Issue 13 / 8 April 2024

Mr Stewart’s pneumonia is responding well after two days of intravenous antibiotics – but he’s now yelling at the nurses and demanding to be discharged home, or else “the police will be called”. With a sinking feeling, you step into the room and introduce yourself.

Dealing with a patient who requests discharge against medical advice can be a daunting experience, due to the significant risk of clinical deterioration. On one hand, the doctor who permits (or makes inadequate efforts to prevent) inappropriate self-discharge may be the subject of a claim, investigation (including the coronial process) or complaint arising from subsequent harm to the patient. On the other hand, detaining and treating a competent patient against their wishes may have serious legal (including criminal) consequences.

Understanding the history

If possible, read the notes before you engage the patient so that you have a good understanding of the clinical background.

  • Are there concerns about cognition, insight or capacity?
  • Does the patient have any physical, mental health, or drug and alcohol issues which might impair judgement?
  • How premature is the patient’s request for discharge?
  • Who is the next of kin?

Introduce yourself and explain that your role is to understand the patient’s plan, and to make their discharge as safe and simple as possible. Let the patient know you want to understand what they’re trying to achieve. It may be that a particular concern can be addressed that will enable the patient to stay, or some form of compromise or practical arrangement can be negotiated. The patient may be their spouse’s carer, or they might have a family pet that needs to be cared for.

While you’re talking with the patient, you will need to address two key assessments that are required to discharge a patient against medical advice (these are often performed together):

  1. Is the patient competent (do they have the capacity to make the decision)?
  2. Has the patient provided informed consent regarding their decision to self-discharge?

Competence (Capacity)

Under the law, adults are presumed to be competent unless proven otherwise. A person is competent to make decisions if they are able to:

  • understand the nature of their condition;
  • understand the nature and consequences of the treatment options (including the consequences of having no treatment);
  • retain and weigh up the information;
  • communicate their decision.

While you should be able to understand the reasoning, it’s important to note that capacity is not contingent on a patient’s decision being:

  • rational or wise;
  • consistent with a belief shared by the treating team or the population at large.

The patient without capacity

Does the patient have an acutely altered mental state?

In the acute care setting, this may be due to many causes (eg delirium, the effects of medication, drugs or alcohol). Document your findings, ideally with a cognitive screening assessment such as a mini mental state examination and consider a focused mental state examination. If the patient lacks capacity, they may need to be managed under the emergency provisions of the relevant guardianship legislation (with a view to involving a substitute decision-maker as soon as possible) until such time as capacity is regained. Consider getting a second opinion.

Mental health issues

Where the patient has a likely mental illness or disorder and poses a risk of harm to themselves or others, consideration should be given to managing care under the relevant mental health legislation (including involuntary detention, admission and treatment). This is beyond the scope of this article.

The patient who refuses assessment can be particularly challenging. You should be upfront about the purpose of the assessment and note that your findings will potentially form the basis of any treatment that might be required in an emergency, if capacity cannot be established.

Informed consent

Ensure the patient has sufficient information about the risks of discharging against medical advice, and any steps required to minimise risk.

A practical test of the patient’s understanding, capacity and retention is to ask them to paraphrase their reasons for leaving, and the risks this might pose.

Allowing discharge against medical advice

If the patient is competent and has been informed of the risks, they should be allowed to depart with the following measures:

  1. Ask the patient to sign and date a statement declaring they are leaving the hospital against medical advice. The declaration should state they have been advised of the risks to their health and safety, and that they understand and accept the risks. Most hospitals have a pre-printed form for this purpose. If the patient refuses to sign a form, document the circumstances carefully. Careful documentation is key;
  2. The patient should be given a clear contingency plan for signs of deterioration, any ongoing treatment, and when to return to the hospital;
  3. If the patient provides consent, the patient’s family or carer(s) should be contacted and made aware of the patient’s imminent self-discharge and the circumstances surrounding it. This might involve a discussion of the patient’s condition and any potential risks;
  4. The patient’s care providers in the community (GP, specialists, case workers) should be contacted, and a discharge summary should be sent as soon as possible, to ensure continuity of care and follow-up.

The case study is fictitious. Any resemblance to real persons, living or dead is purely coincidental.

This article is provided by MDA National. They recommend that you contact your indemnity provider if you need specific advice in relation to your insurance policy or medico-legal matters. Members can contact MDA National for specific advice on freecall 1800 011 255 or use the “contact us” form at