Bed Blocking – Is there a legal remedy?

There has been considerable press coverage of the unprecedented pressure on hospitals arising from the number of patients “trapped” in hospital despite being fit to leave. The latest NHS data for November 2016 indicates 193,680 bed days lost a 40% increase in the last year.


It seems that the Better Care Fund has not achieved the targets set whereby local authorities receive money from the NHS budget in return for introducing schemes to reduce demand for hospital care.


Each case is fact specific. Whilst some of the delays are due to difficulties in identifying a suitable placement, a large proportion are blocked by the patients or family members and carers because of concerns over the proposed placement. Whilst some of those concerns may be genuine others are not. When the discharge policy processes have been exhausted, the last resort is to apply to the Court for possession of the room or bed.


In October 2016 we successfully applied for possession of a bedroom occupied by a patient on a short term rehabilitation unit for over a year. Having determined the patient’s licence to occupy the room an application was made to the High Court Queen’s Bench Division resulting in a Forthwith Order and an Order for costs (Sussex Community NHS Foundation Trust v D.Price).


In December 2016, James Paget University Hospitals NHS Foundation Trust successfully recovered possession of a bed from a patient who had been medically fit for discharge for two years. There is precedent for these recent examples in 2006 Barnet Primary Care Trust successfully applied for possession of a bed from a patient who had been fit for discharge since the end of May 2003.


There is plenty of anecdotal evidence of NHS Trusts threatening to make applications to alleviate bed blocking and whilst Applications to Court for recovery and possession of beds and rooms are a last resort, on occasion the circumstances warrant such action when all the consultation processes with the patient, their families and local authorities have been exhausted.


If your organisation is facing such a dilemma we can provide urgent advice and take action if necessary. Contact johnsheath@brachers.co.uk or 01622 776406.

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