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For Lack of a Better Plan: A Framework for Ethical, Legal, and Clinical
Challenges in Complex Inpatient Discharge Planning

Article in HEC Forum · October 2009

DOI: 10.1007/s10730-009-9117-6 · Source: PubMed

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HEC Forum
DOI 10.1007/s10730-009-9117-6 © Springer 2009

For Lack of a Better Plan: A Framework for Ethical, Legal,

and Clinical Challenges in Complex Inpatient Discharge
Planning

Jane Jankowski  Terese Seastrum  Robert N. Swidler Â

Wayne Shelton

This article proposes a new theoretical framework for analyzing complex

inpatient hospital discharge dilemmas. Each component of the framework is
defined, illustrated with a hypothetical case, and discussed from legal,
ethical and practical problem solving viewpoints. Patients who lack
reasonable and safe discharge plans invariably challenge existing
interpretations of autonomy, capacity, and justice. Such cases often require
legal advice and sometimes intervention from the judicial system when
alternatives are exhausted. As an extension of previous work on discharge
planning (Swidler et al., 2007), this work strives to provide medical
professionals with an organized way of approaching inpatient discharge
barriers and to encourage new ways of considering and designing healthcare
policy both to reduce discharge delays and also better to serve patients.

Introduction
Difficult inpatient discharge problems arise when a patient is medically
ready to leave the hospital but lacks or rejects a safe plan for returning to the
community or post acute care setting. Much of the literature to date has
outlined exemplary discharge planning practices, such as good
communication, timely identification of discharge needs, coordinating with
community agencies, and implementing a plan to complete a continuum of
_____________________________________________________________________________________
Jane Jankowski, LMSW, MSB, Albany Medical Center, Albany, NY 12208; email:
jankowj@mail.amc.edu.

Terese Seastrum, LCSW, Northeast Health, 2212 Burdett Ave., Troy, NY 12180.

Robert N. Swidler, JD, Northeast Health, 2212 Burdett Ave., Troy, NY 12180

Wayne Shelton, PhD, MSW, Alden March Bioethics Institute, Albany Medical College, 47 New Scotland
Avenue, MC 153, Albany, NY 12208-3478.
 HEC Forum

care for the patient (Backer et al., 2007). However, medical professionals
often encounter difficult discharge planning dilemmas, which require a
format for problem-solving beyond the standard discharge planning
protocols.
This paper is an extension of a previous work (Swidler et al., 2007) and
offers a new framework for examining inpatient discharge barriers. While
each patient is unique, common themes arise when exploring “difficult”
discharges. Medical professionals are often involved with patients who have
prolonged hospital stays for non-medical reasons. Some patients had unsafe
living arrangements prior to coming to the hospital. Others have perfectly
reasonable requests for post-acute care that cannot be accommodated due to
unavailability of such services in the community. And sometimes there are
patients whose complex needs have wearied both the healthcare system and
the community support agencies, leaving both patient and discharge planners
at a standstill. In these and other scenarios, efforts by staff simultaneously to
do what is beneficial for the patient, to respect the patient’s autonomy to
make his or her own choices, and to attend to justice concerns by freeing up
scarce hospital beds can all collide.
The challenges clinicians face daily related to discharge planning are
nothing short of multifaceted clinical ethical dilemmas. This article offers an
analytical framework for breaking down those challenges into one of three
categories: 1) person-focused, 2) system-focused, or 3) a blended category of
both. The naming of the categories identifies the origin of the current
problem and does not imply moral culpability, although personal
accountability and cooperation of various stakeholders may be relevant in
some situations. We acknowledge that many patients have complex
psychosocial histories, contributing to their perceptions and behaviors in any
of the proposed categories. The proposed framework is offered as a new way
of analyzing present-time discharge problems. The aim of this work is to
provide medical professionals with an organized way of approaching
inpatient discharge barriers, and new ways of considering and designing
healthcare policy, both to reduce unnecessary discharge delays and better to
serve patients.

