Summary: Mr A complained professionals from a Council and Trust inappropriately interfered with his wife’s package of care when she left hospital in April 2021. We found fault in how professionals worked out what was in Mrs A’s best interests. However, on balance, this did not lead to an injustice.

The complaint

1. Mrs A was in hospital from 3 to 8 April 2021. Before her admission she lived at home with her husband, Mr A, and privately paid for support from a care worker twice a day.
2. Mr A complains that while his wife was in hospital:

• Professionals inappropriately interfered in his wife’s care arrangements, without consulting him, and imposed an unnecessary increase to the care package.
• Professionals contacted his wife’s care provider without speaking to him first. Further, Mr A said the Council lied in its complaint response by saying the care provider had contacted the Council about Mrs A’s care before she went into hospital. Mr A said this did not happen.
• Professionals failed to provide him with accurate, complete information about the cost implications of increasing his wife’s care package.

3. Mr A said that, because of these failings, he lost an opportunity to influence discussions about his wife’s care. Further, Mr A said he could no longer use the care provider that had been supporting his wife for 18 months as it did not have the capacity to fulfil an extended care package. Mr A said he had had a good relationship with this provider and had always been happy with the care it provided.
4. Mr A also said that he was forced into paying for more hours of care, at higher rates, that his wife had not needed.
5. In bringing his complaint to the Ombudsmen Mr A said he would like compensation for the increased care costs.

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The Ombudsmen’s role and powers

6. 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)
7. 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.
8. 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.
9. 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))
10. 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

11. I read the correspondence and supporting evidence Mr A sent to the Ombudsmen. I also spoke to Mr A on the telephone. I wrote to the Trust and the Council to explain what I 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.
12. I shared a confidential copy of this draft decision with Mr A along with the Trust and the Council and invited their comments on it. I considered all the comments I received in response.

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What I found

Relevant legislation and guidance

Hospital discharge during the pandemic

13. In August 2020 the government issued a Hospital Discharge Service: Policy and Operating Model (the Discharge Policy). This said that “acute hospitals must discharge all persons who no longer meet [the criteria to reside in hospital] as soon as they are clinically safe to do so…” (Section 2.3 of the Discharge Policy).
14. Further, the Discharge Policy set out that “Case managers will ensure all people…are discharged safely on time (from all NHS community and acute beds) and that they (or their representative or advocate if they lack capacity), have full information and advice about what is happening. This includes how their needs will be assessed, provision of follow up support as needed and if any charges will be applied to their care and support” (Section 3.8 of the Discharge Policy).
15. The Discharge Policy also set out that the government would provide funding “to help cover the cost of post-discharge recovery and support services in addition to what was provided prior to admission, for up to a maximum of six weeks following discharge” (Section 2.6 of the Discharge Policy).
16. The Discharge Policy noted that organisations’ duties under the Mental Capacity Act 2005 (the MCA) still applied. It noted that “If there is reason to believe a person may lack the relevant mental capacity to make the decisions about their ongoing care and treatment, a capacity assessment should be carried out before [a] decision about their discharge is made. Where the person is assessed to lack the relevant mental capacity and a decision needs to be made, then there should be a best interest decision made for their ongoing care in line with the usual processes…” (Page 3, fourth bullet point of the Discharge Policy).

Mental Capacity and Best Interests

17. The MCA is the framework for acting and deciding for people who lack the mental capacity to make choices of their own. The MCA and associated Code of Practice describe the steps people should take when deciding something for someone who cannot make that decision on their own.
18. A key principle of the MCA is that any decision, or action, must be in the best interests of the person without capacity. Section four of the MCA provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. Chapter five of the Code of Practice gives guidance on how to work out a person’s best interests.
19. When deciding whether a decision is in someone’s best interests, the decision makers must consider all the relevant circumstances relating to the decision in question. As far as possible, the decision maker must consult other people where appropriate and take into account their views as to what would be in the best interests of the person lacking capacity. In particular they should consult:

• anyone previously named by the person lacking capacity as someone to be consulted;
• carers, close relatives or close friends or anyone else interested in the person’s welfare;
• any attorney appointed under a lasting power of attorney; and
• any deputy appointed by the court of protection to make decisions for the person.

