25thApril 2023 she was declared medically fit for discharge. The original plan was for her to return to St Matthews, but that fell through because of a dispute between it and Ms and Mrs Mercer. Despite placement searches by the Adult Social Care team at North Northamptonshire Council (‘NNC’), she has been in the Hospital ever since, mostly on Willow Ward. However, a placement has been now found which the Hospital and NNC believe will meet Ms Mercer’s needs: 24-care in a Supported Living placement.
4. This would be an entirely new lifestyle for Ms Mercer and she is extremely anxious. She and her mother feel she may hurt herself or others there. Therefore, she refuses to move and wants a placement in residential accommodation, either St Matthews or a similar care home closer to her mother. But she has been assessed as not needing that. So, after a year of accommodating Ms Mercer whilst NNC tried to find a suitable placement to accept them, the Hospital have decided that enough is enough and on 14thAugust 2024, sought this possession order.
The application for a possession order was plagued with procedural deficits. Ms Mercer was not represented at the hearing, but was assisted by her mother. HHJ Tindal ultimately granted the order, but used the opportunity both to review the (relatively limited) case-law on this area, and to set out a checklist for future cases. Of particular interest is what HHJ Tindal had to say in relation to the MCA 2005:
28, Turning to the MCA, it is imperative that a hospital contemplating a possession claim considers whether there is reason to believe the patient may lack mental capacity. This was not discussed in detail in H, Price, or even MB, where the hospital had assessed the patient as having capacity to make all relevant decisions and to litigate (which was not disputed by her lawyers: see [40]-[41]). Moreover, even if the patient has capacity to litigate, or the possession or injunction proceedings, they may still be a ‘vulnerable party’ requiring ‘participation directions’ under CPR PD1A (which could include a remote hearing).
i) Firstly, with a MHA informal patient fit for discharge but refusing to leave, the complex interface between the MHA and MCA contains several tripwires for a hospital which might make a possession order inappropriate. As discussed in this article: 948, psychiatrists may assume that applying the ‘least restrictive principle’ in the MHA Code of Practice and also under s.1(6) MCA points towards use of ‘Deprivation of Liberty Safeguards’ (‘DOLS’) arrangements in a community placement rather than MHA detention in a hospital, but that does not necessarily follow. M shows ‘DOLS’ is not available through a CTO and whilst the Court of Protection can ‘co-ordinate’ with a Tribunal to move an incapacious patient from discharge under the MHA to authorisation of DOLS under the MCA (MC v Cygnet Behavioural Health [2020] UKUT 230 (AAC)), DOLS is unavailable if the patient is ‘ineligible’ under Sch.1A MCA. They will be if still subject to a MHA treatment regime in hospital, in the community under a CTO/Guardianship and even if not but are still ‘within scope’ of the MHA, like an informal mental health patient: Manchester Hospitals v JS [2023] EWCOP 12.[[1]] In practical terms, if a discharged MHA patient is refusing to move from hospital to a community placement which would be a deprivation of liberty under Art.5 ECHR, that requires authorisation by the Court of Protection under the MCA, pending which a High Court possession order may well be inappropriate and which it may therefore refuse.
ii) Secondly, a patient with no history of MHA detention or admission may still lack capacity to make decisions about where they should live under ss.2-3 MCA. It is true that s.1 MCA states there is a ‘presumption of capacity’ and that people should not be assumed to lack capacity because they make unwise decisions and/or without all practicable steps to enable capacity. However, failure to undertake a capacity assessment if there is any ‘reason to believe the patient may lack capacity’ would breach NHS guidance, so may justify refusal of a possession order (c.f. Barber) because the consequences are so serious either way. If a hospital do not take reasonable steps to assess a patient’s capacity and treats them as not having capacity to consent to treatment or discharge when in fact they do have it, the hospital will not have a defence under ss.5-6 MCA to otherwise tortious acts like medication or restraint, even if clinicians believed those acts were in the patient’s best interests, like the Police in ZH v CPM [2013] 1 WLR 3021 (CA). Conversely, if a hospital fails to assess capacity of a patient and assumes they do have it when they do not, they cannot consent to leaving hospital, which therefore requires a best interests decision under s.4 MCA, if there is objection by the Court of Protection under ss.16-17 MCA, or if not by the hospital under s.5 MCA (only dispute requires Court involvement: NHS v Y [2018] 3 WLR 751(SC)). If a hospital fails to comply with the MCA in discharging an incapacious patient to an unsuitable placement, they can be liable in tort for resulting injury, as in Esegbona v King’s NHST [2019] EWHC 77 (QB).
