Summary: The Council correctly assessed Mrs C’s adult social care needs to facilitate her discharge from hospital, considering her wishes and those of family and professionals involved. The Council followed law and government guidance. The Council failed to respond to the complaint in line with its published procedures; it will apologise, and its complaint team will ensure to follow its procedure and update complainants as required.

The complaint

1. The complainant, who I will call Mrs B, says the Council did not properly assess her mother (Mrs C’s) needs when arranging her discharge from hospital. The Council would not consider one move to residential care, despite the family and a medical professional considering this was in Mrs C’s best interests. The Council did not deal adequately with her complaint as it failed to address all her concerns and delayed responding. The Council did not provide the care home with information to understand and meet Mrs C’s needs.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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

4. I considered:
• Information provided by Mrs B, including during a telephone conversation.
• Information provided by the Council in response to my enquiries.
• The Mental Capacity Act 2005 and associated statutory guidance.
• The Care Act 2014 and associated statutory guidance.
• I shared a draft of this statement and considered the responses from Ms B and the Council.

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What I found

5. Mrs C lived at home with her partner. Mrs C went into hospital; the Council was involved with assessing the support she would need when she left hospital.

What should happen

Hospital discharge

6. Schedule 3 to the Care Act 2014 and the Care and Support (Discharge of Hospital Patients) Regulations 2014 make provisions on the discharge of hospital patients with care and support needs.
7. The NHS must issue a notice to the local authority where it considers an NHS hospital patient receiving acute care may need care and support as part of a transfer from an acute setting. The NHS should try to give the local authority as much notice as possible of a patient’s impending discharge.
8. On receiving an assessment notice, the local authority must assess the person’s care and support needs and (where applicable) those of a carer to decide whether it considers the patient and carer have needs. The local authority must then decide whether any of these identified needs meet the eligibility criteria. If so, it should confirm how it proposes to meet any of those needs. The local authority must tell the NHS of the result of its assessment and decisions.
9. The local authority must carry out a needs assessment and put in place any care arrangements for meeting eligible needs before “the relevant day”. The relevant day is either the date when the NHS proposes to discharge the patient or the minimum period (2 days after the local authority has received the assessment notice), whichever is the later.
10. The NHS body should tell patients and carers the discharge date at the same time as or before the local authority. Hospital staff may give the local authority an early signal of when discharge is likely to help their planning.

Discharge to assess

11. NHS England recommends when people are ready to be discharged from hospital, wherever possible they should be supported to return to their home for assessment. It says implementing a discharge to assess model where going home is the default pathway, with alternative pathways for people who cannot go straight home, is more than good practice, it is the right thing to do. Assessment for longer term care and support needs is then undertaken in the most appropriate setting and at the right time for the person.
12. The Council follows this discharge to assess model and will always look to arrange discharge to the person’s own home or a temporary ‘step down bed’ at a care home with rehabilitation and reablement. The Council can then assess the person’s needs away from the acute hospital setting and get a more accurate picture. It also means people do not have to make decisions about long term residential or nursing care while they are in crisis.

Mental Capacity Act

13. 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 (and the Code of Practice 2007) 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.

Mental capacity assessment

14. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

• because he or she makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

15. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
16. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

17. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
18. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the court of protection might need to decide if a person has capacity to make the decision.

Best interest decision making

19. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
20. Section 4 of the Act provides a checklist of steps that decision makers must follow to decide what is in a person’s best interests. The decision maker also must consider if there is a less restrictive choice available that can achieve the same outcome.
21. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the court of protection might need to decide what is in the person’s best interests.

Complaint procedure

22. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. The Council should say in its response to the complaint:

• how it has considered the complaint; and
• what conclusions it has reached about the complaint, including any matters which may need remedial action; and
• whether the responsible body is satisfied it has taken or will take necessary action; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

23. The Council’s procedure is to acknowledge complaints within three working days. Within ten working days from the acknowledgement the Council will contact the complainant to offer to discuss the complaint.
24. The Council will complete its investigation within six months. The Council should keep the complainant informed of progress. At the end of the investigation the Council should provide the complainant with a written outcome giving their right to come to the Ombudsman. The Council should give the complainant the opportunity to comment on the outcome and any decision reached; they should let the Council know within a set period (usually ten working days) if the complaint, or any element of it, remains unresolved. After the set period, provided the complainant has not suggested the matter remains unresolved, the Council will end it.
25. If the complainant is not satisfied the Departmental Representative will review the case. They will assess whether the Council’s response is proportionate and fair and whether there is anything further the Council should do. The Departmental Representative should write to the complainant giving the outcome.

