The hidden health care costs of power of attorney legislation in Scotland: what needs to be done?

Abstract

Current power of attorney legislation in many European countries seeks to protect the rights of adult patients who lack capacity by ensuring that discharge from hospital to an alternative care setting only occurs when there is legal authority to do so, via a named guardian or power of attorney. In Scotland, a clause introduced in 2007 allows some patients who lack capacity to be transferred from hospital to a community care service provided all relevant parties are agreed that this is in keeping with the legislation (the ‘least restrictive option’) and the patient does not resist the move. However, there is variation in the understanding and use of this clause by local authorities across Scotland, often resulting in avoidable hospital delays, which are costly and cause ‘bed blocking’. This essay illustrates the costs of hospital delays due to current power of attorney legislation in Scotland and highlights the need for the systematic monitoring of power of attorney data and related hospital delays, and for alternative legislation to be considered in the future.