Summary: Mr A complained health and social care professionals failed to adequately assess his brother’s, Mr B’s, needs before discharging him from hospital. Mr A said this meant Mr B had an inadequate care package which, in turn, placed avoidable stress and worry on the family. The Ombudsmen find no fault in the way professionals assessed Mr B’s needs.

The complaint

1. Mr A complains about care arrangements for his brother, Mr B, when a hospital discharged him home in August 2018. Mr B was in a hospital which Calderdale & Huddersfield NHS Foundation Trust (the Trust) is responsible for. A Social Worker from Calderdale Metropolitan Borough Council (the Council) took part in the discharge planning process.
2. Mr A complains professionals failed to properly assess Mr B’s needs. Further, Mr A complains professionals failed to involve Mr B’s family in the assessments of his needs or the care planning process. In addition, Mr A said Mr B’s condition got worse in the days between his assessment and discharge. He complains that professionals did not reassess Mr B’s needs or amend the care package to reflect this deterioration.
3. Mr A said Mr B’s care package was inadequate as it left him alone for 22 hours a day. Mr A said this meant Mr B would be alone for the entire night and for 14 hours between care calls – unless members of the family were available. Mr A said this left Mr B at substantial risk of harm. Further, Mr A said it meant the family had to provide the care Mr B need as an emergency. Mr A said professionals could have reduced the pressure and uncertainty placed on Mr B’s family if they had involved the family in decisions.
4. Mr A would like services to acknowledge that Mr B’s discharge from hospital was inadequate as it did not properly assess his needs, and because the care plan was inadequate for his needs. Mr A would also like services to learn from the complaint so recurrences do not happen.

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The Ombudsmen’s role and powers

5. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. 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), as amended) 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.
7. When considering complaints, if there is a conflict of evidence we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
9. 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)

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How I considered this complaint

10. I read the correspondence and supporting evidence Mr A sent to the Ombudsmen. A colleague spoke to Mr A on the telephone and I have considered the records of this. We wrote to the Council and the Trust to explain what we intended to investigate and to ask for their comments and copies of relevant records. I considered all the comments and records they provided. I also considered relevant legislation and guidance.
11. I shared a confidential statement explaining my provisional decision with Mr A, the Trust and the Council and invited comments on it. I considered the comments I received in response.

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What I found

Key Facts

12. Mr B lived alone and did not have any children. In July 2018 doctors diagnosed Mr B with lung cancer. In early August 2018 doctors told him that, without chemotherapy, he would probably only have another three months to live.
13. On 10 August 2018 Mr B called Mr A in a distressed state, unable to breath. Mr A took him to hospital which admitted him.
14. Around a week after going into hospital Mr B said he wanted to go home. Mr A told him he would need to make sure he had some help to make sure it was safe. A Lung Cancer Specialist Nurse also noted Mr B was worried about whether he would cope at home, and noted that Mr A would be able to help but not all of the time. The Nurse suggested a social services review which Mr B agreed to. The hospital sent a referral to social services. They noted that Mr B lived alone and would need someone to visit him in the morning to help him wash as he was very breathless and this would get worse.
15. An Occupational Therapist (OT) assessed Mr B the same day. They spoke to ward staff, Mr B and Mr A. The OT made notes about Mr B’s living arrangements and the details of his property (including access, kitchen style, and the location and set up of the bathroom). The OT and Mr B discussed how Mr B managed his personal needs as well as meal preparation and bathing.
16. The OT noted they would refer Mr B to the Community OT Team to assess Mr B’s bathing needs. The OT advised Mr B to have strip washes in the meantime. The OT asked whether Mr B would accept some help from outside the family, and Mr B agreed to this. The OT ordered some equipment for Mr B to use at home and asked the ward to refer Mr B to social services for an assessment.
17. Several days later a doctor completed a request for Fast Track Continuing Healthcare (CHC) funding. They noted Mr B would likely need oxygen when he left hospital because he was still walking and independent with activities of daily living but becoming short of breath while doing so. The doctor noted Mr B’s condition was rapidly deteriorating and he was likely to reach a terminal phase within the next three months.
18. The relevant Clinical Commissioning Group agreed that Mr B was eligible for Fast Track CHC funding. On 23 August 2018 the ward Discharge Coordinator referred Mr B to the Palliative Social Work Team, asking it to assess Mr B’s needs with a view to arranging support for him at home. The Discharge Coordinator also noted the OT had referred Mr B to the Community OT Team for a bathing assessment. In addition, they noted Mr B had an outpatient appointment scheduled to see an Oncology Doctor at the beginning of September to discuss chemotherapy.
19. A Social Worker visited Mr B the same day and discussed his condition and needs. Following their assessment the Social Worker requested a support package of 14 hours per week made up of a daily visit by one carer:

• in the morning for 45 minutes – to support with personal care, helping Mr B to use the toilet, support to put clothes on and to make breakfast.
• in the afternoon for 30 minutes – to support Mr B with lunch and to use the toilet.
• in the evening for 30 minutes – to support Mr B with a meal and getting undressed for bed.

