Summary: We will not investigate Mr K’s complaint about arrangements for his late aunt Mrs V’s discharge from hospital, about delays in authorising Deprivation of Liberty Safeguards (DoLS), and about complaint handling. We are unlikely to find fault in the hospital discharge arrangements, and the Council and NHS Trust have accepted fault about the DoLS arrangements and complaint handling. They have apologised and taken action to improve. We are unlikely to achieve more by investigating.

The complaint

1. Mr K complained to the Ombudsmen about Newcastle upon Tyne City Council (the Council) and The Newcastle Upon Tyne Hospitals NHS Foundation Trust (the Trust). He complained about discharge planning and Deprivation of Liberty Safeguards (DoLS) arrangements for his late aunt Mrs V during her hospital admission in 2024. He said professionals did not properly seek or consider the family’s views about discharge options. He also said staff involved in discharge planning did not have enough knowledge of his aunt’s wishes and circumstances, and he felt the discharge decision was predetermined.
2. Mr K also complained his aunt was deprived of her liberty without lawful authority for a short period because there was no valid Urgent or Standard DoLS authorisation in place. He said the Council and Trust did not communicate effectively or follow the DoLS process correctly, and failed to make him aware of the DoLS arrangements.
3. Mr K said these failings meant his aunt was unable to express her wishes or influence decisions about her care and discharge. He is left with uncertainty about whether there could have been different discharge arrangements such as his aunt returning home. He said he felt distress and injustice that his aunt’s human rights had not been properly protected.

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The Ombudsmen’s role and powers

4. 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).
5. 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).
6. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the organisations

7. We cannot question whether an organisation’s decision is right or wrong simply because a 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))

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How I considered this complaint

8. I considered evidence provided by Mr K, the Council and the Trust, as well as relevant law, policy and guidance.
9. Mr K had the opportunity to comment on a draft of my decision, and I took his comments into account before making my final decision.

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What I found

Law and guidance

Hospital discharge

10. The Department of Health and Social Care issued statutory guidance about hospital discharge - Hospital discharge and community support guidance (the National Discharge Guidance) - in April 2022 (updated January 2024). This provides guidance to NHS bodies and local authorities on discharging adults from hospital.

Deprivation of Liberty Safeguards (DoLS)

11. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home or hospital. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
12. The Mental Capacity Act 2005 sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. The DoLS Code of Practice 2008 provides statutory guidance on how the safeguards should be applied in practice.
13. A hospital can grant an Urgent DoLS authorisation itself for up to seven days, where it believes a deprivation of liberty is already occurring or is about to occur. It can also request an extension to this from the local authority for a further seven days, in exceptional circumstances. The hospital must request a Standard DoLS authorisation from the local authority at the same time as it issues the Urgent DoLS. The Urgent DoLS is intended to provide short-term legal authority for the deprivation of liberty while the Council considers the application for Standard DoLS authorisation.

Background events

14. Mrs V, who was elderly, lived alone. In June 2024 she went into hospital after having a fall. Before her admission she had begun wandering and been returned home by the police on several occasions. She was under the Memory Clinic waiting for an assessment for possible dementia, and had recently started having a daily care visit at home.
15. When in hospital, Mrs V tested positive for COVID-19. A Mental Capacity Act assessment found she lacked capacity to make decisions about her discharge arrangements and returning home. The hospital completed an urgent DoLS authorisation, citing concerns including suspected dementia, wandering, inability to remember her address, and attempts to leave the ward.
16. Mr K visited his aunt regularly in hospital and said she was distressed and consistently expressed a wish to return home.
17. Around a week after Mrs V’s admission, Mr K attended a discharge planning meeting. After the meeting he said he felt the outcome was predetermined, with staff focusing on the need for 24-hour care and discharge to a temporary care home placement. He felt the staff who attended did not know enough about his aunt. He said they did not give sufficient weight to his aunt’s wishes and the information he provided about her circumstances and level of independence before admission.
18. Mr K spoke with a social worker about his concerns. The social worker referred to previous police involvement and safeguarding concerns. The Council records say that Mr K acknowledged the need to keep his aunt safe, and agreed to her being discharged to a short-term residential assessment placement.
19. Mrs V was discharged around two weeks after going into hospital. Shortly afterwards, Mr K complained about the discharge meeting, saying that professionals had not properly balanced his aunt’s wishes, rights and liberty against safeguarding concerns. He later said professionals had not told him that his aunt was subject to DoLS or of any right to challenge the DoLS on her behalf at the time. He also said that information he obtained later showed there had been a period when Mrs V had been unlawfully deprived of her liberty in hospital, without a valid DoLS in place, after an Urgent DoLS authorisation had expired.

