Summary: Mrs X complains about problems related to her husband Mr X’s discharge from hospital to residential care. We have not found fault with Dorset Council or Agincare UK Weymouth. Dorset County Hospital NHS Foundation Trust (the Trust) acted with fault in the way it managed Mr X’s hospital discharge and communicated with Mrs X. We recommended the Trust apologised to Mrs X and paid her £250 in recognition of the avoidable uncertainty and frustration caused by its fault. We also recommended the Trust shared an anonymised version of this decision with staff for learning. The Trust accepted our recommendations, so we have completed our investigation.

The complaint

1. Mrs X complains the discharge of her husband, Mr X, from Dorset County Hospital (part of Dorset County Hospital NHS Foundation Trust) to Agincourt Care Home (the Home) was flawed. She says the Trust, Council and Provider failed to:
• discharge Mr X from hospital on the “Discharge to Assess” (D2A) pathway in December 2023;
• communicate effectively with Mrs X; or
• provide Mrs X with information about adult social care services.
2. Mrs X says that as a result, she:
• had to pay the cost of two weeks of care for Mr X at the Home, which should have been free under the D2A pathway; and
• found it frustrating and distressing not to be involved in Mr X’s discharge despite him being unable to manage this himself, and despite Mrs X holding a lasting power of attorney (LPA).
3. Mrs X’s desired outcomes are a reimbursement for the £2,200 she paid to the Home and meaningful apologies.

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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 may investigate complaints made on behalf of someone else if they have given their consent. We may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if we consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(1) and 26A(2), as amended)
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). 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. We cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant responsible body has to make. Therefore, my investigation has focused on the way that the body made its decision.
8. 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. 
9. 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

10. Mrs X has made related complaints about the Council’s actions after Mr X’s discharge from hospital. I have not investigated these matters as the Local Government and Social Care Ombudsman (LGSCO) has considered them separately. Where relevant, I have referred to records from LGSCO’s consideration of the other complaints in this decision statement.

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How I considered this complaint

11. I have considered the following as part of my investigation:
• information provided by Mrs X’s representative in writing and by telephone;
• the organisations’ written responses to my enquiries;
• documentary evidence provided by Mrs X’s representative and the organisations; and
• relevant law, national guidance and local policies.
12. Mrs X and the organisations have had an opportunity to comment on this draft decision. I took any comments they made into account before reaching a final decision.

