By John Tingle
The recently reported case of University College London Hospitals NHS Foundation Trust v MB  EWHC 882 captures well the value of English common case law in resolving complex health care disputes within the context of the COVID-19 pandemic and more generally.
Mr Justice Chamberlain in the Queen’s Bench Division of the High Court of Justice ruled recently that a patient, known as MB, who had occupied an NHS bed for over a year, must vacate it and instead receive care in the community. Her room could be required urgently by COVID-19 patients and there would be an increased risk of MB contracting COVID-19 if she remained in hospital.
The case, which covers several legal areas, including NHS resource allocation and human rights, also provides a window on how the NHS welfare health care model operates in hospital and community care settings, and the challenges it faces. Particularly noteworthy is the careful and precise judgement of Mr Justice Chamberlain who most sensitively deals with the human aspects of the case. The rights of MB and the claimant, University College London Hospitals NHS Foundation Trust, were carefully considered and balanced along with the positions of all the other relevant parties.
The details of the case
The patient, MB, was first admitted to hospital on February 18, 2019 after collapsing at home. She suffered from several medical conditions, including long-standing, complex psychological conditions, such as post-traumatic stress disorder, disrupted attachment, obsessive compulsive disorder and possibly borderline personality disorder and Asperger’s syndrome. She needs help with personal care, including washing, dressing and toileting.
The claimant, University College London Hospitals NHS Foundation Trust, stated that MB could be safely moved to specially adapted accommodation provided by Camden London Borough Council. Camden had worked for over a year trying to draw up a community care package that would prove acceptable to MB. The care package had been revised over time, but the defendant, MB, continued to make more demands and refused to accept it. The current care package offered included 24-hour care, 7 days a week for an initial period of three months.
Mr Justice Chamberlain stated that it was a tragic feature of MB’s condition and complex mental health difficulties that she frequently suffers from extreme distress in hospital or outside. However, the hospital cannot lawfully be precluded from acting in a way that could precipitate that distress, otherwise it would not be able to do anything she disagreed with:
“In this case, MB would be entitled to insist on the provision of whatever she considers she needs as a condition of discharge from hospital, even if the result of her doing so were that the needs of others could not be met. That is not the law, because her needs are not the only ones that the law regards as relevant. In some circumstances, a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even ceasing to provide in-patient care to one of them to leave will certainly cause extreme distress or will give rise to significant risks to that patient’s health or even life.“
Inpatient care is a scarce and finite resource, the judge writes, citing R v North West Lancashire Health Authority  1 WLR 977. There are competing demands which must be resolved fairly. The hospital in this situation, the judge stated, determines rationally, and in accordance with a lawful policy, that A’s clinical need is greater than B’s, or that A would derive greater clinical benefit than B.
The judge further stated:
“Decisions of this kind are a routine feature of the work of hospitals and local authorities, even when there is no public health emergency. The fact that we are now in the midst of the most serious public health emergency for a century is likely to accentuate the need for such decisions.”
He made an order that MB should be required to leave the ward the next day at 12 noon, and that the hospital take all reasonable steps to discharge her.