Reports of long patient waits in emergency departments and long waiting lists for NHS treatment often appear in national and local media. These problems have plagued the NHS for as long as I can remember. Various initiatives have been put in place to deal with the problems. The issue of hospital discharge and the freeing up of hospital beds also frequently hit the headlines.
One of the insurmountable problems the NHS faces is that it is called on to meet an infinite demand for its services with finite resources. It also needs to meet a growing demand as a result of advancements in treatment and care. As our population gets older, more care needs arise as people present with more complex, multiple conditions. Difficult decisions about how scarce NHS resources are allocated must inevitably be made.
Recourse to the law
People who feel that they may have been wronged by a particular NHS resource allocation decision can access the courts to try to resolve the dispute. There is a well-developed legal framework on NHS resource allocation, judicial review, human rights and negligence going back many years. A seminal case on the topic, which could well form material for a nursing law and ethics study day on resource allocation and hospital discharge, is University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB).
The case concerned the discharge of a patient (MB) with mental health issues who was refusing to vacate a hospital bed. A care package had been provided by the local authority, which included specially adapted accommodation and 24-hour care, 7 days a week for 3 months, pending a review.
The court said that the hospital could enforce the patient's discharge from hospital and obtain possession of the bed and, if MB did not comply with the court's order, she would be in contempt of court. The judge, Mr Justice Chamberlain, stated:
‘Local authorities are both entitled and obliged periodically to review the care needs of those for whom they are obliged to make provision. Individuals in receipt of care packages are not entitled to insist on the level of care they believe they need.’
University College London Hospitals NHS Foundation Trust v MB, paragraph 47
This is a very important judicial statement of principle regarding NHS resource allocation. As Herring (2022) stated:
‘Although there is a statutory duty to provide medical treatment, that is not an absolute duty, because resources are finite.’
The judgment is clear on the law to be applied in NHS resource allocation cases and how sometimes difficult and controversial decisions must be made. The judge stated that a hospital, in deciding whether to let a patient stay in a room or bed, is:
‘… entitled and indeed obliged to balance the needs of the patient currently in occupation against the needs of others who it anticipates may require the bed or room in question. Unless its decision can be stigmatised as unlawful as a matter of public law, there is no basis for the court to deny the hospital's proprietary claim to restrain the patient from trespassing on its property.’
University College London Hospitals NHS, paragraph 51
Hempsons, the solicitors who acted for University College London Hospitals NHS Foundation Trust in this case, stated the practical, broader implications for NHS hospital trusts of this court decision (Barbour, 2020). Barbour's (2020) discussion included discharge, patients' care package demands, striking a balance between competing needs and informed clinical assessment.
Poole (2020) discussed a legal case on patient discharge where a trust reportedly gave controversial advice to staff on this matter. Poole (2020) stated that, to avoid a possible negligence action where the trust policy on discharge is at variance with what the clinicians think is reasonable and safe:
‘… clinicians will want to make a clear record of their own view about discharging a patient, of any instruction or policy to the contrary, and of what safety-netting or other advice they give to the patient.’
Recent guidance and choice
The Department of Health and Social Care (DHSC) (2022) has recently published Hospital Discharge and Community Support Guidance. Improper discharge has important patient safety implications and may well result in litigation and complaints if not done properly. To avoid this, it is important to unpack and properly apply the guidance in the DHSC (2022) document. The guidance is structured around the following themes:
- The care journey
- Structure, roles and responsibilities
- Specific needs.
Choice seems to be a repeatedly used word in the guidance and needs to be unpacked and analysed within the context of the legal discussion above. The guidance states:
‘Key to enabling choice whilst preventing delays is early and ongoing discharge planning conversations between healthcare professionals and people and their families and unpaid carers, following the principles of personalised care.’
There are limitations to patient choice, depending on the resources available:
‘Whilst NHS organisations should seek to offer choice to patients where such choice exists, in practice, there may be limited situations where an NHS organisation may decide to reduce the choice of services offered to people on discharge.’
From a commonsense perspective, if a possible patient choice is not available because all that resource has been expended, it no longer constitutes an option for the patient to choose. In effect, the patient is given a qualified choice and not an absolute one.
Herring (2022) discussed the fact that ‘choice’ has become one of the buzzwords of the modern NHS. He stated:
‘It might also be argued that it is a little misleading to talk about choice when, given rationing within the NHS, the choices of an individual patient must be weighed against the interests of the general public. Can we really allow patients to choose treatments under the NHS that are not cost-effective?’
Health staff and policymakers need to be careful when using the term ‘choice’ and help patients truly understand the exact meaning of the term—that they may be offered a qualified choice rather than an absolute one. As Herring argued, it could give patients a misleading impression, when in practice there are only limited choices or perhaps no choices available at all.
Delays in emergency departments
Delays in patients being seen in emergency departments has also been a topic in the media in recent weeks and has been a problem that has plagued the NHS for years. There have been court cases on this issue, where patients have alleged negligence.
The seminal Supreme Court case of Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 is instructive on the matter and sets out the law where an emergency department receptionist gave negligent advice about waiting times for a head injury and the patient suffered permanent brain damage. He did not wait to be seen, as he was wrongly told that the wait time would be very much longer than it actually was. Lord Lloyd-Jones stated:
‘A receptionist in an A&E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.’
Darnley v Croydon Health Services NHS Trust, 2018: 10-11
NHS Resolution (2018) has produced a helpful guide on this case and its practical applications for dealing with emergency department patients on arrival. It says that this was the first case of an emergency department receptionist being found negligent and stresses the importance of giving patients accurate information on waiting times by notice or leaflets.
The Royal College of Emergency Medicine's (RCEM) (2022) report on 12-hour stays in the emergency department states:
‘We have always argued that any form of unnecessary delay to treatment for our patients is unacceptable. We now have modelling to show a linear increase in 30-day mortality for patients who remain in the ED for more than five hours from their time of arrival. Any wait above this is exposing patients to increased risk. The sheer numbers of patients experiencing delays of 12 hours or more from time of arrival is unconscionable.
The RCEM (2022) raised some key issues on the interface between finite resources, decision-making and possible patient harm.
Conclusion
These various reports show that hospital discharge and emergency department admission are matters that could result in complaints and litigation if proper procedures are not mapped out and followed.
Past cases show that the courts are reluctant to get involved in matters such as waiting lists but, in an appropriate case, they will.
We are all proud of our NHS, and rightly so. Every day it faces an almost insurmountable array of competing demands, with finite resources and, generally, it does very well. Unfortunately, there are systemic, long-standing patient safety issues that have persistently dogged the system for several years. I would include hospital discharge, emergency department waits and waiting lists in these issues. They have attracted litigation and are currently in the media spotlight. Successive governments have brought in policies to try to deal with these issues, all recently exacerbated by the COVID-19 pandemic.
As the NHS tries to get back to a ‘new normal’, these problems need to be more effectively considered on all fronts of the NHS. There is a policy tightrope to walk on here and, if the balance tips too far or is lost, then complaints and litigation may well result.
There are several legal mechanisms that patients can access to secure an allocation of healthcare resources and there is an established body of case law on the topic. Patient harm may be caused through the negligent administration of discharge, emergency department admission, waiting-list policy and practice. These areas all require very careful patient safety policy making, thinking and practice.