Case 21 A challenging discharge

Mr Stanislavski is a 63-year-old former alcoholic who was admitted to the Acute Medical Unit (AMU) following an unwitnessed collapse at his care home. He has poor short-term memory and had been unable to provide detailed information on the circumstances of the event. He has no close family. Following 24 hours of observation (including cardiac monitoring), no firm diagnosis has been made and Mr Stanislavski appears well in himself. He is ambulant.

Mr Stanislavski underwent a quadruple coronary bypass two years ago and is on appropriate medications for the secondary prevention of arterial disease.

What would you do?

Dr Pirelli, the CT2 attached to the team, sees Mr Stanislavski and explains to him that no injuries have resulted from his collapse and that there is no evidence of any sinister cause for the episode. Dr Pirelli therefore recommends discharge from the hospital. Mr Stanislavski is pleased to be able to leave the AMU.

Whilst Dr Pirelli is preparing the patient’s discharge paperwork, the staff nurse approaches him and states that Mr Stanislavski is refusing to return to his care home. When Dr Pirelli talks to him about this, he alleges that the staff there are unpleasant to him, that the environment is dirty and that he is not permitted to have any visitors. Mr Stanislavski says that he is in the process of complaining to the local council about his treatment.

How would you manage the situation?

Dr Pirelli telephones the care home to speak to a staff member about the background. He is unable to speak to the manager but one of the carers explains that Mr Stanislavski is often difficult when he attends hospital but that he quickly settles into a normal routine when back at the care home. Mr Stanislavski has few visitors but this is because he has few friends rather than on account of any action on the part of the care home. Dr Pirelli and the staff nurse tell Mr Stanislavski that he must return to the care home. He becomes agitated and aggressive and begins to pace up and down looking for the exit. He pushes a healthcare assistant who he says is obstructing his way.

What would you do now?

Dr Pirelli telephones the consultant who is of the view that Mr Stanislavski is not competent to take his own discharge and that he should be held in his best interests until the situation can be clarified with the care home manager, the duty social worker and any other relevant parties. The nursing staff call hospital security but on arrival they state that they are not permitted to restrain Mr Stanislavski.

What do you think about the position of the hospital security team?

The consultant comes to the AMU and documents that Mr Stanislavski should be prevented from leaving the hospital until such a time as matters can be clarified. She then examines Mr Stanislavski’s lengthy medical notes in detail. The notes describe a protracted discharge process (six months) following the coronary bypass procedure at which time Mr Stanislavski’s memory problems had become evident. He had been seen extensively by neurologists and psychologists at that time and had been judged incapable of living independently. A past history of alcoholism and impulsive gambling was also described. Ultimately, he had been forced to reside in a care home against his expressed wishes under the terms of a ‘Deprivation of Liberty order’, supervised by the local authority. The consultant telephones the local authority’s responsible officer and confirms that the DOL order remains in place.

Following confirmation, the consultant explains to Mr Stanislavski that he will be returning to the care home with or without assistance from the police. She explains also that Mr Stanislavski’s care manager will make contact with him later in the week to discuss his concerns about the care home once again. Mr Stanislavski returns quietly to the care home with an ambulance escort.

Expert opinion

The key issues in this case relate to competence and the various legal mechanisms that may be in operation when a person is deprived of their liberty. Clinicians tend to have experience of patients detained in custody (police or prison service) or detained under the Mental Health Act 1983 but the Deprivation of Liberty safeguards are new under the Mental Capacity Act 2005. In Mr Stanislavski’s case, careful examination of the medical records quickly provided the necessary background information. However, the case highlights the importance of clear and appropriate communication between carers in hospital and the community.

In this case, the team was able to assure itself that the care home was a safe discharge destination following discussion with the local authority’s responsible officer. It was reasonable to ask hospital security staff to assist in restraining Mr Stanislavski for a proportionate and limited time in his best interests to prevent harm to Mr Stanislavski but it is important that the medical staff should document the request (and the rationale) in the medical notes.

Legal comment

Deprivation of Liberty Safeguards (DOLS)

The Mental Capacity Act (MCA) 2005 came into force in October 2007 and provides a statutory framework for acting and making decisions on behalf of individuals who lack the mental capacity to do so themselves. The MCA promotes the involvement of the individual in decision making wherever feasible. It also promotes the involvement of an Independent Mental Capacity Advocate (IMCA) where the individual lacks competence and has no friends and family.

Provisions of the MCA include the Deprivation of Liberty Safeguards (DOLS) that focus on vulnerable people within society who, for their own safety and in their best interests, may need to be accommodated under care and treatment regimes for which they lack the capacity to consent. Such regimes may have the effect of depriving them of their liberty.

Under DOLS, the Managing Authority (a care home or an NHS Trust) must apply to the Supervisory Body (the local authority or PCT respectively) for authorization of Deprivation of Liberty (Standard Authorization). The Managing Authority can authorize itself to deprive an individual of liberty for up to seven days if the need is urgent and where Standard Authorization has been applied for but not yet granted.

The Supervisory Body commissions a series of best interest and medical assessments and either grants or refuses Standard Authorization. The standardized assessments are carried out by specifically trained health or social care professionals (Best Interests Assessors), who cannot be directly involved in the care of the patient, and specially trained doctors with expertise in mental health (Medical Assessors), who can know the patient.

A Managing Authority may also apply for Standard Authorization prior to the deprivation of liberty occurring. This may apply if a person who lacks capacity is about to be admitted to a hospital electively. The Emergency Department (and some assessment areas) may be treated as outside the hospital for the purposes of DOLS when providing urgent and life-saving treatment: an acute NHS Trust will generally only need to apply to the PCT for a DOLS authorization if a patient is admitted as in-patient into the ‘hospital proper’. This is because restraint lasting only a matter of hours or a few days for necessary clinical treatment is usually authorized under the Mental Capacity Act (Sections 5 and 6) and does not require formal authorization under the DOLS process.

All hospitals should have a DOLS lead, who will be able to provide advice and assistance in the completion and submission of the appropriate forms to the Supervisory Body.

Security staff and restraint

Restraint is defined by Section 6 of the Mental Capacity Act 2005 as ‘the use or threat of force to help to do an act which the person resists, or the restriction of the person’s liberty of movement, whether or not they resist’.

Restraint is legally permissible where it is necessary to protect a person from harm and when it is proportionate to the likelihood and seriousness of that harm. However, the MCA does not allow restraint so intense or long-lasting that it amounts to deprivation of liberty: in such circumstances, restraint must be authorized either through the DOLS process or by the Court of Protection.

Restraint may also be used to administer care or treatment (under section 6 of the MCA) provided it is proportionate and in the person’s best interests.

In this case, it would have been reasonable to have used restraint to prevent Mr Stanislavski leaving the hospital premises until the circumstances were clarified. In addition, the existence of a DOLS authorization in the care home (provided Mr Stanislavski was not admitted to a ward, which would immediately cause his DOLS authorization to lapse since authorization is site specific) is regarded as providing evidence that the person’s residence in the care home has been robustly assessed as being in his best interests, and such restriction of his freedom as proportionate to the risk and seriousness of harm.

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