Person Focused Discharge Problems

A person-focused discharge dilemma is one which arises because the patient
or the patient’s surrogate decision-maker rejects the options readily available
for the patient. In these cases, the patient would be able safely to leave the
hospital but for the objections of the patient or the surrogate. In a person-
focused dilemma, there are no barriers to discharge except the patient’s or
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surrogate’s rejection of the plan. The following case illustrates this type of
problem.
Case #1: Mrs. T is an 84 year-old widowed female, who is admitted from
a local skilled nursing facility with a fractured hip and advanced dementia
with behavioral disturbance. The patient’s son, who holds a power of
attorney and is also her health care agent, notified the nursing home on the
day of admission to the hospital that the patient would not be returning. In
working with the patient’s family to secure nursing home placement, the
hospital social worker identified several alternative facilities that were
willing and able to meet the patient’s needs. Due to the exhaustion of her
Medicare and private insurance benefits, it was also determined that a
Medicaid application would need to be completed. Mrs. T’s son cancelled
several Medicaid appointments and failed to comply with requests by the
County Department of Social Services to supply financial documentation
needed to establish eligibility. He also contacted facilities that he was not
interested in and threatened them with Health Department complaints if
they admitted his mother.
From a clinical perspective, Mrs. T’s condition is stable and she is
medically ready for discharge. Nursing homes have been identified and seem
likely to take the patient once the Medicaid application has been completed.
The primary barrier in this case is not a lack of available healthcare systems
and resources. Rather, the delayed discharge is due to the behavior of the
patient’s surrogate. The patient would likely be leaving the hospital but for
the lack of cooperation from Mrs. T’s son. A family member who fails to
follow through with necessary financial paperwork on behalf of an
incapacitated patient impedes the hospital’s efforts to discharge the patient to
a more appropriate setting. Without a source of payment, discharge to a
nursing home is almost always at a standstill. For this reason, this case
depicts a patient-focused discharge dilemma.
Patients who lack capacity, such as Mrs. T, typically have someone else to
make healthcare decisions on their behalf, as does Mrs. T. It is expected that
this person will approach these responsibilities with the patient’s wishes and
best interests in mind. It is not clear that Mrs. T’s son is behaving in a
manner that clearly supports either her wishes or her well-being. The
dilemma here is how to work toward a beneficent outcome for the patient
while respecting the legal authority of her healthcare agent. If Mrs. T’s son is
not receptive to the discharge planners’ requests for documentation and
continues to harass area nursing homes, a new surrogate, or at least a way to
override the son, will most likely be needed to ensure Mrs. T’s best interests
are upheld in the discharge planning process and in future decisions affecting
her care and well-being.
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From a legal perspective, the case raises three key issues. The first issue is
whether the son is meeting his legal obligations as power of attorney and
healthcare agent. While there are state variations in law, in general both an
agent holding a power of attorney and a healthcare agent must make
decisions based on the principal’s instructions or wishes if known or, if they
are not known, based on the principal’s best interests.1 To be sure, the son
might contend that both his reluctance to apply for Medicaid and his
rejection of successive nursing homes reflect his mother’s wishes or
interests. But the hospital could challenge those assertions – in court if
necessary (for example by bringing a guardianship proceeding) – and strive
to show that the son is not furthering his mother’s wishes or interests, and
indeed is acting contrary to those standards.
However, even if the son could defend his decisions as reflective of his
mother’s wishes or interests, he faces a second issue: whether even the
patient herself, if capable, could lawfully have made the decisions her agent
is making. When the son’s acts are viewed as if they were the patient’s acts,
the case essentially presents the common problem of the patient who will not
leave (see Swidler et al., 2007, p. 24). That problem also resists solution, but
ultimately it is clear that a discharge-ready patient does not have the legal
right to remain the in hospital indefinitely. Nor could a patient sabotage all
existing reasonable discharge options; this would be the equivalent of
refusing to leave. In refusal-to-leave cases, a hospital must carefully comply
with all discharge planning and notice of discharge rights requirements
under Medicare regulations and any additional state requirements. But once
it does so, and discharges a patient, it can take steps to compel the former
patient, who is now a visitor or trespasser, to leave.
Obviously, in a case like this a hospital could not simply wheel the ex-
patient with advanced dementia out of a hospital exit. It could, however,
seek a court order compelling the son’s acceptance of a reasonable discharge
plan involving transfer to a nursing home, based on the foregoing reasoning.
Or, as an initial matter, the hospital could inform the son of its plan to take
such action, which might induce the son to consult an attorney, learn of the
likely adverse outcome, and begin to cooperate with a reasonable discharge
plan.
The third legal issue in this case concerns financial liability. In general,
when further inpatient care is no longer medically necessary and a discharge
opportunity is available, third-party payers will cease to pay the hospital for
additional hospital services. In that event, the hospital can bill the patient
directly for further inpatient services, after providing a legally required
notice and appeal rights. So, in this case the son, by rejecting reasonable
discharge opportunities, may be exposing his mother to personal financial
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liability for further inpatient care. Whether he cares or not about that, and
whether she has any resources to pay accumulating bills, is another matter.
By burdening her with those unnecessary expenses, it seems clear that his
actions also do not reflect his mother’s best interests or what she would do
under these circumstances.
From an ethical point of view, this type of case demonstrates the
expansive regard hospitals and caregivers, as well established in our social
and political tradition, have for individual and surrogate autonomy in health
care decision-making. This case dramatically poses the ethical question of
how far hospitals and health systems can afford to go in accommodating the
wishes of patients and their surrogates, when doing so entails considerable
and unnecessary costs, and burdens to variety of stakeholders. These
stakeholders include individual patients who could better use the hospital
bed, the hospital as a viable institution and society at large. This question
becomes ever more urgent as our health system grapples with how to pay for
the health care needs of those without health insurance and where hospitals
are no longer reimbursed adequately for providing free care to the indigent.
In short the ethical principle of respect for individual autonomy as an ethical
premise in the above case, and many like it, is currently forcing us to think
about the limits of reasonable requests from patients and their families, and
the point at which this sacred principle of individual autonomy clashes with
an emerging notion of justice.
Seeking resolution when faced with a person-focused discharge barrier
requires clear communication of hospital policy and expectations. Since the
barrier stems from patient or surrogate preference, the first and foremost
starting point is a clear assessment of patient capacity, which is a task
specific determination pertaining to the issue under consideration. It is only
after determining lack of capacity that the family surrogate has the moral and
legal authority to make decisions on behalf of the patient. Because there are
moral and legal guidelines for how surrogate decision-making should
proceed, i.e., reflecting the expressed wishes and best interests of the
patients, family surrogates should not be given a total and unquestioned
discretion to direct the care plan. Caregivers have not only a right but a
responsibility to advocate for patients and to make sure surrogates are
fulfilling their obligations to patients.
Finally, other kinds of patient-focused discharge issues may arise. Besides
the case presented, one is when a patient possessing full capacity insists he
or she is not ready to leave the hospital despite full resolution of all medical
needs; another is when the patient states he or she intends to return to an
unsafe or abusive living arrangement, even when offered a safe alternative.
Recognizing the barriers as person-focused reminds staff to attend to the
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dilemma at hand and work toward a solution that centers on the patient’s or
surrogate’s actions, choices, and concerns.

