Summary: Ms D complains about faults by Calderdale Metropolitan Borough Council and Calderdale & Huddersfield NHS Foundation Trust in managing her mother, Mrs X’s, discharge from hospital. We have upheld Ms D’s complaints about assessing Mrs X’s ability to make her own decisions, consent and sharing information about community nursing needs. We have not upheld the rest of the complaint. The Council and Trust accept our recommendations, so we have completed our investigation.

The complaint

1. Ms D complains her late mother, Mrs X’s, discharge from hospital was flawed. Specifically, Ms D says Calderdale & Huddersfield NHS Foundation Trust (the Trust) and Calderdale Metropolitan Borough Council (the Council):
1. failed to properly assess Mrs X’s ability to decide on where she should be discharged to and incorrectly decided she could make this decision;
2. failed to properly consider the option of Mrs X returning to her own home to be cared for by her husband (Mr X), Ms D and care workers. Ms D says the Trust incorrectly stated this would be unsafe because of Mr X’s age and that Mrs X could not receive physiotherapy in her own home;
3. took account of some family members’ views, but not those of Mr X or Ms D, even though they would be the ones living with and caring for Mrs X and Mr X was Mrs X’s next of kin; and
4. failed to ensure information about Mrs X’s need for community physiotherapy and nursing was shared with the relevant services as part of planning for Mrs X’s discharge from hospital.
2. Ms D says the faults meant her late mother was discharged to a care home even though she wanted to go to her own home. Mrs X had a very poor experience in residential care and lost out on community nursing and physiotherapy after leaving hospital. Ms D says she lost out on the opportunity to care for her mother at home for several weeks. She says what happened has caused the family significant distress.
3. Ms D would like the organisations to acknowledge what they did wrong and put service improvements in place to prevent others having similar experiences.
4. Ms D also complained to us about the Trust failing to supervise Mrs X when she took her medication in hospital and poor care at the care home. I will explain below why we have not investigated these issues.

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The Ombudsmen’s role and powers

5. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
6. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we 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).
7. If it has, we 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.
8. We cannot question whether an organisation’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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
9. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
10. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our 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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What I have and have not investigated

11. I have investigated the complaints set out in paragraph 1, points a) to d) above.
12. I have not investigated the complaints summarised in paragraph 4 above.
13. Regarding care and treatment in hospital, I considered that an investigation would be unlikely to:
• find enough robust evidence of fault by the Trust; or
• conclude that fault by the Trust had led to significant injustice to Mrs X.
14. In relation to poor care in the care home, I considered an investigation was unlikely to add to the outcomes of the Council’s safeguarding enquiry and complaint investigation, especially since the care home has since decided to stop operating. We could not remedy any injustice for Mrs X, who is deceased. Any service improvements we might have recommended have already been covered by the Council’s safeguarding enquiry and then overtaken by the care home’s decision to stop operating.

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How I considered this complaint

15. I have considered information the complainant, Council and Trust have provided. This includes information the complainant provided by telephone and in writing. It also includes the Council’s and Trust’s written responses to my enquiries and documentary evidence they have provided.
16. I have also considered relevant law, national guidance and local policies. I have referred to these when appropriate in the body of this decision statement.
17. Ms D, the Council and the Trust have had an opportunity to comment on a draft version of this decision. I considered their comments before making a final decision.

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What I found

Background summary

18. Mrs X lived in her own home, a bungalow, with her husband Mr X. In February 2023, she fell from a chair and broke her leg, so went into hospital. Mrs X developed a urinary tract infection (UTI) in hospital. She was discharged from hospital to a residential care home in March 2023. Ms D says this was against the wishes of Mrs X, Mr X and Ms D. The Trust and Council say Mrs X agreed to go into residential care and could make her own decisions about this.
19. While in the residential care home, Mrs X received a poor standard of care. A safeguarding investigation by the Council found the care provider:
• did not meet Mrs X’s continence needs;
• delayed seeking medical attention for persistent diarrhoea, pressure sores and pain;
• failed to meet Mrs X’s food and drink needs; and
• delayed installing a safety gate.
20. Mrs X moved back to her own home in late March 2023. She died in April 2023.

A – Assessment of Mrs X’s ability to make her own decisions
B – Considering alternative of Mrs X returning to her own home
C – Taking family views into account

21. I have dealt with complaints A-C together because they are related and similar law, guidance and policy considerations apply to all three issues.