20. A Lung Clinical Nurse Specialist also saw Mr B on the ward that day. She noted she was aware there was a plan for him to go home soon. The Nurse noted Mr B said ‘he is much happier with this and feels like he has a plan and although he is understandably anxious he is looking forward to this’. The Nurse gave Mr B their contact details and said they would call him after discharge but would see him again if needed anything before then.
21. The following day a care provider confirmed it would be able to start Mr B’s care package on 30 August 2018.
22. On 25 August 2018 the ward OT saw Mr B again as he had asked for a hospital bed and other equipment for use at home. The OT and Mr B discussed how he was managing getting in and out of bed and chairs, and how he was managing the toilet. The OT said they would order more equipment – to arrive before Mr B got home – and reiterated that a Community OT would assess Mr B’s bathing needs once he was at home.
23. Mr A called Mr B’s Social Worker on 28 August 2018 and noted his concerns that the hospital was going to send Mr B home without adequate support. The Social Worker said she had assessed Mr B’s needs and determined he needed three visits a day, and said an OT had arranged equipment. The Social Worker said she would pass on Mr A’s concerns about the suitability of Mr B’s shower to the OT.
24. The Social Worker did so and the OT noted she had asked the Community OT Team to assess Mr B once he was at home. The Social Worker then called the Community OT Team which said someone would assess Mr B urgently once he was home – either that week or the next. The Social Worker passed this information on to Mr A, via an email. In the email the Social Worker said ‘I feel [Mr B] has enough support in order for him to be discharged safely at this time and I will continue to be [Mr B’s] allocated social worker so if there are any issues then please either email or phone me and I will try to sort things out as best I can’.
25. Also that a day a Nurse noted Mr B remained independent around the ward. The plan was still to discharge Mr B on 30 August 2018 and refer him to Community Nurses and the Palliative Team when he left hospital.
26. The OT also saw Mr B and Mr A on the ward the same day. Mr A explained his concerns about Mr B’s shower. The OT said it was not essential to look at that before Mr B left hospital. They recorded that Mr B ‘has accepted and agreed to strip washes until [the Community OT Team] can assess’. The OT also spoke to ward staff who said Mr B continued to be independent on the ward, and nothing had changed since the initial OT referral.
27. On 29 August 2018 a member of the Specialist Palliative Care Team spoke to the Doctors on the ward round. The doctors agreed with their care plan and for Mr B to go home the next day.
28. On 30 August 2018 a Nurse checked with Mr B that someone would be at his home waiting for the oxygen to arrive that day. The Discharge Coordinator arranged for Mr B’s care package to start at teatime (instead of lunchtime) so staff could review his medications before he left. A Palliative Care Nurse gave Mr B contact details for the out of hours service and said Community Nurses would assess him on that day or the next day. They also agreed to follow up with the Community Specialist Palliative Care Team ‘fairly soon’.
29. The hospital discharged Mr B in the evening of 30 August 2018. One of Mr B’s friends stayed with him and watched over him all night due to their concerns about his health. The following day Mr A went to Mr B’s house and started caring for him. Mr B could not get out of bed and Mr A lifted him out of bed and onto the sofa. Mr A asked Mr B what his care package was but Mr B could not say.
30. Community Nurses also visited Mr B that day and found he was having uncontrolled pain. They called Mr B’s doctor to give him an injection of morphine.
31. After trying unsuccessfully to call the Community Nurses, on 1 September 2018, Mr A called the Oncology Helpline (the Helpline) and explained that Mr B was short of breath and appeared to be dying. The Helpline spoke to Mr B’s sister-in-law, a retired Nurse, and agreed with her that it would not be appropriate for Mr B to return to hospital. The Helpline contacted the Community Nurses who said they would visit Mr B to provide anticipatory medications. Mr B sadly died later that day.
32. Mr A complained to the Trust in April 2019 and received a written response in June 2019. Mr A remained dissatisfied and attended a meeting with Trust and Council staff in June 2020. This did not resolve his concerns and he complained to the Ombudsmen.

Legislation and guidance

Hospital discharge

33. Leaving hospital after an inpatient stay is part of a process, and not an isolated event. Planning should start at the earliest opportunity and it should involve health and social care staff in the hospital and community working together. The process should lead to a personalised plan for each patient who is leaving hospital. Good discharge planning should help patients leave hospital safely, without delay and with suitable support ready in the community. (Department of Health, Ready to go? Planning the discharge and transfer of patients from hospital and intermediate care, 2010)

Capacity

34. 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 councils should take when considering whether someone lacks mental capacity.
35. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says people should take all practicable steps to support individuals to make their own decisions before concluding someone lacks capacity.