System-Focused Discharge Problems

System-focused discharge problems arise when a patient is ready for
discharge, expresses agreement with the discharge plan, but the healthcare
system outside the hospital is unable to serve the patient’s unique needs.
Unlike a patient-focused dilemma, the patient would leave once the hospital
made arrangements for the placement or services called for in the discharge
plan; the problem here is that the hospital is having serious difficulty in
making the appropriate discharge arrangements – sometimes they become
impossible. Without an appropriate setting or service package in the
community, the discharge is delayed until either the patient no longer
requires the setting or services, or a provider can be located beyond the
community. The example below illustrates the difficult choices faced in one
kind of system-focused discharge dilemma.
Case #2: Mr. J, a 67 year-old man, has a brain injury from a car accident
and lacks capacity, but is otherwise healthy. He was living in a group
residence where he had a history of aggressiveness toward staff and other
residents, including sexually inappropriate conduct. After a particularly
bad incident, the group home brought him to the ED one evening.
Although the medical screening found no condition that required acute
care, the group home refused to take him back. The ED physician
admitted him as a social admission to buy time to identify and plan a safe
discharge. The hospital often had to assign him one-to-one staffing to
protect other patients. Notably, the patient has an adult daughter and her
husband who usually visit once a week at the group home. Neither have
any legal authority as guardian, power of attorney, or healthcare agent, but
they are next of kin. Over time, the hospital expanded the geographic
scope of its search. Finally, they identified a group home in another state,
about 600 miles away, willing and able to accept the patient. However,
the patient’s daughter strenuously objects to the placement because she
will be unable to visit her father. She pleads with the hospital staff to wait
for a placement closer to her home to open up.
Hospital admissions for non-medical reasons create a debate about the
appropriate use of medical services. Hospitals are often utilized by families
and community agencies as a temporary housing solution for individuals
who are difficult to care for in their previous setting. Sometimes the growing
problem of “dumping” patients arises. Patients with challenging behavior
management needs, such as Mr. J, may be declined re-admission to their
HEC Forum

