The Ombudsman's final decision:
Summary: The Ombudsmen find a Council at fault for an avoidable delay in arranging a patient’s discharge from hospital. As a result the patient did not get home and suffered avoidable frustration, as did her son and his wife. The Council agreed to provide an apology, a small payment to recognise the avoidable frustration, to repay any care contributions the patient should not have paid, and to take action to prevent recurrences.
- Mr R and Ms S complain on behalf of Mr R’s late mother, Mrs T. Mrs T died in January 2018 due to a stroke. They complain about delays in Mrs T’s discharge from hospital over the period October 2017 to January 2018. Their complaints are about the Royal Free NHS Foundation Trust (the Trust) and London Borough of Haringey (the Council). Their specific complaints are that:
- There was poor communication between the Trust and Council which resulted in a delayed discharge situation
- The Trust failed to adequately press the Council in relation to Mrs T’s delayed discharge
- There were unreasonable delays by the Council in assessing Mrs T’s needs in hospital, and inadequate contact with the hospital about arrangements for her discharge
- Information the Council provided to the family about discharge options and funding was confusing, contradictory and unhelpful
- There was poor communication between the Council and Mrs T’s previous placement about her needs and whether the placement was still suitable for her, and this contributed to the delayed discharge
- The Council was unreasonably inflexible about funding options which contributed to the delayed discharge
- The Council had inadequate arrangements for staff cover during sickness absence, which contributed to the delays in Mrs T’s discharge planning.
- Mr R and Ms S believe that if Mrs T’s discharge had not been delayed her fall in hospital and fractured pelvis are likely to have been avoided. They also believe her later stroke (which they attribute to withdrawal of Warfarin medication after her fall) would not have happened. They believe Mrs T suffered avoidable physical and emotional distress, and say they were also caused considerable distress and upset.
- Mr R and Ms S want to be assured that lessons have been learned and changes to process have been made to prevent these issues from happening again to others. They want a payment of financial redress in recognition of their distress, and consideration of whether a reimbursement of some of Mrs T’s care fees would be appropriate in light of the claimed failings.
The Ombudsmen’s role and powers
- 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)
- 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.
- 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.
- 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))
- 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)
How I considered this complaint
- I read the correspondence Mr R and Ms S sent to the Ombudsmen and read my colleague’s notes of their conversations on the telephone. I considered the comments and records the Council and Trust provided in response to enquiry letters. I also considered relevant legislation and guidance.
- I shared a confidential copy of my draft decision with Mr R and Ms S and the organisations under investigation to explain my provisional findings. I invited their comments and considered those, and the additional information, I received in response.
What I found
- Mrs T, aged 82, was admitted to hospital on 6 November 2017. Her GP was concerned about her becoming increasingly short of breath. Mrs T had been discharged from hospital a few weeks earlier. She had several health conditions including dementia, atrial fibrillation (irregular heart rate), chronic kidney disease, and a heart valve condition. She had also had several falls in the past 12 months and was felt to be at high risk of further falls.
- At the time she went into hospital Mrs T was living at an extra care housing placement arranged by the Council. The Council had also arranged a care package of four visits a day. The family had not felt this to be adequate to keep Mrs T safe from falling. Toward the end of October 2017 they had started paying for a 24 hour carer to stay with her.
- Doctors at the hospital felt Mrs T was medically well and stable enough to leave hospital on 16 November. On the following day hospital staff completed a form to notify the Council it intended to discharge Mrs T on 21 November.
- Mrs T remained in hospital after 21 November. Hospital staff recorded that they were waiting for action by the Council before it could proceed. A social worker assessed Mrs T on the ward on 12 December and began making plans for her post-hospital care.
- On 14 December Mrs T fell in hospital. She fractured her pelvis and developed delirium. Due to the deterioration in her condition plans for her discharge were put on hold and Mrs T remained in hospital. On 1 January 2018 Mrs T had a stroke. She sadly died in hospital on 11 January 2018.
- Mr R and Ms S said that hospital staff told them the Council had unreasonably delayed Mrs T’s discharge, and that the prolonged stay in hospital had contributed to her deterioration and death.
- Mr R and Ms S complained to the Council about the delays in Mrs T’s discharge from hospital, and about being given unclear and unhelpful information about discharge options and funding. They later complained to the Trust about a number of matters, including about Mrs T’s delayed discharge.
- A Coroner’s Inquest into Mrs T’s death took place in summer 2018. The Coroner recorded a verdict of accidental death.
