Discharge and Placement

Physicians and family members routinely make decisions about discharge and placement without adequately consulting the patient and often over the patient's objections. Just as capacitated patients have the right to consent to or refuse treatment, they also have the right to choose their living arrangements and outpatient care. This right, however, is not as tied to the singular interests of the patient as are the rights of informed consent and refusal of treatment. The legal, financial, practical, and quality-of-life interests of family and neighbors as well as of the patient may be affected and even compromised by the patient's return home.

Despite the family members' best efforts, they may be unable to meet the safety or health care needs of the elderly person. Whereas the patient's decision to consent to or refuse care is determined by patient autonomy, the decision to accept or refuse care is governed by the notion of accommodation, ie, the rights and interests of others may be directly affected by the patient's discharge choice. For example, a patient wishing to live with his daughter may not be able to do so if the daughter has other demands on her time and energy.

Even if residing with family or residing alone poses a greater risk than living in a long-term care facility, the patient has the right to choose either. Decisionally capacitated patients can assume the risks of discharge options. Many elderly persons choose to return home even when health care practitioners believe that residential treatment is medically and socially preferable. Some patients even choose to return home when the possible result is death. If the patient is decisionally capacitated and appreciates and accepts the consequences, this choice can be legally and ethically supportable. A decisionally capacitated patient cannot be placed in a residential facility over his objection without a court order. Overriding a patient's discharge preferences may require petitioning the court for a general or a limited guardianship.