Decision : Upheld
Decision date : 23 Jul 2020
The Ombudsman's final decision:
Summary: Mr F complained about what happened when his mother, Mrs G, was discharged from hospital. The Ombudsmen find fault with the way the Council and Trust communicated with Mr F and each other about discharge plans, including a continuing healthcare checklist for Mrs G. The Ombudsmen also find fault with the way the Trust handled Mr F’s complaint. The Trust and Council have agreed to take action to remedy the injustice caused.
- Mr F complains about what happened when his mother, Mrs G (deceased) was discharged from hospital. He says that she was wrongly pressured to go into a private care home without the correct assessments to inform the decision (needs assessment, financial assessment, and continuing healthcare checklist) and should have been offered reablement care instead.
- A social worker met with Mrs G about her care arrangements, but this meeting did not involve the family, even though Mrs G’s mental capacity was affected by her illness. The Trust and Council did not work together to manage the discharge process effectively. The Trust did not follow its procedures when responding to his complaint.
- As a result of these events, Mr F said he and Mrs G experienced a great deal of unnecessary stress and distress. He also said they paid for private care when some of this should have been covered by reablement care, which is free.
What I have investigated
- I have investigated the complaint from Mr F as set out above.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1)).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- In reaching this decision, I discussed the complaint with Mr F, and considered the written information he sent me. I made enquiries of the Trust and Council, and considered their comments and documents including clinical and social care records.
- I also took account of relevant guidance and policies.
- I shared a draft version of this decision with Mr F, the Trust and Council, and considered the comments I received in response.
What I found
Relevant legislation and guidance
- Department of Health (DH) guidance: Ready to go? Planning the discharge and the transfer of patients from hospital and intermediate care (March 2010) (the ‘Ready to go guidance’) is the core guidance around hospital discharge. It contains ten key steps for staff to follow during discharge planning, including:
- start planning for discharge or transfer before or on admission;
- identify whether the patient has simple or complex discharge and transfer planning needs and involve the patient and carer in your decision;
- involve patients and carers so that they can make informed decisions and choices that deliver a personalised care pathway and maximise their independence.
- The DH also publishes guidance entitled: Definitions – Medical Stability and ‘Safe to Transfer’ (2003). This provides guidance on when a patient can be safely considered to be ‘medically fit for discharge’. This lists three key criteria for making this decision and stresses professionals should address them at the same time, if possible. According to the protocol, a person is considered to be safe for discharge when:
- a clinical decision has been made that the patient is ready for transfer;
- a multidisciplinary team decision has been made that the patient is ready for transfer; and,
- the patient is safe to discharge/transfer.
Social care assessment
- Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
Mental Capacity Act
- The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
- Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity.
- In October 2017, Mrs G was admitted to hospital following a fall at home in which she fractured her arm. The fracture was treated conservatively using a collar and cuff, and a follow‑up in the orthopaedic clinic was arranged. Prior to the period of care complained of, she lived at home with support from carers, who administered her medication and provided social support. Mrs G paid for this care privately.
- During her admission to hospital, Mrs G was unable to mobilise with a trolley or frame and needed assessment for a new walking aid. Because of this, the Trust’s Emergency Department, where Mrs G had initially been treated, referred her to a rehabilitation unit managed by the Trust.
- On 9 October 2017, Mrs G was admitted to the rehabilitation unit for further treatment and rehabilitation. The following day, a mini mental state examination was undertaken. This is a commonly used set of questions for screening cognitive function. Mrs G scored 9 out of 10, indicating there were no concerns about her cognition.
- Mrs G was assessed by both the physiotherapy and occupational therapy teams. She continued with a physiotherapy programme to improve her mobility during her time at the rehabilitation unit. On 7 November, a social worker met Mrs G to discuss discharge plans, which she documented that day in the daily records. The social worker also made a more detailed record later, on 23 November. She recorded Mrs G said she did not want to return home because she had lost confidence that she would be able to manage. She noted that instead, Mrs G wanted to go to “a private convalescent bed at [the Care Home] with a view to her potentially staying there permanently if she did not feel she could return home due to her anxiousness”. On 8 November, it is documented that Mr F discussed the Care Home with ward staff, and said he was going to view the care home that coming weekend. A further discussion about discharge options was held with Mr F on 11 November.
