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FAQs: Hospital Discharge and the Coronavirus Crisis

Many of the duties that usually apply to safe discharge from hospital have been suspended by the emergency Coronavirus Act 2020. Our expert Community Care Law solicitors answer your questions about what this means

This page was updated on 26 February 2021

  1. Will the NHS pay for your care when they discharge you from hospital after treatment for Covid-19?
  2. What is Discharge to Assess?
  3. Can you still choose your care home or care at home provider when discharged from hospital during the Coronavirus crisis?
  4. Your client lacks mental capacity on care arrangements – does a best interest decision have to be made about hospital discharge?
  5. Your client who is in hospital has tested positive for Covid-19 but the hospital still want to discharge him back to his care home. Can they?
  6. The NHS say your client is bed blocking in hospital – can they evict her from hospital?
  7. Can the NHS refuse to assess your client’s eligibility for NHS Continuing Healthcare (NHS CHC) before discharge from hospital?

Will the NHS pay for your care when they discharge you from hospital after treatment for Covid-19?

The rules on when Clinical Commissioning Groups (CCGs) can provide funding have been widened in order to free up vital hospital beds. The “Hospital Discharge Service: Policy and Operating Model” has been in place since 1 September 2020 and is subject to regular updates. It provides that the cost of your care and support needs to be fully funded after discharge from hospital. If you have a pre-existing support package, it is only the additional support required post discharge that is fully funded. The funding comes from a central pot known as the “discharge support fund” and is intended to cover all new or increased care and support packages, not just those for people treated for Covid-19. The current funding pot is in place until 31 March 2021; it is not yet clear whether the Government will extend the funding after this date. The care and support package can cover care at home, or in a care home or rehabilitation setting. The ‘discharge to assess’ funding should last for up to 6 weeks, or longer if the relevant assessments and care plans have not been completed within six weeks.

What is Discharge to Assess?

NHS England introduced the Discharge to Assess (“D2A”) pathway in 2016. D2A is about funding and supporting people to leave hospital when it is safe and appropriate to do so, and arranging the assessment of longer term needs “in the right place” out of hospital. The pathways have been updated to facilitate quicker discharge processes during the pandemic, with an emphasis on requiring health and social care to work together. It is now mandatory for health and social services to follow the discharge to assess model.

Can you still choose your care home or care at home provider when discharged from hospital during the Coronavirus crisis?

Unfortunately, the right to choose on discharge from hospital was suspended by the emergency measures in April 2020. The updated operational lacks clarity on the issue of whether patient choice at the point of discharge remains suspended or not. The discharge arrangements should be safe and capable of meeting your needs, even if it is a temporary arrangement. If the discharge arrangements are likely to become long term after the assessment process is concluded, then there are grounds to argue that you should have a choice at the point of discharge. Seek specialist advice if you feel that the proposed discharge arrangements will not be safe, or if your needs are being portrayed as ‘preferences’.

Your client lacks mental capacity on care arrangements. Does a best interest decision have to be made about hospital discharge?

The Coronavirus Act 2020 does not suspend any of the requirements of the Mental Capacity Act 2005. Therefore any health and welfare decision, including when and where to discharge a person who lacks capacity, must still be made in their best interests. This means capacity and best interests assessments must take place in hospital, ideally by a trained social care professional.

Your client who is in hospital has tested positive for Covid-19 but the hospital still want to discharge him back to his care home. Can they?

The Government guidance and action plans about discharge from hospital to care homes are under regular review. The current version is the DHSC Guidance “Discharge to Care Homes: Designated Settings”. This allows for symptomatic patients to be discharged to a care home that has been designated by the Local Authority, and approved by the CQC, to take Covid-19 positive residents. These designated settings must have additional infection control measures in place. If there are no beds available in a Covid-19 designated care home it is the responsibility of the Local Authority to make additional arrangements to increase bed capacity for Covid-19 residents.

When a person is ready to move on from a Covid-19 designated setting to their long term placement they must have a clinical assessment that concludes that they are no longer infectious and have undergone a period of self-isolation for a period of 14 days before the move. There should be no need for the person to further self-isolate when they move to their long-term placement.

The NHS say your client is bed blocking in hospital – can they evict her from hospital?

Yes, and this has always been the case even before the Coronavirus crisis, provided that there is an appropriate care package in place for discharge. The NHS Hospital Trust simply has to end your client’s licence, or permission, to occupy the hospital bed, which means your client becomes a trespasser. The NHS Hospital Trust cannot obtain a possession order against your client, because possession claims have generally been stayed during the pandemic period. But they can ask the Court to make an injunction.

This was dealt with in the 2020 case of University College London Hospitals NHS Trust v MB. MB had been receiving inpatient treatment for complex psychological problems, and had been in hospital for over a year. She rejected the care packages offered to her, as she believed they were insufficient to meet her needs. She said she would take her own life if the hospital enforced discharge. The Court made an injunction requiring her to vacate the hospital bed.

Can the NHS refuse to assess your client’s eligibility for NHS Continuing Healthcare (NHS CHC) before discharge from hospital?

Yes: the Operational Model and Discharge Policy states that NHS CHC and Care Act needs assessments should no longer take place in the hospital setting. However, the duty to carry out a CHC assessment and for CCGs to ‘have regard to’ the National Framework have been reinstated since 1 September 2020, after being temporarily suspended during the emergency period. Assessments should be carried out as soon as possible and no later than 6 weeks after discharge. Funding for care and support during the discharge to assess period should be provided by the NHS from the central discharge support fund. If the relevant health and social care assessments have not been completed by the end of six weeks, then the funding responsibility passes to the CCG or to Social Services until all assessments and care planning processes are concluded.

For expert advice on hospital discharge and the Coronavirus crisis, contact our specialist Community Care Law Team today on 01273 609911, or email info@ms-solicitors.co.uk.

Martin Searle Solicitors, 9 Marlborough Place, Brighton, BN1 1UB
T: 01273 609 991 info@ms-solicitors.co.uk

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