Discharge against medical advice: when a patient wants to leave

Sooner or later, a patient will tell you they’re leaving before you’ve finished. What you do in the next ten minutes matters more than any form.

An example: “Leaving at 02:00”

What you can and can’t do

Sometimes a patient wants to leave, or refuses treatment, and you think they’ll come to serious harm. The law on what you can do is detailed, differs between jurisdictions, and changes. The principles don’t.

• An adult with capacity can refuse treatment and leave, even if you think it’s unwise. Being intoxicated or having a mental illness doesn’t on its own mean someone lacks capacity.
• Keeping someone in hospital, restraining them or treating them without consent needs legal authority. “Duty of care” is often given as the reason, but it isn’t legal authority, and neither is your worry about what might happen. Authority comes from the patient’s consent, a substitute decision-maker, the law on capacity or mental health, or, in an emergency, the doctrine of necessity.
• In an emergency, when a patient lacks capacity and faces serious harm, the law allows treatment or restraint, but only when it’s necessary to prevent that harm. Use the least restrictive option that works, for the shortest time, and involve your senior.
• Anything more than a short emergency, such as keeping someone for hours, ongoing restraint, or sedation to keep them in, needs formal authority. Your seniors and the hospital’s legal, mental health and safeguarding teams arrange it.

The laws that apply are your state or territory’s guardianship and consent law and its mental health Act. In an emergency, the common law doctrine of necessity allows the treatment or restraint needed to prevent serious harm to a patient who lacks capacity. Your health service’s restraint policy sets out how they work locally.

How to document it

Document your capacity assessment, then any restrictions you used and for how long, what you tried first, and which senior you discussed it with.

If the patient leaves, write down what you told them about the risks, the safety-net advice you gave, and who you told. Your health service may also have its own form and policy for patients who leave against advice: ask a senior where to find them. There’s more on safety-netting advice here.