Relevant law and guidance

22. 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.
23. 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 deciding 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.
24. The Code says, at paragraph 2.11, there may be cause for concern if somebody makes a particular unwise decision that is obviously irrational or out of character. The Code says this may not necessarily mean the person lacks capacity but further investigation may be needed. The Code goes on to say at paragraph 4.34 that “it is important to carry out an assessment when a person’s capacity is in doubt”.
25. Assessing a person’s mental capacity to make a decision involves two stages:
• does the person have “an impairment of disturbance” that affects the way their mind or brain works; and
• if yes, does the impairment or disturbance mean the person cannot make a specific decision at that time?
26. The Code says:
• an example of an impairment or disturbance affecting the mind or brain may include delirium (sudden confusion that may be caused by an illness such as a UTI); and
• a person’s capacity must not be judged simply based on their age, appearance, condition or an aspect of their behaviour.
27. Paragraph 2.8 of the Code says that anyone “supporting a person who may lack capacity should not use excessive persuasion or ‘undue pressure’. However, it is important to provide appropriate advice and information”.
28. Providing relevant information includes:
• ensuring the person has all the information they need to make a decision; and
• if they have a choice, checking they have balanced information about all the alternatives.
29. The Code also says it may be appropriate to delay making a decision to give a person time to regain their ability to make decisions, if that ability is only temporarily impaired.
30. Paragraphs 71 to 72 of the General Medical Council’s ‘Good Medical Practice’ (2013) relate to mental capacity. They say doctors must take account of the MCA and the Code. Point 16 of the Nursing and Midwifery Council’s The Code: Standards of conduct, performance and ethics for nurses and midwives (2008) is also relevant. This says that nurses must be aware of the legislation about mental capacity.
31. The Trust’s policy for discharge for adults includes the following relevant information:
• the Trust must clearly document all discussions about discharge planning with the person;
• people “will be given personalised, clear and accurate information throughout their stay in order to set clear expectations of the discharge process”;
• the Trust should “clearly evidence…what information has been provided…to help individuals make a fully informed decision”; and
• staff must seek a person’s consent to involve family members in their discharge planning.

What happened

32. Ms D considers that:
• Mrs X was temporarily unable to make her own decisions about the discharge destination in late February and early March 2023 because she had delirium;
• delirium prevented Mrs X from understanding the relevant information and weighing it up to make a decision; and
• Mrs X would never have agreed to going into residential care if asked about this when not experiencing delirium.
33. Ms D also considers the Trust:
• failed to properly consider the option of her mother returning to her own home to recover, with support from Mr X, Ms D and paid care staff;
• incorrectly consulted other family members, who had little involvement in Mrs X’s care, about Mrs X moving into residential care; and
• failed to consult Ms D, despite Ms D having significant regular involvement with Mrs X’s care.
34. In its response to our enquiries, the Trust said that it did not consider it necessary to assess Mrs X’s ability to make her own decisions while she was in its hospital. The Trust said Mrs X was showing signs of delirium, but this subsided once she had antibiotics for a UTI.
35. The Council told us it had no involvement in any assessment of Mrs X’s ability to make her own decisions while she was in hospital. The “Health and Social Care Referral form” from the Trust to the Council dated 28 February 2023 says Mrs X:
• should be discharged on pathway 3, meaning “Home is not an option from point of discharge from acute setting”;
• had no diagnosis of dementia or delirium;
• was “NWB” (non-weight bearing, or could not put weight on her leg), unable to use walking aids and needed the help of two people to manage her personal care; and
• was “keen for NWB bed”.
36. The Trust’s medical records for Mrs X contain the following relevant information.
• Mrs X went into hospital on 20 February 2023. She did not have delirium then. At the start of her hospital stay, the plan was for her to go back to her own home when she was ready for discharge.
• A physiotherapy assessment note of 22 February states the Trust discussed discharge planning with Mrs X. Mrs X said she wanted to go to her own home with support. The Trust offered her a care home place, but she wanted to discuss this with her family.
• Nursing progress notes say Mrs X became more confused in the early hours of 23 February but a formal delirium assessment decided she did not have delirium then. The Trust ordered a commode for Mrs X to use at home.
• The following day, Mrs X wanted to be discharged to her own home. A physiotherapy progress note dated the same day stated “?NWB bed versus Home with NWB care package pathway”. I consider this means the Trust was actively considering the advantages and disadvantages of Mrs X going back home compared with her going into a care home on discharge. The physiotherapy progress note goes on to state the Trust will contact Mrs X’s son to discuss the discharge plan with him.
• Mrs X had a physiotherapy assessment on 25 February. Mr X and Ms D were at the assessment. The record of the assessment says the physiotherapist had earlier spoken with Mrs X’s son who was keen on Mrs X going to a residential care home and who reported that Mr X agreed with this. The assessment noted Mrs X wanted to be discharged to her own home, as did Mr X and Ms D. The assessment goes on to say that Mrs X’s family were struggling to understand they could not move Mrs X from her bed between visits by care workers and suggested unfeasible solutions for nighttime continence care. The Trust telephoned Mrs X’s son to update him on the assessment.
• In the morning of 27 February, staff reported Mrs X being more confused and hallucinating. The Trust ordered “confusion screen” blood tests and later that morning assessed Mrs X as having delirium. In the afternoon of the same day, the Trust prescribed Mrs X an antibiotic for a UTI. Mrs X continued taking this antibiotic throughout her stay in hospital.
• In the morning of 28 February, a delirium assessment stated Mrs X had delirium. The Trust excluded her from a dementia assessment on the same day, due to her having delirium. That same morning, the Trust started an “impaired cognition plan of care” for Mrs X and this continued throughout her stay in hospital. Later that morning, a doctor seeing Mrs X on the ward noted she had delirium.
• In the early afternoon of 28 February, the Trust’s physiotherapists saw Mrs X in the presence of Mr X and their son and daughter-in-law. There is no mention of delirium in the notes. The notes say, “discussion with patient and her family regarding discharge – patient and family agree they are happy for patient to go to NWB bed, agree patient would not manage at home at present”. Ms D was not present for this discussion. She told us that she recalls her father saying he did not feel he had the time to make such an important decision at the time. Soon after this discussion, another note says a doctor discussed Mrs X’s delirium with her family.
• On 1 March, another doctor who saw Mrs X around lunchtime entered delirium in her notes. A nurse noted a discussion with Mrs X’s son that evening about Mrs X’s discharge. There is no record of the Trust having Mrs X’s informed consent to discuss these matters with her son in her absence. Another note about two hours later states Mrs X had been hallucinating that evening.
• On the morning of 2 March, an elderly care doctor assessing Mrs X entered delirium in her notes. Mrs X was discharged from hospital to the care home. Ms D has told us that Mrs X was still experiencing delirium then, for example that she believed a cushion was her baby.