- On 13 November, a multi-disciplinary team (MDT) meeting, involving clinical, physiotherapy and occupational therapy, discussed Mrs G and decided she was medically fit for discharge. A staff member from the Care Home came to assess Mrs G on 14 November, and Mrs G was transferred there on 16 November.
- Mr F felt Mrs G’s discharge to the Care Home was rushed, that the correct assessments were not done, and there was a lack of support and information provided. He complained to the Trust and Council, and received responses from both. He was dissatisfied with these, and complained to the Ombudsmen.
Fitness for discharge
- Mr F said Mrs G may have been medically fit for discharge, but she was not “socially fit” to leave hospital. He said the correct assessments were not done. As noted above, the MDT found Mrs G medically fit for discharge on 13 November, and this was communicated to Mr F the same day. However Mr F felt that Mrs G was pressured into going to the Care Home.
- The Department of Health ‘Ready to Go’ guidance noted above, emphasises the importance of comprehensive discharge planning. In order for a patient to be discharged, they must be considered medically stable by the treating clinicians. However, the decision to discharge must also consider “all relevant physiological, social, functional, and psychological factors have been taken into account.”
- The records show that during her time at the rehabilitation unit, Mrs G received assessment and input from occupational therapy and physiotherapy.
- The occupational therapist carried out functional assessments (that is, looking at how Mrs G usually slept, sat, stood, managed steps and stairs) and took information on how Mrs G usually managed at home.
- Regarding physiotherapy, the notes from the rehabilitation unit show the physiotherapist assessed Mrs G’s mobility, and this was followed by regular physio input with the aim of “sit to stand”. The notes show Mrs G progressed from being unable to stand and maintain balance, to walking using a frame with supervision.
- However, it is also noted that Mrs G’s confidence had reduced “due to fear of falling”, which was recorded as a reason she did not wish to return home.
- Physiotherapy input continued. On 11 November, Mrs G was documented as “independent getting off bed, using her frame, assisted to walk to chair”; and on 13 November as “independent stand from chair, mobilised [using] frame out of room to lounge doors, turned safely with frame and returned to chair… stand to sit exercises completed”. On 14 November, again an “independent stand, mobilised [with] frame out of room into corridor, safe return to chair in room” was recorded. It is also noted that Mrs G managed her walking frame without assistance and that physiotherapy should continue as in the care plan.
- The OT recorded in the discharge summary that Mrs G was “very anxious re returning home and managing alone overnight”, that she was being discharged to the Care Home, and no further OT needs had been identified. The physiotherapist commented that at the time of discharge, Mrs G’s confidence had reduced, but she could walk short distances using a frame after “sit to stand” practice and with assistance. No outstanding physiotherapy needs were recorded on discharge.
- I recognise that Mr F feels Mrs G was not ready to leave the rehabilitation unit and that discharge was rushed. However, the daily records indicate that Mrs G had appropriate physiotherapy input and met the goals set in the physio plan. No outstanding needs were noted in the discharge summary, and as a result she was discharged to the Care Home.
Social care assessments
- Regarding assessments of needs and finances, as noted above, in line with the Care Act 2014, a council must carry out an assessment for any adult with an appearance of need for care and support. The social worker who visited Mrs G on 7 November documented that they “discuss[ed] discharge plans. Aim to go to private respite care @ [Care Home] when there is a respite bed. Discussed finances with her.” In a later more detailed note of the meeting, the social worker said Mrs G told her “she would not require ACS services as she preferred to source her care privately… She did not divulge her level of savings. I did inform her that if her savings fell below the threshold she would require an assessment from ACS if she were to choose to stay in a care home permanently”.
- The Care Act 2014 Care and Support Statutory Guidance (section 6.20) states: “An adult with possible care and support needs or a carer may choose to refuse to have an assessment. The person may choose not to have an assessment because they do not feel that they need care or they may not want local authority support. In such circumstances local authorities are not required to carry out an assessment. However, where the local authority identifies that an adult lacks mental capacity and that carrying out a needs assessment would be in the adult’s best interests, the local authority is required to do so.”
