Brian Herd

Brian Herd

Guest Blogger at See Full Details
Brian is a partner in the firm and has been a lawyer since 1983. He is recognised as one of Australia’s leading experts in the areas of elder law, retirement, disability and aged care.
Brian Herd

Very few people want to stay in a hospital or an aged care facility.

However, we often hear of hospitals complaining about ‘bed blockers’ – they’re usually referring to older patients for which the hospital says they 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 do find it difficult to sympathise as much with the family who have usually done nothing to anticipate this event.

There is a concerning variation on this theme developing – 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, they 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 their 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:

  1. 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;
  2. 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
  3. 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
  4. 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 QCAT.

This is not a simple case of ‘goodies and baddies’. It is more complex. While the law may be counter-intuitive to what we think is best for someone and their decision to leave their hospital bed and go home might be silly, the law says most of us are entitled to be silly.