Was there fault causing injustice?

37. The available records are detailed. They show the Trust took into account the relevant information when considering whether Mrs X should go to her own home or a care home after leaving hospital. The records show the clinicians’ professional opinions and explanations for them.
38. The Trust was aware Mrs X wanted to go back to her own home and Mr X and Ms D were happy to care for her there with professional help. However, the Trust had concerns they did not understand the level of care Mrs X would need from them and some of their suggestions for how they could carry out the care would be unsafe.
39. For all those reasons, the Trust’s view was that the most appropriate discharge destination for Mrs X was a residential care home, until she could put weight onto her leg. I have found no fault in the way the Trust came to this view and so I cannot question it.
40. There is clear and consistent evidence that Mrs X had delirium from 27 February to the day she left hospital, 2 March. This does not automatically mean that she could not make her own decisions. However, together with the fact that her plan of care was for somebody with impaired cognition, it means the Trust should have explicitly considered either:
• assessing her ability to decide on her discharge destination; or
• the possibility of delaying that decision until she no longer had delirium and was no longer on an impaired cognition plan of care.
41. The Trust should then have clearly noted its decision and reasoning for it. If the Trust decided not to assess Mrs X’s ability to decide on her discharge destination, it should have explained how it reached that decision despite Mrs X’s delirium and impaired cognition. If it decided to continue with an assessment, it should have carried one out in line with the Code.
42. Failure to do any of the above was fault.
43. The Trust also failed to follow its own discharge policy because, despite otherwise detailed electronic medical records, it has no evidence of:
• giving Mrs X “personalised, clear and accurate information throughout [her] stay to set clear expectations of the discharge process”;
• what information it gave Mrs X to help her make a fully informed decision about discharge; or
• gaining Mrs X’s informed consent to involve family members in her discharge planning.
44. As the Trust’s medical records for Mrs X are otherwise very detailed, I consider it more likely than not that the Trust did not:
• give Mrs X the detailed information she needed to make an informed decision; or
• gain informed consent to discuss her discharge with relatives.
45. These were also faults by the Trust.
46. The law and Code are clear that a person’s ability to make their own decisions is time- and decision-specific. Even a person experiencing delirium could make their own decisions with the proper support. Even if the decision about Mrs X’s discharge had been delayed until she had fully recovered from the UTI and delirium, it is possible she could have decided to go into residential care. For all these reasons, we cannot now take a view (even on balance of probabilities) on:
• whether Mrs X had the ability to decide on her discharge destination in late February and early March 2023;
• what she would have decided when fully recovered from the UTI and delirium; and
• therefore, whether the faults caused Mrs X an injustice.
47. Ms D is left with a distressing uncertainty about whether her mother could have avoided a very poor residential care experience if the faults had not happened. This is an injustice to Ms D.
48. I have not found fault by the Council relating to this part of the complaint. This is because:
• the Council could have expected to rely on the information provided by the Trust; and
• the information the Trust gave the Council did not suggest any concerns around Mrs X’s ability to make decisions about discharge from hospital.

