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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.

  1. Will the NHS pay for my care when they discharge me from hospital after treatment for Covid-19?
  2. What is Discharge to Assess?
  3. Can I still choose my care home or care at home provider when discharged from hospital during the Coronavirus crisis?
  4. My client lacks mental capacity on care arrangements – does a best interest decision have to be made about hospital discharge?
  5. My 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 my client is bed blocking in hospital – can they evict her from hospital?
  7. Can the NHS refuse to assess my client’s eligibility for NHS Continuing Healthcare (NHS CHC) before discharge from hospital?

Will the NHS pay for my care when they discharge me 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. Under the Covid-19 Hospital Discharge Requirements, all the support that a person needs on discharge from hospital will be paid for by the NHS during the recovery period. This is until their long-term care plan is agreed and implemented. This may be care at home, or in a care home or rehabilitation setting.

What is Discharge to Assess?

NHS England introduced the discharge to assess pathway four years ago. It is about funding and supporting people to leave hospital when it is safe and appropriate to do so, and the assessment of longer term needs “in the right place” out of hospital. The pathways have been updated to manage quicker discharge processes during the pandemic, with an emphasis on requiring health and social care to work together.

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

Unfortunately the right to choose on discharge from hospital has been suspended by the emergency measures. Annex D of the Requirements states: “During the COVID-19 response there will be suspension of choice protocols for this particular issue”. The NHS has produced a range of leaflets “to support the communication of this message.” Seek specialist advice if health and social services say that an element of your support is a matter of choice when it is in fact a need.

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

The Coronavirus Act 2020 has not suspended any of the requirements of the Mental Capacity Act 2005. Therefore any health and welfare decision, including when and where to discharge a client who lacks capacity, must still be made in their best interests

My 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 Policy Paper “Covid-19: our action plan for adult social care” which was updated on 15 April 2020. This allows for symptomatic patients to be discharged to a care home provided that the care home can accommodate and isolate them for a period of 14 days. If this is not possible, the NHS will ask the Local Authority to secure alternative accommodation for the 14 day period, using the £1.3 billion enhanced discharge arrangement fund to pay for the alternative. The action plan recommends that people who tested negative on discharge from hospital should also be isolated in the care home setting for 14 days.

The NHS say my 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 the patient’s licence, or permission, to occupy the hospital bed, which means the patient becomes a trespasser. The NHS Hospital Trust cannot obtain a possession order against the patient, 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 recent 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 my client’s eligibility for NHS Continuing Healthcare (NHS CHC) before discharge from hospital?

Yes: the emergency legislation suspends Clinical Commissioning Group’s (CCG’s) duty to undertake NHS CHC assessments. The Coronavirus Act also suspends the CCG’s duty to have regard to the National Framework. The CCG may choose to comply with the Regulations and assess eligibility, but this is now a discretion and not a duty.

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.

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