Liverpool City Council (19 009 898)

Category : Adult care services > Other

Decision : Not upheld

Decision date : 15 Jun 2020

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s failure to make proper arrangements for his return home from hospital. The Ombudsman has not found fault. Mr X’s delayed discharge was due to the complex circumstances of his situation, rather than by Council fault and a refusal to fund the more expensive care option.

The complaint

  1. Mr X complained that the Council failed to ensure proper arrangements were in place to allow his discharge from hospital back home. As a result, he had become “institutionalised” and was unable to return home. His family say the delay was caused by funding rather than care issues.
  2. This has caused considerable distress to Mr X and his family because it was Mr X’s express wish to remain at home. This is no longer possible.
  3. Mr X is represented by his son, Mr D, in making this complaint.

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What I have investigated

  1. I have investigated Mr X’s complaint about his delayed discharge from hospital. I have not reinvestigated matters that Mr D complained about in April 2019. I have read the Council’s complaint response and I am satisfied the Ombudsman could add nothing further to this.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. As part of my investigation I have:
  • considered the complaint and documents provided by Mr D;
  • made enquiries of the Council and considered its response;
  • considered the relevant law and statutory guidance;
  • spoken to Mr D; and
  • sent my draft decision to both parties and invited comments on it. I have taken comments made by Mr D into consideration before making my final decision.

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What I found

Law and policy

Social care

  1. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support.
  2. Local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs
  3. The Care Act Guidance says that councils may take into account reasonable consideration of its finances. However, the Guidance makes it clear that councils may only do this in deciding between suitable alternative options to meet needs. This does not mean choosing the cheapest option, but that which delivers the outcomes for the best value. A council should not set arbitrary upper limits on the costs it will pay to meet a person’s needs.

Mental Capacity

  1. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.

Deprivation of Liberty Safeguards (DoLS)

  1. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
  2. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection.

Mental Health Act 1983

  1. The Mental Health Act 1983 sets out when an individual can by law be admitted, detained, and treated in hospital against their wishes.
  2. Before the person is discharged, a social care assessment should take place to see if he or she has any social care needs the council should meet. People who are released from hospital detention under section 3 will not have to pay for any aftercare they need as a result of the condition for which they were detained. This is known as section 117 aftercare.
  3. Under section 117 of the Mental Health Act 1983, local authorities, with Clinical Commissioning Groups (CCG) and the NHS Commissioning Board, have a duty to provide after-care services to people who have been detained in hospital under certain provisions of the 1983 Act.

Key events

  1. I have set out below a summary of the key events. But it is not meant to show everything that happened.
  2. Mr X had dementia and was reliant on others to make decisions about his welfare that are in his best interests. In August 2018, Mr X was detained in hospital under the Mental Health Act 1983.
  3. In September/October 2018, Mr D made it clear to both his father’s hospital consultant (“the Consultant”) and his allocated social worker that Mr X should be allowed to return home as soon as possible with a care package. The Consultant disagreed and stated his professional opinion was that Mr X should be discharged to a dementia specialist care home. The Council’s view was that a possible return home would be subject to an assessment, best interest decision making and funding. Mr D said he was willing to make a contribution towards the cost of a home care package, either from family resources or Mr X’s.
  4. Despite the Consultant’s view, the Council agreed to explore the possibility of Mr X returning home. This required an occupational therapy (OT) assessment of Mr X’s home. It was also agreed that potential care agencies should be identified to risk assess the proposed care arrangements. Mental capacity and best interests assessments were also required.
  5. In November 2018, a meeting took place to review this work, including two potential care agencies. The Consultant reiterated his concerns and said he was unhappy about only one staff member being present, particularly as there had been previous incidents with knives and scissors. As the care agencies were unaware of this risk, further work had to be done, including whether it was safe to only employ one carer.
  6. In December 2018, the Council carried out an assessment of Mr X’s mental capacity to make decisions about his future care. Because he was deemed incapacitated, the Council made a best interest decision that he should be discharged to a care home.
  7. In January 2019, Mr X’s detention under the Mental Health Act was extended.
  8. In March 2019, another ward meeting took place. Further work was required on the risk assessments
  9. In April 2019, the proposed care agencies said the care arrangements were so restrictive that they required a court order. A further OT assessment also took place
  10. In May 2019, Mr X was declared medically fit to be discharged from hospital.
  11. Mr D continued to persuade the Council to facilitate Mr X’s return home. The Council agreed to pay part of the cost of the care package with the family paying a top up. Mr D told the Council Mr X was entitled to free care because of his detention under the Mental Health Act. The Council sought legal advice about this and asked the CCG to contribute towards the care package. The CCG refused.
  12. In July 2019, Mr D instructed a solicitor to make representations on his behalf in an attempt to ensure Mr X’s discharge from hospital.
  13. In August 2019, the Council carried out a further best interest assessment. The outcome of this was that it was in Mr X’s best interests to return home.
  14. But soon afterwards the Council decided it was unable to support this because the care arrangements necessary to keep Mr X safe would amount to an unacceptable deprivation of his liberty, greater than they would be in a care home. The authorise the arrangement, the Council would have to apply for an order from the Court of Protection.
  15. Despite this it was agreed that Mr X could return home on a trial basis, but arrangements would need to be put in place to ensure his safety.
  16. These trial home visits started in October 2019, but an incident took place in November 2019 that meant Mr X’s section 17 leave was cancelled.
  17. Mr D agreed Mr X could no longer be cared for at home. The Council offered support to find a suitable nursing home. Mr D identified a particular home with no vacancies and a long waiting list.
  18. The Ombudsman understands Mr X moved to a care home in February 2020.