D – Sharing information with community health services

Relevant law, guidance and policy

49. The Trust’s policy for “criteria led” discharges contain a checklist which includes the following items:
• medications provided; and
• referrals made to relevant community services.
50. The Trust’s policy for discharge for adults includes the following relevant information:
• when the person is medically fit for discharge, the Trust should start referrals to any necessary post-discharge services such as district nursing;
• the Trust should organise discharge medication the day before discharge;
• the Trust should ensure it has made all onward referrals such as district nurses on the morning of the discharge from hospital;
• when a person is discharged to a new residential care place, the Trust should ensure there is a handover on discharge from nurses to care home staff;

What happened

51. Mrs X’s medical notes indicate that she:
• had a full leg cast;
• could not put weight on her broken leg; and
• the hospital referred her for a follow up by a fracture clinic. This was due to take place about six weeks after leaving hospital.
52. The “Health and Social Care Referral form” dated 28 February 2023 has a section titled "Are…any other onward referrals…being made (please highlight)”. Options included district nursing. None of the options are highlighted.
53. The care home’s daily progress note for Mrs X for 2 March 2023 says that she arrived that evening, with no discharge papers or medication.
54. A safeguarding alert form completed by the district nursing team on 24 March 2023 says:
• the Trust prescribed blood thinning medication injections and sent a 42-day supply to the Home when it discharged Mrs X from hospital;
• however, the hospital did not tell the district nursing team it would need to give Mrs X the injections;
• the care home did not alert anyone to this;
• this meant Mrs X did not receive the injections and was at risk of developing blood clots in her veins or lungs.
55. After completing its safeguarding investigation, the Council decided that:
• there was poor communication from the Trust and care home (acting on behalf of the Council) that resulted in a medication error;
• Mrs X was admitted to the care home without discharge notes and medication from the hospital;
• the Trust failed to tell the district nurses that Mrs X needed anti-clotting injections; and
• there should be a hospital to home checklist to avoid similar problems happening with other hospital discharges.

Was there fault causing injustice?

56. The records indicate the Trust considered Mrs X’s leg needed to be kept in a cast for at least six weeks after her injury and referred her to a fracture clinic for a review at that point. The clinicians in the fracture clinic would have then taken a view on whether to remove or change the cast and what physiotherapy would be appropriate for Mrs X in the community. I therefore consider the Trust did not act with fault in not making a community physiotherapy referral.
57. The Trust decided Mrs X needed blood thinning injections after discharge. But it did not refer Mrs X to the district nursing team which needed to give the injections when it discharged her from hospital. This was contrary to its policies and fault. The Council is also responsible for the fault of poor communication by the care home with the Trust. These faults meant Mrs X, an already vulnerable person, was exposed to risk of harm. Ms D was distressed by what happened. This is an injustice to Ms D.

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Agreed actions

58. Mrs X has died since the events in this complaint happened. This means there cannot now be any personal remedy for her injustice. However, Ms D also suffered distress and uncertainty because of the faults by the Trust and the Council.
59. To remedy Ms D’s injustice, the Trust and the Council will send her written apologies for the faults identified in this decision and their impact on her. They should do so within a month of our final decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisations should consider this guidance in making the apologies I have recommended.
60. To prevent similar faults affecting others, the Trust will share anonymised learning from this complaint with relevant teams at the hospital. The Trust should do this within a month of our final decision.
61. The organisations should provide us with evidence they have complied with the above actions.

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Final decision

62. I uphold the parts of the complaint relating to assessing Mrs X’s ability to make decisions, consent and sharing information about community nursing. I do not uphold the rest of the complaints. The Trust and the Council have accepted my recommendations. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman