Key COVID-19 legal developments in the health sector: Increasing capacity and patient flow – Hospital Discharge Guidance

Published 24 March 2020

On 19 March 2020, the Department of Health issued emergency guidance for hospital discharge (“Guidance”) designed to improve patient flow and increase NHS capacity for hospital admissions in light of the current pandemic.

Key points:

• NHS providers and commissioners should endeavour to follow the Guidance where possible and, in the case of acute and community hospitals, use the reporting mechanisms to update on progress towards discharge. The Guidance does not extend to inpatient mental health hospitals.

• NHS providers and commissioners will still, whilst considering the Guidance, need to undertake an individual assessment of the patient’s particular needs and risks and make decisions on a case by case basis.

• The Guidance does not serve remove or reduce exposure to claims liability in that providers and commissioners will still have a duty of care to their patient. Packages should therefore be commissioned with regard to assessed need and Providers and Commissioners will still need to assure themselves that discharge is safe.

• It is recognised within the law that NHS commissioners and providers can lawfully, and where done reasonably, take considerations of resource into account when making decisions as to the most effective way in which to meet an assessed need. The rationale for such decisions and steps they have taken to improve capacity will need to be clearly recorded.

• The Human Rights Act applies. As such NHS providers and commissioners will need to take such steps as they reasonably can to actively mitigate against the risk of breaching any of the fundamental convention rights such as the right to life, the right to be free of inhuman and degrading treatment (including a lack of basic medical care), the right to private and family life (including the right to be involved in decisions and to maintain family contact where possible) and the right to liberty.

• On this above point the Guidance indicates that, where a patient lacks capacity and their necessary care may result in a deprivation of liberty, any difficulties in the resolution of this should not delay the transfer. In such circumstances Providers and Commissioners will need to act as quickly as they can in order to put the placement on a lawful footing following transfer and clearly record their reasoning.

• In relation to emergency procurement, this guidance does not serve to waive or limit existing rules around contracting and procurement. For procurements that are urgent due to Covid-19, commissioners should refer to the Procurement Policy Note that was recently published by Crown Commercial Service reminding commissioners of the various provisions under the Public Contracts Regulations 2015 that will enable them to award contracts in accordance with their procurement obligations.

• Whilst the NHS (Procurement, Patient Choice and Competition) (No.2) Regulations 2013 (“NHS Regulations”) also continue to apply, commissioners may be able to reply on regulation 5 of the NHS Regulations where the relevant services can only be provided by the provider they are awarding to. Alternatively, commissioners may be able to rely on regulation 10 of the NHS Regulations which provides that commissioners must not engage in anti-competitive behaviour unless to do so in in the interests of the people who use the health care services – it is likely that rearranging services and/or awarding urgent service contracts will be in the interests of the people who use the health care services.

• Public law principles such as the requirement to consult will still apply although can reasonably be adapted and truncated in accordance with the urgency of the situation.

• Commissioners should clearly record and justify the steps they are taking alone and with others to maximise and create capacity in the system so as to free up acute beds where possible.