Northampton General Hospital NHS Trust v Jessica Mercer

The hospital obtained a summary possession order against a patient who had been medically fit for discharge since April 2023 but refused to leave. The court applied legal principles from the Mental Capacity Act 2005, the Care Act 2014, the Equality Act 2010 (including the Public Sector Equality Duty) and the Mental Health Act regime to assess whether possession was lawful and proportionate. Key grounds for allowing possession were: (i) reliable medical evidence that the claimant had been medically fit for discharge since April 2023; (ii) proper capacity assessments (including an assessment of litigation capacity) were carried out; (iii) Equality Impact Assessments and other evidence showed the proposed supported living placement met the patient’s needs; and (iv) possession was a proportionate means of achieving the legitimate aim of freeing an acute hospital bed for others. The judge also noted there was no arguable public law or discrimination defence on the evidence and provided practical guidance for hospitals in similar cases.

The claimant hospital sought a possession order because the defendant, a 34 year old woman with autism spectrum disorder and emotionally unstable personality disorder, had been medically fit for discharge since April 2023 but remained in hospital after returning to the ward when a previous placement fell through. The hospital and the local authority had identified a new supported living placement. The defendant and her mother opposed the move and expressed concern about safety, psychological harm and the change from long-term institutional placements.

The hearing was adjourned from 26 September to 4 October to enable the defendant to participate remotely and to require the hospital to produce missing material evidence. At the second hearing the defendant attended remotely but preferred her mother to speak; the court permitted the mother rights of audience as a lay advocate. The procedural and legal issues the court identified were: (i) whether the defendant was medically fit for discharge and thus a trespasser in private law; (ii) whether the hospital had complied with statutory duties in discharge planning under the Care Act 2014 and national NHS guidance; (iii) whether there had been adequate capacity assessments under the Mental Capacity Act 2005, including for litigation capacity; (iv) whether the Public Sector Equality Duty and s.15 Equality Act 2010 (discrimination arising from disability) had been addressed and whether reasonable adjustments had been considered; and (v) whether any public law defence (including Article 2, 3, 5 or 8 ECHR grievances) or a deprivation of liberty argument made possession inappropriate.

The court summarised legal principles from authorities including University College London Hospitals NHS v MB and others and gave practical guidance (a checklist) for hospitals considering possession claims. On the facts the judge found that (i) the defendant had been medically fit for discharge since April 2023; (ii) the hospital and the local authority had explored many placements and found a supported living placement assessed as meeting the defendant's needs, initially with enhanced 2:1 support during transition; (iii) capacity assessments, including a subsequent assessment of litigation capacity, and Equality Impact Assessments were produced at the adjourned hearing; (iv) the court was satisfied the hospital had complied with the Public Sector Equality Duty and that possession was proportionate despite the defendant’s disabilities. There was no arguable public or private law defence, so the court granted summary possession but allowed a short deferral to assist transition. The judge emphasised the rarity of the remedy, the heavy factual and clinical context required, and provided guidance to hospitals on assessing capacity, PSED compliance and proportionality before seeking possession.

The court granted the claimant a summary possession order. The judge held that the defendant had been medically fit for discharge since April 2023, that the hospital and local authority had complied with relevant statutory duties and guidance, that capacity (including litigation capacity) and Equality Impact Assessments were satisfied on the evidence, and that possession was a proportionate and lawful means of freeing the hospital bed. No arguable public law or discrimination defence was established.