Northampton General Hospital NHS Trust v Jessica Mercer

A patient who is medically fit for discharge has no legislative right to remain in an NHS hospital bed while awaiting a preferred placement. A hospital may withdraw the licence to occupy and obtain possession, subject to public law and human-rights constraints.

Before seeking possession where refusal to leave may be affected by mental disability or capacity, the hospital should involve the patient and relevant carers, liaise with the responsible authority, assess capacity separately for discharge, placement and litigation, consider vulnerability and participation directions, and assess proportionality. The evidence must address whether reasonable alternatives have been tried and whether removal can be safely managed. National discharge guidance is not binding legislation, but hospitals should consider it carefully and depart from it only for cogent reasons.

The Hospital sought summary possession of a hospital bed occupied by Ms Mercer, who had been medically fit for discharge since April 2023. She refused to move to a supported-living placement identified by North Northamptonshire Council, preferring residential accommodation.

The first hearing was adjourned because Ms Mercer had not participated effectively and the Hospital had not produced evidence of litigation capacity or compliance with the Public Sector Equality Duty. At the adjourned hearing, evidence addressed capacity, the proposed placement, equality impact and proportionality. The central issue was whether possession was justified despite Ms Mercer's disabilities, anxiety and objection to discharge.

1. Possession granted. The Hospital had established that Ms Mercer was medically fit for discharge, had complied with national guidance and its own discharge policy, and had identified a placement assessed as meeting her needs. Possession was a proportionate means of achieving the legitimate aim of releasing a bed for patients who required inpatient treatment.
2. A patient with capacity may refuse clinically appropriate treatment, but autonomy does not confer a right to demand treatment or accommodation which clinicians do not consider clinically necessary. A patient who is medically fit for discharge and refuses to leave has no legislative right to remain in hospital while awaiting a preferred option.
3. In private law, admission gives rise to a revocable licence to occupy. Once the hospital withdraws permission, continued occupation is trespass and possession may ordinarily be ordered. A patient may nevertheless raise public law or human-rights defences against a public hospital.
4. National NHS discharge guidance under s.74(2) Care Act 2014 is guidance rather than a binding statutory instrument. It must be considered carefully, and departure requires cogent reasons. Failure to follow the guidance or the hospital's own policy may support a public law defence, although no checklist is invariably determinative.
5. Capacity is decision-specific and time-specific. Separate assessments may be required for consent or objection to discharge, choice of placement and litigation. If the patient lacks litigation capacity, CPR Part 21 requires a Litigation Friend; a vulnerable party may also require participation directions under CPR PD1A.
6. Where refusal is connected with disability, the hospital must consider reasonable adjustments, the possibility of discrimination arising from disability, and the Public Sector Equality Duty. Possession may be proportionate where reasonable lesser alternatives have been tried, the placement is suitable, and the physical and psychological effects of removal can be safely managed.
7. On the evidence, Ms Mercer had capacity in all relevant respects. The proposed placement offered enhanced care during transition, the Council had assessed it as suitable, and the Hospital's equality impact assessment established proportionality. There was no arguable public or private law defence. Summary possession was therefore ordered, with possession deferred for one week to assist preparation.