• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: Ms C complained about the way in which the Council decided, on several occasions, that her mother should be discharged to her home, rather than into residential care. The Ombudsman found fault with the way the Council considered Mrs M’s capacity and the way in which the Council communicated with hospital staff. The Council has agreed to provide an apology and financial remedy to Ms C and her mother. It will also share the lessons learned with its staff and discuss with the hospital how it can communicate more effectively with hospital around discharges.

The complaint

1. The complainant, whom I shalll call Ms C, complained to us on behalf of herself and her mother, whom I shall call Mrs M. Ms C complained about the way in which the Council handled her mother’s discharge(s) from hospital. Ms C says:
   • The Council’s repeated conclusion that her mother had capacity to make decisions as to where she wanted to live, was wrong.
   • The Council failed to sufficiently consider the concerns expressed by hospital staff and the family, that Mrs M needed residential care.
   • The Council was wrong not to agree to the option put forward by the hospital and the family for a period of respite care.
   • The Council was wrong to say that Mrs M could not move into a care home as a private funder.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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. 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

5. I considered the information I received from Ms C and the Council. I also obtained information from the hospital where Mrs M was admitted to on several occasions. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.

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What I found

Relevant legislation and guidance

6. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves.
7. The Act and the Code say that:
   • A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision because he/she makes an unwise decision.
   • Some people may need help to be able to make a decision. However, this does not necessarily mean that they cannot make that decision. Providing relevant information is essential in all decision-making. As such, a council needs to ensure that the person has all the relevant information they need to make a particular decision. Furthermore, if they have a choice, the Council needs to give them information on all the alternatives, so the person can compare these against each other.
   • A council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
   • An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:
     1. 1. Does the person have a general understanding of what decision they need to make and why they need to make it?
        2. Does the person have a general understanding of the likely effects of making, or not making, this decision?
        3. Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
        4. Can the person communicate their decision?
8. It is in everybody’s interests to settle disagreements and disputes about capacity quickly and effectively, with minimal stress and cost.
9. If anyone thinks a person lacks capacity, it is important to then ask the following questions:
   • Does the person have all the relevant information they need to make the decision?
   • If they are making a decision that involves choosing between alternatives, do they have information on all the different options?
10. Assessing capacity correctly is vitally important to everyone affected by the Act. If a person lacks capacity to make specific decisions, that person might make decisions they do not really understand. Again, this could cause harm or put the person at risk. It is therefore important to carry out an assessment when a person’s capacity is in doubt. It is also important that the person who does an assessment can justify their conclusions.
11. The person who assesses an individual’s capacity to make a decision will usually be the person who is directly concerned with the individual at the time the decision needs to be made. Professional involvement might be needed if: the decision that needs to be made is complicated or has serious consequences or if family members, carers and/or professionals disagree about a person’s capacity

What happened

12. Mrs M went into hospital on 15 December 2018, following a stroke. The hospital told me that:
    • She had a cognitive assessment one week later and scored 22 out of a possible 30. The assessment indicated deficits with her memory, orientation and executive functioning.
    • Throughout the documentation it indicates poor short-term memory, reduced mood and anxiety.
13. Ms C said there was a family meeting on 15 January 2019, during which hospital consultant one recommended that Mrs M should go into 24-hour care, because she was paralysed down her left-hand side and unable to do anything for herself. When contacted, the consultant could not remember exactly what was said due to the passage of time, but said it was possible he mentioned 24-hour care as one of the options.
14. The hospital told me that, when Mrs M had to make a decision about a specific treatment on 23 January 2019, she had the capacity to do this at this time, because: she was able to retain the information explained to her long enough to make the decision, even though she could not recall it later.