prior residence based on the claim that the patient has needs, which exceed
the level of care provided at that residence. Similarly, family caregivers may
find that the burden of caring for a loved one who has intensive care needs
exceeds the caregiver’s resources and abilities.
Mr. J did not present with any acute medical needs, but he does have
disruptive behavior patterns, which have been difficult to manage at his
group home, and it is not expected that Mr. J’s condition will improve over
time. But his future behavior patterns do not seem likely to be any more
difficult than before. Mr. J has a traumatic brain injury and is not able to
make informed decisions about his own care. As before, the principle of
autonomy is extended to the surrogate decision maker when a patient lacks
the capacity with the expectation that the surrogate will uphold the patient’s
best interests. But now, the basis of this problem is the lack of local
residential care beds able to meet Mr. J’s needs, thereby fitting the category
of a system centered discharge problem. Although the patient’s family
objects to the distance to Mr. J’s new residence, they do not protest the need
for placement. The distance of 600 miles away seems to reflect an
unreasonable burden on the family and thus we interpret it to be a system
barrier. If the local service providers had an appropriate setting for Mr. J,
this discharge dilemma would be resolved. However, the community system
is not able to provide a suitable placement for Mr. J.
A legal analysis would first look at the competing rights and interests of
the patient/family, the hospital, and the patient’s former group home. The
patient/family has a right to a safe discharge and to participate in the
discharge plan, and a strong interest in avoiding placement in a remote
location. However, the hospital has a pressing and legitimate interest in
securing a discharge for the patient as soon as possible – it is using its scarce
resources on a person who does not need inpatient care, and doubtless
incurring significant un-reimbursed expenses in the process. Accordingly,
the hospital might be inclined to push the family to accept the distant
discharge. If a dispute arose and were litigated (and of course great efforts
should be made to avoid that) it is likely that a court would note the
legitimate interests of both parties in this case, and base its decision on what
seems most reasonable in light of such factors as: the amount of time the
hospital had already cared for the patient, the distance of the proposed
placement, the hospital’s efforts to find a closer placement, and the
likelihood of a closer placement turning up soon. While the outcome in this
case is far from certain, it is likely that the court would be very reluctant to
ship a patient 600 miles away from a caring family; the court will struggle
hard to find an alternative.
One possible alternative would be to compel the group residence to accept
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the patient back. The hospital or the court itself might raise that option. If so,
the key issue would be the merits of the group home’s contention that it can
no longer meet the resident’s needs; indeed, that the patient requires care is
beyond the home’s regulatory permissible range. Even so, the court might
see the former group home as able to provide an adequate temporary
residence while efforts continue to find a better placement in or closer to the
community.
But there is also a broader legal issue with respect to which the hospital,
patient/family and former group home would be aligned in interest: a claim
that the state or local government has a legal obligation to ensure closer
access to the service. Various federal and state laws and court decisions may
provide a legal basis for some patients to claim a right, enforceable against
the state, to access of certain health care facilities and services. In particular,
the United State Supreme Court, in Olmstead v. L.C.,2 held that Title II of
the Americans with Disabilities Act requires states to provide care for
persons with mental disabilities in the community whenever possible, rather
than in an institutional setting. The Olmstead decision has generated both
significant efforts by states to increase the array of community based
services for persons with physical and mental disabilities, and litigation and
advocacy challenging the adequacy of those state efforts.
In this case, the patient, hospital and group home could collectively assert
that the state is discriminating against Mr. J on the basis of his disability by
failing to ensure the availability of the community services he needs.
However, given the complexity of the Olmstead obligation, and the
flexibility that the Supreme Court left to states in meeting their Olmstead
obligation, such lawsuit would probably not offer timely relief or guidance
for the immediate discharge problem.
Turning back to an ethical review, if we extend the principle of respect for
individual and patient autonomy to the collective or to all patients, then we
come up with the obligation to give all people their due or what they
deserve. This perspective invokes the principle of justice, which, in the
present case, obligates healthcare organizations to evaluate how a decisions
impact the community the organization serves. Discharging Mr. J to a
facility that cannot manage his needs would not only fail to meet the
patient’s needs, this action could also adversely affect the staff and residents
of the receiving facility. Yet, admitting a patient to the hospital for non-
medical reasons can seem unjust to acutely ill patients who lack access to an
inpatient bed held by someone who is not ill, but lacks a place to go. This
case raises serious questions about the obligations of healthcare
organizations within the reasonable geographical range to adequately care
for the patient. It should go without saying that “dumping” patients because
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they are “difficult” is unethical and imposes an unreasonable burden on other