20. The MCA Code of Practice notes that “Any staff involved in the care of a person who lacks capacity should make sure a record is kept of the process of working out the best interests of that person for each relevant decision, setting out:

• how the decision about the person’s best interests was reached
• what the reasons for reaching the decision were
• who was consulted to help work out best interests, and
• what particular factors were taken into account.

The record should remain on the person’s file” (Section 5.15 of the MCA Code of Practice).

Summary of events

21. Mrs A lived at home with Mr A. In 2019 Mr A arranged for a care provider (Provider 1) to support Mrs A. They paid for this privately. Before April 2021 one carer visited Mrs A twice a day.
22. In early April 2021 Mrs A fell and an ambulance took her to hospital. The hospital admitted her. Three days later a member of the Integrated Discharge Team (the IDT) assessed Mrs A. They concluded that Mrs A would need more support at home than she currently received. They recommended three visits a day with two carers attending each time.
23. Provider 1 told the Council it could not provide this level of care. The Council contacted other providers and, the following day, arranged for Provider 2 to take on Mrs A’s care. The plan was to use a Covid funding stream to pay for Mrs A’s additional care (over and above the support she had in place before she went into hospital) for six weeks. The Council planned to provide a one-off direct payment to Mr A to cover this cost. Mrs A returned home four days after going into hospital and Provider 2 began supporting her.
24. Toward the end of April 2021 Mr A told the Council he would not sign the direct payment agreement and would not pay Provider 2. He said he felt the Council should pay Provider 2 directly. The Council later did so, settling Provider 2’s invoices for the six‑week period in full.
25. At the end of April 2021 the Council also noted that Mr A said he did not want the Post Hospital Review Team (the PHRT) to contact him about Mrs A. In late May 2021 the Council recorded that Provider 2 told it that Mr A had signed a private contract with Provider 2 to continue caring for Mrs A, to begin at the end of the six-week period.
26. Mr A complained to the Council in May 2021. The Council did not identify and significant failings in its or the Trust’s actions.

Analysis

Complaint that the Council lied in its complaint response by saying Provider 1 had contacted the Council about Mrs A’s care before she went into hospital

27. I have looked at this issue first as it has implications for the following complaints.
28. In the Council’s final response to Mr A it said: “It was noted prior to [Mrs A] coming into hospital that…[Provider 1] had contacted Adult Care Services requesting a discussion regarding increased care needs with the care agency requesting two carers”.
29. Mr A told me this is untrue. He said Provider 1 had been providing care for Mrs A for 18 months and the care workers were basically part of the family. Mr A said that whenever carers felt they needed something else to help support Mrs A they would always come to him directly. He said he was in constant communication with them so it was nonsensical to suggest Provider 1 had approached the Council about increasing Mrs A’s care package. Mr A said hours after receiving the Council’s letter he called a manager at Provider 1 and read the letter out to them. Mr A said the manager said Provider 1 had never been in touch with the Council.
30. In response to my enquiries the Council provided copies of two entries from its records from 1 April 2021. Both detail contact with Provider 1, initiated by Provider 1. Both recorded the provider’s view that Mrs A needed more support than it was currently providing.
31. I cannot explain why these entries do not match what the manager at Provider 1 told Mr A. However, the records are timed and dated and I have not seen any evidence to suggest they were created or amended after the fact. Further, the records were made by different members of staff but report the same basic information. As such, it was reasonable for the Council to rely on these records when responding to Mr A’s complaint and I have not found any fault.

Complaint that professionals inappropriately interfered in Mrs A’s care arrangements, without consulting Mr A, and imposed an unnecessary increase to the care package; and