Mrs M’s first discharge on 22 February 2019:

15. The hospital referred Mrs M to a hospital social worker on 5 February 2019. The Council has told me that it adhered to principle one of the Mental Capacity Act by assuming capacity and principle 2 by supporting and enabling decision making. It did not complete a formal capacity assessment. Case notes reflect the allocated social workers involved in these assessments felt Mrs M had the capacity to make this decision.
16. Social worker one said, in her statement, that:
    • Mrs M had capacity to decide make a decision about her care and residency at the time of her involvement. She could express her wishes and needs clearly, she was aware of the risks around her falling and that she needed a hoist for safe transfers.
    • Hospital colleagues did not raise any concerns about her capacity or Mrs M returning home.
    • She involved the family with discussions about Mrs M. Neither Mrs M nor Ms C told her that Mrs M wanted a family member to be present whenever a social worker would visit / assess Mrs M.
17. Social worker one spoke to Ms C on 8 February 2019. Ms C was aware that her mother would need support at home, that her mother wanted to return home, and that she did not want to go into a care home.
18. There were four incidents recorded in the hospital records, between 9 and 12 February 2019, where Mrs M showed a clear lack of understanding of her needs and her ability to remember information provided:
    • 9 February (OT assessment): After a discussion with Mrs M about her care support needs, the assessor concluded: “Lacks insight into how her needs could be met at home”.
    • 11 February (OT assessment): “Discussed with Mrs M discharge planning (..). Mrs M said she recalled the conversation but could not be specific about the contents of the conversation. (…) Mrs M was not aware that she required a hoist for transfers and described transfer as "well I just get out of bed". (…) Patient demonstrating little insight. She also had little insight into understanding she could not use a stairlift because she needed a hoist for transfers.
    • 12 February: “Wheeled in front of sink. Patient needing a lot of encouragement as didn't see the point in the task. Thought she would be able to do the task independently without issues”.
    • 12 February (OT assessment): “In discussion, Mrs M appeared surprised she would be using a hoist to transfer”.
19. The hospital also recorded on 13 February 2019: “Voiced concerns regarding how Mrs M will manage at home in between care calls as she can be quite anxious when alone. Ward team all in agreement that there are risks to this discharge, which need minimising by social services input with a care package and telecare. However, Mrs M and her family do wish to try returning home before considering any other options.”
20. The Council carried out a needs assessment on 12 February 2019, but was unable to produce a copy of this. The support plan dated 13 February says she needs full assistance with all aspects of personal care, washing, oral care, meal preparation and (un)dressing. The social worker recorded Mrs M would need a support package of four 30 minute visits a day by two 2 carers each time. Mrs M would also need a key safe and Careline at home.
21. The social worker said in her statement that there was no evidence to suggest that Mrs M had fallen in hospital. Mrs M expressed a wish that she would like to walk again but was aware she needed a hoist. This is different than the hospital observations in paragraph 19 above.
22. The hospital told me that Mrs M’s consultant recorded on 18 February 2019, that there was a significant risk of a failed discharge. However, the family were aware of this. Even though staff had constantly prompted and supported Mrs M with nutrition and hydration, she had lost weight in hospital. The hospital had significant concerns about the level of involvement she needed in hospital and how this could be replicated in her own home. There were also concerns about risk of falls due to Mrs M’s behavioural and cognitive problems. However, the hospital said the decision was one for the Council to make, who felt this could be sufficiently managed with the care package, and Mrs M said she wanted to go home.
23. There are three further incidents recorded in the hospital records, between 18 and 20 February 2019, where Mrs M continued to show a clear lack of understanding of her needs and her ability to remember information provided.
    • 19 February (OT assessment). “Discussed discharge planning [with Mrs M] as patient saying that she is able to walk and believes she can transfer independently. (…) Asked patient to relay the information back to the therapist. Patient was able to say she should be going home Wednesday, but was unable to relay that she needs a hoist, hospital bed etc and would be based in her living room. Was unable to relay that she would be having carers four times a day or any of the other information provided earlier in the conversation.
    • 20 February (OT assessment). Mrs M said: “I will stand by the sink at home and will not sit next to it. Student reminded patient that she cannot stand independently. (…) Patient demonstrated poor short-term memory”.
    • “Patient shows some poor insight into deficits unable to recall that she is unable to walk”.
24. Ms C has said her mother insisted at this time, that she went home with a package of care. She said this was totally understandable as she had not been home since 15 December 2018 and home was all she knew. As a family, we agreed to go along with her wishes and see how it worked out. The hospital told them her mother would not be at any danger of falling as she had not made any attempt to get out of the bed or chair whilst on the ward.
25. Mrs M returned home for the first time on 22 February 2019. Ms C told me the care manager of the homecare agency told her:
    • The agency did not know anything about her condition and
    • Had not been made aware that she could not walk / weight bear.

