Summary: Mr X complained about the way the Council decided where his mother should go on discharge from hospital and the way it dealt with his complaint. The Ombudsman finds no fault by the Council.

The complaint

1. Mr X complained the Council:
• was wrong to decide in June 2018 that his mother, Mrs C, should be discharged from hospital to a nursing home. Mr X says this was against his mother's wishes and that a doctor on the hospital ward had assessed Mrs C as having capacity to decide where she went; and
• failed to deal with his complaint about this issue properly.
2. Mr X says as a result of the Council's fault he had less contact with his mother than he would otherwise have done before she died. He says he has been caused upset, stress and distress.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I have considered Mr X’s complaint and the Council’s response to my enquiries. I have also considered hospital records.
7. I gave Mr X, the Council and the hospital the opportunity to comment on a draft of this decision.

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What I found

Making a decision in someone’s best interests

8. A person must be presumed to have capacity to make a decision unless it is established that they lack capacity. Where it is found that a person lacks capacity to make a particular decision, any act done for or any decision made on behalf of that person must be done or made in their best interests.
9. When making a decision in someone’s best interests councils must, where possible, take into account the views of anyone named by the person as someone to be consulted on the matter in question, and anyone engaged in caring for the person or interested in their welfare.

What happened

10. Mr X used to live with his mother, Mrs C, in Mrs C's home. Mrs C received community care services. She went into hospital in 2017 and was discharged to a residential care home in late October 2017.
11. While Mrs C was still at the care home, at a planning meeting in February 2018, Mr X agreed the Council could contact him by telephone, if necessary, to make arrangements for Mrs C coming home. This was agreed to progress matters quickly. For other issues Mr X required the Council to communicate with him by letter. In response to an earlier draft decision on this complaint Mr X emphasised that his agreement to telephone contact was for that particular discharge only, not a general agreement for the future.
12. Mrs C was discharged home in March 2018. She then had two further hospital admissions. After being admitted the second time she did not go home again.
13. In May 2018 the hospital decided Mrs C should be referred for an assessment for NHS continuing healthcare (CHC). Someone assessed as needing CHC gets their care costs paid in full by the NHS. Five days after the decision to refer Mrs C for a CHC assessment the hospital said she was medically fit for discharge. She needed to have the CHC assessment outside an acute ward in hospital so the assessor could get a true picture of her health and social care needs.
14. The same day the hospital said Mrs C was fit for discharge a Council social worker assessed whether Mrs C had capacity to make decisions about her care and treatment and where she should go when she left hospital. The social worker spoke to Mrs C and to the staff looking after her. The social worker recorded
    Mrs C said she did not need support and Mr X was going to take her home. She could not remember the support she had previously at home. Hospital staff said she needed to be supported in bed with the help of two staff. The social worker recorded Mrs C could not say what support she needed and lacked insight into her current care needs.
15. The same day the social worker emailed Mr X asking him to telephone her the same day to discuss Mrs C’s discharge plans. The social worker got no response from Mr X so contacted Mrs C’s other son, Mr Y. Mr Y agreed it was in Mrs C’s best interests to be discharged into residential care, at least for the time being.
16. Five days later Mr X emailed back to the social worker. He said he had asked her to contact him only by letter. He made no comment on Mrs C’s discharge. The social worker replied the next day and said in February they had discussed the issue that, to progress discharge quickly, contact by letter was not feasible. She said Mrs C had been waiting to be discharged for seven days and Mr X had not contacted the hospital or the Council. She asked him to contact her to discuss the arrangements being made.
17. Mr X contacted the Council the same day, making a complaint about the actions of the social worker. He said he had often been to the hospital and seen ward staff. He said he had not had a response yet about a complaint about the actions of a different social worker. He said he required the Council to write to him but he would need considerable time to respond, (until mid-June) due to his commitments and disabilities. Mr X made no comment about Mrs C’s discharge. Mr X’s complaint was passed to the Council’s complaints team to handle.
18. By early June 2018 the social worker had not heard further from Mr X about
    Mrs C’s proposed discharge. The social worker continued the arrangements to discharge Mrs C to a nursing home. Mr Y supported this. The social worker considered discharge to a nursing home was in Mrs C’s best interests. The social worker recorded that a best interest meeting would be needed to discuss the long-term arrangements for Mrs C.
19. The Council did not notify Mr X of its decision to pursue discharge to a nursing home. Hospital records show the hospital planned to discharge Mrs C to a nursing home and Mr X became aware of it on 11 June 2018 while talking to a doctor at the hospital. The records say Mr X confirmed both he and Mrs C would prefer her to go home. The records note a doctor carried out a mental capacity assessment which recorded Ms C’s preference to go home. Later records refer to miscommunication between the ward staff and the discharge team and that the hospital’s aim was again to discharge Mrs C to a nursing home.
20. On 18 June 2018 Mr X wrote to the hospital and the Council on behalf of Mrs C. He said a doctor on the ward had told him Mrs C had capacity to decide what happened to her and where she should go. Mr X said Mrs C had told him she wanted to go home and under no circumstances did she want to go into residential care. He said if the hospital transferred her to a nursing home it would be against her will. He said she wanted to stay in hospital until she was well enough to go home.
21. On the same day as Mr X’s letter, the hospital discharged Mrs C to a nursing home. Mrs C stayed in a nursing home until she died in 2019.

