Case Study: Challenging an NHS Decision to Discharge a Disabled Woman from Hospital to a Nursing Home Against Her Will
How Andy McKay, expert Community Care Law solicitor, challenged the NHS Integrated Care Board in their decision to force a disabled young woman into a nursing home against her will, rather than allow her to return to her own home to receive the care she needs.
The situation
Lucinda is a woman in her 30s with serious and complex health needs. In April 2025, she was admitted to East Surrey Hospital due to acute pneumonia. She was treated in the Intensive Care Unit (ICU) due to the complexity of her needs, including Ehlers-Danlos syndrome that affects her joints and mobility, a neurological disorder, a hormonal disorder and epilepsy. She cannot take fluids or nutrition by mouth. Lucinda is non-verbal but has full mental capacity and is currently studying for her Masters degree. Lucinda requires 24/7 care and had been receiving this from specialist nurses in her own home for the past eight years, funded by NHS Continuing Healthcare (NHS CHC).
Due to complications arising from surgery, Lucinda needed a tracheostomy and ventilation to assist her breathing. Due to the complex nature of Lucinda’s needs, the Hospital commissioned the agency nurses that normally cared for Lucinda at home to provide nursing care for her in the ICU ward 24 hours a day.
Lucinda’s mother contacted martin searle solicitors in the summer of 2025 as she was concerned that the Integrated Care Board (ICB) were making plans to discharge Lucinda to a nursing home, instead of supporting her to go home with her long-standing nursing care package. Her attempts to engage in discussions with the ICB had come to nothing.
What Martin Searle Solicitors did
After taking a detailed history of the events leading to Lucinda’s hospital admission, Andy wrote to the ICB to seek to engage them in a proper consultation and planning process to arrange Lucinda’s safe discharge from hospital.
By November 2025, the ICB had carried out a review of Lucinda’s needs and prepared a draft care plan but had not shared the documents or outcome with Andy or Lucinda, despite having a duty to do so. Three days before Christmas, the ICB wrote directly to Lucinda at the hospital to say that it had agreed funding for her to be cared for in a nursing home in Tunbridge Wells, a long distance from her home and family. Andy wrote back to demand an urgent dialogue regarding the ICB’s failure to properly consult or provide a draft care plan for proper discussion. Andy argued that the ICB’s nursing home proposal, which involved healthcare assistants rather than Lucinda’s nursing team, would fail to meet her needs or keep her safe. He argued that only her existing nursing team had the knowledge, skill and expertise to safely meet her complex needs.
The ICB was not prepared to enter into a dialogue and stated that Lucinda would be moved to the nursing home on 9 February. Lucinda, who communicates via Eye Gaze, was very clear that she did not consent to the move and wanted to return to her own home. The ICB asserted, with no evidence, that it would not be safe for Lucinda to return home and that the only safe option was the nursing home placement. Despite Lucinda having full mental capacity, the ICB overrode her wishes to be cared for at home.
Andy contacted Lucinda’s Nursing Agency, who confirmed that the ICB had not approached them to ask if they were still able to meet her needs at home, which now included tracheotomy care and ventilation. The Agency confirmed it could meet these needs, was commissioned to do so for Lucinda in the hospital and indeed did so for numerous other clients with similar needs in their own homes.
Four days before Lucinda was due to be discharged from hospital, Andy sent a pre-action protocol letter to the ICB, threatening Judicial Review proceedings. He argued that the ICB were unlawfully detaining Lucinda in hospital / would be unlawfully detaining her in the nursing home, and he warned the ICB that any physical restraint placed on Lucinda to move her against her wishes could constitute an assault.
The result
Despite Andy’s pre-action letter, East Surrey Hospital proceeded with Lucinda’s discharge to the nursing home. Staff switched off Lucinda’s powered wheelchair so that she could not resist. The method of transfer and placement in the nursing home were both unlawful and amounted to a breach of Lucinda’s rights not to be deprived of her liberty and were an unlawful detention.
As soon as Lucinda arrived at the nursing home, it became clear that staff there could not meet her needs. They lacked the necessary skills, expertise or knowledge to care for Lucinda safely. They had not even been provided with the correct sterile equipment related to Lucinda’s TPN feed, or her essential medications and fluids. Far from keeping her safe, the ICB’s discharge arrangements put Lucinda’s immediate health at risk and caused her great psychological distress.
Recognising its inability to meet Lucinda’s needs, the nursing home tried to arrange her return to the ICU in East Surrey Hospital, who said they could not accommodate her. The day after, Lucinda was transferred from the nursing home and admitted to Tunbridge Wells hospital’s ICU.
Following Andy’s threat of Judicial Review, the ICB finally agreed that it would start consulting Lucinda and her lawyers to explore all options for Lucinda’s long-term care, including a return to her own home.
Although Lucinda has not yet returned home, the determination of Lucinda, her family, and Andy’s input has forced the ICB to take its legal duties seriously. Lucinda is now working with a legal aid community care law firm, and Andy will continue to provide support from behind the scenes. Ultimately, a return to her own home is the only safe and lawful option available and we are confident this will happen in the coming weeks.
Lucinda’s case was reported widely in the national press who interviewed Andy for his views. Here is a link to the article on the BBC website.
For expert advice on challenging NHS commissioning decisions about where your care is provided, contact our Court of Protection and Community Care Law on 01273 609911, or email info@ms-solicitors.co.uk to find out how we can help you.