I have not received sufficient evidence from the Council that shows it told the care agency about these two issues.

26. Ms C told me the care agency also had to call an emergency number, because the hoist had not been calibrated properly and the slings were not suitable.
27. Analysis:
    • It is clear from the hospital records that Mrs M struggled to retain information and make informed decisions about her care.
    • As the Council has not been able to produce a copy of Mrs M’s needs assessment, there is insufficient evidence how/that the social worker sufficiently ensured herself that Mrs M was provided with, and able to recall, all the information needed to make an informed and capacitated decision at the time of this discharge.
    • Considering the information in both paragraphs above, I am unable to conclude on the balance of probabilities if Mrs M had capacity to make this decision at the time. However, I note that the family had not raised a concern about Mrs M’s capacity at this time and supported the decision to try out a return home.
    • The Council was not responsible for the issues reported about the hoist.

Mrs M’s second discharge on 25 February 2019:

28. Ms C says that, during her mother’s first night at home alone, her mother called out twice at night to get support with toileting and she had to help the first responder (alerted via the Careline) at 3am. Her mother also had a fall and the care agency told her they would not able to lift her mother back into bed, in case she has broken something. In effect, this meant that every time her mother would be found on the floor at night, next to her bed, an ambulance would have to be called out to check if Mrs M had broken anything, before deciding if she could be returned to her bed or needed to go to hospital.
29. Ms C called the ambulance, and her mother was taken back to hospital, who identified she had a urine infection.
30. Records from the hospital state that:
    • 23 February 2019: “Family stated that this morning Mrs M was trying to stand from the chair. She thinks she can still walk, this is potentially what has happened tonight. She said she was going to pick up something up. I question whether she is safe to be at home on her own between carer visits”.
    • 24 February: Hospital consultant B said: “She is not safe going home yet. This time we need to plan in such a way that she is safe”. However, there are no further records related to what was done with regards to this plan.
31. Social worker one spoke to Ms C on 25 February 2019. The record says: “Informed Ms C that Mrs M has not been home long enough. Therefore, Mrs M will be returning home with a restart. Ms C was ok with this and wanted to give Mrs M another chance at home”.
32. The hospital says there is documentation on 25 February 2019 that Mrs M was at high risk of a failed discharge. Consultant A was not keen to discharge Mrs M back home, as he had concerns regarding her risk of falls and capacity. However, the discharge co-ordinator noted she had received a call from Mrs M’s daughter-in-law and both she and Ms C stated that Mrs M was begging to go home and asked for another chance. On 26 February 2019, the discharge co-ordinator documented a conversation between herself and Ms C, who advised that following a family discussion the family feel that they would like Mrs M to come home today, and feel she wasn't given a fair chance at home as she was discharged with a Urinary Tract Infection.
33. Mrs M went home for a second time on 25 February 2019, with the same care package in place.
34. Analysis:
    • Ms C and the Council both agreed that they had not yet sufficiently tried the option of homecare, so Mrs M should return home to see if she could successfullly live at home with a paackage of care.
    • At this point, there is no evidence the family had raised any concerns with the social worker about Mrs M’s capacity or why she may be at risk of falls.

