The case concerned a woman, MB, who had been ready for discharge from hospital for almost a year. The hospital applied to the court to reclaim possession of the bedroom she was in, on an urgent basis, as the Covid-19 pandemic meant that the room was urgently needed for other patients, and the hospital did not feel it was in MB’s best interests to stay in the hospital where she was at greater risk of contracting Covid-19 herself. MB argued that if the hospital made her leave, they would breach several Articles under the European Convention of Human Rights and the Equality Act, as MB had concerns about the package of care and accommodation that had been provided for her upon discharge.

The facts of the case

MB was occupying a bed on a ward in the hospital. The ward had 12 beds and was intended for those requiring acute neuropsychiatry care for up to 14 days, sometimes 28 if needed. Patients only had the right to occupy beds or rooms in a hospital if they had the hospital’s permission, and the hospital was entitled to withdraw that permission. As part of the decision on whether they should withdraw permission, they could take into account, the needs of the patient using the bed and the needs of others who may need the bed.

MB had been in hospital since February 2019, after she had collapsed in her home. She had a diagnosis of functional neurological disorder, and mental health conditions including Post Traumatic Stress Disorder (PTSD), Obsessive Compulsive Disorder (OCD), possible borderline personality disorder and Asperger’s syndrome. She also needed help with personal care.

The hospital applied to court to claim possession of the room MB was occupying, as due to covid-19, the bed was urgently needed for other patients. It was also felt that it wasn’t in MB’s interests to stay in the hospital, where she was at greater risk of contracting Covid-19. The hospital said that they were in a position to safely discharge her to specially adapted accommodation provided by the local council, with a care package, which they felt was more than adequate to meet her needs.

A care package for MB had been in discussion for more than a year, including the consideration of packages of care at home and residential care. MB refused to leave the hospital unless it was guaranteed that she would receive 24-hour care at home for at least a year before review. The local authority subsequently agreed to a 24 hour package of care that would remain in place for 3 months before review.

Guidance issued by the government in relation to covid-19 and hospitals states that all patients who are medically fit for discharge should be discharged either home or in to other safe care arrangements. 

MB stated that she wanted to leave hospital, but only once her concerns about the care package had been addressed. She claimed that if they weren’t addressed, she would, as a result of her disabilities – in this case her mental health conditions – suffer extreme distress.  This in turn could potentially lead to her self-harming or suicide. MB therefore claimed that if the hospital were to discharge her without these concerns being addressed, this would be contrary to the hospital’s obligations under Articles 3, 8 and 14 of the European Convention on Human Rights ("ECHR") and ss. 29 and 149 of the Equality Act 2010.

The hospital had no control over MB’s care package – issues about a review for example, were all matters for the local authority. The hospital said that they felt her needs had been factored in to her care package and that she had access to a mental health team that would address her mental health needs. They felt that to give any assurances and commitments about future support, which they had no control over, would be more detrimental to her. The hospital also said that they felt it unlikely that MB would be fully reassured, as she didn’t trust anyone from the hospital or the local authority.

The judgement

The judge considered all of the evidence in regards to what effect discharge would have on MB’s health and safety. He felt that the evidence concluded that MB had a history of using threats of self-harm and suicide to persuade others to give her what she felt she needed, but there had been no known instances of her harming herself. He also felt that it ‘was not impossible’ that MB might try suicide or resort to self-harm if her concerns were not addressed, but this was evidenced as a ‘moderate to low risk’ that could be managed by the 24 hour care in place and availability of mental health support.

Article 3 – Freedom from torture and inhuman/degrading treatment

MB argued that unless her concerns were addressed, discharge would cause her to attempt suicide, carry out acts of self-harm or create extreme distress, which would rise to the level of severity necessary, to qualify as inhuman or degrading treatment within the meaning of Article 3 ECHR. MB felt that the hospital could not legally discharge her until those concerns were met, even if her concerns were seen from a clinical perspective as unreasonable and unwarranted.

The judge did not accept this argument. He stated that if the hospital were stopped from doing anything that would prevent causing her any distress, they would be in a situation where they would have to give her whatever she wanted, even if the result of this was that the needs of others couldn’t be met. He stated that this was not the law, as MB’s needs were not the only ones that were relevant and that other people needed urgent care and the hospital bed for clinical treatment.

The judge did not consider that the discharge as planned would amount to suffering to an extent that it engaged the high threshold under Article 3, based on the evidence given by the doctors. He did acknowledge that the discharge would be distressing for MB, but that the risk of her suicide was moderate to low, and that any deterioration in her mental health would be picked up on as she would be in receipt of 24 hour care and specialist mental health support.

Article 8 – Respect for private and family life, home and correspondence

The judge acknowledged that the decision not to continue to provide hospital care for MB and the requirement for her to leave the hospital did not interfere with her Article 8 rights for private and family life. However, Article 8 is a qualified right that can be interfered with if necessary, for, amongst others, the protection of health.

The evidence given by the hospital regarding the demand for beds demonstrated to the judge that the interference was justified to protect the rights of others – those who did need in-patient treatment, whilst MB did not.

Article 14 – Protection from discrimination in respect of human rights

MB also relied on Article 14, read in conjunction with Articles 3 and 8. The judge determined that in making the decision whether to continue to give her in-patient treatment, the hospital had treated her as it would treat any person, regardless of their disabilities. It had made a decision whether to continue to offer her hospital treatment, on the basis of whether she had a clinical need for it. The judge went on to say that even if discharge did amount to discrimination to those like MB, who because of their disabilities perceive that they need certain care or things.  When there does not appear to be an objective need for it, this discrimination could be justified even outside of the context of a public health emergency (Covid19).  Therefore, given the current circumstances there was no prospect that such a claim under article 14 would succeed in the European Court of Human Rights.

Equality Act 2010 – duty to provide reasonable adjustments

Again, these arguments failed for similar reasons to above. In terms of reasonable adjustments, the judge found that the team at the hospital had provided every possible reasonable adjustment whilst MB was in hospital. The judge did not feel that adjustments to the care package sought by MB, were reasonable.