institutions and their patients. We favor a mechanism, such as a local ethics
committee, in which institutions, like the one in this case, would have to
provide demonstrable evidence why a patient could not be adequately cared
for at that institution.
Healthcare organizations should not be able to refuse patients for whom
they have the appropriate level of care, unless there is a legitimate medical
reason directly related to the patient’s best interests. For individuals who run
healthcare institutions to place the interests of their own institutions above
their patients violates the basic mission to serve patients and further skews
the system, specifically in violation of the principle of justice. Assuming that
all institutions are making a best effort to serve all patients in their areas,
then the justice question becomes an even larger matter. This would involve
how society at large can appropriately and reasonably use its resources to
meet the needs of all patients. The specific issue of proximity – how far is
too far to discharge a patient from his family – must always be assessed in
light of the distribution of burdens and benefits across a population. It is
conceivable that discharging a patient to a facility 600 miles away would be
reasonable in some settings, if no other alternatives are available.
In most cases, establishing realistic expectations for discharge with
patients and families early in the admission can avert confusion and
unnecessary prolongation of the hospital stay in most cases. Despite every
effort, some family members may engage in activities which delay
discharging the patient. Advocacy can be a particularly important feature of
interventions when individuals do not seem to have reliable support from
family. It seems in the present case that his best interests would be served
temporarily by relocating to the group residence at least until a program
closer to his daughter can be located.

Person – System Focused Discharge Problems

Person – system focused discharge problems are those that share features of
both person focused problems and system focused problems. In these cases,
a safe discharge is impeded both by patient or family conduct and by
deficiencies in the community service system. Indeed, it may be difficult to
tell where primary responsibility for the discharge difficulty lies and,
therefore, where the best prospect for a solution lies.
Case #3: Mr. M is a 55 year-old homeless, wheelchair dependent man
who has been banned from all area homeless shelters and many hotels due
to his abusive and threatening behaviors. Moreover, most of the
community service agencies that sought to address his housing, behavioral
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and general health needs are unwilling to continue to work with Mr. M
because of his behavioral issues. Mr. M routinely presents to area
hospitals with minor injuries from falls or claims of abdominal pain, and
occasionally requires inpatient admission. On such occasions, Mr. M is
consistently uncooperative with hospital staff, both with respect to efforts
to evaluate and treat him and to identify a safe discharge plan. During the
current inpatient admission, staff was able to convince one local shelter to
agree to accept the patient and one outpatient mental health program to
admit him. But the patient rejected that plan, preferring discharge to the
street without services. Psychiatry has determined that Mr. M has full
capacity to make healthcare and discharge decisions and feels that his
behaviors are due to a personality disorder.
The case of Mr. M illustrates a person-system focused discharge dilemma.
Clearly, community systems are inadequate to provide the intensive
management and monitoring that this patient needs. Just as clearly, the
patient obstructs at every turn efforts by both the hospital and the community
service network to help him.
Because this patient has capacity, it is tempting to ascribe responsibility to
him as a moral agent for his non-compliant behavior. Although it is true that
Mr. M bears a large share of accountability, it is also true that he is unable to
control his self-destructive conduct, and that neither the hospital nor
community service network has been able to find creative solutions to meet
his unique needs. Instead, this patient–system discharge problem has created
a cycle, leaving this patient bouncing from service to service. With each
hospitalization, staff unavoidably becomes more focused on the goal of
ridding itself of the patient than the goal of meeting the patient’s health and
social service needs.
A legal review of this case would begin with seeking clarification of
whether this patient really has decisional capacity as a legal standard. If he
does, then he has the right to make decisions for himself, even poor
decisions; if he does not, then there may be some opportunities for greater
intervention for him irrespective of his choice. The precise definition of
capacity and the legal procedures for establishing its absence as a matter of
law will vary by jurisdiction. However, in general “capacity” in the
healthcare context signifies the ability of a patient to understand the risks,
benefits and alternatives of proposed decisions and to make a reasoned
decision based on that information.
In this instance, the psychiatric evaluation found that Mr. M has both
exceptionally poor judgment and exceptionally poor behavior control.
However, poor judgment and poor conduct in our current system are not
sufficient to justify incapacity for the purpose of compelling treatment or
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confinement. As confirmed by the psychiatrist, the facts in the hypothetical