Mrs M’s third discharge on 12 March 2019:

35. Mrs M had another fall during her first night at home. A Council officer recorded on 27 February 2019 that the ambulance who attended were not concerned about Mrs M’s presentation and wanted to put her back to bed. However, Ms C insisted they readmit her. Ms C was fustrated and upset that her mother had fallen again from her bed, during the night. She said she was concerned that her mother was not safe at home.
36. A hospital record says Mrs M said she: “was trying to get out of her chair and fell forwards”. She also said she “doesn’t have any carers, makes her own meals and can walk independently around house. (…) Agrees current plan re POC [Package of Care]. May not be suitable given rapid readmission.
37. The hospital records show that Mrs M had tried to get out of bed several times during the morning of 26 February, thinking she could mobilise by herself.
38. Another hospital record states that: Mrs M has been calling out most of the night. Attempted to go out of bed several times. Thinking that she can get out of bed and mobilise by herself. Much reassurance provided.
39. An MMSE assessment on 27 February showed that Mrs M “recall” was 0 out of 3, showing she had bad short-term memory. A hospital record from the same day said that: “Mrs M has been increasingly confused this evening. She has informed me that she has been out shopping all day and does not know why she is not at home".
40. Social worker one called Ms C on 27 February 2019. The record says that: “Ms C informed me she was very upset with social services sending her mum back home. She stated she wasn't happy with me resending Mrs M home. (…) Ms C informed she does not want me to contact her untill i have soild information to suggest Mrs M will be going into a care home”. Ms C told me the social worker showed a complete lack of concern, which is why she asked for another one.
41. Social worker one said in her statement that she was unaware that Mrs M was trying to get up unaided.
42. Mrs M’s new social worker met with Ms C and her mother on the same day. The record of the meeting states:
    • Mrs M advised she had no concerns (about going home). Mrs M stated she wanted to go back home but her daughter wanted her in a care home and she was not going. She loved her house and is not leaving it yet. She said ‘people live with risks at home’ and had only fallen twice.
    • Ms C said her mother would get badly hurt, because she could not walk but kept trying.
    • The social worker said she felt Mrs M definitely had full capacity and she would support her with making her own decisions. However, Ms C disagreed and said her mother’s memory was very poor. The social worker said that short term memory and capacity were very different.
    • The social worker concluded by saying that, while she understood Ms C’s was worried, Mrs M has capacity and clearly does not want to go into a care home. As such, the social worker has to support her mother’s wish.
43. Ms C discussed the possibility of a two weeks respite break with social worker two, to be paid for privately. Ms C says her mother said she was fine with that, as long as it would not be longer than two weeks. The social worker said she told Ms C that, whether your mother should go into privately funded respite care was a family issue that Ms C would need to discuss further with her mother. She would call Ms C again and advised to further discuss this with her mother in the meantime. However, the social worker and Ms C did not discuss this further. The Council says that:
    • Mrs M became unwell so any discharge planning was postponed till 6 March.
    • At this time Mrs M was clearly saying she wanted to go home and Ms C was involved in this discussion.
44. It was decided on 27 February 2019 that a falls bed and a falls detector would be needed, to support a safe discharge. The falls bed could be lowerd almost to the levell of the floor. So, in combination with the falls mat, this would minimise the risk of Mrs M hurting herself if she would fall/roll out of bed.
45. Ms C told the social worker on 28 February 2019 that: her mother would need 24-hour care now and that she definitely lacked capacity now. The social worker said that Mrs M had an UTI, which can affect someone’s capacity. Once the course of antibiotics was finished, she would be able to make a decision about Mrs M’s capacity.
46. The social worker met with Mrs M again on 1 March 2019. The record states:
    • Mrs M was much brighter and recognised her face. She remembered that her bed was downstairs now, having had a fall, but not that the fall was out of her bed.
    • I then asked Mrs M, what she wanted when discharged. She replied ''I am going home''. Mrs M is adamant she is not leaving her house.
47. Ms C says her mother’s short-term memory was getting worse around this time and she still thought she could walk. Her mother wanted to go back home, but she had unrealistic expectations about what this would be. When the family explained to her what home life was going to be like, she said she wanted to go in a home.
48. The social worker met Mrs M again on 4 March. The record states that Mrs M said: Her children didn't need to visit. She could look after herself and was not ready to go into a home. She would go when she felt ready, and not when they thought she should. She then went onto say, she can cook herself and she goes to church every Sunday. At this visit, Mrs M was very confused.
49. Ms C and her mother met the new social worker again on 5 March. The record states that: After a long conversation, Ms C agreed her mother does have capacity to make the decision, even though Ms C would still like her mother to go into a care home. Mrs M was discharged for a third time on 12 March.
50. However, Ms C told me she definitely did not agree that her mother had capacity. The social worker failed to discuss with her mother how home life would be. As such, her mother said she wanted to go home, so Ms C felt she could not do anything to prevent this.

