The law entitles most of us to be silly when it comes to our health

Feb 14, 2019
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There's no need to attempt a quick getaway or resort to subterfuge to remove a patient from hospital against medical advice, according to the law. Source: Getty

Very few people want to stay in a hospital or a residential aged care facility. We’d much rather stay in control of our lives and at home. Sounds simple, doesn’t it?

Some of you may have heard of hospitals complaining about ‘bed blockers’ – patients (usually older ones) for which the hospital can do no more but the patient won’t, or can’t, leave the hospital. This arises usually where, for example, the patient is not able to go home and the family needs to frantically find some aged care facility or respite care as an alternative.

I have sympathy for the hospital and the patient in this situation. I have less sympathy for the family, who have usually done nothing to anticipate this event.

However, a variation on this theme is raising its head – where a hospital does not want an older patient to leave and go home even though the patient wants to, as do their family. The hospital strongly believes that, while the patient can leave, they can only go to one place – a nursing home.

We had a recent example of just this scenario. A hospital, in effect, would not let a patient leave unless it was in the back of ambulance on its way to an aged care facility. What’s more, they told the patient and their family that if they did attempt to ‘retrieve’ the patient from his bed and take him home, the hospital would call the police. As both the patient and his family, including his enduring power of attorney, were adamant that he would be leaving, I am not sure what offence either the patient or his family were allegedly committing.

I have no doubt the hospital was well intentioned and truly believed that its duty of care to the patient not only applied in the hospital but outside the hospital as well.

Regrettably, I call this an emerging ‘clash of the titans’ issue in ageing – what’s good clinical care may not actually be what the patient wants nor, indeed, what the law prescribes.

So, what does the law say? It says:

  • If a person has the capacity to make their own decisions, they are entitled to do so, which includes leaving a hospital even where the clinical indicators suggest they should not.
  • If a person does not have the capacity to make their own decisions, whether the patient stays or goes becomes a decision for their enduring power of attorney. For read more on EPOAs, you can click here.
  • A hospital has no power to restrain a patient from leaving. To do so against the patient’s wish or that of their EPOA could well result in the hospital committing an offence e.g. assault or deprivation of liberty.
  • If a hospital has significant concerns about a patient leaving or the appropriateness of a decision by their EPOA to take the patient home, it can raise its concerns with the Public Guardian or, in my neck of the woods, the Queensland Civil and Administrative Tribunal (of which there is a version in all states and territories).

While the law may be counter-intuitive to what we think is best for someone and that their decision to leave their hospital bed and go home might be silly, the law says most of us are entitled to be silly.

But, as a former and late prime minister of this country once famously said, “life wasn’t meant to be easy”. And so it is not.

Have you been in this situation or has a family member or friend experienced such an issue? How did you resolve it? Do you think the law is correct as it stands?

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