do not seem to establish incapacity.
As a result, the legal analysis becomes simpler, although unsatisfying.
While the hospital has a legal obligation to develop a safe discharge plan for
the patient, its task is complicated by the fact that the patient has been
rejected by most service providers. But it likely met its legal obligation by
identifying at least one shelter and mental health plan willing to serve the
patient. While ideally the discharge staff should work to identify a plan that
is more acceptable to the patient, in this case – and in many cases in real life
– there apparently is no plan that is both safe for the patient and acceptable
to him. In that circumstance, a patient with capacity can be discharged with
documentation of the patient’s rejection of the discharge plan.
The hospitals should consider documenting such discharges in a manner
similar to how it documents a discharge against medical advice (“AMA”)
which generally signifies that the patient opted to leave despite being
medically unready for discharge. Specifically, staff should make sure the
patient is informed of the risks, benefits and alternatives to leaving without
compliance with the discharge plan. And staff should seek the patient’s
signature on a document acknowledging the receipt of such information; the
patient’s decision to leave “against the discharge plan” (or “ADP”) and a
waiver of liability. As with the patient who refuses to sign an AMA form, if
the patient refuses to sign the ADP form, staff should document their efforts
and that refusal.3
Patients like Mr. M present not only discharge planning challenges for
hospital staff but serious justice considerations for the community outside
the hospital as well. Police, ambulance services, shelters and a broad array of
community agencies are affected in attempting to manage an individual such
as Mr. M. Not only are the financial ramifications considerable, the toll on
medical staff can affect the mood and morale on the units. In turn, it is
possible other patients are vicariously affected by the attention commanded
by patients like Mr. M because less time and care may be given to others.
The principle of respect for patient autonomy, as noted in previous cases,
means that an adult with capacity may make his or her own choices
regarding treatment and lifestyle within the boundaries of the law. However,
from an ethical point of view autonomy should not imply that an individual
has the right to abuse those individuals and systems, which are designed to
provide help. Consistently refusing and not cooperating with reasonable
solutions and assistance over time and across settings is not fair to the
individuals who have spent many work hours pursuing care options, not to
mention the cost to taxpayers of supporting the health system. From an
ethical point of view, apart from the current legal parameters, there are
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reasonable limits to individual autonomy and the question of how much

patient abuse and non-compliance can be disregarded will be one that our
health system and society must closely consider.
In order for a discharge plan to succeed, it is critical that the entire
interdisciplinary team and community service providers participate in
developing and implementing a consistent plan of care including
mechanisms for managing behavioral difficulties when part of a patient’s
presentation. Clearly established goals moving toward discharge should be
formulated with the participation of the patient. At the same time, we are
fully aware of the limited success possible in such cases in spite of the best
effort by the teams caring for these patients.

A New Framework
We propose a new framework in which to examine discharge barriers in
terms of three broad categories – patient-focused, system-focused, and
patient-system focused cases. This framework does not in itself provide
normative solutions to substantive ethical issues related to discharge
planning. However, it does provide caregivers with greater clarity as to the
type of case with which they are dealing. In short, our goal to offer an
analytical tool by which to organize the key issues and facilitate a deeper
understanding of what is at stake for patients, communities, and the
healthcare industry. We believe the utility of this new framework lies in the
separate treatments of practical legal and ethical perspectives, which often
become muddled in the midst of complex clinical discharge situations. The
ability to explain and clarify barriers in discharge planning by those who
work in the health system, either in a clinical support or policy or
administrative role, will be crucial in an era where healthcare is at a
crossroads and we are urgently seeking improved healthcare policies and
solutions.
We believe this framework draws attention, perhaps most significantly, to
the role for patient autonomy in hospital discharge planning. At the macro
level, we in the United States have enjoyed enormous individual freedom
and material wealth as a nation with great emphasis on respect for patient
autonomy. While we generally endorse this prevailing moral and policy
perspective, there are legitimate questions about how to view our ethical
obligations in cases where patients deemed to have capacity, and who
therefore must be viewed as autonomous moral agents, are persistently non-
compliant and cause harm to themselves and others, and unnecessary cost
and stress to the health system. Is it plausible to believe that the many
patients whom we say have capacity are authentically choosing their life
HEC Forum