Relevant legislation and guidance
National guidance on discharge from hospital
- Leaving hospital after an inpatient stay is part of a process and not an isolated event. Planning should start at the earliest opportunity and it should involve health and social care staff in the hospital and community working together. The process should lead to a personalised plan for each patient who is leaving hospital. Good discharge planning should help patients leave hospital safely, without delay and with suitable support ready in the community. Key guidance about this is the Department of Health’s Ready to go? Planning the discharge and transfer of patients from hospital and intermediate care, published in 2010. I’ll refer to this as the Discharge Guidance.
- This has been added to by a guideline from the National Institute for Health and Social Care Excellence (NICE) in 2015: Transition between inpatient hospital settings and community or care home settings for adults with social care needs. I’ll refer to this as the Transition Guidance. This echoes the Discharge Guidance in recommending close working and regular contact between health and social care staff, to make sure moves from hospital are well coordinated and everything is in place. It also repeats the Discharge Guidance that assessing a person’s needs should start straight away, and should address a range of factors including the need for assessments of eligibility for health or social care funding. This should result in a plan that includes any arrangements for ongoing health and social care.
The need to advise social services of patients who may need support, and social care assessments
- As part of the discharge process hospitals need to think about whether it might be unsafe to discharge a patient without measures in place to meet their care and support needs. If it thinks it might be unsafe it must tell the relevant council of that patient, and it should talk to the patient about this. The hospital then needs to consult with the council before deciding what it will do to make sure discharge is safe. (The Care Act 2014, Schedule 3; and, The Care and Support (Discharge of Hospital Patients) Regulations 2014)
- In practical terms, hospital must first give an ‘assessment notice’ to the local council when it considers it is unlikely to be safe to discharge the patient unless arrangements are made to meet their needs for care and support. (Care Act 2014 Schedule 3 section 1)
- Councils must carry out an assessment for any adult when it appears they might need care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. (Care Act 2014, Sections 9 and 10) Councils can charge for care and support services they provide or arrange. (Care Act 2014, Section 14; and, Care and Support Statutory Guidance, Section 8.2)
- When the council gets an ‘assessment notice’ from a hospital its duty to assess the person’s needs under the Care Act (s9) is triggered. The council should complete the assessment within two days of receiving the ‘assessment notice’. (Care and Support (Discharge of Hospital Patients) Regulations 2014, regulation 8) The council must inform the NHS of the outcome of its assessment and decisions. (Care and Support Statutory Guidance, Annex G, paragraph 17)
- After issuing an ‘assessment notice’ hospitals may then issue a ‘discharge notice’ giving at least one day’s notice of the required discharge. (Care Act 2014, Schedule 3 section 2)
- If, after issuing a ‘discharge notice’, the patient cannot be discharged solely because the council has not carried out the relevant assessments or made the necessary care arrangements, then the council is liable to make a daily payment to the NHS at a set rate. This is not mandatory, it is just that the NHS may require the council to pay the specified amount. (Care Act 2014, Schedule 3 section 4)
- By 16 November 2017 Trust staff were satisfied that Mrs T no longer needed to be in an acute inpatient ward. This did not change until close to a month later, and only when Mrs T had a fall which led to a notable change in her condition. Mrs T remained in hospital throughout this time. It should not take a month to arrange the discharge of an elderly patient who is already known to social services. I have not seen evidence that actions by Mrs T or her family caused significant delays. There was, therefore, a delay which should not have happened, and this is fault.
- I have looked at the specific issues of complaint Mr R and Ms S raised (grouping some together) to help consider where responsibility for this fault lay.
There was poor communication between the Trust and Council which resulted in a delayed discharge situation; and,
The Council had inadequate arrangements for staff cover during sickness absence, which contributed to the delays in Mrs T’s discharge planning
Period from 6 to 20 November 2017
- A Trust occupational therapist (OT) assessed Mrs T the day after she went into hospital, with Mr R present. They noted that Mrs T would need support when she left hospital. The Trust has provided evidence that it completed an ‘assessment notice’ for Mrs T on 7 November 2017. This was appropriate. However, the Council said it does not have a record of having received this. I do not know whether this was not properly sent, or if it was sent but not properly logged on receipt.
- Regardless of whether the ‘assessment notice’ was properly sent and/or received, two days after issuing it, the Trust’s records show the OT tried to telephone Mrs T’s allocated social worker four times. They were unable to speak to her or leave a message. The records state the OT made further unsuccessful attempts to contact the social worker via her mobile and office numbers the next day (a Friday). The OT tried again on the Monday and noted they had emailed the social worker. Later that day a doctor recorded that the social worker had left the Council so the hospital may need to try a duty social worker. It later transpired the allocated social worker was on sick leave. From the evidence I have seen, the social worker had been in work several days before Mrs T’s admission, so this was a recent event.