- Mr F considers the retrospective note by the social worker should not be considered and queries whether it reflects the discussion that took place. However, the records show that notes of the discussion were made at the time of the meeting, and that Mrs G is recorded at that time as saying she wanted to source private care.
- On 8 November, it is documented that Mr F spoke to ward staff and raised concerns that “two people had been in to see his mum and mentioning other names and confusing his mum. Unsure of who this was, to ask social worker tomorrow if it was them and to document please.” However there is no further note in the records about this.
- As noted above, the Trust had carried out a mini mental state examination and identified no concerns about Mrs G’s cognition or any suggestions that she lacked mental capacity. She is documented as being anxious about not improving and it is noted that a GP review was requested for this. It is also documented that on 8 November she told a staff member she was “a bit confused yesterday but understood that she will be going into a home soon”.
- It was noted that Mrs G had previously been at the Care Home for a period of respite and wished to go there on discharge and fund it herself. It is also documented that she did not wish to return home at that stage because she was anxious about falling and managing overnight. However, it is recorded that Mrs G said if she did eventually decide to return home from the Care Home, she would reinstate her previous private home care package.
- Mr F said Mrs G reported being asked about her finances, although the Council said this was not the case. The Council said Mrs G had raised the issue of finances first and said she did not need social care input. The social worker’s note in the daily records states “discussed finances”, so it is not clear from this whether Mrs G raised the issue of finances or whether she was asked about them, and this is not something we would be likely to establish now. The social worker recorded that she made Mrs G aware she would need an assessment if her savings fell below the threshold.
- The Council accepted that even though Mrs G said she did not require input from social care, it would have been helpful if the social worker had explained to Mrs G that she was entitled to a needs assessment, so that she could decide whether or not she wanted one. The Council said it would share this with the social worker so she could improve her future practice. Mr F feels this is not sufficient and that further steps should be taken over the social worker’s actions. However the Ombudsmen cannot become involved in personnel issues. The Council has explained why it did not carry out a needs or financial assessment in line with the Care and Support Statutory Guidance referenced above. It has also accepted it would have been better if Mr F had been involved (see below).
Involving the family
- The Ready to Go? guidance says planning for hospital discharge should involve patients and carers so that they can make informed decisions. The Trust stated that Mr F was “fully involved in all conversations regarding discharge planning”. Several conversations between Mr F and ward staff are documented in the clinical records. On 16 October, there was a documented discussion between Mrs G and Mr F and nursing staff about ongoing management, including pain relief and mobility, and further discussions on 18 October, 20 October, 28 October, an email to Mr F on 30 October, and a further discussion with nursing staff on 6 November.
- On 10 November, it is documented that ward staff held a “long discussion with [Mr F] regarding [Mrs G’s] current mobility… [Mr F] to view Care Home tomorrow with view to [Mrs G] going there”. On 13 November it is recorded that ward staff met with Mr F and updated him on the MDT meeting which had deemed Mrs G to be medically fit for discharge, and that staff from the Care Home would come to assess Mrs G. The records support the Trust’s response that Mr F was appropriately involved Mr F in discussions about discharge planning.
- Regarding social care, the social worker said she had not spoken to Mr F, as Mrs G had not asked for him to be involved, and there was no reason to question her wishes (please see the section below on capacity).
- The Council also said the social worker understood the ward staff were liaising with Mr F over discharge planning, and that they would have passed on the details of the conversation to him. As noted above, there are records showing that Mr F spoke frequently to ward staff, and a record that he asked them who had been speaking to Mrs G. However Mr F said he although he asked, he was not able to establish who it was. Although there is evidence of communication between social care and the rehabilitation unit staff and therapists during Mrs G’s admission, it seems that the information from the social worker was not passed on to Mr F at the time by either ward staff or social work staff. There appears to have been a breakdown in communication here between the Trust and Council, as to what information was being shared with Mr F.
- Guidance from the Health and Care Professions Council (HCPC) states “You must communicate properly and effectively with service users and other practitioners” (HCPC 2012, updated 2016). It would have been better if the discussion with the social worker had been shared with Mr F, particularly as Mrs G advised the social worker that Mr F was very supportive of her and usually dealt with her finances. Additionally, there was information in the records that Mr F had already been closely involved in discussions about Mrs G’s care and discharge from hospital. There is an injustice to Mr F here, as had he been involved or informed about the discussion with the social worker, he is likely to have had more information and understanding regarding discharge planning.