What happened

26. The hospital contacted the Council with an early warning that Mrs C would need some support to be discharged, even though there was no discharge date planned then. The Council completed an assessment that Mrs C would go home, supported by four care calls per day. The Council presumed Mrs C had capacity to decide about her discharge, as she could retain information. The Council says the family agreed to the discharge home.
27. Mrs B says when the care workers came the first night to help Mrs C to bed, Mrs C refused. Mrs C’s partner called Mrs B later that night because he could not get Mrs C to co-operate and he did not know what to do. Mrs B and her sister went over and helped Mrs C to bed. It was a difficult couple of nights for Mrs C’s partner as she was getting out of bed and getting aggressive if he tried to help her.
28. Two days after returning home, Mrs C collapsed and returned to hospital. A sudden drop in blood pressure caused the collapse.
29. The hospital told the Council it thought it was unlikely Mrs C could return home, and that she would likely need an assessment in a ‘step down’ care home bed. The hospital made a referral for an assessment bed, but no care home would accept Mrs C because of her challenging behaviour.
30. An NHS employee assessed Mrs C and she told him she wanted to go home, as did her partner. The NHS worker may have said it was possible for Mrs C to return home. The Council then assessed Mrs C, they found her confused and unable to assess or retain information. Both Mrs C and her partner said they wanted her to go home. Mrs B arrived and was upset to hear they were discussing Mrs C's discharge. The Council officers spoke with Mrs B, with Mrs C's consent. Mrs B said Mrs C’s hospital Doctor thought she should be discharged to a care home. The Council said as there was disagreement between Mrs C/her partner and the family/Doctor about what was best they would arrange a multi-disciplinary meeting. They would also arrange for further hospital assessments to help aid the decision about Mrs C’s hospital discharge.
31. The multi-disciplinary meeting took place, including Mrs C, her partner, Mrs B and other family members and representatives from the Council and the hospital. Though two hospital staff that were invited failed to attend. The outcome was the Council would seek a temporary care home placement for a period of further assessment. The Council would also chase the hospital for information it had previously requested. This was not the outcome Mrs B wanted, she wanted Mrs C to go straight to a residential care home, as confirmed by the Doctor. The period of further assessment fits with the ‘discharge to assess’ model and the Council considered was in Mrs C’s best interests.
32. The family identified a care home and the Council agreed for Mrs C to go there for a period of further assessment. It then came to light that Mrs C had finances above the threshold and could fund her own care. Mrs B had power of attorney for finances. The Council discussed the situation with Mrs B and agreed Mrs B would arrange directly with the care home for Mrs C to be discharged there. The Council would then carry out a further assessment to decide on long term care needs.
33. The care home assessed Mrs C and accepted her as a resident. Mrs B says Mrs C lived there for four weeks, in that time she had several falls, Mrs B says one of which resulted in Mrs C’s death. Mrs B questions whether the care home was suitable.
34. Mrs B made a complaint to the Council about the discharge planning and the suitability of the care home. The Council acknowledged the complaint within its timescale. There is no evidence it offered to discuss the complaint with Mrs B. The Council completed its investigation and gave Mrs B the outcome within six months. Mrs B asked for the matter to be reconsidered, the Council’s Departmental Representative failed to respond to Mrs B; she had to chase the Council for its final response.

Was there fault causing injustice?

35. It was not fault for the Council to assist Mrs C with going home from hospital, that was her wish and the wish of her partner, and Mrs C was entitled to make that decision even if other’s think it was unwise. The Council also must consider the least restrictive option, and going home with a care package would be the least restrictive option for Mrs C. It was not fault the care workers did not get Mrs C into bed, it was her decision at the time of the care call not to be helped to bed. I appreciate this put stress on her partner and children, as did her behaviour overnight, but that is not through fault of the Council.
36. When the Council assessed Mrs C in hospital the second time, they found her confused and unable to assess and retain information. This is not evidencing the Council ‘got it wrong’ the first time. Capacity is time and decision specific, in the interim Mrs C’s health had declined, hence her second hospital admission. As Mrs C did not have capacity to decide where to go on hospital discharge, and there was disagreement about what was best, the Council was correct to arrange a best interest meeting with relevant professionals and family.
37. The Council considered the views of Mrs C, her partner, Mrs B and the Doctor, as well as the ‘discharge to assess’ model, when deciding the best course of action for Mrs C’s discharge from hospital. Although Mrs B disagreed with the Council’s decision for further assessment at a care home rather than a permanent move, there is no reason for me to criticise the decision as the Council followed the correct process, and government guidance, to make its decision.
38. While seeking a placement it came to light that Mrs C could fund her own care for a period. The Council spoke with Mrs B who had power of attorney for finances, so was willing and able to arrange the placement. It was therefore not fault for the Council to leave Mrs B to make those arrangements. Where someone makes a private arrangement the care home will assess the potential resident to decide whether they can meet their needs and will produce a care and support plan for the individual. The Council is not involved in that process, unless specifically asked. It was not asked in this case.
39. The Council was not responsible for the care provided by the care home to Mrs C, as that was a private arrangement. The Council has completed a safeguarding enquiry which identified failings and made appropriate recommendations to improve practices.
40. The Council did not deal with the complaint in accordance with its published complaint procedure. The Departmental Representative failed to respond at the final stage, which meant Mrs B had to chase the Council for its response.
41. Mrs B comments there was information that the Council did not share with the family at the time, which would have given them greater understanding and less stress. The process could have been more efficient with better communication. Although the Council’s focus is getting the best outcome for the individual concerned, if it takes time to explain what is happening to the person’s support network then things can run more smoothly and complaints can be avoided. The Council should consider these comments and look at the learning from this complaint.

Agreed action

42. To recognise the impact of its fault and prevent future problems, the Council will:
1. Apologise to Mrs B for delaying the final response to her complaint.
2. Remind the complaints team to diarise chasers and updates to avoid the need for complainants to chase.
43. The Council should complete the above actions within one month of the final decision, and evidence its compliance to the Ombudsman.

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Final decision

44. I have completed my investigation on the basis the agreed actions are enough to acknowledge the impact of the Council’s fault.

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Investigator's decision on behalf of the Ombudsman