As helpfully noted by Nigel Poole QC, University College London Hospitals NHS Foundation Trust v MB (Rev 1) [2020] EWHC 882 (QB) (09 April 2020) is available on BAILII,
The Claimant is the NHS Foundation Trust which operates, among other hospitals, the National Hospital for Neurology and Neurosurgery, London. By a claim issued on 2 April 2020, the Claimant sought from the Defendant possession of bedroom 3A in the Hughlings Jackson Ward of the Hospital.
The Claimant’s possession claim was said to be urgent because the COVID-19 pandemic meant that the bedroom is urgently needed for other patients; and because in any event it is contrary to MB’s interests to remain in the Hospital, where she is at increased risk of contracting COVID-19. The Claimant says that MB can be safely discharged to specially adapted accommodation provided by the local authority, Camden London Borough Council with a care package, which the Claimant considers more than adequate to meet her clinical and other needs. Discussions relating to MB’s care package had been ongoing for more than a year (at [2], [
MB’s case, as presented by Mr Holland, is that MB wishes to leave the Hospital, but only once her concerns about the care package and the accommodation to which she is to be discharged have been addressed. Mr Holland submitted that, unless these concerns are addressed to MB’s satisfaction, she will – as a result of her mental health conditions, which are disabilities – suffer extreme distress, which may lead to self-harm or suicide. This was so whether or not the concerns were, in an objective sense, justified. (at [21]).
At [43] the court noted that a decision by an NHS hospital not to provide in-patient care in an individual case might, in principle, be challengeable on public law grounds by judicial review if the decision were tainted by improper purpose or had been made in breach of statutory duty or otherwise contrary to law. But, if such a decision were taken on clinical grounds, it would not be open to a claimant in such proceedings to adduce expert evidence with a view to impugning the clinical basis of the decision. Any attempt to adduce such evidence for that purpose would go well beyond the limited circumstances in which expert evidence is admissible in judicial review proceedings: see e.g. Law Society v Lord Chancellor [2019] 1 WLR 1649, [36] et seq.
And at [44], the court said that clinicians cannot be required to provide treatment or care contrary to their own clinical judgment: In Re J (Wardship: A Minor) [1991] Fam 33. Dr Christofi’s careful evidence shows that it is the considered view of the treating team that MB does not require hospital care and can safely be discharged. It would be quite wrong for the court to entertain expert evidence with a view to compelling them to continue to provide that care, even if other clinicians may take a different view as to what is clinically indicated.
The court held at [51]:
Patients have no right to occupy beds or rooms in hospitals except with the hospital’s permission. A hospital is entitled as a matter of private law to withdraw that permission. In deciding whether to withdraw permission, the hospital 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 rom 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.
At [56] it was said that the present situation does not involve a comparison of the needs of two identified patients. But the decision to withdraw permission for MB to remain in the Hospital is still a decision about the allocation of scarce public resources. Decisions of this kind are a routine feature of the work of hospitals and local authorities, even when there is no public health emergency. And at [64] it was noted that the consequence of relief being granted is that not that MB will be left without care. She will have 24 hour professional care, provided in specially adapted accommodation, with planned support from the CDAT team for her mental health needs.
The court granted relief to enforce the discharge of MB from the hospital.