- The Council accepted that “it would have been helpful if [the social worker] had updated [Mr F] of her visit although I think she presumed [Mrs G] would let her son know. Again, this situation was difficult as the customer didn’t want involvement from adult services.”
- The Council said this was fed back to the social worker so she can learn from the complaint and improve her future practice. The Council’s response reasonably addresses this part of Mr F’s complaint.
- I recognise Mr F’s wish to have been involved in the discussions with the social worker, particularly as he felt Mrs G was confused by the social work visit and that he felt her capacity fluctuated. The daily records from the rehabilitation unit say Mrs G reported feeling “a bit confused” the day of the social work visit. However, the notes then go on to say that Mrs G said she understood what would happen on discharge. There was no concern documented by medical staff or the social worker about Mrs G’s capacity to make a decision about discharge planning.
- As noted above, the Mental Capacity Act applies to people who may lack mental capacity to make certain decisions. Important principles of the Mental Capacity Act include: A person must be assumed to have capacity unless it is established that they lack capacity; and if someone makes what seems to be an unwise decision, even if they are ill or disabled, it does not necessarily mean they lack capacity.
- The Council said it had no reason to doubt Mrs G’s capacity. The social worker who met Mrs G on 7 November documented in her later note that Mrs G was “completely lucid and extremely articulate… and said she would not require ACS services as she preferred to source her care privately. She did not divulge her level of savings. I did inform her that if her savings fell below the threshold she would require an assessment from ACS if she were to choose to stay in a care home permanently”.
- I recognise Mr F considers that his mother was in a confused state in the days leading up to her discharge from the rehabilitation unit. However the Council’s response, that it had no reason to doubt Mrs G’s capacity regarding her decision to go to the Care Home and decline involvement from adult social care, is based on the records.
- Mr F says that Mrs G should have been offered reablement care. The Care Act guidance clarifies intermediate care services as usually provided to older people after they have left hospital. They are provided for a limited period of time to assist a person to maintain or regain the ability to live independently. The terms ‘reablement’, ‘rehabilitation’ and ‘intermediate care’ are often used interchangeably. Reablement is a type of intermediate care with a focus on helping the person to regain skills and capabilities to reduce their needs, in particular with therapy or minor adaptations. Councils must provide intermediate care and reablement care free of charge for up to six weeks, even if the person is above the capital threshold of £23,250.
- In its response to my enquiries, the Trust clarified that the rehabilitation unit is a reablement and rehabilitation centre. The Council also said that Mrs G “did receive reablement at [the rehabilitation unit]”. Mrs G was admitted there on discharge from hospital on 9 October until 16 November when she was found fit for discharge from reablement care by the multi-disciplinary team, as noted above.
- In response to Mr F’s complaint, the Council said that if Mrs G had been planning to return home and needed care, she would have been assessed for reablement services in her own home. However, the Council said that Mrs G was “very clear that she wasn’t returning home and she did not require our involvement any further. As you can appreciate we can’t go against your mother’s wishes by continuing our involvement”.
- I also note that the Council contacted Mr F after Mrs G had been discharged, offering to allocate a social worker to Mrs G if the Care Home was not suitable. The Council said this offer was not taken up.
Continuing Healthcare Checklist
- Mr F complained that a CHC checklist was not done while Mrs G was in the rehabilitation unit. He said it was not clear whether she would require respite or longer-term residential care. The CHC National Framework also states that where there is “doubt between practitioners about the short-term nature of the needs it may be necessary to complete a checklist”. Both the Trust and Council accepted that a checklist should have been completed at the rehabilitation unit with Mrs G and Mr F present. A checklist was completed the day after Mrs G was discharged. However, the Trust said the Care Home advised the rehabilitation unit not to send the checklist to them, as they had completed a checklist themselves.
- In response to Mr F’s complaint, the Council acknowledged that a CHC checklist should have been done while Mrs G was in the rehabilitation unit. The Trust accepted this was “an oversight”, and said the patient and their next of kin would usually be present when the checklist was done.
