Nigel Poole: Discharging patients early, where does legal responsibility lie?  

The Royal Cornwall Hospitals NHS Trust has reportedly advised staff to help relieve the pressure on resources by considering discharging patients “earlier than some clinicians would like.” This was said to be “a proportionate risk that we as a health community were prepared to take on the understanding that there is a possibility that some of these patients will be readmitted or possibly come to harm.” [1] If a Trust adopts such a policy, where does legal responsibility lie?  

A patient who suffers injury because of a negligent decision to discharge them early is entitled to bring a claim for compensation. Claims are brought against the responsible NHS Trust, not against individual clinicians. If a Trust adopts a policy that exposes patients to an increased risk of avoidable harm, then it is liable to face more rather than fewer claims. 

When assessing whether a patient’s management or treatment has been negligent, the courts know that most clinical decisions, including to discharge, carry an element of risk. The courts also recognise that resources are not limitless:

“In the field of medicine where resources are limited and the demands on those resources are many, it may be necessary to make difficult decisions as to how resources are to be allocated. In general, English public and private law leaves such decisions to those who have the legal responsibility for making such decisions. The fact that an area of medicine may be under−funded … or that a particular hospital may not have the facilities that another hospital has… does not necessarily provide the basis of a claim in negligence by a patient who may suffer from the effects of the under−funding or the lack of facilities.” [2]

In a judgment in 2012, HHJ Cotter QC, in the High Court, found that a decision to discharge a child to be seen at an out-patient appointment several months later had not been negligent given a number of factors including “the various pulls on resources.” [3]

The law acknowledges that the allocation of scarce resources within the NHS is not properly a matter for clinical negligence litigation, and that professionals work within structures that are determined, in part, by managerial decisions. However, the pressure on resources is only one factor to be considered in a negligence claim and it would rarely constitute an absolute defence. The memo sent to staff in Cornwall raises the concern that it will influence them to act against their clinical judgment. Why else send it other than to change existing clinical decision-making? 

For a clinician to discharge a patient early when they consider it unsafe or unreasonable to do so, might not only expose the Trust to a negligence claim (in which the clinician will be under intense scrutiny), but also put the clinician at risk of sanction from their professional regulator. Accordingly, clinicians will want to make a clear record of their own view about discharging a patient, of any instruction or policy to the contrary, and of what safety-netting or other advice they give to the patient. 

Healthcare professionals owe legal and professional duties of care to their patients. Managers do not know the circumstances of each patient—the specifics of their condition, the care they would receive at home, and the consequences if they were to deteriorate after being discharged—but clinicians do. Whatever it says in a memo from the management, only the clinician can make the judgment at a particular time and for a particular patient, whether it is right to discharge them. And whatever risks “the health community” might be prepared to take, a duty of care and professional responsibility remains with the individual clinician. 

See also: David Oliver: The risks of discharging patients early against doctors’ judgment

Nigel Poole is Head of Chambers at Kings Chambers and a QC specialising in clinical negligence litigation. He writes the Learned Friend blog and is author of “Clinical Negligence Made Clear.”

Twitter: @NigelPooleQC

Competing interests: None declared


1]  The Guardian 14.1.20: “Cornwall hospital to discharge patients early despite saying it may be harmful.”

2]  Simon J in Ball v Wirral Health Authority [2003] Lloyd’s Rep Med 165 at paragraph [32].

3] HHJ Cotter QC in Maguire v North West Strategic Health Authority  [2012] EWHC 3272 (QB) at paragraph [114]