plans as an expression of freedom? Defining, or perhaps re-defining,

capacity and acknowledging that some expressions of patient/surrogate
preferences are simply unreasonable ought to be addressed in discussions of
discharge planning at the ethical, legal and policy levels.
Autonomy presupposes that the patient has decisional capacity (or that
another is speaking for the incapacitated patient). In general, ethical and
legal thinking tends to regard decisional capacity as a specific threshold:
patients who have capacity must be regarded as fully autonomous moral
agents; patients failing to meet these criteria are not. But as illustrated in
Case #3, healthcare workers often encounter individuals who engage in self-
destructive and non-compliant behavior who, nevertheless, have been found
to have decisional capacity. Many healthcare workers and policy observers
have lingering worries that something is wrong in such cases. Patients who
assert their capacity to continuously request services while engaging in self-
destructive conduct not only lead us to question definitions of capacity, but
also challenge our notion of justice by depleting finite resources for little
benefit.
At the same time, the system-focused and patient-system focused
discharge cases and categories also illustrate the great harm to all involved
when post-discharge options are inadequate. In Case #2 for example, there
was a dearth of community-based services for the incapable patient with
aggressive and sexually inappropriate behaviors. As a result, that patient will
likely be stuck in the hospital for an appalling period of time. That outcome
is bad all around: it is bad for the patient, who will be in setting where he is
in confined quarters, exposed to iatrogenic illnesses, and without the
rehabilitative program he needs. Worse, the presence of this patient will be
counter-therapeutic to multiple other hospitals patients, and may pose a
danger to them. Moreover, the patient will occupy a bed that may be acutely
needed by another prospective patient. The patient’s inappropriate presence
and difficult nature will exact a toll on staff in terms of stress, patience, work
satisfaction, and distraction from other duties. Finally, the patient’s
prolonged hospitalization will impose considerable expense on the hospital
or a governmental payer – likely both.
Principles of beneficence, non-maleficence and justice, as well as sensible
health policy, require careful examination of the system-focused delays, and
efforts to apply resources to meet those deficits. It is not just a matter of
fairness, it is a matter of societal self-interest: the disruption caused by such
deficits appears greater than the expense of meeting the need.
In the long run, we recommend a systematic rethinking at the ethical,
legal and policy level of the barriers to discharge planning. This rethinking
will require a fresh analysis of our basic ethical and legal principles:
 HEC Forum

particularly the tension between our obligation to respect individual

autonomy and self-determination, on the one hand, and our obligation to
protect and promote the best interests of patients, on the other. Regardless of
whether this tension is balanced by maintaining the status quo or tweaking
our value dispositions in a new direction, there remains the serious question
of how the healthcare system will provide the needed resources for all
patients in a reasonable and just manner. In preparation for this rethinking
process, we offer our analytical framework, including subset of common
barriers, as one way to sort the various issues within each category can be
identified and clarified.

NOTES
1
E.g., NY Public Health Law Section 2982.2.
2
527 U.S. 581 (1999).
3
CMS’s Interpretive Guidelines anticipate such refusals, and call for
documentation of them. In discussing the requirement to transfer patients
for follow-up care per the discharge plan (42 CFR §482.43(d)) the
Guidelines state, “The hospital must ensure that patients receive proper
post-hospital care within the constraints of a hospital’s authority under
State law and within the limits of a patient’s right to refuse discharge-
planning services. If a patient exercises the right to refuse discharge
planning or to comply with a discharge plan, documentation of the refusal
is recommended.” State Operating Manual, Appendix A, Survey Protocol,
Regulations and Interpretive Guidelines for Hospitals, p.A0363.