Fast Track CHC Funding

36. Services provided by the NHS are free whereas those arranged by social services are means-tested. CHC is a package of care arranged and funded solely by the NHS. The NHS can provide CHC funding in any setting. Eligibility for CHC does not depend on particular diagnoses or conditions. Rather, it rests on whether a person has a ‘primary health need’. This is where a person’s overall needs are such that they go beyond the limits of a local authority’s responsibilities.
37. Professionals can use a Fast Track Tool where a person has a rapidly deteriorating condition that may be entering a terminal phase. In this situation eligibility can be determined without the need for a full assessment and should be implemented within 48 hours.
38. Eligibility for Fast Track funding does not depend on a specific time frame and should not be based solely around an individual’s life expectancy. It is not meant to be only used where it is anticipated a person only had a short time frame of life remaining or where death is imminent.
39. Once appropriate care is in place the local CCG can take steps to reach a decision about the person’s longer term eligibility. The aim of the Fast Track Tool is to get an appropriately funded care package in place to support people in their preferred place of care as quickly as possible.

Care Act assessments

40. As part of the discharge process hospitals need to think about whether it might be unsafe to discharge a patient without measures in place to meet their care and support needs. If it thinks it might be unsafe it must tell the relevant council of that patient, and it should talk to the patient about this. The hospital then needs to consult with the council before deciding what it will do to make sure discharge is safe. (The Care Act 2014, Schedule 3; and, The Care and Support (Discharge of Hospital Patients) Regulations 2014)
41. In practical terms, hospitals must first give an ‘assessment notice’ to the local council when they consider it is unlikely to be safe to discharge the patient unless arrangements are made to meet their needs for care and support. (Care Act 2014 Schedule 3 section 1)
42. Councils must carry out an assessment for any adult when it appears they might need care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. (Care Act 2014, Sections 9 and 10)
43. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. There is no set definition of an assessment. The Care and Support Statutory Guidance (the CSSG) notes that: ‘The nature of the assessment will not always be the same for all people, and depending on the circumstances, it could range from an initial contact or triage process which helps a person with lower needs to access support in their local community, to a more intensive, ongoing process which requires the input of a number of professionals over a longer period of time’ (Section 6.4 of the CSSG).
44. The aim of the assessment is to identify what needs the person may have and what outcomes they are looking to achieve to maintain or improve their wellbeing. This should then inform the response to any identified needs. The response ‘might range from offering guidance and information to arranging for services to meet those needs’ (Section 6.5 of the CSSG).
45. Councils are encouraged to take a holistic approach to assessment in order to ‘prevent that person having to undergo a number of assessments at different times, which can be distressing and confusing’ (Paragraphs 6.75 to 6.78 of the CSSG).

Analysis

46. It is evident from the records I have seen that all professionals involved in this period of care understood that Mr B was coming to the end of his life but thought he was likely to have several months left to live.
47. The notes show several professionals talked to Mr B about his wish to leave hospital and how he would manage at home. The discussions do not raise concerns about Mr B lacking the capacity to be able to understand, retain and weigh up relevant information. Further, the discussions do not suggest Mr B asked to involve anyone else before agreeing to a plan. As such, there is no evidence to suggest Mr B lacked the capacity to make decisions about his own care. In view of this, it was appropriate that professionals discussed Mr B’s needs with him directly. Further, the discussions about support centred, appropriately, on what Mr B wanted and felt he needed. This is in line with guidance to professionals to take a personalised approach. There is also evidence to show that professionals – including the Social Worker and ward OT – discussed the situation with Mr A when he was present with Mr B, and the Social Worker responded to an email from Mr B. Overall, the notes do not suggest that Mr B objected to the plan for him to go home with the support the Social Worker arranged.
48. The notes show that professionals kept Mr B under review and they did not note a marked deterioration in his condition. They were conscious that Mr B would deteriorate. In relation to this, on balance, the evidence shows the arrangements made for Mr B leaving hospital were seen as a starting point, open to review and change:

• The Social Worker noted she would remain allocated to Mr B’s case and could be contacted if things changed.
• The ward OT arranged for a Community OT to assess Mr B at home, and the Social Worker clarified that this should be urgent.
• A Lung Clinical Nurse Specialist planned to call Mr B after discharge.
• The ward referred Mr B to Community Nurses and the Community Specialist Palliative Care Team, for them to be involved in Mr B’s care once he got home.
• Mr B had an appointment scheduled to see an Oncology Doctor about chemotherapy.

49. In the event Mr B sadly died suddenly but no one appears to have foreseen this. This meant that there was no time for further assessments at home. This, in turn, meant there was no time for small or fundamental changes to happen.
50. In summary, there is evidence to show a variety of professionals were involved in the plan to discharge Mr B home, and no one objected to it. The plan included support from carers along with ongoing input and review from health and social care professionals. As such, there is evidence to show this initial plan was not set in stone, that Mr B was to be kept under review and the support could have been modified. However, in the end, Mr B deteriorated faster than anyone expected so there was no time to do so.
51. Overall, I have not found fault in the actions of the Trust or Council in planning Mr B’s discharge from hospital. As I have not found fault in the way professionals considered Mr B’s needs I cannot question the content of his care package.

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Decision

52. I have completed this investigation on the basis there is no evidence of fault. The evidence shows a range of professionals took part in planning Mr B’s discharge from hospital and took account of his own wishes.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman