Due to the Covid-19 situation and the need to make alternative arrangements at short notice, the mediation was conducted entirely by telephone, making use of a telephone conferencing facility for joint sessions.
The claim was brought against the Trust by the estate of AA for a period of around six months when AA remained a hospital in-patient without any authorisation of deprivation of liberty pursuant to Schedule A1 of the Mental Capacity Act 2005 being in place. The main criticism made of the Trust was that AA ought to have been discharged home pursuant to a policy that was a joint initiative between the acute Trust and the local Council to arrange for community discharge within 24 hours of a patient being assessed as being medically fit for discharge and that at various times he was physically unwell. The Trust argued that it had kept AA in hospital in order to assess the care he needed in the community so that a safe community care package could be put in place upon discharge and that he was not eligible for discharge pursuant to the said policy. Further delay in discharge was subsequently caused by the CCG carrying out an assessment for AA’s eligibility for Continuing Healthcare Funding and the CCG requesting further information and wanting AA to be medically optimised prior to discharge. Whilst the Trust admitted that no authorisation of deprivation of liberty was in place, it argued that it was a case for nominal damages because it was a technical breach of Article 5 because the same or materially similar situation would have pertained had the authorisation process been followed (Bostridge v Oxleas NHS Foundation Trust  EWCA Civ 79). The claimant argued that an application to the Court of Protection would have brought about earlier discharge.
The case also raised interesting issues about the implications of the Court of Appeal’s decision in R (on the application of Ferreira) v HM Senior Coroner for Inner South London  EWCA Civ 31 as to when hospital patients (not on an intensive care unit) but in hospital being treated for physical illness.
The case settled after a full day’s mediation.