I have argued, at least since I wrote my Master’s thesis ‘Euthanasia and Medical End-of-Life Decisions: The need for Law Reform in Australia (1998, University of Newcastle (NSW)), that a patient’s demand for treatment does not give rise to an obligation to provide that treatment (and see:
- Do paramedics have to transport everyone? (February 3, 2014);
- Transporting the agitated patient – Victoria (August 10, 2014) and
- Not for Resuscitation in Western Australia (April 8, 2016);
- Paramedics withholding futile treatment (June 14, 2019);
- NFR orders and changing circumstances (April 5, 2020);
- see also Michael Eburn and Ruth Townsend ‘Save 000 for emergencies: A flawed approach to reducing demand for emergency ambulance services’ (2017) 44(4) Response pp. 23-26).
That position has been confirmed by the Queen’s Bench Division of the England and Wales High Court in University College London Hospitals NHS Foundation Trust v MB  EWHC 882 (QB) (9 April 2020) (and I thank Bill Madden’s WordPress for bringing this case to my attention).
The defendant, MB, was a patient in a room on a hospital operated by the claimant – the University College London Hospitals NHS Foundation Trust. The ward in which MB was a patient (at ) ‘has 12 beds and is intended for those requiring acute neuropsychiatry care for periods of up to 14 days (sometimes extended to 28 days depending on clinical need).’ The claimant NHS trust wanted MB to leave the hospital. The bed was required (at ):
… because the COVID-19 pandemic meant that the bedroom is urgently needed for other patients; and because in any event it is contrary to MB’s interests to remain in the Hospital, where she is at increased risk of contracting COVID-19. The Claimant says that MB can be safely discharged to specially adapted accommodation provided by the local authority, Camden London Borough Council (“Camden”) with a care package, which the Claimant considers more than adequate to meet her clinical and other needs.
MB refused to leave, and the claimant sought an injunction requiring MB to vacate the room on the hospital. MB’s case (at ) was that she:
… wished ultimately to be discharged from hospital, but had concerns about the care package offered by Camden. Those concerns were connected to her complex mental health conditions, which amounted to disabilities. If she were discharged while those concerns remained unaddressed, and irrespective of whether the concerns were objectively well-founded, she would be at risk of suicide or self-harm or at least of suffering extreme distress. To discharge her in those circumstances would be contrary to the Claimant’s obligations under Articles 3, 8 and 14 of the European Convention on Human Rights (“ECHR”) and contrary to ss. 29 and 149 of the Equality Act 2010 (“the 2010 Act”).
The European Convention on Human Rights and the Equality Act 2010 are not law in Australia, but the principles set out in the judgement would, I suggest, be considered equally applicable in Australia.
The gist of the case was that although steps had been taken to provide suitable accommodation and ongoing care for MB, she was not satisfied with the arrangements and did not want to leave the hospital until all her demands had been met and her concerns addressed.
A psychiatrist involved in MB’s care said (at ) ‘It is unlikely that [MB] can ever be fully reassured as she does not trust hospital authorities, council and possibly other authority figures – this is something that professionals and [MB] have had to manage. There is no current intervention that can rectify that. Hence expecting that [MB] will be satisfied and agree to discharge is not a realistic endpoint.’
MB argued that the court should not proceed to grant the order requiring her to vacate the room until she had the opportunity to call her own expert witnesses to give evidence as toe the impact her discharge would have no her mental health. Mr Justice Chamberlain refused that application. He said (at -):
First, a decision by an NHS hospital not to provide in-patient care in an individual case might, in principle, be challengeable on public law grounds by judicial review if the decision were tainted by improper purpose or had been made in breach of statutory duty or otherwise contrary to law. But, if such a decision were taken on clinical grounds, it would not be open to a claimant in such proceedings to adduce expert evidence with a view to impugning the clinical basis of the decision…
Second, clinicians cannot be required to provide treatment or care contrary to their own clinical judgment:… Dr Christofi’s careful evidence shows that it is the considered view of the treating team that MB does not require hospital care and can safely be discharged. It would be quite wrong for the court to entertain expert evidence with a view to compelling them to continue to provide that care, even if other clinicians may take a different view as to what is clinically indicated.
With respect to the care package that was being offered by Camden London Borough Council, one of MB’s concerns was that it would be reviewed after three months and naturally a review might mean it could be changed, She wanted a guarantee that the package, including 24 hour care, would be in place for at least 12 months. At  Mr Justice Chamberlain said:
… it is necessary to say something about the concerns expressed by MB about the care package currently offered. The first such concern is not one that it could be reasonable to expect Camden to accommodate. Local authorities are both entitled and obliged periodically to review the care needs of those for whom they are obliged to make provision. Individuals in receipt of care packages are not entitled to insist on the level of care they believe they need…
As to her demands as to who would provide therapy, the judge said (at ) ‘… MB is not entitled to insist on therapists of her choosing. The identity of the therapists is a matter for the local authority, to be determined in the light of any relevant clinical advice.’
With respect to ongoing treatment in hospital, and in light of the COVID-19 pandemic the need to allocate resources, His Honour said (at )
Patients have no right to occupy beds or rooms in hospitals except with the hospital’s permission. A hospital is entitled as a matter of private law to withdraw that permission. In deciding whether to withdraw permission, the hospital is entitled and indeed obliged to balance the needs of the patient currently in occupation against the needs of others who it anticipates may require the bed or room in question. Unless its decision can be stigmatised as unlawful as a matter of public law, there is no basis for the court to deny the hospital’s proprietary claim to restrain the patient from trespassing on its property…
As for the argument that unless MB’s concerns are met, she will become so distressed that she may harm herself and, in those circumstances, () ‘the Hospital is legally precluded from discharging her until those concerns are met…’, His Honour said (at -):
It is a tragic feature of MB’s complex constellation of mental health difficulties that she frequently suffers from extreme distress, whether she is in hospital or not. But, if the Hospital were precluded from doing anything which might precipitate such distress, it would soon end up in a situation where it was legally precluded from taking any step other than in accordance with MB’s wishes. 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 [if] ceasing to provide in-patient care to one of them [or requiring them] to leave will certainly cause extreme distress or will give rise to significant risks to that patient’s health or even life. A hospital which in those circumstances 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 from the bed than B, is not precluded by Article 3 ECHR from declining to offer in-patient care to B. This is because in-patient care is a scarce resource and, as Auld LJ put it in R v North West Lancashire Health Authority ex p. A  1 WLR 977, at 996, “[i]t is plain… that article 3 was not designed for circumstances… where the challenge is as to a health authority’s allocation of finite funds between competing demands”. Decisions taken by a health authority on the basis of finite funds are, in my judgment, no different in principle from those taken by a hospital on the basis of finite resources of other kinds. In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person.
The present situation does not involve a comparison of the needs of two identified patients. But the decision to withdraw permission for MB to remain in the Hospital is still a decision about the allocation of scarce public resources. 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. The absence of evidence identifying a specific patient or patients who will be disadvantaged if MB remains where she is does not mean that such patients do not exist. It is important when considering human rights defences in cases of this sort not to lose sight of that.
An order was made requiring MB to leave the ward by midday on 10 April 2020.
As noted in previous posts, the COVID-19 pandemic will bring up difficult ethical issues including how to ration scarce resources (see Covid-19 ethical framework for clinical care (April 11, 2020) and Reasonable’ paramedic practice in the face of COVID-19 (March 23, 2020)).
On one view this decision was about the circumstances of the public health emergency and both the need, and authority of a hospital to ration finite resources based on assessment of clinical need. Who gets treatment – who gets the respirator and who does not – is not a simple matter of ‘first come first served’. If we step back from the current pandemic that is nothing new and can be seen in emergency departments every day where decisions are made about treatment priority. In the ED one may expect that everyone will get seen eventually but decisions are still being made about who gets to see the doctor and who gets treated and whilst some are being treated, it follows that others are left in the waiting room or given the suggestion to go home. As His Honour said ‘Decisions of this kind are a routine feature of the work of hospitals and local authorities, even when there is no public health emergency.’
Also of general application is the point that ‘clinicians cannot be required to provide treatment or care contrary to their own clinical judgment’ and ‘Individuals in receipt of care packages are not entitled to insist on the level of care they believe they need…’. In the context of this blog, that is addressed to paramedics rather than medical or nursing practitioners, the principle must remain true. Where a person rings triple zero they cannot demand that they are transported to hospital by ambulance. The paramedics are clinicians and ‘cannot be required to provide treatment or care contrary to their own clinical judgment’. If it is the opinion of the practitioner that treatment or transport is not indicated by the patient’s condition they should be able to exercise that judgement and refuse to provide such transport (see
- Transport everyone or act as a professional? A question for paramedics (May 6, 2013);
- Do paramedics have to transport everyone? (February 3, 2014);
- Paramedics decline to transport in NSW (March 21, 2014);
- Refusing treatment documentation (June 9, 2016);
- No adverse comments regarding paramedics following death of a woman in Ballarat, Victoria (April 3, 2017); and
- Paramedics and recording honest advice (April 15, 2018)).
A person who rings triple zero receives care from the ambulance service but they cannot ‘…insist on the level of care they believe they need’. They may be able to refuse treatment from Paramedic A; but they cannot insist that they get treated by paramedic B.
Hospitals (Darnley v Croydon Health Services NHS Trust  UKSC 50) and ambulance services (Kent v Griffiths  QB 36) may well have legal duties to treat those that come to them for care but the duty is not to provide whatever care the person demands, but that care which is indicated by the person’s clinical need taking into account the other demands on the health services resources, including the demands of other patients, both ‘real’ patients currently under care as well as a reasonable expectation of what other patients may present.
For paramedics and ambulance services this should serve as a reminder that just because someone calls triple zero and asks for ambulance transport to hospital, they are not legally obliged to meet those demands if they are not clinically indicated or the person’s needs can be reasonably met by other means.