- From the records I have seen, the Trust did not attempt to contact the Council again over the next few days. However, during this time it completed a Continuing Healthcare Checklist. It was appropriate to complete this before pursuing the need for social services support.
- The Trust has provided evidence that it completed a ‘discharge notice’ in the afternoon of 17 November 2017 (a Friday), the day after the Checklist had been done. The Council’s records show it logged receipt of a ‘discharge notice’ on 20 November 2017 (a Monday). Also that day, the OT recorded that she spoke to a duty social worker and noted the need for social care involvement.
- In its response to our enquiries the Council noted it had previously provided details for its Single Point of Access to all north London hospitals. The OT’s contact with the duty officer would support the fact they did know how to contact a duty officer. However, it was reasonable for the hospital to try contacting Mrs T’s allocated social worker directly in the first instance, and to make further attempts when it did not yet know that worker was off work. As such, I have not found fault on the part of the Trust in relation to its actions during this initial period. It completed the relevant notifications and made proportionate efforts to involve the Council.
- There is insufficient evidence to show that Council received the ‘assessment notice’. Therefore, given the possibility that it did not receive and did not know of the request for an assessment, I have not found fault with the Council for a lack of contact in this period. Further, I have not found fault that the Council had not taken steps to change the social worker’s voicemail or out of office messages, or to intercept their messages. This is because of evidence that the social worker had been in work fairly recently before the OT’s attempted contact.
There were unreasonable delays by the Council in assessing Mrs T’s needs in hospital, and inadequate contact with the hospital about arrangements for her discharge; and,
The Council had inadequate arrangements for staff cover during sickness absence, which contributed to the delays in Mrs T’s discharge planning; and,
The Trust failed to adequately press the Council in relation to Mrs T’s delayed discharge
Period from 20 November to 14 December 2017
- There is clear evidence that, as of 20 November 2017, the Council knew of the need for social care involvement in getting Mrs T ready to leave hospital. The Council has provided evidence that, aside from receiving the ‘discharge notice’, a member of staff spoke to Mr R on that day and discussed the possibility of Mrs T going into a care home. The Council worker said they would get information about the potential costs.
- In response to our enquiries the Council said that, at this time, it believed a decision about Mrs T’s discharge could be made without the need for a new assessment on the ward. It said this was because an assessment had been completed at Mrs T’s home on 3 November 2017 and it felt Mrs T’s needs had not changed since that time. However, the Trust OT’s record of their conversation with the Council worker show they understood the Council was going to arrange an assessment.
- Regardless, the Trust was waiting for the Council to complete its work and could not safely discharge Mrs T until this happened. It is reasonable to assume the Council knew this too. As noted above, when a council receives an ‘assessment notice’ it has two days to complete the necessary assessment. In this case, the ‘discharge notice’ effectively took the place of the ‘assessment notice’.
- The Council also told the Ombudsmen it attempted to contact the ward therapist to establish Mrs T’s needs but was advised the member of staff was not available. It said it did not get a call back despite requesting one. However, I have not seen any contemporaneous evidence of this in Council’s records. As referenced above, the Trust’s records include notes of a conversation between its OT and a Council duty officer on 20 November.
- On 21 November (a Tuesday) the Council asked its Brokerage team to give it information about how much a specific type of care home placement might cost. Brokerage provided a response the following Monday. The Council’s records do not contain any evidence of contact with Mrs T, the family of Trust staff in the intervening period.
- During this time the Trust’s records show, on a daily basis, that it was waiting to hear about the arrangements for when Mrs T left hospital. On 24 November it began recording Mrs T’s continued admission as a ‘Delayed Transfer of Care’. There is evidence in the Trust’s records that, by 27 November, its Patient Flow team was chasing the matter with the Council.
- The Council told the Ombudsmen that, after receiving details of the cost of care homes on 27 November, the family said they wanted Mrs T to return home and said they would top-up the cost of the necessary care. The Council said it was at this point that it decided it needed to reassess Mrs T’s needs, to check it would be safe for Mrs T to return to the extra care housing. The Council also said that, at this point, the manager made the decision to wait for the allocated social worker to return from sick leave, rather than reallocate the case. I have not seen any contemporaneous records of these events, conversations and decisions. Nor have I seen any evidence of contact with the hospital to update its staff on the situation.
- On 1 December the Trust’s Patient Flow team recorded that, despite numerous messages to the duty social worker, the matter was still outstanding. They noted Mrs T had been delayed by social services since 22 November and still needed a placement. Patient Flow recorded that they had spoken to someone at the Council who had emailed the duty social worker again, copying in his manager, asking for an urgent response for a discharge plan.
