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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 “Hospital Discharge Service: Policy and Operating Model” which took effect on 1 September 2020, the cost of the person’s care and support needs should be fully funded after discharge from hospital. If the person had 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 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 pathway four years ago. It 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 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 was suspended by the emergency measures in April 2020. The new operational model that commenced on 1 September 2020 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’.

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 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.

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 new 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.

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