Delays Due to Patient / Family Patient Family Conduct Related

Rejection of Discharge Plan Delays
Patient contests that he or she is Patient / Family undermines efforts to
medically ready for discharge identify a facility that will accept patient

Patient does not contest readiness but just Patient / Family won’t cooperate in
won’t leave applying for Medicaid
Patient / Family reject the facilities that
would accept patient
Patient / Family want a specific facility or
package of service that is not available
Table 1: Patient Focused Discharge Problems
HEC Forum

Payment Related Delays Service Gap Delays

Patient lacks coverage for post-acute care
and is unable to pay
Delay getting payor approval
Payment rate will fall short of expected
costs (e.g., patient requires exceptionally
expensive medication)
Table 2: System Focused Discharge Problems
Patient was evicted or house
condemned; pt is homeless, delay in
identifying shelter or residence
Patient has multiple diagnoses, or has a
unique illness and there are few
suitable facilities/programs
Patient requires exceptionally intensive
level of services, creating not only
payment issues, but also staffing and
expertise issue

Blended Category Discharge Issues

Patient lacks capacity and has no family or friend to authorize admission to post-acute
facility

Post-acute facilities will not admit this patient because of patient’s objectionable
qualities, e.g., personality disorder, mental illness, violence, criminal history,
substance abuse, sexual inappropriateness, litigiousness, verbal abusiveness.

Post-acute facilities will not admit this patient because of a family member’s
objectionable qualities, e.g., personality disorder, mental illness, violence, criminal
history, substance abuse, sexual inappropriateness, litigiousness, verbal abusiveness.

Table 3: Patient/System-Focused Discharge Problems

REFERENCES
Abramson, J. (1990). Enhancing patient participation clinical strategies in
the discharge planning process. Social Work in Healthcare, 14(4), 53-71.
Abramson, M. (1983). A model for organizing an ethical analysis of the
discharge planning process. Social Work in Healthcare, 9(1), 45-52.
Atwal, A. (2002). Nurses perceptions of discharge planning in acute health
care: a case study in one British teaching hospital. Journal of Advanced
Nursing, 39(5), 450-458.
Backer, T.E., Howard, E.A. & Moran, G.E. (2007). The role of effective
discharge planning in preventing homelessness. Journal of Primary
Prevention 28(3-4), 229-243.
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Booth, B., Sullivan, G., Koegel, P. & Burnnam, A. (2002). Vulnerability

factors for homelessness associated with substance dependence in a
community sample of homeless adults. American Journal of Drug and
Alcohol Abuse, 28(3), 429-452.
Bowles, K. (2000). Patient problems and nurse interventions during acute
care and discharge planning (transitional care). Journal of
Cardiovascular Nursing, 14(3), 29-41.
Buchanan, D. (2008). Autonomy, paternalism, and justice: ethical priorities
in public health. American Journal of Public Health, 98 (1), 15-21.
Bull, M. (1996). Gaps in discharge planning. Journal of Applied
Gerontology, 15(4), 486-500.
Clemens, E. (1995). Multiple perceptions of discharge planning in one urban
hospital. Health and Social Work, 20(4), 254-261.
Forster, A., Clark, H., Menard, A., Dupuis, N., Chernish, R., Chandok, N.,
Khan, A., Letourheau, M. & Van Walraven, C. (2005). Effect of a nurse
team coordinator on outcomes for hospitalized medicine patients.
American Journal of Medicine, 118(10), 1148-1153.
Hall, S. (1992). Should public health respect autonomy? Journal of Medical
Ethics, 18(4), 197-201.
Henwood, M. (2006). Effective partnership working: a case study of hospital
discharge planning. Health and Social Care in the Community, 14(5),
400-407.
McKenna, H., Keeney, S., Glenn, A. & Gordon, P. (2000). Discharge
planning: and exploratory study. Journal of Clinical Nursing, 9(4), 594-
601.
Swidler, R., Seastrum, T. & Shelton, W. (2007). Difficult hospital inpatient
discharge decisions: ethical, legal and clinical practice issues. American
Journal of Bioethics, 7(3), 23-28.
Tapert, S., Ozyurt, S., Myers, M. & Brown, S. (2004). Neurocognitive
ability in adults coping with alcohol and drug relapse temptations.
American Journal of Drug and Alcohol Abuse, 30(2), 445-460.
Tracy, K., Babuseio, T., Nich, C., Kiluk, B., Carroll, K., Petry, N. &
Rounsaville, B. (2007). Contingency management to reduce substance
use in individuals who are homeless with co-occurring psychiatric
disorders. American Journal of Drug and Alcohol Abuse, 33, 253-258.

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