iii) Thirdly, s.2 MCA states that ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’ and s.3 MCA states the person is unable to make a decision if unable to understand, retain or use the information relevant to the decision (or to communicate it). As explained in A Local Authority v JB [2021] 3 WLR 1381 (SC), this means ‘capacity’ under the MCA is ‘issue-specific’ and ‘time-specific’, so someone can have mental capacity to make one decision (e.g. to see their relatives) but lack capacity about another (e.g. to manage their financial affairs or where they should live). The ‘relevant information’ under s.3 MCA which must be understood for capacity to consent to treatment (Hemachandran v Thirumalesh [2024] EWCA Civ 896) is slightly different than for capacity to consent to discharge from hospital, which is in turn slightly different than for capacity to consent to living at a particular placement – see Wiltshire CC v RB [2023] EWCOP 26. In RB itself, a patient fit for discharge from hospital objected to her return to accommodation where she had suffered trauma and was held to have been wrongly assessed as lacking capacity as the assessment elided issues of discharge and placement. Moreover, as also stressed in RB, an individual’s capacity to litigate (e.g. to defend a possession claim by a hospital) is a separate issue of capacity again. If a patent lacks capacity to defend a possession claim by a hospital, under CPR 21 they require a Litigation Friend and without it the order would be invalid and may be set aside: Dunhill v Burgin [2014] 1 WLR 933 (SC). Moreover, service of proceedings must be on an Attorney, Deputy, or carer – see CPR 6.13.[[2]]
HHJ Tindal also made some important observations as to the Equality Act 2010:
29. Indeed, finally turning to the EqA, at the first hearing I raised the absence of not only assessment of Ms Mercer’s litigation capacity, but also evidence of the Hospital’s compliance with the Public Sector Equality Duty (‘PSED’) under s.149 EqA and evidence relevant to a potential public law EqA disability discrimination defence. Again, there are three key points about EqA ‘mental disabilities’:
i) Firstly, a patient may fall outside the scope of the MHA, also have capacity under the MCA to make all relevant decisions, yet still have a ‘mental impairment with a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’ amounting to a disability under s.6 EqA. A ‘mental disability’ has a ‘long-term effect’ if it has lasted or is likely to (in the sense of ‘may well’) last for at least 12 months (para.2 Sch.1 EqA), whereas mental capacity under the MCA relates to the ability to make a particular decision at a particular time, so a person may lose and regain capacity from time to time: see MOC v DWP [2022] PTSR 576(CA). Therefore, a MCA capacity assessment may not necessarily reveal a EqA ‘mental disability’.
ii) Secondly, as Chamberlain J analysed in MB at [61], a hospital is a ‘service-provider’ under s.29 EqA, which can be liable for disability discrimination if it fails in its duty under ss.20-21 EqA to make reasonable adjustments for a disabled patient before seeking possession (or an injunction to exclude). Oh course, as in MB, if a hospital has taken all reasonable steps (and complied with national guidance and its own policy), there will be no breach. However, it does not appear the patient’s lawyers in MB raised s.15 EqA, which provides that a service provider or landlord discriminates against a disabled person if it ‘treats them unfavourably because of something arising in consequence of their disability (if they were or ought to have been aware aware of it) and cannot show the ‘treatment is a proportionate means of achieving a legitimate aim’. If a hospital seeks possession (‘unfavourable treatment’) because of a patient’s refusal to leave hospital (‘something’) due to a known mental disability, it will have to prove possession would be proportionate. In Aster v Akerman-Livingstone [2015] 2 WLR 721(SC), Lady Hale explained s.15 EqA has a higher onus of proof than the ‘proportionality test’ for possession under Art.8 ECHR and a summary possession order is not a given. But it may be more likely for a hospital against a patient than a landlord against a tenant, providing all reasonable lesser alternatives have been tried but not succeeded in the patient leaving.
iii) Finally, quite aside from actual disability discrimination under ss.15 or 20-21 EqA, a hospital is a ‘public authority’ owing the PSED to ‘have regard’ to the needs ‘to advance equality of opportunity’ for disabled people and to take different steps for them than for non-disabled people under s.149 EqA. On one hand, this is a duty of substance not form, which can be complied with without explicit reference to s.149 EqA (McDonald, MB). On the other, such cases of inadvertent compliance are rare and a public authority would generally be wise to carry out and record a specific, open-minded and conscientious consideration of the impact of possession on the disabled person and whether that can be safely managed, though breach of the PSED will not defeat possession if highly likely it would have resulted even if the PSED had been complied with (Luton Housing v Durdana [2020] HLR 27 (CA) and Metropolitan Housing Trust v MT [2022] 1 WLR 2161 (CA)).
