Kerry nurses blew whistle on HSE's 'offensive' memo
Rare legal action against elderly patient concluded last year
The Irish nursing union was notified by nurses in Kerry General Hospital about the controversial legal memo that advised the use of "minimum force" on "trespassing" patients ready to be discharged.
The Irish Nursing and Midwives Association was contacted about the memo by concerned members at Kerry General on October 26, more than two weeks after it was drafted by the Health Service Executive's legal department.
The memo was "withdrawn" by the HSE two days later on October 28. But the INMO's Phil Ni Sheaghdha said the INMO continued to get concerned calls about the memo right up to last week from members "in various hospitals", suggesting that it remained in circulation.
The memo generated public outrage after a copy was leaked to RTE last week. The Minister for Health, Simon Harris, referred to it as "offensive" and Tony O'Brien, the director general of the HSE, apologised for it.
The memo offered hospitals guidance on freeing up hospital beds as they prepared for an increased demand for acute services over the flu season.
The INMO's director of regulation, Edward Mathews, outlined details of the memo in an urgent notice to members last week.
"The memo considers circumstances where a patient may refuse to leave a hospital bed, where they have been medically discharged, and advises that a nurse has lawful authority to move a person from a ward to ward within a hospital, regardless of the wishes of a patient, and further advises that the nurse has an equal right to remove the person from a bed improperly occupied. The advice continues that once a person refuses to leave, the nurse is entitled to remove the person as a trespasser, using minimum force to do so."
Tony O'Brien told an Oireachtas Committee last week that the legal advice did not reflect general policy and related only to the "very rare cases" where a patient refuses to move on to other forms of care after their treatment in a hospital bed has been completed.
Liam Woods said that the memo was a "briefing note" for senior management, and said that no patients were removed from their beds.
There are more than 500 patients occupying beds in acute hospitals even though their care has ended.
Senior health sources said this weekend that the hospitals are under pressure due to the shortage of step-down facilities but that legal action was rare.
One of the few known cases concerned a legal action to recover fees taken by St James Hospital in Dublin against an elderly patient who allegedly "refused" to be discharged.
It is understood the patient passed away while she was still a patient in the hospital that was suing her.
The legal action the hospital took against her concluded in the High Court in June last year. St James Hospital declined to comment on the outcome of the case this weekend.
However, in a detailed statement to this newspaper two years ago, the hospital said the patient in question was ready for discharge in May 2010.
The hospital said the patient "refused" to apply for the Fair Deal Scheme to avail of nursing home care and that the patient's "family also refused to pursue the patient's options under the scheme, after the patient was fit for discharge to a long-term care facility".
The hospital said its social work department "had been actively engaged in finding and offering long-term care options to the patient, but neither the patient nor her children will complete the necessary forms to enable her to avail of such options".
It continued: "If patients refuse to accept discharge from acute care, the hospital is obliged under the Health (Amendment) Act of 2005 and the regulations made under the Act to charge the patient for the bed being occupied."
St James Hospital issued legal proceedings against the patient in 2012 and got a High Court order for the fees a year later. The case was appealed by the patient who died before the appeal concluded.
Hospitals are under enormous pressure to free up acute beds. The Minister for Health, Simon Harris, said earlier this year that the number of delayed discharges was far too high, and reducing the figure was "key to making progress in our emergency departments".
An extra €40m was provided under the Winter Initiative to reduce emergency department overcrowding and to provide extra home care packages.
However, he said last week that he was "furious" when he learned of the HSE memo which said that patients who were ready for discharge but did not leave were "trespassers" who could be lawfully removed by nurses.
He said he was informed about the existence of the memo on October 27, the day before it was formally rescinded by the HSE.