- The next evidence I have seen of contact from the Council is an email to Mr R (in response to an email he had sent) on 7 December. The Council worker’s email referenced possible options and noted a review of Mrs T’s needs was still required. Records from the Trust on the same day noted it was still waiting to hear about a placement for Mrs T and that the matter had been escalated.
- Mrs T’s allocated social worker, having returned to work, reassessed Mrs T’s needs on the ward on 12 December. The social worker recommended Mrs T go to a care home. The family said it wanted Mrs T to return to the extra care accommodation with a 24 hour carer. They said they would make up the difference between the cost of this and the amount of the Council’s personal budget for Mrs T. The Council began to make arrangements to facilitate this but Mrs T fell two days later.
- Overall, the Trust could not discharge Mrs T until the Council had arranged the necessary care. There is evidence to show the Trust was keeping track of the progress (or lack thereof) in this case, and was taking steps to escalate matters. As noted above, the related legislation does give the NHS an option to require councils to make payments for such events and this is intended to help act as an incentive to push things forward. However, this is not mandatory and the Trust still would have needed to wait for the Council to have completed its necessary work. Therefore, based on the evidence I have seen, I have not found fault with the Trust’s actions during this time.
- It follows, therefore, that the Council was at fault for the avoidable delays in progressing Mrs T’s discharge from hospital. It knew of the need to establish Mrs T’s needs and arrange suitable care and support on 20 November. It did not complete this assessment until 16 working days later. It was the Council’s own choice not to arrange a new assessment when it received the ‘discharge notice’, and its choice not to reallocate the case. In relation to this, the record of a conversation with Mr R on 20 November notes they talked about the option of the Council referring Mrs T to Brokerage for a care home placement. It also notes that Mr R asked about the prospect of Mrs T returning to the extra care housing with 24 hour care and the family providing a top-up payment. As such, the Council’s explanation for why it did not immediately pursue a reassessment is not supported by the evidence. Its explanation for what caused it to request a reassessment – the family wanting to explore the option of Mrs T returning home – was voiced on first contact. Therefore, even without the benefit of hindsight, there was information available which should have led to an earlier reassessment.
- In summary, I find the Council at fault for failing to complete the necessary assessments and arrange appropriate post-discharge care in the appropriate time. I will turn to the impact of this fault later.
Information the Council provided to the family about discharge options and funding was confusing, contradictory and unhelpful; and,
The Council was unreasonably inflexible about funding options which contributed to the delayed discharge
- As I have touched on above, the contemporaneous evidence from the Council for this period is limited. In the conversation with Mr R on 20 November the Council worker noted that actual costings for a care home placement would help facilitate an informed discussion about options. This was reasonable.
- Brokerage provided the relevant information on 27 November. This is the only Council record I have seen from this date. As referenced above, the Council advised it had a conversation with Mr R about this but I have not seen a record of that.
- The next record is the email of 7 December. The Council said if an assessment recommended a residential placement it would provide a personal budget to pay for the necessary care. It also said this personal budget would be the maximum amount it would offer for Mrs T’s care. It said, as such, if the family chose care which cost more the family would have to pay the difference. Records indicate that similar advice was provided by the allocated social following the reassessment on 12 December.
- Overall, it seems the lack of a reassessment of Mrs T’s needs was the key factor here. It meant the information passed to Mr R was somewhat hypothetical. The conversation on 20 November noted discussions ‘would be easier once costs for [residential care] are clear to the family’. The email of 7 December noted any offer of a personal budget for a residential placement would be ‘the full offer (pending a full new updated assessment)’. The Council also acknowledged the information about funding was complex and said it thought things would be clearer once the social worker had completed the reassessment.
- Therefore, I have not for a separate fault here. Rather, these concerns about a lack of clarity stem from the fault noted above: that the Council did not act quickly enough to assess Mrs T’s actual, current needs and establish how they could be met.
There was poor communication between the Council and Mrs T’s previous placement about her needs and whether the placement was still suitable for her, and this contributed to the delayed discharge
- From the evidence I have seen the Council had limited contact with the extra care housing provider during this period. Its efforts appear to have focused on the prospect of Mrs T moving elsewhere, to a residential home.
- The first reference I have seen of contact with the extra care provider is on 12 December, after the social worker completed their reassessment. The social worker noted they had advised the provider to carry out its own reassessment, in regard to a plan for Mrs T to return with a 24 hour carer. The social worker recorded that the provider would visit to complete this reassessment on 14 December. The social worker did not record any objections from the provider about the plans. However, on receiving an email about the plan for Mrs T to have 24 hour care, the extra care housing provider replied with concerns. It said it had stopped accepting live-in carers on a long‑term basis. It said it had previously accepted a live-in carer for Mrs T in the belief it would be a temporary arrangement. The extra care housing provider said it needed to know from the Council why it had been decided she needed a 24-hour carer. The Council advised the Ombudsmen that on 14 December the provider agreed to accept Mrs T back, although I have not seen any evidence from the time about this.