- It is not possible to say how the checklist would have been completed had it been done while Mrs G was at the rehabilitation unit, and if Mr F had also been present. The Trust and Council have accepted it should have been done at this time. This is an injustice to Mr F, as he is left with some uncertainty on this point, and it is likely he would have been better informed had he been present when the checklist was completed prior to Mrs G being discharged.
- The Council apologised to Mr F for this and said it said is working with its health colleagues on a “more robust process for Continuing Healthcare” at the rehabilitation unit.
- The Trust also said this aspect of the complaint would be “shared as a learning exercise” and told us that the rehabilitation unit has undergone some “radical changes” since the period of care complained of. These include “more robust processes regarding discharge planning including a daily multidisciplinary round that involves all members of the team and the patient, so that the patient is involved in daily team discussions about their care… This has proved to be very effective and efficient.” Both organisations have said they have taken steps to learn from this part of the complaint and will act jointly to improve matters. However they should also explain how will audit and monitor these actions to ensure this aspect of their service has improved.
The Trust’s Complaint Handling
- Mr F said the Trust did not follow its own complaint handling policy. He said that the second response he received was not checked by an objective person, but by the same staff member who had completed the first response. He said the chief executive or a non-executive director should have reviewed the responses as per the Trust’s policy, and if this had happened, mistakes in the response would not have been made. He also said the Trust should have followed up with him after it had closed its complaint file in March 2018, as he remained dissatisfied with the response he had received.
- The Trust’s responses to these concerns appear conflicting. At first, the Trust said his complaint had not been closed in March, even though the letter advised Mr F to raise any further concerns with the CCG. Mr F contacted the CCG, who told him it had not been made aware of Mrs G until it received a checklist from the Care Home in December 2017. Mr F said had the Trust responses been reviewed by a senior member of staff, he would not have been given this incorrect information about the CCG.
- The Trust said it had not made a follow‑up call to Mr F within three months as stated in the policy, as there was ongoing email contact with Mr F so they were already aware not all his questions had been answered.
- However, the Trust’s final response confirms the complaint was closed in March, and followed up after contact from the Ombudsman. The Trust accepted Mr F’s point that re-opened complaints should be scrutinised by a “second pair of eyes” and should have involved a non-executive director, in line with its policy. The Trust final response confirmed that the response should have been signed off by the managing director or chief executive, and said this had been addressed with staff. The Trust also apologised for this. They said it was not possible for a non‑executive director to be involved at the time due to capacity issues.
- Mr F was also concerned that the response to the complaint was delayed. The Trust’s Complaints and Concerns Handling Policy sets out a timeframe of 28 working days for complaint responses. However, the Trust did not meet this timeframe in Mr F’s case. The Trust acknowledged this and apologised to Mr F.
- It is apparent that there was a lack of clarity about whether Mr F’s complaint had been closed or not, and whether he could expect a further response when he had outstanding concerns. The Trust also accepted that once re-opened, his complaint should have been reviewed by a managing director or chief executive, in line with its policy. The Trust said this was an error and apologised, and that it had issued reminders that complaint response letters should be signed by a managing director or chief executive. While it is positive that the Trust has said it has learnt from the complaint, it should explain to Mr F how it will ensure its complaint handling policies are followed in future, in order to prevent recurrence.
- Within one month of my final decision, the Council and Trust will write to Mr F, with a copy to the Ombudsmen, to acknowledge what went wrong and apologise for the impact of this on him.
- Within two months of the final decision, the Council and Trust will write to Mr F, with a copy to the Ombudsmen, to explain what action they will take to:
- a) Ensure they have improved procedures in place for multi-disciplinary discharge planning, covering communication with patients and their families, and details of how it has improved processes for completing continuing healthcare checklists at the rehabilitation unit.
b) The Council and Trust should also set out how they will audit and monitor these actions to establish that the changes made are leading to improvements.
c) The Trust to explain to Mr F how it will ensure its complaint handling policy is followed to prevent recurrence of the failings identified.
d) The Trust should send a copy of this decision statement and actions taken to the CQC and to NHS Improvement.
- I find fault with the Council and the Trust in their communication with Mr F about the continuing care checklist and discharge planning. This meant Mr F did not have all the information he should have had, and this caused him unnecessary stress in making arrangements for Mrs G’s care.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman