Whether a hospital admission is planned or unexpected, the hospital discharge process can be a worrying time for patients and their families. Some patients find that they are pushed to accept a care home option because they are not offered the right support to return to live at home. Other patients find that the discharge planning process recommends a return home, when they would feel safer with a temporary or long term care home placement.
It may be useful to refer to our list of Abbreviations Used in Community Care Law.
Discharge from hospital should not take place until a responsible clinician says that the person is medically fit for discharge, and it must be safe for the person to be discharged. A safe discharge may involve health and social care staff ensuring that the person has an appropriate package of care to meet their needs, and that any necessary equipment is in place.
What is an appropriate package of care will differ for each individual: it may be care at home, or in a care home. A lawful safe discharge process is informed by a number of health and social care assessments and through consultation with the patient and their family. If the patient lacks mental capacity to make decisions about their care arrangements, the hospital staff should follow the best interest decision making principles set out in the Mental Capacity Act 2005.
Many of the assessment and care planning duties that usually apply to safe discharge from hospital are suspended as a result of the emergency Coronavirus Act 2020 and the Covid19 Hospital Discharge Service Requirements.
The current emphasis is on releasing hospital beds for new patients with Covid19. Patients no longer have a choice about their discharge destination and less time to negotiate this from their hospital bed. The proposed discharge destination simply has to be deemed safe to meet their needs. There is likely to be a wide chasm between what is deemed safe by Health and Social Services and what is adequate or desirable to the individual.
The intention behind the emergency Covid-19 measures is to support most patients to have a fast discharge back to their own home. However, we are already seeing patients coming under pressure to accept potentially unsafe hospital discharge options. Those discharged home may be unable to access basic care and support due to staff shortages and isolation measures. Those pushed to accept a temporary move to a care home may fear they will become ‘stuck’ there long term, or that they are at more risk of infection than if at home.
As the hospital discharge process is likely to be progressed very quickly, we recommend seeking urgent legal advice if you are concerned about the safety of a discharge. There are still many ways in which an unsafe hospital discharge or inadequate care plan can be challenged, despite the emergency legislation.
In ordinary times, promoting choice and independence are key principles in a safe and appropriate hospital discharge planning process. The coronavirus emergency measures put patient choice and independence on a secondary footing, so that the NHS can speed up the hospital discharge process and give priority to those with the most acute need for a hospital bed.
The emergency measures relax the rules about funding for care after a hospital discharge. The Government has made it clear that cost should not be an issue that prevents hospital discharge. To release pressure on hospital beds, NHS Clinical Commissioning Groups can now fund placements in care homes or at home without undertaking a full assessment to identify whether the person has a primary healthcare need or a social care need.
If health or social care staff use costs arguments to refuse a care package that promotes choice or independence, rather than making decisions based on the need for a quick discharge, this may be open to challenge.
If health or social care decision makers stipulate that care at home is not a safe option on discharge from hospital, this may be open to challenge.
There are occasions when people are effectively forced into accepting unsuitable care arrangements. In ordinary times, the pressure results from Health or Social Services cost restraints. During the pandemic, the situation will be exacerbated by heightened time pressures within hospital settings. At a time of great vulnerability, patients can feel deprived of their dignity and independence.
If discharge is delayed when somebody is asking to leave or has become medically fit, this may amount to a deprivation of liberty and/or an unlawful detention. There may also be safeguarding implications associated with a prolonged discharge or an overly quick discharge to an unsafe destination, or with inadequate care and support.