Analysis:

1. • Ms C had clearly said she did not believe her mother had capacity to decide where she wanted to live. She was also very concerned about her mother’s safety if she would go back home again. Hospital and social care records also indicated that Mrs M had difficulties remembering things that were explained to her. Furthermore, hospital staff in general were concerned about another discharge. The decision where Mrs M should move to, was a major decision and I do not believe Ms C agreed with the Council’s decision to try another discharge, in the manner as portrait in paragraph 49.
   • As such, I would have expected the Council to have carried out an official mental capacity assessment to try and resolve the disagreement with Ms C and assure itself that Mrs M had capacity to make this decision. The Council did not do this, which is fault. The Council should also have organised a meeting with the family, and invited relevant hospital staff, to discuss any concerns and how the could best be managed.
   • Social worker two said that through her discussions with Mrs M, she felt that Mrs M had capacity. Although social worker two met Mrs M on a couple of occasions, the records do not provide sufficient assurance that:
     1. 1. Mrs M was aware of all the daily living activities etc she was no longer able to do (independently)
        2. Mrs M was aware of all the support she would need after her discharge.
        3. Mrs M knew how this could be met within her home and within a care home
        4. Mrs M could retain, use, and weigh up all that information and subsequently decide where she wanted to love.
2. I found that, if the Council had carried out a capacity assessment and a meeting with all relevant stakeholders, it is more likely than not this would have resulted in a decision to discharge Mrs M to a care home.

