Discharge against medical advice

19 November 2013

By Divya Pahwa, Associate, Medical Law Department, Sydney

Serious consequences can ensue for a patient who chooses to leave the hospital against medical recommendation before the end of treatment. This can be a significant problem in emergency departments as failure to receive adequate treatment in these scenarios may result in exacerbation of the patient's illness and in the worst case scenario, death.

Patients may discharge themselves against medical advice if they do not agree with the management plan proposed by the hospital. In many cases however, patients may not understand or have capacity to understand, their diagnosis, prognosis and the risks of leaving the hospital. It is therefore important for the hospital staff to make an assessment of the patient's capacity and ensure that the patient is provided with adequate information regarding the risks of discharge. Most hospitals will have policies and protocols covering the appropriate steps to be taken when faced with this situation. The more grave the risks associated with the patient's discharge, the more important it is for the hospital staff to strictly heed to these policies and protocols.

A classic example is where a patient sustains a head injury in an accident and is brought to a busy emergency department. The patient is waiting to be reviewed by hospital staff for six hours. Not realising the medical concerns that exist, the patient discharges himself from the hospital before undergoing any investigations. The patient subsequently suffers from a stroke due to a brain haemorrhage and sustains permanent neurological deficits. The patient or the patient's family may consider retaining lawyers to investigate a medical negligence case for a delay in diagnosis and treatment. In these scenarios, the principles of contributory negligence can apply and reduce liability of the hospital staff for the alleged negligence.

Generally, the scope of contributory negligence is limited in medical negligence cases due to the recognised information asymmetry between doctors and patients. However, in the scenario where a competent patient has self-discharged after being informed of the risks, part of the blame for the adverse outcome may be attributable to the patient.

The quality of the hospital documentation regarding assessment of the patient's capacity and acceptance of the risks will have a significant bearing on the extent to which the patient is found to be contributory negligent. However, in many cases, especially in the context of busy emergency departments, contemporaneous documentation detailing this is often unavailable.

If a patient does not have capacity to make the decision of discharge, the hospital staff can continue treatment against the patient's will and refuse discharge. If the hospital staff took the same stance for a patient who does have capacity, they are theoretically exposed to a claim for battery and false imprisonment, however, in practice such claims would be extremely rare especially in the context of emergency treatment.

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