Analysis

  1. Mr D complains about his father’s extended stay in hospital. He says this was because the home care package was too expensive. I must decide whether Mr X’s delayed discharge was because of fault by the Council.
  2. Mr X was detained in hospital in August 2018. The records show discussions started to take place in September 2018 about his discharge. Mr D made it clear Mr X should be allowed to return home as soon as possible, because this is what Mr X wanted. But this was against the advice of his Consultant who recommended a specialist care home.
  3. I would not expect the Council to arrange a discharge home against this clinical advice. Instead, there should be a dialogue between the relevant professionals and Mr D about how to achieve what was in Mr X’s best interests. In my opinion, this is what happened.
  4. The records show that a considerable amount of work took place to explore whether it would be safe for Mr X to go home. Potential care agencies were identified, risk and OT assessments were carried out.
  5. Mr X was declared fit for discharge in May 2019. There is no evidence that Mr X was able to leave hospital sooner than this. The case records show that work was progressing with the various assessments. For this reason, I do not find any fault with the Council’s actions up to this date.
  6. Those risk assessments highlighted additional areas of concern that were supported by the Consultant. Any care arrangements had to be safe for both Mr X and his carers. This meant changes to the proposals, including a requirement for two carers.
  7. The weekly cost of this via private agency was £2200. The cost of a care home was much less. Mr D’s view was that the cost was irrelevant.
  8. But cost can be a relevant consideration for the reasons set out in paragraph 11 above. The Council has a finite budget and any entitlement to receive free aftercare services under s117 does not prevent the Council from including cost as a relevant consideration so long as assessed needs are being met. The client’s wishes are also a relevant consideration. The Council demonstrated it had due regard for Mr X’s wishes by the work that took place to try and facilitate his move back home, particularly as this was in conflict with the view of the Consultant.
  9. The law says that s117 aftercare services should be jointly funded between local authorities and heath bodies.
  10. Inevitably the contribution that each authority will make towards this type of care arrangement will be the subject of discussion by senior managers. It is not uncommon for disputes to arise. But the Ombudsman does not expect a patient’s discharge to be delayed because of such discussions/disputes.
  11. Mr D says this failure to agree funding was the real reason his father stayed in hospital too long.
  12. I do not agree. The discussions between the Council and health colleagues started in May 2019. I would not expect them to have started much sooner because the clinical advice was against such a move. It was only once the risk/OT assessments had confirmed it was possible (subject to a successful trial), albeit with a high level of support, was the Council able to explore funding options.
  13. Funding was not agreed until September 2019, approximately 3 months later. While in some cases this may be considered to be clear evidence of maladministration, in this case I do not for the following reasons:
      1. The return home was contrary to clinical advice. This remained a concern for the professionals involved and contributed to the funding discussions being more difficult.
      2. The risk assessment was not signed off until shortly before the trial home leave started. This was an unusual situation and Mr X posed a number of risks both to himself and his carers. This risk assessment required input form many people and had to be adapted as Mr X’s condition changed and new issues arose.
      3. Any care package had to be backed up by an alternative contingency care arrangement. This also had to be arranged.
      4. Mr X did not have capacity and so under the Mental Capacity Act, best interest decisions had to be made. The Council was not obliged to facilitate his return home because Mr D insisted on it, particularly as there was some uncertainty as to whether Mr D had a registered Lasting Power of Attorney for his father.
      5. The return home was not straightforward because of the high level of supervision. This required an application to the Court of Protection. Again, this required other departments to be involved and further assessments to be completed.
      6. Mr D told the Council the package of care should be free under s117. The Council had to take legal advice on this matter. Again, this took some time to resolve.

Conclusion

  1. While decisions about funding did account for some of the delay in this case, because of the other complications, I would not expect these to be straightforward. Agreement to fund such a relatively expensive package, contrary to clinical advice, would require approval at a senior level.
  2. For this reason, I have not found fault in this case. While the discharge home took time to arrange, this was due to the exceptional circumstances of the case, rather than because of a dispute over funding.

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Final decision

  1. I have not found fault with the way the Council made arrangements for Mr X to be discharged from hospital. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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