Mrs M’s discharge to a care home

52. Ms C says her mother called her at 8pm on the day of her discharge (12 March 2019) to say she was on the floor again. The family called an ambulance again which took her back into hospital. She called social worker two on 13 March to discuss a temporary respite care stay in a care home. The Council’s record says that:
    • Ms C was very angry and said she will convince her mother that she needs 24 hour care and do everything in her power to get her into a home. Sgge said it was not fair her mother had to stay at home, with only four short visits per day, hardly anything to eat or drink, stuck in a bed and no one to talk to.
    • The social worker said the Council could look into arranging day care. Furthermore, the social worker said her role was to act in her mother's best interest and try to adhere to her wishes as much as possible.
53. Ms C says she was very upset about the way the social worker had responded to her mother’s third fall and asked the case to be transferred to a new social worker. Social worker three met Mrs M on 14 March. The record states that:
    • Mrs M asked when she could go home. The social worker asked if that is where she would like to go, to which Mrs M said "of course that's where I live". Mrs M mentioned she had lost her husband a few years ago and her memories of him and her children are in her home and its where she is happiest. Mrs M was aware her bed was now downstairs because "it is safer because I fall”.
54. The social worker called Ms C and said she had listened to her mum and would respect her wishes to return home. She said her mother had not yet been able to try this option properly. Ms C said she was disgusted that the Council would send her mother home again, even though she needed 24-hour care. She said her mother’s bed does not lower right down to the floor and there is a short barrier that prevents a person being rolled back into bed again.
55. The OT said on 15 March 2019 that cot sides are not safe for Mrs M as they will increase her risks. In effect, this meant there was nothing to prevent Mrs M from rolling out of the bed at night or falling when trying to get up.
56. Hospital records state that, during 16 and 17 March, Mrs M was very unsettled, vocal and agitated and was constantly trying to climb out of her bed.
57. The Careline agency said on 19 March that Mrs M was constantly pressing her Careline. There were day/nights where she would press it up to 16 times in any one day/night.
58. Ms C met with the new social worker and her mother on 19 March 2019. The record states that Mrs M said her wish was still to return home. However, Ms C told her mother: ''you want to go into a care home don't you?'' ''You told me you'd be better off in care home didn't you?''
59. Ms C says the social worker said her mother had told her she wants to go home. However, Ms C told the social worker that her mother had told the family she wanted to go into a care home. The social worker told her not to put words in her mother’s mouth.
60. The Council says the third social worker said that:
    • There was never any doubt about Mrs M’s mental capacity otherwise she would have completed a mental capacity assessment. Mrs M was aware of the risks returning home and felt that the risks would be better in her home environment then elsewhere. I have not seen any recorded evidence, other than Mrs M saying she can fall, that Mrs M was aware of the risks etc involved of a return home.
    • She was aware she was at risk of falls. There was no record of her trying to get up unaided on the ward during the day or the night. The hospital records I have seen, recorded incidents where Mrs M was not aware that she could not walk and was trying to get up unaided.
    • She wanted to arrange an MDT meeting. However, the family declined to be involved in this. However, Ms C denies this.
61. The social worker tried to obtain the key to Mrs M’s house, so it could discharge her back home. However, the family were unwilling to provide this.
62. The Council subsequently involved an advocate for Mrs M on 20 March to support her. It was not the advocate’s role to assess Mrs M’s capacity.
63. When the social worker visited Mrs M again on 22 March 2019, Mrs M said she did not need any carers and her daughter would help her instead.
64. Ms C says she spoke to her mother’s advocate on 22 March 2019. Ms C says the advocate told her she had asked her mother what she would do when she returned home, to which her mother replied: she would do jobs and go into town on the bus etc. Ms C told the advocate her mother was unable to do any of these things, due to her left side paralysis.
65. Ms C says she got a call from the Discharge Matron, on Monday 25 March. She said she had heard about the case, that it was getting out of hand and needed to stop. She offered to assist by speaking to her mother so she could get a clear picture what she really wanted. They met the next day and her mother said that, when she returned home, she would go up and down stairs, do her cleaning and get out and about. In response, they explained what would actually happen if she would go home. Her mother said she wanted company, someone to talk to, and someone to take her to the toilet when she wanted to go. The Discharge Matron concluded there was enough evidence that her mother was making an informed decision with all the facts and that residential care was the answer.
66. The discharge matron subsequently spoke to the social worker’s manager. Ms C says the manager called her and said she was sorry for everything that had happened and was happy for her mother to go into residential care.
67. With the exception of some minor issues around the way the social workers had communicated with Ms C, the Council did not uphold Ms C’s complaint.
68. The Council told me that:
    • The evidence and accounts from the allocated workers do indicate that Mrs M did have capacity to make a decision regarding her future care and residency. However, the council acknowledge that a formal MCA could have been completed before the third discharge, when it became apparent there was a dispute.
    • It acknowledges that a discharge planning meeting involving all relevant professionals and family would have been beneficial to plan for Mrs M’s subsequent hospital discharges. In view of these findings, learning will be shared with all staff about the importance of offering an opportunity to meet and discuss concerns and conflicting views with all relevant parties in relation to discharge planning, if and when required, whilst ensuring that the views and wishes of the individual remain central.
    • It would have been beneficial to have completed a risk assessment involving Mrs M, her family and the therapy team to clearly record what measures were taken to help manage the risks. In view of these findings, learning will be shared with all staff about the importance of completing positive risk assessments where areas of risk remain high.
    • The Council wishes to apologise unreservedly to Mrs M and her family for any distress that has been experienced.

