Abstract

This paper examines the ethical conundrum between a hospital's ethos of relieving distress, investigation and treatment, and its concurrent duties under English law to administer tests of decision-making capacity and safeguarding protection where it believes the patient may lack this capacity. Delirium, characterised by a precipitous decline in mental functioning exhibiting the shared symptomology of recoverable depressive disorders and terminal dementia, is not uncommon after emergency admission of elderly patients into acute medical hospital wards. The use of functional capacity testing as a benchmark for decision-making capacity for post-discharge residence has been criticised as outdated, conceptually floored, subjective, lacking central guidance, transparent process, and accountability. A study of patient experience demonstrates the potential for hospital misuse of capacity testing, the failure of functional testing to differentiate decision making capacity from the disability of partial cognitive impairment, and how hospital capacity processes can interact and amplify patient pathology thereby decreasing recovery prospects. Prioritisation of mental capacity obligations above thorough investigation of emergent mental pathology and relief of patient anguish, results in extended detention in medical wards lacking bespoke facilities. Further understanding of patient experience is needed to inform policy with interventions tailored to avoid harm and increase wellbeing.