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Discharge against medical advice: avoiding repercussions

Dr Reece Adler BSc (Hons), MD, Emergency Registrar Early Career Doctor Medical Adviser, Avant

Georgie Haysom, BSc, LLB (Hons) LLM (Bioethics), GAICD, Head of Research, Education and Advocacy, Avant

Sunday, 12 November 2023

discharge against medical advice

Patients commonly decline investigations or treatments, and completing a discharge against medical advice (DAMA) is something nearly every junior doctor will be asked to attend to during their hospital years. In a previous article we discussed the limited circumstances that warrant the forcible treatment of patients without their consent. Here we’ll consider the approach, obligations and liabilities involved with releasing patients against medical advice.

Legal case highlights DAMA obligations

In the case of Wang v Central Sydney Area Health Service, a 30-year-old man presented with his friends to hospital with a head injury following an assault. After waiting for some time, his friends approached the triage nurse and were told that the department was very busy, and they would have to wait. They asked if they could go elsewhere for treatment and were told they were free to do so and nothing more. They then attended an after-hours clinic where the head wound was sutured closed. The clinic’s doctor advised they should return to the hospital for imaging, but they declined, and the patient and his friends were given advice about monitoring for deterioration. A few hours later an undiagnosed extradural haemorrhage had expanded, and, despite emergency surgery, the patient was left permanently disabled. The patient’s carer subsequently sued the hospital, the clinic doctor, and the clinic.

The court found the hospital was liable, but not the clinic doctor or the clinic itself. In essence the judgment stated that, while the hospital staff had no power to detain the patient, there was an obligation to attempt to dissuade them from leaving, to advise them of the risks they faced and the circumstances that should cause them to return.

“In my view, that duty extended to furnishing the plaintiff with appropriate advice when it was intimated that he might leave the hospital. The hospital failed to discharge that duty, and the plaintiff's present condition is attributable to that failure.”1

Anticipating a DAMA

Studies have found some common characteristics of patients at risk of discharging against advice: men, people aged between 15-44, indigenous Australians, those from a culturally and linguistically diverse or low socioeconomic background, and patients with drug and alcohol dependencies.2 3 Identifying those at risk of DAMA is important, as this puts them at higher risk for re-presentation, morbidity and mortality. Avoiding a DAMA involves identifying those at risk, exploring and addressing their concerns and keeping them updated as to the reasons for delays, as well as the risks of leaving.

Best practice DAMA

Best practice discharge against medical advice involves five elements.4

1. Explore and address the reasons for wishing to discharge

This may be as simple as explaining delays, providing food, water, analgesia, nicotine replacement, a phone charger or helping facilitate child or pet care (RSPCA will offer home visits in some circumstances).

2. Assess decision-making capacity

Capacity involves an ability to understand, retain and weigh up information. A very basic approach is to state your concerns and ask the patient to explain them back in their own words. For a more detailed discussion please see Capacity: the essentials.

3. Explain the risks of not following advice and the benefits of treatment

Explain the signs of deterioration and advice on when to return. Be specific to the patient, including both worst case and most likely scenarios. Also explain the rationale and benefits of treatment.

4. Offer alternate management options if available

Patients will often accept some form of management and you are obliged to explore these. It could be offering oral medications, outpatient investigations or follow-up arrangements. It’s always worth reminding patients they are free to return anytime and will not face prejudice due to prior DAMA.

5. Documentation

Document each of the above elements. Many standardised DAMA forms do not include any assessment of capacity, so add this to the medical record. Some patients will be unwilling to sign a form, and this is not required. Instead, you should read out or discuss the above elements with the patient and ensure the discussion is documented in the medical record, including the patient’s refusal to sign the form.

Liability

A signed DAMA form does not necessarily avoid a claim or complaint being made. However, a properly executed DAMA process, and documentation of it, can protect a clinician from liability as it can be used as evidence that:

  • staff acted appropriately in the information and advice given to the patient and did not breach the duty of care,
  • the patient was refusing care and as such it would be unlawful to treat them,
  • the patient’s own actions contributed to any adverse outcome.

In a medical negligence claim, the third point can support a claim of contributory negligence which, if successful, can limit any damages awarded.

In the case discussed above, the court found that the patient self-discharged from the hospital and then declined to return after advice from the clinic doctor. The hospital was found negligent because it did not attempt to persuade the patient to stay, and did not explain the risks of leaving to the patient nor provide information about what signs or symptoms should prompt his return. However, the clinic and its doctor were not found liable because they had advised the patient to return to hospital and provided the necessary information about signs of deterioration, follow up needed and when to seek further medical advice.

Conclusion

A DAMA process should be approached in the same way as a consent process, as it is essentially an informed refusal of care.4 Clinicians are obligated to explain the risks, benefits, alternatives and to assess a patient’s capacity.

While all efforts should be made to fulfill each of the above steps, the reality is that the patient may be disengaged by the time this discussion takes place. Clinicians must presume a patient has capacity until there is evidence to the contrary. A patient does not lack capacity simply because they make a decision the clinicians disagree with and, in the absence of significant safety concerns, patients should not be denied their autonomy. However, patients should understand the risks they face and the circumstances that warrant return to hospital or alternate medical review.

1 Wang v Central Sydney Area Health Service and 2 Ors [2000] NSWSC 515

2 Alfandre D. Reconsidering against medical advice discharges: embracing patient-centeredness to promote high quality care and a renewed research agenda. J Gen Intern Med. 2013 Dec;28(12):1657-62. doi: 10.1007/s11606-013-2540-z. Epub 2013 Jul 2. PMID: 23818160; PMCID: PMC3832725.

3 https://www.indigenoushpf.gov.au/measures/3-09-discharge-against-medical-advice

4 Trépanier, G., Laguë, G. & Dorimain, M.V. A step-by-step approach to patients leaving against medical advice (AMA) in the emergency department. Can J Emerg Med 25, 31–42 (2023). https://doi.org/10.1007/s43678-022-00385-y

Disclaimers

The case discussed in this article is based on a real case. Certain information has been de-identified to preserve privacy and confidentiality.

IMPORTANT: This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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