Overall Analysis

The complaint about capacity

69. The mental capacity act and guidance says that a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. However, when assessing an elderly client for the first time, it would still be important for the assessor to carry out the needs assessment in such a manner to sufficiently assure themselves that the client:
    • Has a sufficient understanding of the likely effects of making, or not making, the decision.
    • Is able to understand, retain, use, and weigh up all the information relevant to the decision.
70. While Mrs M was clear and consistent in her conversations that she wanted to go home for personal and somewhat nostalgic reasons, I have not seen evidence in the Council’s records that, before she was asked to make this decision, the Council assured itself that Mrs M was aware of all the support she would need throughout the day and why, how this could be provided in her home and a care home, what the risks were of each option, and used this information to subsequently make her decision. There is insufficient evidence that this happened sufficiently. As such, the assessments failed to properly establish that Mrs M had capacity to make this decision.
71. Assessing capacity correctly is vitally important to everyone affected by the Act. If a person lacks capacity to make specific decisions, that person might make decisions they do not really understand. Again, this could cause harm or put the person at risk. It is therefore important to carry out an assessment when a person’s capacity is in doubt. There is a significant evidence in the records, especially the hospital records, that Mrs M had short-term memory problems and had difficulties recalling what she was told at the end of a conversation. However, it appears that the hospital’s concerns about Mrs M’s capacity to recall information about her needs (and other concerns), which would impact her capacity to make decisions, was not reflected in the Council’s assessments. As such, the Council should review this case with its hospital counterparts to establish why this did not happen.
72. Furthermore, when the family started to dispute Mrs M’s perceived capacity to make these decisions, the Council failed to consider how to resolve the dispute about capacity. Under these circumstances, the Council should have organised an official mental capacity assessment after the second failed discharge, preferably by somebody independent. This did not happen, which is fault.
73. If a mental capacity assessment had taken place, the mental capacity assessor would have reminded (explained to) Mrs M, before asking her to make a decision, what daily (and other) activities she was no longer able to do, that she would have support four times a day and not at night if she would go home instead of a care home, and what this could mean. I found that, on the balance of probabilities and with reference to paragraph 64, that Mrs M would have chosen to go to a care home then.

The complaint that the Council did not sufficiently consider the concerns from Ms C and hospital staff.

74. There was a lack of effective communication between the hospital and the social workers. While some of the hospital staff, and the hospital records, showed concerns with regards to Mrs M’s presentation and how she could cope at home, it appears this information was not sufficiently shared between both parties. However, there is insufficient evidence to conclude the Council chose to ignore specific concerns raised by hospital staff
75. The Council has agreed that, in these circumstances, there should have been a joined meeting by health and social care staff with the family, after the second failed discharge, to discuss any concerns and how they could best be addresses. The Council has said it will share these findings with relevant staff (provide evidence it did)
76. As mentioned above, the Council should have carried out a mental capacity assessment once the family expressed concerns about Mrs M’s capacity and the risks involved with another discharge.

The complaint that the Council did not agree a period of respite care

77. There is a difference between what Ms C and the Council say was discussed with regards to this matter. There is insufficient evidence to conclude the Council said it would not allow this. The Council’s record say it only told Ms C to discuss this further with Mrs M, to see if Mrs M would agree to this, rather than going home. However, it appears Mrs M’s health subsequently deteriorated, which resulted in a delay in her discharge. It appears neither party brought up this matter again at the time of her third discharge.

The complaint that the Council said Mrs M could not move into a care home as a private funder

78. Again, there is a difference between what Ms C and the Council say was discussed with regards to this matter. The social worker denies she said this. I am therefore unable to come to a view on this aspect of the complaint.

Agreed action

79. I recommended that, within four weeks of my decision, the Council should:
    • Apologise to Mrs M and Ms C for the faults identified above and the distress they have caused them.
    • Pay Ms C and Mrs M £200 each for the impact the two-week delay in making the decision to discharge to a care home, had on both of them. It delayed Mrs M moving into a care home, and resulted in additional distress to Mrs M during these two weeks.
    • Share the lessons learned, especially around capacity and when to organise a joint family discharge meeting, with relevant staff members in adult social care.
    • Assess with the hospital what the hospital and social care workers need to do to ensure that concerns expressed in hospital records, and held by hospital staff, are more effectively exchanged between both health and social care staff.
80. The Council has told me it has accepted my recommendations.

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Final decision

81. For reasons explained above, I found fault with the actions of the Council. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case

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Investigator's decision on behalf of the Ombudsman

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