Summary: Mr A has complained about a Council and a Trust in relation to his brother, Mr B’s care and support in 2021. I found fault with the Trust in relation to Mr B’s discharge in August 2021. I did not find fault with the Trust or the Council in the other aspects of this complaint.

The complaint

1. Mr A has complained about the care and support provided by Ashford and St Peter’s Hospitals NHS Foundation Trust (the Trust) and Surrey County Council (the Council) to his brother, Mr B, while he underwent treatment for a brain tumour in 2021.
2. Specifically, Mr A says in relation to his brother’s stay at Ashford and St Peter’s Hospital in August 2021:

• The Trust did not properly assess his brother’s mental capacity before discharging him home,
• the Trust did not carry out an Occupational Therapy assessment of his home before discharging him,
• the Council and the Trust did not arrange a suitable package of care before his discharge,

and after another hospital stay in October 2021:

• the Trust did not properly assess his brother’s mental capacity; and
• the Council and Trust did not organise for his brother to stay at a care home near Mr A’s home in Wales.

3. Mr A said seeing his brother struggle to cope was distressing for him. Also, he had to drive long distances back and forth to London to support his brother. Furthermore, he found it difficult not being geographically close to his brother while he was towards the end of his life.
4. Mr A wants an apology and systems improved so these issues do not happen to other people.

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The Ombudsmen’s role and powers

5. 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).
6. 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. 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

8. During my investigation I have considered information from the Council, the Trust and Mr A. I have also considered local and national guidance before making this draft decision.
9. I am offering the organisations and Mr A the opportunity to comment on this draft decision before I make my final decision.

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What I found

Background

10. In August 2021 Mr B went into hospital with memory issues and unsteadiness. He was diagnosed with a brain tumour and discharged to his home several days later. After a hospital stay in October, he moved into a care home where he died in November 2021.
11. After Mr B’s first discharge, Mr A complained about how the Trust and Council managed this discharge. As Mr B’s care and support continued in the following months, Mr A raised further concerns.
12. The Trust investigated the complaint and responded in 2022 before Mr A approached the Ombudsmen as he remained dissatisfied.

August 2021 discharge

13. Mr A felt that if the Hospital had carried out a mental capacity assessment it would have realised that Mr B did not have the capacity to make a decision about returning home.
14. Mr A also said that, notwithstanding the unwise decision to discharge his brother home, the Trust then compounded this error by not arranging an adequate care package with the Council so Mr B would have enough support at home.
15. Mr A said if the Trust had carried out an Occupational Therapy assessment of his brother’s home, it would have found how unsuitable Mr B’s accommodation was.
16. Mr A pointed out his brother’s flat was up several flights of stairs and Mr B had a history of falls. Mr B struggled with the security door code and had also forgotten his bank PIN so could not access money.
17. Mr A said on the night of his brother’s discharge back to the flat, his brother called him in a confused state and Mr A had to travel from Wales to help him. He found him in his flat with little food and unable to shop for himself due to his bank account not being accessible. He was also not clear about what medication he should be taking and when.
18. The Trust said it carried out a full assessment of Mr B in hospital using the Oxford Cognitive Screening Tool. The scale consists of ten tasks encompassing cognitive domains such as attention and executive function, memory and number processing. It said Mr B’s scores on these were average apart from in calculation and verbal recall which was not enough to cause concern.
19. The Trust also said Mr B, during his hospital stay in August 2021, was independent and self-caring and consented to returning home with two visits a day from carers. The Trust said Mr B had told them he only required support with shopping and meal arrangements.
20. The Council said Mr B’s package of care followed recommendations by the Occupational Therapist who assessed him in hospital.
21. The Council said the Occupational Therapist had considered the views of Mr B who advised them he did not want to go into a care home, but maybe sheltered accommodation with carers at hand if needed.
22. The Occupational Therapist said they would record this and it would be up to the Council to arrange any change in accommodation once he was assessed outside a hospital setting.
23. The Council said Mr B was discharged with the Occupational Therapist’s recommendation with a thirty-minute call in the morning and afternoon to help with meals and a one hour a week call to help with shopping.

Analysis

24. 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.
25. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary.
26. There is a two stage test people should use when assessing capacity:

• Stage 1 – Is the person unable to make a particular decision (the functional test)?
• Stage 2 – Is the inability to make a decision caused by an impairment of, or disturbance in the functioning of, a person's mind or brain? This could be due to long-term conditions such as mental illness, dementia, or learning disability, or more temporary states such as confusion (the diagnostic test).

27. The MCA says that a person cannot make their own decision if they cannot do one or more of the following things:

• Understand information given to them
• Retain that information long enough to make the decision
• Weigh up the information available to make the decision

28. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
29. The Occupational Therapist carried out the cognitive screen and as the Trust has said, Mr B scored most in normal range but impaired in calculation and verbal recall. The Occupational Therapist suggested help going to the bank with Mr B to sort out his issues and that his brother could organise grocery shopping online to be delivered to the flat.
30. The Occupational Therapist suggested initial supervision at home with meals and medication and that he would need support with shopping and financial management if his family could not support.
31. In the Occupational Therapist assessment, Mr B said his bank account was frozen due to him forgetting his details. Also, he worried about carrying shopping up his stairs. He also said he had no family close by to help.
32. The assessment noted Mr B was independent on the ward and self-caring. It assessed him in a kitchen environment which he dealt with well.
33. There is also evidence in the records of input from Mr A over the phone and his resistance to a discharge home with a care plan.
34. Mr B was then asked the next day and said he did not want to go into a care home but would like to move to sheltered accommodation.
35. The Occupational Therapist put a plan in place for a discharge to assess Mr B and for council involvement in a plan of care when he left hospital with further assessment of him in the community.
36. In a conversation with Mr A, the Occupational Therapist explained that Mr B’s wish was to go home and they had no reason to think he could not make this decision and so it should be supported.
37. Mr A asked to be kept informed of the plan once confirmed before discharge.
38. The Occupational Therapist spoke to the discharge team about Mr A’s concerns, their recommendations, and the need for support with banking, shopping, and possible access difficulties at the flat.
39. On the evening of the discharge, Mr A rang the Council later saying his brother was discharged with no money or access to money and was not safe in his home that evening.
40. The following day the carer attended Mr B and reported that Mr B told them he did not need any support over the weekend. He did not feel he needed carers as there was not much they could do for him. The record states he told them that he was independent with medication and preparing food for himself. The carer suggested reducing the care plan to one visit a day. The Council, however, told the carer to keep to the two visits a day.
41. Over the next week there was contact to the Council from the family saying the package of care was inadequate and the Council contacted the carers to see how Mr B was doing.
42. The reports the Council had back from the carers were that the plan was going well.
43. Considering the evidence of the cognition test and Occupational Therapist assessment, and the MCA which assumes capacity, this was not an unsafe discharge.
44. The Trust assessed Mr B’s cognition and his ability to manage independently after discharge. In both instances he managed on his own with some assistance in the form of carer visits.
45. However, taking into consideration Mr A’s obvious concerns, which the Occupational Therapist discussed with him, it would have been reasonable to expect the hospital to inform Mr A before the discharge of Mr B.
46. The Trust knew Mr B had issues making meals and knew he had no family close by to help him. In addition, Mr A had asked to be kept informed.
47. Also, the hospital’s discharge checklist includes a section for informing next of kin and this was not done in Mr B’s case. The checklist should be completed eight hours before discharge and so would have allowed Mr A time to travel to Mr B’s property.
48. A call to Mr A would have helped Mr B settle in before the first visit of the carers and reduced some of Mr A’s concerns. The impact of the fault in not informing Mr A was it caused him distress and left his brother in a confused state until Mr A arrived.
49. I have not found fault with the package of care as the carers, Mr B and Mr B’s friend, stated it was working well and the Council also kept track of the package to make sure it was continuing satisfactorily.
50. However, the Council was supposed to review the care plan four weeks after Mr B’s discharge. It has supplied us with a care and support plan dated from September 2021 which is mostly incomplete.
51. Considering the August care and support plan said that Mr B may struggle to continue to live independently because of his condition, and the possibility of sheltered accommodation or a care home was already raised with him in hospital, it would have been good practice to revisit this in Mr B’s September care and support plan.
52. However, there is evidence the Council rang Mr B and his carers in September and they both said they were happy with the package of care. Also, a large part of September was spent in hospital where Mr B was undergoing chemotherapy. Therefore, although there was a fault in not properly reviewing Mr B’s care and support plan in September, I have not found this negatively affected his care.

October 2021

53. Mr A said that his brother went back into hospital in October 2021 and was discharged later that month. Mr A criticised the Trust and Council not arranging for his brother to be moved to Wales where he would be closer to Mr A. He said the hospital misrepresented Mr B’s wishes.
54. The Trust said that during this October stay staff documented that Mr B’s capacity was fluctuating.
55. The Trust said it supported a move to a care home and Mr B went into a care home in October which was to be an interim placement where he could be assessed for Continuing Healthcare and for what accommodation would be suitable for him.
56. Continuing Healthcare is for people whose needs are such a level the NHS has to fund their care whether it be at home or in a nursing home.
57. As Mr B’s capacity was fluctuating, there was a query in the hospital records about whether Mr B should have a mental capacity assessment, and this could guide his discharge destination.
58. There is a further entry which states Mr B is lucid and there was no need for a mental capacity assessment.
59. Regarding the lack of a move to Wales, a social care note in the clinical records states they spoke to Mr B about his discharge destination. He was orientated to time and place and could retain information. The note then goes on to say Mr B did not mind where he went, whether to England or Wales. The social care team said they would continue with sourcing care homes.
60. There is evidence the Trust and Council properly considered if there was a need for a mental capacity assessment. They also considered Mr B’s wishes and decided an interim placement for a Continuing Healthcare assessment was the most appropriate option.
61. Due to there not being clarity on where Mr B wanted to live, in England or in Wales and his deteriorating health, I have not found fault with the Trust and Council’s actions towards a mental capacity assessment or the location of his discharge.

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Recommendations

62. I have found fault on the Trust not informing Mr A of his brother’s discharge.
63. Therefore, I recommend that by 17 October 2023, the Trust:

• write to Mr A apologising for the distress and confusion caused by the lack of information about his brother’s discharge in August 2021; and
• remind staff on the ward of the need to notify next of kin when patients are discharged

64. The Trust should provide us with evidence it has complied with the above action.

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Final decision

65. I found fault with the Trust in Mr B’s August 2021 discharge. I did not find fault with the Trust or Council about the other issues in this complaint.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman