Delayed Transfer of Care leads to £100k legal bill for an ICB

This Judicial Review challenged the decisions of NHS bodies that had resulted in a patient with complex physical and mental health needs being stuck on a ward for over 8 months despite being clinically ready to be discharged.  The delays arose (as the Claimant saw matters) because the relevant NHS and social care bodies had failed to agree on a discharge plan, whilst they constantly sought further assessments and could not agree on the allocation of onward funding responsibility.  The case was complicated by the fact that the patient, who had complex physical needs and autism, was also entitled to after-care services under section 117 of the Mental Health Act 1983 to meet any ongoing mental health needs.  However, the s117 providers were in London whilst the patient was in hospital in Manchester, and this meant that they were not properly engaged in discharge planning for up to 6 months.

The main issues in the case settled shortly before trial when the parties agreed a process leading to a discharge plan but costs could not be agreed.  The Divisional Court of Bean LJ and Chamberlain J decided the ICB should pay the patient’s legal costs and that the other NHS bodies before the court and the Secretary of State should bear their own costs. That has left the NHS with a sizeable legal bill – probably more than £100k – largely due to failures by the NHS and social care bodies to work together to deliver a timely discharge plan.  The judicial review claim was stayed by agreement to allow time for the plan to be put into effect; that stay will remain in place unless the plan to discharge the patient cannot be agreed.

David Lock KC, who acted for the Claimant in this case but usually acts for NHS or social care bodies, suggests that the lessons from this unfortunate saga are as follows:

• The Secretary of State’s Guidance on Hospital Discharges is statutory guidance and a NHS body or a local authority is highly likely to be acting unlawfully if it is not followed.
• The Guidance requires NHS bodies and local authorities to create multi-disciplinary teams operating in “transfer of care” hubs to work together to make sure discharges happen.
• There must be clear governance arrangements so every relevant NHS and social care body knows what they have agreed to do in order to ensure timely discharges happen, so that patients can be moved out of hospital as soon as this is clinically appropriate.
• Where there are delayed discharges, escalation provisions must be followed promptly to sort out blockages and resolve disagreements about who should fund elements of a discharge package.
• If patients are “stuck” in an acute hospital without a discharge plan, NHS and social services bodies are at risk of legal action due to their failure to work together to deliver discharges, and that may result in hefty legal bills.
• It is no answer for an ICB or a local authority to rely on failures by individuals to whom a case has been allocated – NHS and social care bodies must have collective ownership of the discharge process, and act promptly if it is failing.

Permission was given in this case by a Court of Appeal judge to decide if there was a conflict between the “Discharge to Assess” model, under which patients are not routinely assessed for their eligibility for NHS Continuing Healthcare (“CHC”) until after discharge, and the statutory duties on an ICB to carry out a CHC assessment process to determine CHC eligibility as soon as the ICB becomes aware that the patient “may” be eligible for NHS for CHC:  see the  wording in Regulation 21 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (which remain in force notwithstanding the change from CCGs to ICBs).  The claimant argued that, in the case of a delayed discharge patient in hospital, the Regulation 21 duty to assess is triggered and hence the ICB has a statutory duty to “take reasonable steps to ensure that an assessment of eligibility for NHS Continuing Healthcare is carried out”.  It follows that delaying any assessment until the patient is eventually discharged is arguably unlawful.

That issue did not have to be decided in this case because, shortly before trial, the ICB changed its position and agreed to undertake a CHC assessment of the patient.  However, it remains a live issue and it appears inevitable that it will arise for decision in another case.

David Lock KC acted for the patient in this litigation, leading Denis Edwards of Normanton Chambers and instructed by Campbell Taylor Solicitors.