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What I found

What happened

13. This section contains a summary of key events relevant to my investigation. It is not intended to be a comprehensive chronology.
14. Before going into hospital in December 2023, Mr X lived at home with Mrs X. Mr X had dementia and other health issues. He received privately funded home care visits three times a week, but Mrs X was his main carer.
15. In mid-December 2023, Mr X attended the Hospital’s emergency department (ED), before being admitted to its specialist unit for care of older people.
16. The Trust says that, while Mr X was in the ED, Mrs X:
• declined potential increases to the home care visits; and
• said she wanted a respite care place for Mr X because she could not cope with his care needs.
17. Records for the day Mr X went into hospital show that staff assessed his clinical frailty as 7 or “severely frail” based on a nationally recognised frailty scale. According to this scale, a score of 7 means a person is completely dependent on personal care, but seems stable.
18. On the same day, the Hospital’s patient flow coordinator met with Mrs X and her daughter. The patient flow coordinator’s notes say they discussed care with Mrs X and her daughter. The note says: “Patient and family in agreement for respite care (privately funded)”. From this point, the Trust took the view that Mr X’s family had decided that they preferred privately funded respite care to any other option. It therefore did not discuss D2A with Mr X or his family or refer Mr X to a ‘discharge hub’ it operates jointly with the Council. This means the Council had no knowledge of Mr X’s hospital admission and discharge.
19. There is no record of the Trust giving Mrs X or her daughter any written information about hospital discharge, such as a copy of its “Home First” leaflet. There is also no record of the Trust assessing Mr X’s ability to make his own decisions or discussing his discharge arrangements with him.
20. The patient flow coordinator spoke with the Home the following day about a bed for Mr X. A day later, Mr X moved to the specialist unit. He had COVID-19 and the Home would not accept him until he had a period of isolation. According to the Trust’s records, hospital staff assessed Mr X on three different days while he was in the specialist unit. Of relevance to this investigation, records show the following notes made by staff when assessing Mr X:
• on 16 December: “needs care home”; “needs discharge planning”; “previous mobility: room to room, no aids for walking or transfers”;
• on 17 December: “Assessment for this admission… care home”; “mobility with Zimmer frame”. The discharge checklist for the same day is empty; and
• on 19 December: Mr X moved around with the help of one person and walking frame and was at high risk of falls following an unwitnessed fall the same day.
21. The Home assessed Mr X on 22 December and the following day, Mrs X told hospital staff the Home had agreed to admit Mr X.
22. Mrs X had telephone contact with the Home and the hospital between 23 and 27 December. On 27 December:
• the Home prepared a contract for self-funding residential care for Mr X starting the same day;
• Mrs X told hospital staff that the Home was ready to admit Mr X that day; and
• the hospital arranged Mr X’s discharge to happen the following morning. There is no record of hospital staff discussing the practical discharge arrangements with Mr X, Mrs X or their daughter.
23. Mr X moved to the Home on 28 December. This is the same day Mrs X signed the contract for two weeks for Mr X at the Home, starting from 27 December.
24. On 3 January 2024, the Council received a referral for Mr X because Mrs X wanted him to move to a different care home. This is the first time the Council was aware of Mr X’s stay in hospital and discharge to the Home.
25. On 8 January, the Home issued an invoice to Mrs X for £2,200 (the cost of 14 days at the Home from 27 December). Mrs X paid this invoice.
26. The Council’s records for January contain the following information relevant to this investigation.
• On 17 January, the Council considered Mr X had the ability to make his own decisions about where to live. At that time, he wanted to return to live in his own home. The Council considered Mr X could do so with more home care visits and some reablement help. The Council considered it would therefore be inappropriate and detrimental to his mental health for Mr X to stay in residential care. Mrs X did not challenge this at the time. She told the Council she had a very heavy heart about Mr X being in a care home, but that he was very demanding when he was at home.
• A few days later, the Council revisited its assessment and decided Mr X could not make his own decisions about where to live. It considered information from Mr X’s family and the Home. The Council’s view was that Mrs X was wavering on whether she could support Mr X to move back to his own home and that this could work if Mrs X wanted to continue to support Mr X there, but not if she felt she could not do so.
• By 25 January, the Council had concluded Mr X needed to be in residential care.
27. On 9 February, the Council sent the Home a retrospective agreement for placing Mr X there from 29 December. The Council has told us that this was an error and it should have started funding Mr X’s stay at the home for a short period from January rather than December.
28. In March, the Home refunded Mrs M £1,885.72 (the cost of 12 days at the private rate).

Relevant law, guidance and local policy

29. The Council and Trust have a joint standard operating procedure for D2A. It defines D2A as follows. “Where people who […] do not require an acute hospital bed but may still require care services are provided with short term, funded support to be discharged to their own home (where appropriate) or another community setting. Assessment for longer-term care and support needs is then undertaken in the most appropriate setting and at the right time for the person.”
30. Under the procedure the organisations have a “core offer” of either home-based or bed-based intermediate care services.
• Home-based intermediate care services are offered if professionals consider the person can go home, but only with “a period of further assessment and support”. An assessment at home within two to three days of discharge then determines whether the person has longer term care needs.
• Bed-based intermediate care services are offered when the person no longer meets the criteria to stay in hospital but needs “a further period of continued intervention and treatment outside of hospital in an alternative bedded facility”. This usually means a person can stay in a care home or community hospital until they can go to their own home.
• The person or their family can decline these options. If they do so, they will have to arrange and fund their own care after leaving hospital. The person cannot wait in hospital once hospital staff decide they no longer meet the criteria for staying there.
31. The procedure says that:
• people should not be discharged directly to long-term residential care or have assessments of long-term care needs in hospital, unless there are exceptional circumstances that make this appropriate;
• everyone on the D2A pathway should get an information letter and have a conversation on the ward with them and their families to “proactively plan their discharge from hospital”;
• one of the key messages in the discharge information letter is that if a person is not eligible for any financial support, they will need to pay the full costs of ongoing care.
32. The Trust told us that patients and their families should have received a “Home First” leaflet at the time of Mr X’s discharge from hospital.
33. 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.
34. 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 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.
35. Paragraphs 71 to 72 of the General Medical Council’s ‘Good Medical Practice’ (2013) relate to the issue of mental capacity. It says 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.
36. Section 4 of the Care Act 2014 places a duty on councils to establish and maintain information and advice services relating to care and support for local people. This covers both general advice available for people to access in their area, as well as providing specific information directly to people who need it. The Council has told us it provides general information through publications such as the “Home First” leaflet as well as information on its website.

Was there fault causing injustice?

37. Mr X’s medical records show that while he was in the Trust’s hospital:
• he was severely frail and completely dependent on personal care;
• he had problems with his understanding;
• he needed a walking frame and help from one other person which appeared to be more help than he needed before the hospital admission; and
• Mrs X did not feel she could support him at home.
38. Because of this, the Trust should have:
• considered whether Mr X could make his own decisions about discharge and onward care;
• considered whether Mr X was eligible for one of the D2A pathways or needed long-term residential care;
• clearly recorded its consideration, decisions and reasons;
• discussed its decisions and reasons with Mr X and his family as appropriate; and
• given Mr X and/or his family written information about discharge options so they could make an informed decision.
39. There is no record the Trust did this. The only records of discussions about discharge are with Mrs X and her daughter, despite there being no assessment of Mr X’s ability to make his own decisions about discharge. The records indicate the Trust assumed Mr X could not make his own decisions, They also indicate the Trust assumed it did not need to consider D2A because Mr X’s family wanted Mr X to go into residential care, rather than giving them enough information to make an informed decision about the available options. These were all faults relating to hospital discharge and communication.
40. Had there been no fault by the Trust, it is more likely than not that the Trust would have considered Mr X eligible for one of the two D2A pathways. This is because when in hospital, Mr X was severely frail, completely dependent on others for his personal care and at high risk of falls. In addition, Mrs X did not feel she could support him at all at home. Discharge through one of the D2A pathways would have then involved the Council.
41. However, even on balance of probability, we cannot conclude which D2A pathway Mr X should have been discharged on, or whether Mr X’s family would have accepted that pathway. This is because:
• not long after Mr X left hospital, the Council assessed him as being able to return to his own home with extra support. So, it is possible he may have been assessed as needing home-based rather than bed-based intermediate care for D2A; and
• even if Mr X had been assessed as needing bed-based intermediate care, this could have been in a setting the family did not want for him.
42. The injustice to Mrs X from the Trust’s fault amounts to:
• avoidable frustration at not being given all the relevant information to make an informed decision; and
• avoidable uncertainty about whether Mr X could have had some residential care free of charge under D2A.
43. I have made recommendations below for the Trust to remedy Mrs X’s injustice and improve services for the future.
44. The Council has a joint protocol with the Trust relating to hospital discharge which should ensure it is notified when it needs to provide information or support to people leaving hospital. This relies on the Trust referring patients to a joint ‘discharge hub’. In Mr and Mrs X’s case, the Trust did not do this, so the Council did not know about or get involved in Mr X’s discharge from hospital, or in providing specific information about adult social care issues. This was the result of fault by the Trust and not the Council.
45. The Home’s role in Mr X’s discharge from hospital was limited. It carried out a pre-admission assessment in a timely manner once the hospital confirmed it was appropriate to do so. In everything else, it followed the lead of the hospital and Mrs X. It produced a contract based on the information provided, and refunded Mrs X when the Council paid it for part of the same period. As Mrs X had signed a contract with it, the Home was entitled not to refund Mrs X for the days the Council did not pay for. I have found no fault in the Home’s actions.

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Agreed actions

46. To remedy the injustice to Mrs X, the Trust will take the following actions within two months of our final decision.
• Send Mrs X a written apology for the faults and injustice identified in this investigation. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £250 in recognition of the avoidable uncertainty and frustration identified in this decision.
47. To prevent similar problems affecting others, the Trust will take the following action within three months of our final decision. It should share an anonymised summary of the key issues in this complaint with relevant staff to remind them of the importance of:
• following the standard operating procedure for hospital discharge, including providing relevant information to patients and relatives;
• acting in line with the Mental Capacity Act 2005; and
• keeping accurate, complete and contemporaneous records.
48. The Trust should provide us with evidence it has complied with the above actions.

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Final decision

49. We have upheld Mrs X’s complaint about the Trust but not about the Council and Home. The Trust accepted our recommendations. We have now completed our investigation.

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Investigator's decision on behalf of the Ombudsman