Analysis

Hospital discharge meeting

20. In response to Mr K’s complaint, the Trust acknowledged that ideally, staff with greater knowledge of Mrs V would have attended the discharge meeting. It apologised and said it had reminded staff, where possible, to ensure those most familiar with a patient attend discharge meetings. However, it explained that discharge decisions are made through a multidisciplinary process and staff can make informed decisions based on the clinical records and input from colleagues involved in the patient's care.
21. The Hospital Discharge and Community Support Guidance emphasises multidisciplinary working and recognises that discharge planning involves contributions from clinicians, social workers and other professionals, as well as patients and their representatives. The guidance explains that discharge actions can be carried out by appropriate members of the multidisciplinary team and do not necessarily require staff with existing knowledge of the patient to be present. The guidance requires clear plans in a patient’s medical notes about discharge, supported by multidisciplinary assessments of the patient’s needs and functioning.
22. There are conflicting accounts about what happened at the discharge meeting. Mr K says professionals did not properly consider his and Mrs V's wishes. The records made at the time say the meeting attendees discussed Mr K's view that Mrs V should return home, and they considered possible options for increased support at home. The records also show professionals considered Mrs V's recent history of wandering, police involvement, cognitive impairment and need for supervision. The evidence indicates professionals took Mr K's views into account, but the multidisciplinary team reached a different conclusion about what was in Mrs V's best interests in terms of discharge arrangements.
23. Mr K also said he felt professionals gave insufficient weight to evidence about Mrs V's independence before her admission. However, discharge planning focuses on a patient’s needs and risks at that point in time. The records document significant concerns about Mrs V’s confusion, wandering, and possible dementia.
24. As outlined earlier, our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
25. We have considered the steps the Trust and Council took to consider Mrs V’s discharge arrangements, and the information they took into account. We are unlikely to find fault in the way the organisations reached the decision that a short-term assessment placement was the safest discharge option for Mrs V.

Deprivation of Liberty Safeguards (DoLS)

26. The Trust accepts it did not provide Mr K with information about the Urgent DoLS authorisation when it was put in place shortly after Mrs V went into hospital, and it has apologised for this. It has taken action to improve its practice, including staff training, reminders about involving families and representatives, and auditing of DoLS processes. We consider this to be an appropriate acknowledgement of fault, and the Trust has taken reasonable steps to reduce the risk of similar problems recurring.
27. The Council's records show an Urgent DoLS authorisation was granted and later extended, but a Standard DoLS authorisation was not completed before the extended Urgent authorisation expired. The Council accepted that Mrs V was therefore subject to an unauthorised deprivation of liberty for a period of around four days. It apologised to Mr K, explained the wider context of national DoLS delays, and offered a financial remedy.
28. As outlined in the Council’s response to Mr K’s complaint, there are significant national backlogs in the DoLS system, and many local authorities hold large numbers of unallocated DoLS applications. Councils commonly use prioritisation tools to identify the most urgent cases and manage demand, as was the case here.
29. We acknowledge that Mr K was not told about the Urgent DoLS authorisation when it was initially put in place. We recognise this has caused Mr K distress and uncertainty, including concern that he did not have the opportunity to challenge the DoLS arrangements on his aunt’s behalf at the time. However, there are too many uncertainties for us to reach a view that the outcome would have been different if professionals had made Mr K aware of the Urgent DoLS at the time, given the evidence of concerns about Mrs V’s capacity, safety and welfare.
30. The organisations have acknowledged fault in the DoLS arrangements for Mrs V. They have apologised for the impact of this on Mr K and Mrs V, and they have taken remedial action to address the faults. We are unlikely to be able to achieve more by investigating this part of the complaint.

Complaint handling

31. Mr K complained that both organisations handled his concerns poorly. He said there were significant delays in responding to his complaints, mistakes in the information provided to him, and a failure to address all the issues he had raised. In particular, he said the organisations did not fully consider his concerns about the DoLS process, which meant these issues had to be referred back to the organisations after Mr K first complained to the Ombudsmen. He said this prolonged the complaints process, which caused him frustration and undermined his confidence in the responses he received.
32. The Trust took around four months to provide its initial complaint response and later acknowledged errors in its description of who chaired the discharge meeting. It apologised for the confusion caused. The Trust met with Mr K and provided further responses to his outstanding concerns. The Council also apologised for delays and frustration as a result of its complaint handling, and it offered Mr K a payment in recognition of his time and trouble in pursuing the complaint.
33. While the overall complaints process was lengthy, particularly because the organisations did not fully address the DoLS issues initially, both organisations have now investigated those concerns and provided responses. They have acknowledged shortcomings in their complaint handling and apologised for the impact on Mr K. In the circumstances, we are unlikely to achieve more by investigating the way the organisations handled Mr K’s complaints.

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Final decision

34. We will not investigate Mr K’s complaint. We are unlikely to find fault in the way the organisations considered Mrs V’s discharge arrangements. The organisations have acknowledged fault in the DoLS arrangements and complaint handling. They have apologised and taken remedial action. We are unlikely to achieve more by investigating.

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Investigator's decision on behalf of the Ombudsman