- I have not seen evidence to show that communication with the previous provider caused any delays in Mrs T’s case. As above, the delays appear to stem from a failure to arrange the necessary Council reassessment within an appropriate time.
- Without the fault in this case it is likely it would have taken a couple days to complete the necessary reassessment, and then some further days to obtain actual costings for different options and arrange the necessary care to keep Mrs T safe. On the balance of probabilities, this work could and should have been completed before the end of November 2017 (nine working days after the Council received the ‘discharge notice’). As such, it is probable that, had the fault not occurred, Mrs T would have left hospital in December 2017, before she had a fall.
- In view of Mrs T’s underlying medical conditions and her history of falling, I cannot say that her continued presence in hospital was the sole reason for her fall. I cannot discount the possibility that, even without the fault and if Mrs T had left hospital, she still may have fallen elsewhere. While residential care homes and 24 hour carers can implement plans to mitigate some of the risks of falling, they cannot remove the risks. In particular, ‘unmodifiable’ risk factors, such as a diagnosis of dementia or other significant, incurable health conditions, will always remain. Therefore, I cannot say that the fault in this case caused the physical harm that led from Mrs T’s fall.
- The hospital records contain evidence that Mrs T was frustrated and annoyed with the delays, and keen to get out of hospital. For example, an entry by a doctor on 29 November noted Mrs T was bored and felt she had been in hospital too long. An entry on 11 December recorded that she was fed up because of the uncertainty about her future and a lack of information. This frustration and low mood is easily understandable and was an injustice to Mrs T in its own right. Further, it is evident that the situation was similarly frustrating for Mr R and Ms S, and this was an avoidable injustice to them.
- In addition, Mr R told the Ombudsmen Mrs T’s contributions to fees for the extra care housing continued to be paid while she was in hospital. I have not seen details of this. Mrs T should not have had to pay contributions for her care from 1 December 2017. From this date she remained in hospital, and unable to use a community care package, because of fault on the part of the Council. Any payments she made after this date would represent a financial injustice to Mrs T.
Changes to discharge procedures since the time of these events
- The Trust advised the Ombudsmen of a number of developments in its discharge processes since the events of this complaint. This includes:
- An Improving Discharge Working Group, which has been in place since October 2018. Its objective is to oversee a programme of work focusing on improving discharge. The focus is on designing and implementing effective and consistent processes to support increased patient discharge.
- Using a ‘Discharge Market’ to help reduce internal delays.
- Using a ‘Platinum Escalation Meeting’ to help reduce external delays.
- Promoting the use of a north London-wide policy (of December 2018) aimed at supporting patients’ choices to avoid delayed discharges.
- Using Long Length of Stay Review Meetings to ‘introduce supportive challenge’ to help wards tackle obstacles to patients being discharged, and to record and monitor all actions.
- Using posters to encourage staff to keep discharge in mind, and to take steps to ensure it could happen in a timely way and pre-empt any possible obstacles or challenges.
- Within one month of the date of the final decision the Council should write to Mr R and Ms S to acknowledge its fault for the avoidable delays in Mrs T’s case. The Council should also apologise for the frustration and distress this caused Mrs T, and should apologise for the frustration it caused Mr R and Ms S.
- Within one month of the date of the final decision the Council should pay Mr R and Ms S £250, to serve as a tangible acknowledgement of the avoidable frustration they experienced because of the fault in this case.
- Within two months of the date of the final decision the Council should check its records to establish if Mrs T made any contributions to her care from 1 December 2017 onwards. If she did, the Council should refund the total amount of the contributions for that period to Mrs T’s estate.
- Within three months of the date of the final decision the Council should arrange for suitable staff to review the circumstances of this case, along with relevant internal policies about procedures (including any procedures about contingency planning when staff are off sick). The review should consider whether its policies are adequate and in line with relevant legislation, and if they are properly embedded and understood by the relevant staff. In the event the Council identifies shortcomings it should make necessary changes and take steps to make sure the changes are appropriately shared.
- The Council should provide the Ombudsmen with evidence that it has completed all of these actions.
- I have closed this investigation on the basis there was fault by the Council which led to unremedied injustice. I have made recommendations to help put things right, and the Council has agreed to them.
Investigator's decision on behalf of the Ombudsman