Summary: We will not investigate Mr P’s complaint about arrangements for his wife’s discharge from hospital and his involvement in this as her carer. We are unlikely to find fault by the organisations, and further investigation of the complaint is unlikely to achieve more.

The complaint

1. Mr P complained about the actions of Devon County Council (the Council) and Torbay and South Devon NHS Foundation Trust (the Trust) in March 2021, when arranging his wife’s discharge from hospital. He said staff involved in the discharge arrangements were not aware of his rights as his wife’s registered carer and disregarded his views. He also said staff lied to his wife about whether he had changed the locks at home.
2. Mr P said he was frustrated and distressed that staff ignored his views and rights and this negatively impacted his wellbeing.
3. Mr P said he wanted the organisations to improve their services so frontline staff properly understand carers’ rights, and do not discharge patients into situations that are potentially dangerous to them and their family members.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. 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. If it has, they may suggest a remedy. (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the organisations.

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I have considered written evidence from Mr P including his complaint documentation and his correspondence with the Council and Trust. I have also considered relevant law and guidance.
8. I shared a draft of this decision with Mr P for his consideration and comments, and took his comments into account before issuing my final decision.

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What I found

Relevant law and guidance

9. The National Institute for Health and Care Excellence has issued guidance on “Transition between inpatient hospital settings and community or care home settings for adults with social care needs” (NG27 2015). This says NHS organisations and local authorities should make sure that, where the patient agrees, the views of family members and carers are included in discharge planning.
10. The Mental Capacity Act 2005 applies to people who may lack the mental capacity to make certain decisions. One of its key principles is that every adult has a right to make their own decisions and must be assumed to have capacity unless it is proved otherwise.
11. The Data Protection Act 2018 sets out the data protection framework in the UK, alongside the UK General Data Protection Regulation. These legal frameworks cover how patient data must be looked after and processed.
12. The NHS Guide to Confidentiality in Health and Social Care (issued in 2013, updated February 2022) says health professionals should establish with the patient what information they want to be shared, with whom, and in what circumstances. It says confidential information should be shared with the patient’s carer when the patient has given explicit and informed consent. It also says a patient may decide to withdraw their consent.
13. The General Medical Council (GMC) guidelines for medical professionals say professionals should listen to a patient’s carer as the information could help with the patient’s care. However, the guidance also says if the patient does not give their consent to share information about them, medical professionals cannot discuss the patient’s care or treatment with their carer, or tell the carer whether they plan to do anything with the information they have provided.

What happened

14. Mrs P went into hospital in March 2021 after a fall due to excess alcohol consumption. At that time Mrs P lived at home with her husband Mr P. The hospital noted she was alcohol dependent and had been admitted for a detox programme around one year before.
15. Mrs P stayed in hospital until 31 March. During that time Mr P, as her registered carer, contacted the hospital and social services to say he was unable to cope with Mrs P at home anymore. He said he wanted her to be reviewed by mental health professionals in hospital. He said he would not be able to have her back home and he was going to change the locks on the property. However, Mrs P was discharged on 31 March to her home address and was unable to gain access as Mr P had changed the locks. Mr and Mrs P are now estranged.
16. Mr P complained to the hospital. He said staff had ignored his rights as his wife’s registered carer, with a Carer’s Passport. He said the Carer’s Passport said he had the right to information and advice about his wife, he should be treated as an expert when discussing his wife and her care, and he should receive the necessary support at the earliest opportunity. Mr P said he was not given information about his wife being discharged to their home address, and the organisations did not take his views into account.
17. Mr P asked why his wife was discharged when staff knew she would not be able to access her home. He said staff lied to his wife about whether he had changed the locks. He also asked why his wife did not receive a psychiatric assessment on the ward.
18. The Trust responded to Mr P’s complaint in August 2021. The Council then responded in October 2022, after Mr P had complained to the Ombudsmen.
19. Both organisations said they could not respond to specific complaints from Mr P about his wife’s care, as they did not have Mrs P’s consent to share information with him. The organisations said they would explain the processes staff followed in more general terms, to try to answer the issues Mr P raised.
20. The Trust said it recognises the important role of carers, and staff must also respect the wishes of the patient in terms of what information is shared and with who. It said if a carer contacts the Trust, staff will check with the patient whether they consent to the carer receiving information. If the patient has capacity and does not give their consent, staff cannot share information with the carer even if they have a Carer’s Passport.
21. The Trust said if a carer raises concerns with the clinical team(s) looking after the patient, staff will record this information and will take it into account during care planning. The Trust said social care staff can provide advice when a patient’s social circumstances outside hospital are complex. It said the Trust cannot get involved in civil disputes between joint homeowners, and it would advise the people involved to take legal advice. Lastly, the Trust said it has access to a Psychiatric Liaison Team and they will provide psychiatric assessments on the wards when needed.
22. The Council’s response made similar points. It said when planning a person’s hospital discharge, staff will consider whether the person can make decisions for themselves. If they can, staff will follow that person’s wishes, including about information sharing. The Council said any requests for information from family members and/or carers must be authorised by the patient if the information is to be shared.
23. The Council said it recognises the important role of carers, and it encourages carers to share any concerns they have with the multi-disciplinary team involved with the patient so staff can consider this as part of discharge planning. The Council said it could not intervene in disputes between homeowners as this is as a civil dispute issue.
24. The Council said as a result of Mr P’s complaint it would arrange for the Complex Discharge Services to receive additional training about support for carers and about the role of the Carer’s Passport.

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Analysis

25. I have carefully considered all the evidence, including Mr P’s accounts of events and the records from the Council and Trust. It is clear Mr P feels very strongly about this matter and has suffered distress and upset.
26. The Trust and Council appear to have answered Mr P’s complaint as fully as they can. There are limitations on the information they can share with Mr P in responses to the complaint due to a lack of consent from Mrs P to information sharing. It is my view that the organisations have tried to respond to Mr P as fully as they can, setting out the processes staff follow in a situation like this.
27. The Trust and Council responses indicate they acted in line with relevant law and guidance on mental capacity, information sharing, hospital discharge planning and carer involvement. A close family relationship and/or being a formal carer does not give an automatic right to receive information about a person. If a person has capacity and withdraws their consent for information to be shared with a carer, staff cannot do so.
28. I have not seen any indications of fault by the organisations in the way they handled these events. The Council took action as a result of the complaint, in providing additional training about support for carers and the role of the Carer’s Passport. I do not consider we would be able to achieve more by investigating Mr P’s complaint, particularly as we would face the same difficulty of being unable to share or refer to any information about Mrs P as she has not given her consent. This would place very significant limitations on what we could investigate. Also, we would not be able to address Mr P’s complaint that staff lied to Mrs P about whether he had changed the locks, as we would need to refer to Mrs P’s medical records in our investigation decision, which we do not have consent to do.
29. Based on the above, we are unlikely to find fault by the organisations and we are unlikely to be able to add anything to the investigations already carried out.

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Final decision

30. We will not investigate Mr P’s complaint about arrangements for his wife’s discharge from hospital and his involvement in this as her carer. We are unlikely to find fault by the organisations, and further investigation of the complaint is unlikely to achieve more.

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Investigator's decision on behalf of the Ombudsman