Drawing the threads together, HHJ Tindal suggested that;
30. […] the following may be a helpful checklist for a hospital seeking possession (or a injunction in more complex cases e.g. with risks to staff), in relation to a patient whose refusal to leave hospital may be affected by a mental health or mental capacity issue. (However, I do not suggest a failure to take any or even all of these steps will necessarily bar such orders):
(i) Has there been full and holistic preparation of the patient for discharge ?
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- has NHS guidance / local policy on ‘patient involvement’ been followed ?
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- Has there been sufficient liaison with the relevant local authority if it will be responsible for accommodation and/or care provision and funding ?
- Has it been explained to the patient and carer: how ongoing medical/care needs will be met, who is responsible for meeting them and what the patient or carer can do if they are unhappy about the provision ?
(ii) Have there been all necessary mental capacity assessments of the patient ?
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- Does the patient have capacity to consent or object to (1) discharge and/or (2) placement (as opposed to treatment) ? If not, an application to the Court of Protection may be required if there is any dispute.
- If both, do they have capacity to defend possession/injunction proceedings ? If not, a suitable Litigation Friend will need to be found (who may be the person required to be served with the claim under CPR 6.13).
- Either way, if the patient would struggle to attend or participate physically and is a ‘vulnerable party’ under CPR 1A, the claimant hospital could suggest to the Court a remote hearing and facilitate it from hospital.
(iii) Has the proportionality of possession (or an injunction) been assessed ?
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- Is the patient’s refusal to leave in consequence of a mental disability ?
- Have all reasonable lesser alternatives to possession or an injunction been tried but not succeeded in the patient leaving the hospital voluntarily ?
- Can the physical and psychological impact on the patient of being removed from hospital home or to the proposed placement be safely managed ?
I emphasise that whilst the few cases so far suggest possession or an injunction has been ordered after a patient has been fit for discharge for around a year, that particular quantity of time is less important than the quality of the evidence on those issues justifying possession or an injunction.
On the facts of the case before him, HHJ Tindal proceeded thus:
31. Prior to the first hearing, the Claimant Hospital had evidenced much of this. Dr Baratashvili’s statement proved Ms Mercer had been medically fit for discharge since April 2023. Ms Mallender’s first two statements proved the Claimant had complied with the national NHS guidance and the Hospital’s own policy. I reject Ms and Mrs Mercers’ allegations that Ms Mallender has ‘lied’, which stem from their misunderstanding (e.g. they thought reference to past case-law breached confidentiality). Ms Mallender has showed why Ms Mercer’s return to St Matthews broke down in May 2023 (due to a dispute between it and Ms Mercer) and how Ms Mercer had been assessed as the responsibility of the local authority NNC. It had investigated almost 120 different placements for Ms Mercer and found a Supported Living placement specialising in working with those with Ms Mercer’s disabilities, initially with 2:1 care day and night during transition, before reducing to 1:1 care with 2:1 at specific times, meeting all her care needs.
32. However, even aside from Ms Mercer and her mother being unable to participate effectively at the last hearing, there was relatively little information about Ms Mercer’s undisputed and long-term diagnoses of Autistic Spectrum Disorder (‘ASD’) and Emotionally Unstable Personality Disorder (‘EUPD’) relevant to both disability under the EqA and capacity under the MCA. The Claimant Hospital had provided assessments from Dr Ur-Rehman of Ms Mercer’s capacity to consent or object to her discharge and placement, but there was no assessment of her capacity to litigate. Moreover, there was no Equality Impact Assessment (‘EIA’) addressing the proportionality of possession and whether all lesser alternatives had first been explored. This was in part why I adjourned the first hearing.
33. By contrast, at the adjourned hearing, not only was Ms Mercer able to attend remotely (although as I said, preferred her mother to speak for her), the Hospital and Ms Mercer herself had between them filled those gaps in the evidence. There were EIAs from NNC giving more details about the proposed placement and from Ms Mallender explaining that possession was proportionate because Ms Mercer did not need to be in the Hospital, which urgently needed her bed. Dr Ur-Rehman had assessed Ms Mercer as having capacity to defend the proceedings and as Mr Sinnatt said, that view was underlined by Ms Mercer providing medical assessments about her ASD and EUPD. Moreover, Mrs Mercer accepted Ms Mercer could understand discharge, placement and possession. I am entirely satisfied Ms Mercer had mental capacity in all relevant areas.
34. Nevertheless, at that adjourned hearing, I listened to and considered Ms Mercer’s concerns, articulated clearly by her mother and indeed by her social worker, Ms Sgoluppi. After all, Ms Mercer has been in institutional care all her adult life, St Matthews for 9 of the last 10 years and the Hospital for the last 18 months. As Ms Sgoluppi said, Ms Mercer has clearly become institutionalised and that in combination with her ASD and EUPD has led her to severe anxiety over the proposed move to a Supported Living placement for the first time. Mrs Mercer fears her daughter will self-harm, hurt her carers, or even attempt suicide. I do understand and entirely sympathise. It is sad and ironic that NNC’s assessment of Ms Mercer’s care, in seeking to find the least restrictive option (consistently with the MHA, MCA and CA, as well as proportionality under the EqA), has caused Ms Mercer more anxiety than a more familiar institutional placement.
35. However, that is NNC’s assessment of her needs for care and support and if Ms Mercer wishes to challenge it, she must do so with NNC in the first instance, then by complaint to the Ombudsman, or by claiming Judicial Review of NNC’s assessment. What she cannot do is continue to avoid her departure by remaining in the Claimant Hospital when she does not need a bed there (and has not done for over a year) but other patients do. More positively, the proposed placement will initially have 2:1 care available day and night to help Ms Mercer, which will be reviewed before it reduces to 1:1 care. NNC assesses that as enough to keep Ms Mercer safe and her social work team will review her progress closely. I understand from NNC’s EIA that Mrs Mercer has already met the care team (although still has concerns). Moreover, the Hospital also agreed to my suggestion of deferring possession for a week to help Ms Mercer prepare. So, at the hearing, I was satisfied possession was a proportionate means of achieving a legitimate aim even if s.15 EqA (and Art.8/14 ECHR) were engaged and that the Hospital had complied with the PSED. There was no arguable public or private law defence, so I granted summary possession. We must hope the transition goes smoothly.
Comment
Cases involving discharge from hospital where individuals have potentially impaired capacity, even in the context of those who are not in some way seen as objecting to their discharge, can be very complicated. I have set out a set of slides for those seeking to think through how the MCA operates in this context here. One point made there, and also in our comment on the Wiltshire case referred to by HHJ Tindal, is that talking of ‘consent’ to discharge is perhaps inapt, because the decision whether or not to stay in hospital is – as this case shows – not ultimately in the patient’s gift. Rather, the decision in question is whether or not to leave hospital, to match the language that would be used in relation to a person whose decision-making capacity is not in question. It would be interesting to know whether, applying that test, Ms Mercer had or lacked the relevant decision-making capacity.
And notwithstanding the obvious care with which HHJ Tindal approached matters, some might wonder whether this was not a case in which an independent report on Ms Mercer’s capacity was warranted, given its importance (including to the availability of any public law defence to the possession proceedings). Casting no aspersions on those at the hospital providing reports upon Ms Mercer’s capacity, it might be thought that there was a distinct systemic nudge at play towards finding her to have capacity; similarly, whilst her mother undoubtedly was her champion, that is different to being able to assess her capacity. The case might well be thought to throw up, in fact, a serious limitation with the powers of civil courts at present, as they have no equivalent power to the Court of Protection to direct a report from a Special Visitor under s.49 MCA 2005. This limitation and its consequences for considering litigation capacity are discussed in the Civil Justice Council’s recent report, but it might equally be thought that a situation like this is one where the court would also benefit from independent evidence as to capacity to make the decision(s) in issue.
[1] Although not relevant for the purposes of the case, it is important to note that it is possible to be both on a CTO and a DOLS. The ineligibility for DoLS arises if the DoLS authorisation purports to relate to a place other than identified on the CTO as the place that the person is required to reside: see Case C in the appallingly drafted Schedule 1A to the MCA 2005, and this shedinar.
[2] Although CPR 6.13(2)(b) also provides that, if there is no attorney, deputy or carer, for service on an “adult with whom the protected party resides or in whose care the protected party is.”