Mr X’s complaint to the Council

22. Later in June 2018 Mr X complained to both the hospital and the Council about their roles in the decision to discharge Mrs C from hospital to a nursing home without involving him. He said a hospital doctor had told him Mrs C had the capacity to decide where to go and Mrs C had been clear she wanted to go home.
23. The Council responded to Mr X in late July 2018. It said that in May its social worker had assessed Mrs C as not having capacity to make decisions about her care needs. The social worker had tried to contact Mr X to discuss Mrs C’s discharge but he did not respond before Mr Y agreed Mrs C could be moved to a nursing home. The Council said it considered the social worker had progressed Mrs C’s care in the most appropriate way. It said it had taken into account her lack of capacity, Mr X’s lack of response and the need for the CHC assessment to be carried out in the community rather than in an acute ward in hospital.

Findings

Mrs C’s discharge from hospital

24. The decision that Mrs C was fit for discharge was a medical decision, not a decision for the Council to take. Once that decision was made, neither Mrs C nor Mr X had the option of choosing for Mrs C to stay in hospital until they considered she was able to go home. The next decision to be made was where would Mrs C go on discharge.
25. There is no fault with the way, in May 2018, the Council’s social worker in the discharge team assessed Mrs C’s capacity to make decisions about her care and treatment and where she should go when she left hospital. The social worker followed the correct process, consulted with hospital staff and took account of relevant matters, so I cannot criticise its decision that Mrs C lacked capacity to make those decisions herself.
26. There is no fault with the way the social worker reached the decision it was in
    Mrs C’s best interests to move to a nursing home. The social worker considered the move was in Mrs C’s best interests because the home could provide for her care needs and she could have a CHC assessment while there. In reaching its view on Mrs C’s discharge destination, the Council should have consulted with Mrs C’s doctors. The records indicate that at one point clinical and social care staff did not communicate well with each other. However, the doctors later agreed with the Council view to discharge Mrs C to a nursing home.
27. The social worker did not consider Mr X’s views on the discharge destination because, when he responded to the request to discuss the issue, he made no arrangements to discuss it and offered no views. The Council considered Mr Y’s views because he did respond to the Council about the issue. When Mr X did not respond, it would have been good practice for the social worker to have notified Mr X of the mental capacity assessment and the resulting plan to discharge Mrs C to a nursing home. But by 11 June 2018 Mr X was aware of the plans to discharge Mrs C to a nursing home so this did not cause a significant injustice.

The Council’s complaints procedure

28. There is no fault in the way the Council dealt with Mr X’s complaint. The Council responded in line with its complaints’ procedure. It explained it had made its own assessment of Mrs C’s capacity to decide where to go on discharge from hospital and had tried, unsuccessfully, to get Mr X’s views on the issue.

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Final decision

29. I have now completed my investigation because I have found no fault by the Council.

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Investigator's decision on behalf of the Ombudsman