Complaint that professionals contacted Provider 1 without speaking to Mr A first

32. It was appropriate and necessary for professionals to consider what support Mrs A would need after she left hospital. As part of this process staff determined Mrs A did not have the mental capacity to understand her own needs or make choices about what support she needed. In this situation the professionals involved in Mrs A’s care had a responsibility to establish what was in her best interests.
33. On 6 April 2021 an IDT Nurse completed a Discharge Information Form. In it the Nurse noted Mrs A “does not have mental capacity at all. MCA and best interest form was done”. The daily progress notes also reference “Mental Capacity Assessment done as she has no capacity at all. Will follow up with a best interest decision”. However, the organisations advised me they cannot locate a copy of the mental capacity assessment or the best interest decision form in Mrs A’s files. This is fault as these are important records which should be kept on file.
34. The Discharge Information Form of 6 April 2021 demonstrates that the Nurse had already made their determination about what level of support they felt Mrs A needed before they spoke to Mr A. The records note the Nurse spent time trying to persuade Mr A to agree to increase Mrs A’s package of care. In addition, the Nurse’s note about following up with a best interest decision comes after a conversation with Mr A which ended abruptly.
35. On the balance of probabilities, we cannot say the professionals followed the best interest process appropriately. The available evidence does not suggest that Mr A or any other person was meaningfully involved in the process of establishing Mrs A’s wishes and best interests. This is fault. While the Discharge Policy stresses the need for urgency in discharging people from hospital, it also notes the need to follow the relevant processes.
36. However, based on the available evidence, this did not lead to an injustice. The IDT Nurse reached a professional view that Mrs A needed additional care to adequately meet her needs. As noted above, there is evidence to show Provider 1 shared this view. Further, there is evidence to show the increased care provision continued after the initial six‑week period. As such, on balance it seems the decision maker (i.e. the professionals responsible for Mrs A’s care in hospital) would have made the same decision if the best interest process had been followed correctly.
37. During the complaints process the Council said the Nurse could not recall if she spoke to Mr A first or spoke to Provider 1 first. The IDT Nurse’s records suggest she called Mr A first, but it is not clear. However, ultimately, the professionals had a duty to arrange a suitable package of support for Mrs A and it was reasonable to call Provider 1, as Mrs A’s existing provider. I have not found fault here.

Complaint that professionals failed to provide Mr A with accurate, complete information about the cost implications of increasing Mrs A’s care package

38. On 6 April 2021 the IDT Nurse recorded that they spoke to Mr A and said he “will not pay for the care in the initial weeks and he can cancel if he feels it’s no longer needed”. In correspondence with our office the Council noted that it did not appear that it had been clearly explained to Mr A that only the increase to Mrs A’s care would be funded, and not the whole package.
39. In its final response to Mr A the Council also acknowledged that the difference in rates between the old provider and the new provider was not noted and discussed at the time. It apologised for this.
40. The Council’s records also note that it sent an information pack to Mr A on 15 April 2021. The records show that it separately sent a letter about the Covid funding scheme which was being used in Mrs A’s case. This letter said “If you were receiving social care support before this admission…and you were assessed as needing to pay towards this care that charge will continue; it is only the additional care and support above that you were previously receiving that will be free of charge (for up to six weeks)”.
41. Overall, there were shortcomings in the communication with Mr A about funding arrangements. However, there is evidence to show Mr A was given some relevant information during a telephone call and this was supplemented by the later written information.
42. In the event, for the six‑week period after Mrs A left hospital, the distinction between ‘existing’ and ‘new’ care was an academic one. This is because the Council settled Provider 2’s invoices for this period in full, despite the guidance only requiring it to fund the ‘new’ care. As such, Mr and Mrs A were effectively left financially better off for this six‑week period.
43. I will turn now to the longer-term consequences to Mr and Mrs A’s finances. The Council’s records note that Mr A made it explicit that he did not want the PHRT to contact him to review Mrs A’s need for support. In its correspondence with me the Council noted that such a review could have led to it supporting Mr A to source a long-term alternative. It said this could have included looking for a more cost‑effective care provider.
44. The Council recorded in May 2021 that Provider 2 told it that Mr A had signed a private contract to begin on 21 May 2021. Mr A told me he did not sign a contract with Provider 2. However, he said they had a sort of ‘gentleman’s agreement’ that Provider 2 would continue to care for Mrs A on a flexible basis. Mr A confirmed that, when we spoke, while there was now a new provider, Mrs A was continuing to receive support three times a day with two carers at each visit.
45. In summary, under the Covid discharge arrangements, there was no intention for the immediate, six-week support to be a long-term arrangement. Mr A was offered an opportunity to review Mrs A’s support but turned this down. Further, while the specifics are unclear, there is no dispute that Mr A made a form of a private arrangement with Provider 2 which the Council and Trust were not party to.
46. Therefore, there is no evidence to show there were any failings by the Council or Trust which constitute fault. Further, there is no evidence that Mr and Mrs A were caused an injustice by actions of the Council or Trust.

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Decision

47. I have closed this investigation on the basis there was fault in Mrs A’s care planning but it did not lead to an injustice.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman